MAFUSIRE J:This is the judgment in the interlocutory application by Efrolou
[Private] Limited, Plaintiff in the case under reference number HC 1816/10, and
First Defendant in the case under reference number HC 3285/10 [hereafter
referred to as “Efrolou”]
Efrolou's interlocutory application aforesaid sought an order granting an
amendment to its plea in the claim by one Mrs Muringani under HC3285/10. The
amendment sought to incorporate the special plea of prescription.
The facts of the matter are that on 24 March 2010, Efrolou issued a
summons under HC 1816/10 against Mrs Muringani for her eviction from premises
known as Lot 4 of Lot 9 of Chicago situate in the district of Que Que [“the
property”].
The basis of the claim by Efrolou against Mrs Muringani, as pleaded in its
declaration, was that Efrolou was the owner of the property which it had bought
at an auction sale in 1996 following a judgment against Mrs Muringani's late
husband; that Efrolou had obtained title to the property on 14 May 1999 under
deed of transfer number 2421/99 and that despite Efrolou's notice to her on 31
March 2010 Mrs Muringani had refused or neglected to vacate the property.
Mrs Muringani defended the claim. From her plea the defence was that Efrolou
was not the lawful owner of the property; that Efrolou had obtained the title
to the property fraudulently; that as the lawful beneficiary to the estate of
the late Mr Muringani she had the right; title and interest in the property;
that she had issued a summons against Efrolou and its directors to have the
property transferred back to her late husband's estate and that she was entitled
to occupation of the property until the dispute was resolved.
Mrs Muringani's plea in HC 1816/10 was filed on 18 May 2010. The day before,
i.e. on 17 May 2010, Mrs Muringani had issued a summons under the name Emily
Ntombizodwa Luwaca in HC3285/10 jointly against Efrolou, the Registrar of
Deeds, Bulawayo, and the Messenger of Court, Kwekwe.
In her summons and declaration in HC 3285/10 afore said Mr Muringani sought
an order setting aside the transfer of the property to Efrolou from her late
husband, one Anthony Anesu Muringani [hereafter referred to as “the
deceased”]. She also sought an order directing the Messenger of Court,
Kwe Kwe, to sign all the necessary transfer papers.
In her declaration in HC 3285/10 Mrs Muringani alleged that the property had
been illegally transferred by the Messenger of Court to Efrolou; that the
deceased had not been aware of the purported sale and transfer; that the
transfer bordered on fraud and that the Messenger of Court was not supposed to
have made the transfer,.
Efrolou opposed Mrs Muringani's claim. In its plea filed on 15 June 2010
Efrolou essentially repeated the allegations in its declaration under HC
1816/10 that it had bought the property from an auction sale and had
subsequently obtained title on 14 May 1999. It further alleged that there had
been nothing illegal or improper about the sale; that the deceased must have
known about the sale in execution and the subsequent transfer and that Mrs
Muringani had not laid out any basis upon which the transfer of the property
should be set aside.
The parties had subsequently filed further pleadings in the two matters. On
1 February 2011 the two matters had been consolidated at a pre-trial conference
and had been referred to trial on three issues, namely:
[1] whether
the purchase [of the property] by, and the subsequent transfer to Efrolou was
tainted by fraud,
[2] whether
the transfer should be set aside,
[3] whether
Efrolou was entitled to eviction,
On 26 November 2012 Efrolou filed a document titled Notice of Amendment in
terms of Rule 132 of the High Court Rules. This was to amend its plea to
include the plea of prescription. In essence it was alleged that Mrs
Muringani's claim had become prescribed; that the sale in execution had taken
place in 1996; that transfer had been effected as far back as 1999; that it had
been more than three years since that transfer and that in terms of the
Prescription Act the claim had become prescribed.
The matter, as consolidated, came up for trial before me on 18 March 2013.
Mrs Muringani was no longer represented. The two records were not in order. I
adjourned the matter to 8 April 2013 to enable Efrolou to sort out the record
and to allow Mrs Muringani to respond to the notice of amendment.
When the trial resumed on 8 April 2013 Mrs Muringani was now represented. I
heard argument on the propriety of Efrolou's notice of amendment and the merits
of the new defence of prescription.
Very briefly, Mrs Matshiya, for Efrolou, submitted that a party to
the proceedings may amend its pleadings at any time before judgment if the
amendment does not cause prejudice to the other party; that Efrolou was
entitled to amend its plea as there would be no prejudice to Mrs Muringani;
that the registration of transfer of the property by the registrar of deeds on
14 May 1999 was constructive notice to the whole world, including the deceased
and Mrs Muringani that title in the property had duly passed to Efrolou and
that it was now too late for Mrs Muringani to try and have the transfer reversed.
Mr Manyurureni accepted that a party can amend its pleadings at any
time before judgment if this does not cause prejudice to the other party.
However he submitted that according to Mrs Muringani, neither she nor the
deceased had been aware of the sale of the property; that the sale had been “fictitious”,
the transfer documents “fictitious” and the resultant transfer
fraudulent.
Mr Manyurureni further submitted that Mrs Muringani was challenging
the authenticity of the court judgment that preceded the sale in execution, the
authenticity of the transfer documents signed by the messenger of court and the
authenticity of the distribution schedule that the messenger of court had
prepared showing, among other things, that after payment to his creditors the
deceased had been paid the balance of the purchase price, amounting to $137
327-28.
In terms of Order 20 Rule 132 the court or a judge may at any stage of the
proceedings allow a party to alter or emend its pleadings. The alteration
should be on such terms as may be just and for the purpose of determining the
real question in controversy between the parties. The Rule is worded as
follows:
“132. Court may allow amendment of pleading
“Subject to rules 134 and 151, failing consent by all parties, the court
or a judge may, at any stage of the proceedings, allow either party to alter or
amend his pleadings, in such manner and on such terms as may be just, and all
such amendments shall be made as may be necessary for the purpose of
determining the real question in controversy between the parties.”
The general rule is that an amendment of a pleading in an action will always
be allowed unless the application is mala fide or the amendment would
cause an injustice or prejudice to the other side which cannot be compensated
by an order of costs; see Commercial Union Assurance Co Ltd v Waymark NO
1995 [2] SA 73; UDC Ltd v Shamva Flora [Pvt] Ltd 2000 [2] ZLR 210 [H].
The court has a wide discretion to grant or refuse an amendment. The
discretion has to be exercised judiciously.
In the UDC Ltd v Shamva Flora [Pvt] Ltd case above CHINHENGO
J, whilst pointing out that the approach of our courts is to allow amendments
quite liberally, went on to add that this liberal approach is affected where,
among other things, there is no prospect of the point raised in the amendment
succeeding.
In the present case the point raised in the notice of amendment is not mala
fide. If it succeeds it will virtually decide the case in HC 3285/10. If
Mrs Muringani's claim is prescribed, then she cannot persist with seeking a
reversal of the transfer.
I do not see any prejudice as would be caused by allowing the amendment as
such. Mr Manyurureni has not pointed out any. That if the point of the
amendment succeeds will put paid to Mrs Muringani's claim is not such prejudice
as will stem from the amendment itself.
The defence of prescription was available when Efrolou filed its main plea
on 15 June 2010. No meaningful explanation has been given why it was not
pleaded at that time. In terms of Rule 119 the defendant is required to file
his plea, exception or special plea within ten days of the service of the
plaintiff's declaration. Mrs Muringani's summons and declaration having been
served on 19 May 2010, the special plea of prescription having been filed on 26
November 2012 it means there has been a delay of over 30 months.
However, it cannot be the position that because the special plea was not
raised then it cannot be raised now. It has not been suggested that Efrolou
waived its right to raise it or that it is now barred from doing so. At any
rate in terms of Rule 4C [a] a court or judge may condone a departure from any
provision of the Rules where this is required in the interest of justice. I
will allow the amendment.
As pointed out already, I heard argument on the merits of the special plea.
In terms of s15 of the Prescription Act, [Cap 8: 11], a debt other
than one secured by a mortgage bond, or a judgment debt, or a tax debt under an
enactment or one owed to the state in the circumstances prescribed by that
section, or a debt arising from a bill of exchange, becomes prescribed after
the lapse of a period of three years.
In terms of s16 of the Prescription Act, prescription begins to run as soon
as the debt is due.
The term “debt” is defined in section 2 to include anything which
may be sued for or claimed by reason of an obligation arising from statute,
contract, delict or otherwise. In this case Mrs Muringani's claim for a
reversal of the transfer that was registered on 14 May 199 is plainly a debt.
It is any other debt. Therefore the applicable period of prescription is three
years.
Mr Manyurureni submitted that Mrs Muringani's claim has not
prescribed because she became aware of the judgment against the deceased, of
the sale in execution and of the subsequent transfer only in 2008 when Efrolou
initiated moves to evict her from the property. He further submitted that Mrs
Muringani having issued her summons in 2010, the period of prescription had not
completed.
In terms of s19 of the Prescription Act, the running of prescription is
interrupted by the service on the debtor of any process by the creditor
claiming the debt. Thus if Mrs Muringani's summons for the reversal of the
transfer had been served on Efrolou within the three years of her becoming aware
of the transfer then the running of prescription would have been interrupted.
Section 16[3] of the Prescription Act provides that a debt shall not be
deemed to be due until the creditor becomes aware of the identity of the debtor
and of the facts from which the debt arises.
In my view Mrs Muringani became aware of the transfer of the property from
the deceased's name to Efrolou in 1999 when transfer was registered. Apart from
the fact that Efrolou maintains that the property was sold by public auction following
a court judgment, in terms of which, among other things, the sale in execution
would have been advertised to the public, the transfer was registered by the
registrar of deeds, a public official, through the deeds office, a public
office.
Section 14 of the Deeds Registries Act, [Cap 20:05], provides that
the ownership of land may be conveyed from one person to another only by means
of a deed of transfer executed or attested by the registrar.
Registration of title in the deeds office is a transfer of real rights in a
property from one person to another. The transferee becomes the owner of those
rights in the property. He or she can now enforce his or her rights against the
whole world. The registration of transfer is constructive notice to the whole world
of the change of ownership. HARRY SILBERBERG The Law of Property,
Durban Butterworths, 1975, at p 67, says:
“The registration of a real right protects its holder and the public
alike. As far as the former is concerned, he is entitled to rely on the doctrine
of constructive notice which means that every person is deemed to have
knowledge of the existence of a duly registered real right. In other words,
once a real right has been registered it becomes enforceable against the world
at large, provided only that it has been obtained in good faith. Conversely,
every member of the public is – subject to certain exceptions – entitled to
rely on the deeds register being correct”
At pages 67 – 68 the learned author criticises HOEXTER JA for seemingly
contradicting himself on the point in his judgment in Frye's [Pty] Ltd v
Ries 1957 [3] SA 575 [AD]. In that judgment the learned judge of appeal
seemed to accept in one instance that the registration of title in the deeds
office is intended to protect the real rights of those persons in whose names
such rights are registered and that such are maintainable against the whole
world. However, in another instance the judge dismissed the defendant's
reliance on the doctrine of constructive notice holding that “… that does
not mean that every person in the world must be deemed to know the ownership of
every real right registered at the Deeds Office.”
SILBERBERG respectfully submits that this is exactly what the doctrine of
constructive notice does mean. I agree.
There is also another basis for upholding the special plea of prescription.
In her claim for a reversal of the transfer in HC 3285/10 Mrs Muringani does
not sue in her individual capacity. She sues in her capacity “As the
Executrix Dative in the Estate of the Late Anthony Anesu Muringani”.
Therefore, it does not really matter when she herself became aware of the
change of title. It is the knowledge of the deceased that matters.
Apart from the doctrine of constructive notice I am satisfied that the
deceased was actually aware, or ought to have been actually aware of the
transfer. That aspect was ventilated during argument. Among other things, there
was a judgment against him which appears not to have ever been challenged. That
judgment had been followed by an auction of the property. The only challenge
that was mounted by the deceased seems to have been in relation to the auction
price.
The deceased seems to have succeeded in that challenge because the
magistrate had subsequently directed a sale by private treaty for a higher
amount. That had been done. The revised purchase price had subsequently been
paid and distributed amongst the deceased's creditors. The balance amounting to
82% had been remitted to the deceased.
The bid price at the auction had been $120 000. The sale by private treaty
had been in the sum of $160 000. The messenger of court's schedule of
distribution to the creditors had been on 18 September 1997. As pointed out
already, the transfer was on 14 May 1999.
The above facts are virtually common cause. Just before the commencement of
the trial, that is to say on 12 March 2013, Mrs Muringani filed a supplementary
synopsis of evidence. In it she stated that she had had sight of the documents
relating to the sale of the property. She went on to narrate the sequence of
events in some detail. She covered the above points.
Mrs Muringani approach was to doubt the series of the events and the
transactions starting with the court judgment right up to the transfer. She
denied that the deceased had received the balance of the purchase price. She
alleged that the transfer was “tainted with fraud”.
I am mindful of the fact that the aspect of fraud is one of the issues for
trial. I did not canvass it in any greater detail during the interlocutory
application. However, I am satisfied that even ex facie the documents
in these two consolidated matters, Mrs Muringani's claim has become prescribed.
To accept her argument to the contrary I would need to ignore the judgment that
was never rescinded; I would need to believe that the sale in execution never
happened; I would need to ignore the subsequent sale by private treaty; I would
need to ignore the fact that that sale had subsequently been confirmed and I
would need to believe that Efrolou had never paid the full purchase price
despite the documents to the contrary. That would be stretching it too far.
Even from her own documents it appears that the transfer documents were
signed by the messenger of court who went on to prepare a schedule of
distribution from which the deceased 82% of the sale proceeds. However, in
argument it was submitted that the transfer was fraudulent.
Prescription goes to the root of a claim or defence. In terms of Rule 137 it
is a special plea in bar. It is taken where the matter is one of substance
which would not involve delving into the merits of the case. If a special plea
is allowed it disposes of the case.
I will allow the plea of prescription on the merits. In the premises Mrs
Muringani's claim in HC 3285/10 is hereby dismissed.
However, her claim having been consolidated with HC 1816/10 the costs in
respect of the issue of prescription in HC 3285/10 shall be costs in the cause
in HC 1816/10.
Mtetwa & Nyambirai,plaintiff's legal practitioners [1st
defendant's legal practitioners in HC 3285/10]
Manyurureni & Company,defendant's
legal practitioners [plaintiff's legal practitioners in HC 1816/10]
