The Finer Points of a Nulla Bona Return
![handle is hein.journals/jutbusil13 and id is 174 raw text is: VOL 13 PART 4
Alastair Smith
The finer points
of a nulla bona
return
A recent Zimbabwean decision
considered
The recent decision of NMB Bank Ltd v
Selemani [2005] JOL 14034 (ZH) in the High
Court of Zimbabwe concerned a lawyer in
financial trouble. In deciding whether to
confirm a provisional order of sequestration
against Selemani, Uchena J had to consider two
issues:
the legality of the provisional sequestration
order based on a nulla bona return, and
* the justification for the court's exercising its
discretion against confirming the provisional
order.
These were the facts. The bank took default
judgment against Selemani for Zim $50 million
with interest and collection commission. When
the sheriff tried to execute the resultant writ of
execution against Selemani at his offices, the
return of service stated (see at 1):
'Served personally on defendant who
advised that he has no assets. The computer
is for HDB Management, office desks are for
Chitepo Law Chambers (nulla bona)'.
The bank's attorneys then relied on this
nulla bona return in seeking the provisional
sequestration of Selemani's estate. He did not
oppose this application, and on the return day
the provisional order was extended and the
case postponed to 27 October 2004. On that
day the court learnt that, on the day before,
Selemani had deposited $54 million with the
bank's lawyer, $50 million to pay the capital
debt and the remaining $4 million to pay the
bank's costs. As the bank could not immediately
calculate whether this remaining amount would
cover the relevant costs, its lawyers sought a
postponement to 3 November.
The legality of the provisional sequestration
order
As regards the first issue, counsel for Selemani
attacked the basis for granting the provisional
sequestration order. The warrant of execution
concerned movable property only. As the sheriff
had not asked about Selemani's immovable
property, it was argued, the act of insolvency
based on a nulla bona return had not been
established (s 11(b) of the Insolvency Act
[Chapter 6:04] in Zimbabwe; compare s 8(b) of
the Insolvency Act 24 of 1936 in South Africa).
In this regard, counsel for Selemani referred to
the discussion of the term 'disposable property'
in Hockly's Insolvency Law 6 ed by Robert
Sharrock, Elmarie de la Rey, Kathleen van der
Linde & Alastair Smith (1996) 27:
'The term disposable property means any
property which may be attached and sold
in execution, even if it is situated in some
other locality (Laver v Olivier 1953 (2) SA
437 (T)). It includes both movable and
ISSN 1021-7061](ViewImageLocal?handle=hein.journals/jutbusil13&div=48&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
The Finer Points of a Nulla Bona Return
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most