The plaintiff has, apart from the fourth (Emmanuel Zvarevadza) and fifth (Darikai Butsa) defendants, been involved in legal combat with all the other parties in HC2765/05, Misheck Zvarevadza (first defendant), Dadirai Moses (second defendant), Shadreck Zvarevadza (third defendant), Cobra Security (Pvt) Ltd (sixth defendant), Controller of Private Investigations and Security Guards (seventh defendant), Ministry of Home Affairs (eighth defendant), and, Registrar of Companies (ninth defendant).

In HC4096/96 he brought an application for his reinstatement as a director in the sixth defendant against the sixth defendant. He was reinstated. The sixth defendant got its act together and dismissed him as a director on 24 September 1996. He brought another application seeking reinstatement in HC4157/97. It was contested. BARTLETT J dismissed that application with costs on 17 September 1997.

The founding affidavit that launched the present matter is a carbon copy of the application he filed in HC2765/05 that he withdrew in June 2006.

The present matter was set down on the opposed roll for hearing on 25 January 2011 where PATEL J directed as follows:

1. There are disputes of fact which cannot be resolved on the papers.

2. Accordingly, it is ordered that the matter be referred to trial for determination on the basis of viva voce evidence as follows:

(a) The founding papers shall stand as summons commencing action and the opposing papers as notice of appearance to defend by first to sixth defendants;

(b) The applicant/plaintiff is directed to file his declaration on or before 8 February 2011 and the matter shall proceed thereafter in accordance with the Rules of Court.

(c) The costs of this application to date shall be costs in the cause.

The plaintiff merely turned the founding affidavit into a declaration and substituted all reference to the applicant and respondent by the plaintiff and defendant.

The plaintiff's declaration aptly fits into the description made by MAKARAU JP…, in Mwanyisa v Jumbo & Ors HH03-10…, cited with approval by MAWADZE J in Morris v Morris & Anor HH71-11…, as “a dog's breakfast.”

The six defendants' requested for further particulars; some of which were supplied.

On 1 April 2011, the defendants raised special pleas of res judicata and prescription and pleaded over the merits. The matter was referred to trial at the pre-trial conference held on 14 June 2011. The six issues referred to trial were:

1. Whether or not the plaintiff's claim is prescribed;

2. Whether or not the plaintiff's claim was determined by a competent court and is therefore res judicata;

3. If the matter is res judicata, whether the plaintiff is entitled to the relief sought;

4. Whether the second to fifth defendants are legitimate directors of the sixth defendant;

5. Whether the plaintiff is entitled to shares in the sixth defendant, and, if so, how many shares or what fraction or proportion of shares?;

6. Whether CR14 forms filed with the ninth defendant, dated 7 January 2003 and 14 September 2007, signed by the second defendant and fifth defendant respectively, should be nullified.

Only the first three issues arise for determination from the special pleas raised. I deal with the special pleas in the manner that they were argued.

Counsel for the defendants submitted that the question of the plaintiff's directorship in the sixth defendant was finally and definitively determined in HC4151/97 where the plaintiff's application for reinstatement as a director was dismissed. Counsel for the plaintiff counter-submitted that the dismissal was with respect to the plaintiff's executive and not the non-executive directorship.

It is clear from HC4151/97 that the plaintiff's prayer for reinstatement as a director was dismissed with costs. His dismissal was in accordance with article 17 of the Articles of Association of the sixth defendant. He was appointed director in terms of the Articles of Association and was dismissed from that position in terms of the self same articles. The appellation of executive or non-executive was irrelevant to his dismissal.

That the plaintiff was aware that he had been dismissed was clear from paragraph two of his declaration in which he stated that:

“The plaintiff is now a shareholder and a member of the sixth defendant through the first defendant's acts of fraud (sic).”

In paragraph thirteen of the declaration he contradicts this averment by declaring that he was still a director of the sixth defendant in July 2004.

An authoritative discussion on the requirements of res judicata is set out by SANDURA JA in Banda & Ors v Zisco 1999 (1) ZLR 340 (S)…,. They are that a final and definitive judgment by a competent court has been issued between the same parties or their privies, concerning the same subject matter, and founded upon the same cause of complainant as the action in which the defence is raised.

In City of Mutare v Mawoyo 1995 (1) ZLR 258 (H)…, MALABA J…, stated that one of the exceptions recognised at common law is when a judgment or order has been obtained through fraudulent misrepresentation.

In the present matter, the plaintiff did not allege that the judgment was obtained through fraudulent misrepresentation. Rather, he pleaded that the first defendant removed him from directorship fraudulently. The facts upon which he based the averment were the same facts he pleaded in HC4151/97, though he used such words as “defective notice of meeting,” “no compliance” with sections of the Companies Act, and “legal nullity”.

I am satisfied that the issue of directorship between the parties was resolved by a competent court and was founded upon the same complaint in HC4151/97.

Counsel for the defendants further submitted that the issue of the plaintiff's shareholding was again determined by CHIWESHE J…, a competent court, on 27 September 2001, in HC12625/2000. Counsel for the plaintiff disputed the averment that the issue of shareholding was resolved in the High Court and submitted that an appeal was still pending in that matter.

The record of proceedings shows that the full reasons for the judgment only became available on 7 May 2007 because the Registrar did not place the request for reasons timeously before CHIWESHE J.

In that matter, the plaintiff sought access to certain documents in the possession of the sixth defendant on the basis that he was a shareholder. It was held that he had failed to establish his shareholding on the papers. He, however, noted an appeal to the Supreme Court on 11 October 2001 in SC288/01, which appeal is still pending. The record shows that a certificate certifying that the record was complete and ready for set down was signed by the appellant on 3 July 2008 and has not yet been signed by the other parties.

I agree with counsel for the plaintiff that the issue of the plaintiff's shareholding is not res judicata. Rather it is lis pendens.

The defendants also relied on prescription to non-suit the plaintiff.

It was common cause that the plaintiff was dismissed as a director on 24 September 1996. He became aware of his dismissal by 7 May 1997 when he filed HC4151/97.

The Prescription Act [Chapter 8:11] bears a wide definition of debt that includes the vindication of an obligation or right arising from statute, contract, delict or otherwise. In Evins v Shield Insurance Co Ltd 1979 (3) SA 1136 (W)…, KING J stated that:

“The word 'debt' in the Prescription Act must be given a wide and general meaning denoting not only debt sounding in money which is due, but also, for example, a debt for the vindication of property.”

Section 10(1) of the South African Prescription Act 68 of 1969 was worded in similar terms as section 14(1) of our Prescription Act [Chapter 8:11].

In Standard General Insurance Co Ltd v Veroun Estates (Pty) Ltd 1990 (2) SA 693 (A)…, GOLDSTONE AJA stated that:

“The Prescription Act, if one has regard to section 10(1), thereof, appears to have introduced throughout the concept of 'strong' prescription. It is expressly stated that after the lapse of the period, which, in terms of the relevant law, applies in regard to the prescription of a debt, such debt 'shall be extinguished'. As was pointed out by CORBETT JA (as he then was) in Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 842F, the lapse of the period of prescription 'extinguished' the debt and therefore also the right of action vested in the creditor.”

See also Lipschitz v Dechamps Textiles GmbH & Anor 1978 (4) SA 427 (C)…,.

In Zimbabwe, CHIDYAUSIKU J…, in Coutts & Co v Ford & Anor 1997 (1) ZLR 440 (H)…, stated of section 14 of our Prescription Act that:

“Thus, the clear intention of the legislature, as expressed in the above provision, is to make prescription a matter of substantive law as opposed to procedural law. The above provision clearly extinguishes the debt as opposed to merely barring the remedy. The wording of the exception to the provisions, namely, subs (3), puts the above interpretation beyond doubt.”

The right of the plaintiff to claim directorship was extinguished three years after he became aware of his dismissal from the directorship of the sixth defendant. The actual date was not pleaded, but, as the pleadings in HC4151/97 show, by 6 May 2000, his claim was extinguished by prescription.

Once extinguished it could not be revived by the filing of an erroneous CR14 form with the ninth defendant by officials of the sixth defendant on 30 June 2007.

The only claim of the plaintiff that is still alive is that based on his shareholding. It has not been extinguished by prescription. Section 7 of the Prescription Act shows that it is saved by the interruption of the pending appeal.

I, however, cannot determine that claim for two reasons;

(i) Firstly, an appeal is pending in HC12625/2000.

(ii) Secondly, the plaintiff did not claim his ownership of shares in the sixth defendant in the present matter.

The purported amendment filed of record was not moved and runs foul of the sentiments expressed in ZFC Ltd v Taylor 1999 (1) ZLR 308 (H)…, where GILLESPIE J stated:

“There is a practice prevalent, born of indolence and ignorance of the rules, whereby parties purport to effect an amendment of process and pleadings by the unilateral issue of a so-called 'notice of amendment.' One frequently finds in applications for default judgments that such notices have been issued after the default or bar, as the case may be, and are not even served upon the defendant. This is entirely unprocedural. There are only two possible methods of procuring an amendment to process or pleadings after the issue of summons. One is by consent of the parties and the other is by order of court.”

I, accordingly, uphold the special pleas of res judicata and prescription raised by the first to sixth defendants....,.

1. The special pleas raised by the first to sixth defendants be and are hereby upheld.

2. The plaintiff's claims be and are hereby dismissed.

The plaintiff in this matter seeks an order requiring the defendant to vacate Stands 322 and 324 in Beitbridge Township and pay holding over damages from the 1^st of April 2006 to the date of vacation.

The defendant avers that it is the lawful purchaser of both houses in terms of written agreements of sale and counterclaims for the transfer of the Stands.

The plaintiff disputes the validity of the agreements of sale and pleads, in any event, that the defendant's claim in reconvention has prescribed.

At the trial of this case, the first witness (Peter Lewis Bailey) was called by the defendant. At the conclusion of this witness's testimony, it was agreed by both counsel that there were no material disputes of fact and that no further evidence would be adduced by either party.

Background Facts

In February 1998, Peter Bailey was appointed as the plaintiff's liquidator. Subsequently, in October 1999, a Deed of Compromise (the Deed) was concluded with the creditors and Bubye Minerals (Pvt) Ltd, and, thereafter, sanctioned by this Court in Case No. HC15191/99 [Exhibit 1].

Under the Deed of Compromise, Bubye Minerals was to take transfer of all claims of the creditors against the plaintiff. By virtue of the Court order, Peter Bailey was appointed as agent of the parties; firstly, to effect the transfer of claims in terms of the Deed, and, secondly, in order to receive, administer, and make payments of all amounts payable to the creditors in terms of the Deed. The Court order operated to set aside the winding up of the plaintiff.

Peter Bailey testified that he was approached by Bubye Minerals to sell the two houses in Beitbridge to the defendant. Peter Bailey then authorised both sales which took place in September 2002. At that time, one of the houses was occupied by a third party who had been given notice to vacate by the plaintiff, while the other house was already occupied by the defendant as lessee.

Thereafter, the defendant paid the purchase price in cash and this was immediately transferred to Bubye Minerals. The money was to be used to continue the running of the plaintiff's mines and thereby generate more income for the benefit of all the creditors. Peter Bailey's evidence was that the agreements of sale [Exhibits 2A and 2B] were entirely open and above board. Moreover, there was no indication, at the time, that the parties did not intend the sale of the houses or that the sales should be cancelled and the money paid by the defendant be refunded. On the contrary, after the purchase price was paid, the plaintiff gave vacant possession of both Stands to the defendant who then duly took occupation of the houses....,.

Prescription of Counterclaim

In terms of common clause 2 of both agreements of sale “transfer of the property into the name of the Purchaser shall be effected…, as soon as possible after the purchase price has been paid, and within fourteen (14) days of the Seller's legal practitioners requiring the Purchaser to do so.”

While this clause is somewhat vague and not categorically clear as to when transfer is to be effected, it accords in essence with the established common law position, viz. that the seller is obliged to transfer the immovable property sold upon payment of the purchaser price, and, conversely, that the purchaser is entitled to demand specific performance, i.e. transfer, as soon as the purchase price is paid.

See Lamprecht v Lyttleton Township (Pty) Ltd 1948 (4) SA 526 (T)…,.; Chiwawa v Mutzuris HH07-09…,.

Section 14 of the Prescription Act [Chapter 8:11] provides for the extinction of debts by prescription, while section 15 specifies the relevant periods of prescription in respect of different debts. In terms of section 16 of the Prescription Act:

“(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.

(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) 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:

Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”

Section 2 of the Prescription Act defines the word “debt” as follows:

“Without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

It is abundantly clear from this definition that in a contract for the sale of land the purchaser's right to sue for transfer or demand specific performance by the seller is a “debt” which may be sued for or claimed by reason of an obligation arising from contract. See Desai N.O. v Desai & Others 1996 (1) SA 141 (A) – apropos the equivalent definition in the South African Prescription Act (No.68 of 1969).

As a rule, unless prescription is delayed or interrupted, as envisaged in sections 17, 18 and 19 of the Prescription Act, and provided that the creditor is aware of the identity of the debtor and of the facts from which the debt arises, prescription commences to run as soon as the debt is due.

In the present context, the seller's obligation to transfer and the purchaser's reciprocal right to claim transfer or specific performance arise from the date when performance is due, viz. as soon as the purchase price is paid. As of that moment, the debt becomes due and extinctive prescription begins to run against the purchaser. See Lamprecht v Lyttleton Township (Pty) Ltd 1948 (4) SA 526 (T)…,.; see also Norman's Law of Purchase and Sale (4^th ed.)…,.

Section 17 of the Prescription Act provides for instances where the running of prescription is delayed. In terms of section 17(2):

“A debt which arises from a contract and which would, but for this subsection, become prescribed before a reciprocal debt which arises from the same contract becomes prescribed, shall not become prescribed before the reciprocal debt becomes prescribed.”

Reciprocity of debts, as envisaged in this provision, requires some close and immediate correlation between the debts concerned. See Minister of Public Works and Land Affairs v Group Five Building Ltd 1996 (4) SA 280 (A)…,.

Where the sale of immovable property is involved, the purchaser's obligation to pay the purchase price is ordinarily reciprocated by the seller's obligations to give occupation and effect transfer. See Pasha v Southern Metropolitan Local Council of the Greater Johannesburg Metropolitan Council 2000 (2) SA 455 (WLD)…,.

The parties' obligations are reciprocal because they arise from what is essentially a bilateral or synallagmatic contract. See CHRISTIE: The Law of Contract in South Africa (3^rd ed.)…,.

In the instant case, the plaintiff seeks to vindicate the two Stands in dispute. Its claim is not founded on an obligation in contract or delict. It is essentially a proprietary claim and the defendant's potential right to claim ownership after 30 years of open, adverse and uninterrupted possession, by virtue of section 4 of the Prescription Act, does not constitute a reciprocal contractual right. It follows that the plaintiff's claim for eviction is not a reciprocal debt arising from the same contract and that the prescriptive period of 30 years applicable to that claim does not operate in terms of section 17(2) to delay the running of prescription as against the defendant's right to claim transfer of the Stands.

Section 18 of the Prescription Act deals with the interruption of prescription by acknowledgement of liability, as follows:

“(1) The running of prescription shall be interrupted by an express or tacit acknowledgment of liability by the debtor.

(2) If the running of prescription is interrupted in terms of subsection (1), prescription shall commence to run afresh –

(a) From the date on which the interruption takes place; or

(b) If, at the time of the interruption, or at any time thereafter the parties postpone the due date of the debt, from the date upon which the debt again becomes due.”

In paragraph 1 of its further particulars (filed on the 3^rd of June 2008), the plaintiff avers that it “became aware of the illegality of the sales towards the end of 2004.” Furthermore, the correspondence between the defendant, its lawyers and the conveyancing lawyers shows that until 2004 they were mutually pursuing the question of transfer. This is confirmed in the letter of the 7^th of September 2004 which I have already referred to [Exhibit 8], from the plaintiff's current lawyers to the defendant, in which they indicate their request to the conveyancing lawyers “to desist from proceeding with the request of transfer until such time that our clients' application has been determined by the High Court.”

All of this, in my view, demonstrates a tacit admission by the plaintiff, for a period of approximately two years, of its obligation to transfer the Stands to the defendant pursuant to the agreements of sale concluded in September 2002. In short, the plaintiff tacitly acknowledged its liability to effect transfer to the plaintiff until September 2004, as contemplated in section 18 of the Prescription Act, and prescription only began to run as against the plaintiff thereafter.

The defendant filed its counterclaim on the 5^th of June 2006, well within the 3 year prescriptive period, and its claim for transfer has therefore not prescribed in terms of sections 14 and 15 of the Prescription Act [Chapter 8:11].

Apart from the foregoing, I think that there is an entirely different basis on which the plaintiff's plea of prescription cannot be sustained.

I have already found that the agreements of sale in casu were validly concluded and that they are binding on the plaintiff. The judgment herein, in itself, constitutes a fresh cause of action which the defendant will become entitled to enforce within the prescriptive period of 30 years specified for judgment debts. It would therefore be quite absurd and pointless, at this juncture, to decline the defendant's counter claim for transfer founded on the agreements of sale, simply to await the institution of a further claim for transfer predicated on this judgment.

For the above reasons, the plaintiff's special plea of prescription must fail and it is hereby dismissed.

On 15 November 1996 the applicant and the first respondent entered into an Agreement of Sale in terms of which the applicant purchased from the first respondent an immovable property known as Stand No.6670 Chikanga 3, Mutare. The purchase price was agreed at $18,000=. Of this amount, $10,000= was paid on the date of the signing of the agreement, being 15 November 1996, as recorded in clause 1 of the agreement.

In terms of clause 2 of the agreement, commencement of payment of the balance of the purchase price, in the sum of $8,000=, was to be paid after a grace period which extended from the date of signature up to 30 June 1997. A monthly payment of $750= was to be made with effect from 1 July 1997, and, thereafter, the same amount was to be paid by the first day of each succeeding month until full payment was made.

In terms of clause 3, the seller, being the first respondent, was to deliver vacant possession of the property to the buyer, that is the applicant, within 7 (seven) days from the date of payment of the final instalment. Transfer of the property to the purchaser was to be effected at the same time.

In terms of clause 4, the purchaser was to pay all charges in respect of the property with effect from the month of December, presumably of the year 1997, onwards. The purchaser was also required to develop the property to the level or stage at which the third respondent would approve transfer (cession) of the property, in terms of its by-laws.

In terms of clause 5 of the agreement, the purchaser would pay the monthly instalments into the seller's POSB account, the details of which account would be furnished to the purchaser by the seller. The clause then further provides as follows:

“This is the only agreement the parties will go by and no other whatsoever unless this agreement is expressly and in writing otherwise amended or replaced.”

The concluding paragraph is to the effect that the meaning and import of the agreement has been explained to the parties in the Shona language and they have understood the same.

The applicant avers that he paid the full purchase price of the property as evidenced, firstly, by clause 1 of the agreement which acknowledges payment of the initial $10,000=, and, secondly, by receipts, copies of which he attached to his founding affidavit. He also avers that he prepared plans which were approved by the third respondent. In this regard, Annexure C1 to his founding affidavit is a document dated 2 January 2003 addressed to the applicant by the third respondent's City Engineer's department and in respect of the Stand in issue. It informs the applicant that his plans, which were submitted in respect of the Stand in question, have been approved subject to the relevant Municipal Bye-laws and certain conditions stated therein.

Annexure C2, dated 21 June 2005, is also addressed to the applicant by the third respondent's City Engineer's department in respect of the same Stand. It also informs the applicant that one copy of his plan has been “pre-approved” on condition that he adheres to certain conditions also stated therein. It further states that the “pre-approval” is valid for one year from the date stamped on the plans.

Annexure D to the founding affidavit reflects copies of two inspection logs. One is dated 27 July 1999 showing approval by the City Engineer's Department of the stage referred to as “Brickfooting.” The other is dated 27 August 1999 showing approval of the stage referred to as “Hardcore.”

The applicant also avers that he commenced to build on the undeveloped and vacant Stand and has erected a house which is at window level. Then, sometime in June 2005, the first respondent began to interfere with the applicant's access to the premises. This led to the applicant's legal practitioners writing a letter, on 7 July 2005, to the first respondent, and, amongst other things, giving her fifteen days' notice to effect cession of the property into the applicant's name as well as two (2) months' notice to vacate the property.

The first respondent did not cede the property to the applicant. However, the applicant then received a water bill dated 17 July 2006 addressed in the name of the second respondent. This prompted him to make inquiries with the third respondent and he then ascertained that the first respondent had ceded the property into the name of the second respondent. The second respondent was un-cooperative when he approached her. The first respondent became evasive.

The applicant contends that the second respondent ought to have known that the applicant was the new owner of the property as his builders were on site and the plans for the house that was being erected on the property were in the applicant's name. He also contends that the second respondent was reckless and was not diligent in not making inquiries as she would not have purchased the property which he had already purchased. He contends that the cession to the second respondent was done maliciously by both the first and the second respondents.

The applicant prays for an order in the following terms:-

“That:

1. The first and second respondents be and are hereby order and directed to attend at third respondent and cede their rights and title in House No. 6670 Chikanga Phase 3 (St Joseph) Mutare within fourteen (14) days from the date of service of this court order.

2. In the event of the first and second respondents failing to comply with paragraph 1 above the Deputy Sheriff be and is hereby ordered to sign all relevant cession papers for and on behalf of the first and second respondents and the cession papers with the third respondent who is obliged to accept them and effect the cession into applicant's name.

3. Alternatively, the first respondent pays he applicant ten million (10,000,000,000=) or the current market value of the house as approved by two evaluators which ever figure is higher.

4. The first respondent pays the applicant's costs of suit.” (sic)

The first respondent opposes the application and avers that the applicant failed to pay the balance of the purchase price, in the sum of $8,000=, claiming that the payments reflected in the receipts attached as annexures B1, B2, B3, and B4 to the applicant's founding affidavit were meant for supplementary charges and not for instalments towards the liquidation of the balance as alleged.

The applicant claims that if these were instalments meant to go towards the liquidation of the balance of the purchase price, as claimed by the applicant, the applicant would not have paid the higher amount of $1,000= per month instead of the agreed $750= per month. She further alleges that the building plans could not have been in the applicant's name as the Stand was registered in her name and cession had not yet been effected.

The first respondent also alleges that although the applicant built a house to window level, when she started to demand payment of the balance and of water bills and supplementary charges which he had stopped paying, the applicant then ceased building. Then, in February 2005, the applicant stated that he had purchased another Stand in Harare and was no longer interested in developing the Stand in question. She alleges that the applicant then said that all that he wanted from her was $15,000,000= “for the Stand at its state” so that she could have the Stand back from him. She claims that they reached an agreement, and, in pursuance thereof, she raised the $15,000,000=. However, when she tried to contact the applicant so that she could make the payment to him, he could not be found. On two occasions she went to his rural home but failed to find him. When she finally made contact with him, in August 2005, he promised to come and collect the money but never did.

The first respondent contends that the applicant breached their agreement by failing to pay the balance of the purchase price and the supplementary charges and that the property thereby reverted to her. She disputes that the applicant had any building material at the Stand and further disputes that she used such material to construct an outbuilding as alleged by the applicant. As the property reverted to being hers she then sold it to the second respondent in November 2005 and ceded it to her. She further states on her opposing affidavit that as the applicant failed to collect his money, as detailed above, she was thus tendering it.

The first respondent agrees that the applicant was the first purchaser. She however claims that they later agreed that she retain her property, which she did “after having managed to raise the agreed purchase price”. She then thereafter sold the property to the second respondent who was a bona fide purchaser. She claims that she was, at that stage, at liberty to sell the property to anyone.

In supplementary heads of argument filed on behalf of the first respondent, the point is raised, in limine, that the applicant's cause of action is prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11].

She submitted therein that the agreement between the applicant and the first respondent having been entered into on 15 November 1996, when this court application was filed on 10 October 2006, it was long after the expiry of three years and as there had been no judicial interruption during the interceding period, the claim had since prescribed. On the merits, it is submitted that there are irreconcilable disputes of fact which no matter how robust the court is, it cannot possibly resolve without hearing viva voce evidence.

The first respondent thus prays for the dismissal of the application with costs.

The second respondent, despite being served with the court application, has filed no opposing papers.

PRESCRIPTION

Section 15 of the Prescription Act [Chapter 8:11] provides as follows:-

“15 Periods of prescription of debts

The period of prescription of a debt shall be –

(a)…,.

(b)…,.

(c)…,.

(d) Except where any enactment provides otherwise, three years, in the case of any other debt.”

Section 16(1) then provides:

“(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.”

The Act defines “debt” as:

“Without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

In casu, the applicant's claim is for cession of Stand 6670 Chikanga 3, Mutare. Such cession arises from the contract entered into by the applicant and the first respondent on 15 November 1996. It thus, in my view, falls within the definition of “debt” in the Prescription Act.

If cession to the applicant (the debt) became due on 15 November 1996, the date relied upon by the first respondent in articulating the preliminary issue of prescription, then clearly, in the absence of any judicial interruption the applicant's claim would have long expired by the date that this application was filed, 10 October 2006 - some ten years later.

But, clause 4 of the agreement stipulates, inter alia, that the purchaser (applicant) “shall develop the property to the stage where the City of Mutare will approve the transfer in terms of the by-laws.”

I am aware of the apparent mutual exclusiveness of clauses 3 and 4 of the agreement.

However, it is common cause that this Stand is situated in the Mutare Municipal area. Clause 3 would therefore be impossible of fulfilment insofar as transferring the property to the purchaser (applicant) is concerned unless there is compliance with the third respondent's requirements or by-laws. This requirement, for the third respondent's requirements to be met, is acknowledged in clause 4 which however places the obligation on the purchaser's shoulders to develop the Stand “to the stage where the City of Mutare will approve the transfer in terms of the by-laws.”

The question then arises whether the applicant developed the Stand to the level or stage enabling or resulting in the City of Mutare, the third respondent, approving transfer or cession of the property.

That the applicant constructed the house at the Stand in question, at least up to window level, is common cause. It is also clear, by the first respondent, that she sold to the second respondent the same Stand 6670 Chikanga Township “together with improvements of incomplete house build (sic) (built) up to window level comprising 5 living rooms, dining, kitchen and combined toilet with provisional of in-suit (en suite?) as seen.” (sic)….,.

There is no evidence of any construction having been carried out by the first respondent at any stage or to any level.

The Agreement of Sale to the second respondent was entered into at the end of November 2005. The date of cession to the second respondent is not clear on the papers but the applicant states that at the end of 2005 he was completely denied access to the property by the first respondent. Furthermore, when he received the water and services statement, dated 17 July 2006, and which was addressed to the second respondent, his pursuant inquiries then informed him that the property had been ceded to the second respondent. The first respondent states, in her opposing affidavit, that she refused to cede the property to the applicant when his legal practitioners demanded such cession as the applicant had breached their agreement by not paying the purchase price and supplementary charges and as this was also in accordance with their subsequent oral agreement.

It is clear that the first respondent was able to effect cession into the second respondent's name on the strength or basis of the developments made on the property by the applicant. She did not herself effect any further improvements. The answer to the question above appears to me therefore to be that the applicant did develop the Stand to the stage where the third respondent would approve transfer.

The next question that arises is when did the applicant attain the level of development that would, and in fact did, enable the third respondent to approve cession, albeit to a different person/third party?

It is clear on the papers this was certainly not on 15 November 1996.

It is also clear that in 2003 and 2005, the applicant was in communication with the third respondent in respect of plans for the development of the Stand as evidenced by the two letters from the third respondent's Engineer's Department already referred to above. It is also clear that in July and August 1999, the applicant was in the process of effecting developments and the approval of two stages of development were approved then by the City Engineer's Department.

It is undisputed that the applicant began experiencing problems in accessing the premises from sometime in June 2005 and that he was completely barred at the end of 2005, the sale to the second respondent being also contracted at the end of November 2005. As no further development was made to the property besides what the applicant had done, it can be safely concluded that, at the very least, by the end of November 2005, when the property was sold to the second respondent and the applicant was also totally barred from entry onto the premises, the applicant had already developed the Stand to the stage where the third respondent would approve the transfer or cession in terms of its by laws.

Having made such a finding, it appears to me that the debt (cession to the applicant) became due at the end of November 2005. The instant court application would thus have been filed some eleven (11) months after the cause of action arose.

It is my view that this cause of action arose when he complied with clause 4 of the agreement. As stated in Mukahlera v Clerk of Parliament & Ors HH107-05, prescription begins to run when the cause of action arose; the cause of action being the combination of facts material for the plaintiff (applicant in casu) to prove in order to succeed in his action.

In casu, the applicant must prove, inter alia, his compliance with clause 4 in so far as developing the property is concerned, as already discussed above.

I therefore find, for the above reasons, that the applicant's claim has not been extinguished by prescription. The point raised in limine, that the applicant's claim has prescribed, is therefore dismissed.

The defendants entered appearance to defend, and have raised a special plea that the claim has prescribed on account that the summons were issued three years after the debt became due.

The special plea is not supported by any affidavit. Equally, the plaintiff's reply to this special plea is an unsworn statement by the plaintiff's legal practitioner. In brief, the latter states that the plaintiff's claim has not prescribed because the second defendant (and the first defendant, through the second defendant) acknowledged liability and offered to pay the plaintiff's expenses.

The plaintiff conceded that the claim against the third defendant had prescribed.

The issue raised by counsel for the first and second respondents is that the declaration and summons do not allege that the prescription has been interrupted.

As I understand him, the averments of interruption of prescription can only be used if they are in the summons, or declaration, or in affidavit form.

This seems to be the issue before me.

It is trite that a defence of prescription should be raised by way of a special plea, even when it appears ex facie the plaintiff's particulars of claim that the claim has prescribed, apparently because the plaintiff may wish to replicate a defence to the claim of prescription, for example an interruption, as is the case in casu – HERBSTEIN and VAN WINSEN – The Civil Practice of the Supreme Court of South Africa (4^th Edition) by Van Winsen Gilliers & Loots...,.; Walsh N.O. v Scholtz 1968 (2) SA 222 (GW); Union & SWA Insurance Co. Ltd v Hoosein 1982 (2) SA 481 (W) and Rand Staple-Machine Leasing (Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W).

The raising of the defence of prescription is to give the plaintiff an opportunity of explaining the reason for the delay. The main proceedings in this matter are the trial proceedings.

The introduction of a prima facie prescribed claim cannot, therefore, prejudice the first and second defendants. The plaintiff's reply, being part of the pleadings, cannot be expected to be in affidavit form. As pleadings have not closed, the plaintiff has an opportunity to reply in the appropriate form. By raising the issue in the manner they did, the defendants have, in my view, misconceived its remedy. The special plea may be dealt with at a later stage of the proceedings, after the plaintiff has replicated. The defendants jumped the gun.  The plaintiff still has, in any event, a right to amend her claim.

In addition, the fifth respondent also contended that the claim by the applicants had prescribed.

Counsel for the applicants contended that prescription cannot run until the Administration and Distribution Account has been confirmed. He also referred to the case of Greenberg v Estate Greenberg 1955 (3) SA 361 (AD).

There is the issue of prescription that was raised by the fifth and sixth respondents.

The transfer of the immovable property to the second respondent by the first respondent occurred in 2000. The present application was only instituted in 2007. The relevant provision is section 16 of the Prescription Act [Chapter 8:11] which provides that -

“(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.

(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) 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;

Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”

In opposing this application, the fifth respondent simply stated that he was advised that even if the applicant's claim has merit it cannot succeed as it has prescribed. No other averments are made in support of this contention.

The onus lies on the fifth and sixth respondents to prove, on a balance of probabilities, that the applicants became aware of the facts on which their claim is based and failed to institute the present proceedings within three years of such knowledge. In light of the proviso to section 16(3) of the Prescription Act [Chapter 8:11]  the fifth and sixth respondents can also prove by laying facts from which it can be deemed that the applicants were aware of such facts on which their claim was based if they could have acquired knowledge thereof by exercising reasonable care.   

This was the approach adopted by MALABA J..., in the case of Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H).

In that case, the plaintiff sought damages arising from a collision between his vehicle and a trailer belonging to the defendant. The defendant raised the special plea of prescription. The plaintiff sought to argue that the facts from which the debt arose became known to him from the time he obtained legal advice. In dealing with the issue of prescription and when the debt becomes due, the learned judge had this to say..., -  

“In this case, “the facts from which the debt arises” are the facts relating; to the damage and loss (the nature and extent of the bodily injuries; the pain and suffering that ensued; the loss of earning); how the damage was caused (the collision; and the wrongful conduct accompanied by culpa (the omission to inspect the coupling system; the duty to do so) to which the cause of the damage is attributable: Evins v Shield Insurance Co. Ltd 1980 (2) SA 814 (A) at 388H-839A.

The question for determination here is, when did Mr. Peebles first have knowledge, or is deemed to have first had knowledge, of the abovementioned facts from which the debt arose? The onus is on Dairiboard, which raised the defence of prescription, to show that Mr. Peebles had knowledge, or should be deemed to have first had knowledge, of such facts on any date more than three years prior to the date on which summons was served on it, that is to say, a date between 9 May and 30 September 1994; Gericke v Sack 1978 B (1) SA 821 (A); Brand v Williams 1988 (3) SA 908 (C) at 910B.

The rule applied is the discovery or knowledge rule. In the application of the rule, contained in section 16(3) of the Act, to decide whether Dairiboard has shown, on a balance of probabilities that Mr. Peebles acquired, during the relevant period, the requisite knowledge of the facts from which the cause of the action arose, it is not necessary to seek knowledge of meticulous particulars of the cause of action. The court must look at all the circumstances of the case and decide whether Mr. Peebles had, or should be deemed to have had, knowledge of the broad or material facts establishing the essential elements of the cause of action.

LOUBSER, Extinctive Prescription (1996), in n281 on p104, makes reference to the case of Jolly v Eli Lilly 2d Cal 751 (1929) to illustrate the application of the discovery or knowledge rule. The plaintiff in the case suffered cancer as a result of her mother's ingestion of a harmful drug during pregnancy. The California Supreme Court applied the discovery or knowledge rule to bar the claim where the plaintiff was aware of the injury and its cause, and could have suspected that she had been wronged, although still unaware of facts establishing wrongdoing on the part of the drug's manufacturer. It was held in that case that the discovery of the injury and its cause was enough to have triggered the running of the limitation period even though the plaintiff was still unaware of all the facts establishing a failure to test the drug, or a failure to warn about its possible effects by the manufacturer.

In n300 on p109, the learned author also makes reference to Ward v City of Alliance (1988-89) 22 Creighton LR 449. This was a case of a municipal employee who suffered various ailments and cancer as a result of direct skin exposure to oil in an electric transformer, which was later discovered to contain a toxic chemical. A one-year limitation period was applicable to the employee's action against his employer. The discovery or knowledge rule was applied. It was found that the claimant knew, or should have known, of the casual relationship between his exposure to the chemical and his ailments more than one year prior to instituting action.

The learned author then states:

'The issue in this type of case is whether discovery should entail knowledge, or imputed knowledge, of the injury and causation only, or, also, knowledge, or imputed knowledge, of wrongful or negligent conduct by the defendant...,. In the Ward case, the court required knowledge of the ailments and the casual relationship between the ailments and exposure to toxin, or, in appropriate circumstances [the emphasis is mine] knowledge that the injury resulted from wrongful conduct of the defendant. The latter may be a consideration for determining accrual in some circumstances, but what is contemplated is only an imputed awareness of wrongful cause and not actual determination of negligent conduct or fault. Thus, the plaintiff need not be aware of the actionability of a claim, or have knowledge of wrongdoing at the level of certainty for the claim to accrue.

...,. In the Ward case, a test for discovery was accepted, which, is not constrained by rigid discovery articulation, permits the court to determine objectively the most equitable point of claim accrual based on the amount of information the injured party knows, or should know.'”

Apart from raising the issue of prescription, the fifth and sixth respondents have not proved when the applicants became aware of the transfer of the immovable property. It cannot also be said that the circumstances are such that the applicants are deemed to have become aware of such facts as constituting the cause of action if they could have acquired knowledge of the transfer by exercising reasonable care.

It means that the application succeeds.

Accordingly, the application is granted as follows –

“1. The allocation and transfer of Stand 2723 Gwelo Township of Gwelo Township Lands, also known as House No. 20 Creil Road, Southdowns, Gweru to 2^nd respondent under Deed of Transfer No. 2050/000 be and is hereby declared null and void.

2. The first respondent shall proceed to draft and lodge an Inheritance Plan in respect of the estate of the late Reginald Tswakai Griffin Salila with the third respondent within seven days of service of this order upon him.

The first and second plaintiffs are husband and wife. The first defendant is a businessman whereas the second defendant is a firm of lawyers duly registered in terms of the laws of this country.

On 9 September 2004, the plaintiffs applied to the High Court for an order compelling the first defendant to pass transfer of Stand Number 43 being the remaining extent of Stand Number 20 Carrick Creagh Township 2 of Carrick Creagh of section 4 Borrowdale Estate, Harare measuring 5,347 square metres.

The plaintiffs' claim found no favour with the High Court which dismissed their claim on 28 September 2005. Aggrieved by that decision they appealed to the Supreme Court, which, in turn, dismissed the appeal on 19 June 2006.

In their initial claim, the plaintiffs did not claim damages as an alternative to specific performance. It was only after they had lost their case on appeal that the plaintiffs, almost as an after thought, decided to sue the defendants for damages in lieu of specific performance. The defendants were then met, among other things, with the special plea of prescription and res judicata.

It is convenient to determine the issue of prescription first because if it is found that the plaintiffs' cause of action has indeed prescribed it may not be necessary to determine all the other remaining issues.

In terms of section 15(d) of the Prescription Act [Chapter 8:11] a debt arising out of a contract of sale prescribes after a period of three years. In terms of section 16(1) prescription begins to run as soon as a debt becomes due.

Section 2 of the Prescription Act defines a debt as including:

“Anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

In this case, the plaintiffs' claim arose from an alleged breach of the contract of sale which occurred sometime in 2003 when the first defendant failed to deliver or effect transfer of the Stand which they had fully paid for.

The issue which arises for determination is whether the issuing of judicial process, on 9 September 2004, interrupted the running of prescription. Sections 19(2) and (3) of the Prescription Act provide for the interruption of the running of prescription as follows:

“(2) The running of prescription shall, subject to subs (3), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

(3) Unless the debtor acknowledges liability, the interruption of prescription, in terms of subs (2), shall lapse and the running of prescription shall not be deemed to have been interrupted, if the creditor –

(a) Does not successfully prosecute his claim under the process in question to final judgment; or

(b)…,.”

It is an established fact and a matter of common cause that the plaintiff issued summons against the defendants on 9 September 2004 thereby interrupting the running of prescription by juridical intervention. The plaintiffs however did not successfully prosecute their claim, both in the High Court and Supreme Court, with the result that the interruption of prescription lapsed on 19 June 2006 when they lost their claim in the Supreme Court and the running of prescription was then deemed not to have been interrupted.

As the prescriptive period of three years has long expired I have no option but to hold that the plaintiffs' claim against the respondents has since expired by effluxion of time.

Looked at from a different angle, the plaintiffs never issued summons against the respondents claiming damages for breach of contract until they lost their case in the Supreme Court on 19 June 2006. Granted, they issued summons against the respondents on 9 September 2004 but that was for specific performance in the form of transfer of the disputed property and not damages for breach of contract.

With respect, a claim for transfer does not, in my view, without more, convert into a claim for damages in breach of contract for the two claims are separate and distinct such that one cannot be substituted for the other. Looked at from that perspective one can only hold that by the time the plaintiffs issued summons claiming damages for breach of contract the cause of action had already prescribed.

The preliminary issue which arises is…., whether or not the plaintiff's claim has since prescribed.

The plaintiff claims that she bought the property on 12 March 2000. Thus, the plaintiff became entitled to acquire cession of the disputed property from that date. On the other hand, the Seller, that is to say the first defendant, became obliged to facilitate cession of the property to the plaintiff. To that extent the first defendant was indebted to effect transfer to the plaintiff as from that date. In other words, the debt became due on 12 March 2000.

In terms of section 15 of the Prescription Act [Chapter 8:11] such a debt prescribes after three (3) years without interruption. In terms of section 16 of the Prescription Act [Chapter 8:11] prescription begins to run as soon as the debt becomes due. In terms of section 7 of the Prescription Act [Chapter 8:11] the running of prescription can be interrupted by the issuing of process.

In this case it is common cause that the plaintiff issued summons on 27 June 2006, more than five (5) years after the due date. By then her claim had already prescribed against both defendants. The issuing of summons did not therefore interrupt the running of prescription as the debt had already prescribed.

The defendant submitted that the plaintiff's claim was prescribed by operation of law in that:-

(a) Title in respect of House Number 30583 Entumbane, Bulawayo was passed to him on 11 February 1988; and

(b) The plaintiff did nothing to claim from him the title for the said house for 19 years.

Moreover, the plaintiff had done nothing to interrupt the prescription. Consequently, the plaintiff's claim was prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11].

The plaintiff, on the other hand, contended that the house was registered in the defendant's name in trust.  Indeed, the transfer was effected on 11 February 1988 on condition that when the plaintiff's nominee was available the property would be transferred into the name of the nominee who was the plaintiff's son.  Transfer was only going to be due when the son attained majority. He only became a major in 2006. 

That, accordingly, was the time that transfer was due.

The plaintiff went on to submit that the defendant did not live in the said house from the time it was registered in his name in trust until 2006 – a period of 18 years. In conclusion, the plaintiff submitted that the plea in bar was devoid of any merit and must fail with costs.

After the parties had made their submissions, the court dismissed the plea in bar with costs. The court found that prescription only started to run when the plaintiff's nominee i.e. son attained majority in 2006 and summons was instituted on 8 march 2007.

Counsel for the first defendant…, raised a preliminary point that the plaintiff's claim is prescribed in terms of the Prescription Act and should therefore fail on that basis alone. He did not pursue the other points raised in the special plea electing to argue only the issue of prescription.

In her replication to the first defendant's plea, the plaintiff alleges, inter alia, that the claim had not prescribed because the cause of action “arose late in 2006 when the first defendant threatened to evict the plaintiff's tenant.”….,. 

In support of that preliminary point, which I allowed to be raised at commencement of trial in terms of the proviso to subsection (2) of Section 20 of the Prescription Act [Chapter 8:11], counsel for the first defendant submitted that the cause of action arose when the purchase price was paid in 1995 and therefore the claim prescribed at the expiration of the period of three (3) years in terms of section 15(d) of the Prescription Act [Chapter 8:11]. Counsel for the first defendant further argued that even if it could be said that the death of both the creditor and the debtor interrupted the running of prescription, the claim should have been made within a period of one (1) year after the appointment of the executrix of the late Ernest Phillip Sithole's estate on 18 May 2006 and even that of the late Philimon Singo on 4^th April 2007. Whichever way, when the summons was served, on 22 June 2009, the claim had prescribed. This is particularly so, as by the plaintiff's own admission the cause of action arose in 2006.

In response, counsel for the plaintiff has argued that the claim has not prescribed because we should reckon the period of three (3) years from 2006 when the first defendant threatened to evict the plaintiff's tenant. He further submitted that the Sale Agreement between the parties was subject to a suspensive condition, namely that the late Ernest Phillip Sithole was to secure the consent of the third defendant to transfer title to the late Philimon Singo. As this was not possible until the money due to the third defendant had been paid in full, which was only done in 2006, after the late Philimon Singo sold his cattle, prescription did not commence to run until 2006.

The law on when the cause of action arises has been stated very clearly in a number of decided cases.  In Chiwawa v Mutzuris and Others HH07-09…, MAKARAU JP…., stated thus -

“It is now the settled position in our law, in my view, that the term refers to when the plaintiff is aware of every fact which it would be necessary for him or her to prove in order to support his or her prayer for judgment. It is the entire set of facts that the plaintiff has to allege in his or her declaration in order to disclose a cause of action but does not include the evidence that is necessary to support such a cause of action.”

I am not persuaded that prescription started running in 1995 because then the participants still had issues to resolve with the third defendant. In my view, the plaintiff's claim became extant in April 2006 when the first defendant and his family made it clear they were not going to honour the late Ernest Phillip Sithole's undertaking. From then on prescription started running.

It has been argued, half-heartedly, that the lodgement of a claim against the estate by Philimon Singo interrupted prescription. By her own admission, the plaintiff says the claim was rejected (paragraph 7 of plaintiff's declaration).

This could not interrupt prescription.

A further argument has been advanced that the review application filed as HC1479/09 was interruptive.

Section 19 of the Prescription Act [Chapter 8:11] provides -

“(2) The running of prescription shall, subject to subsection (3), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.

(3) Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (2) shall lapse and the running of prescription shall not be deemed to have been interrupted, if the creditor;

(a) Does not successfully prosecute his claim under the process in question to final judgment.

(b) …..,.”

Case No. HC1479/06 was not successfully prosecuted. In fact, after a notice of opposition was filed, the application was abandoned. This should put that argument to bed really but even if I am wrong on that point, that review application cannot be said to have interrupted prescription in the sense of the subject matter of this action. This is because what was sought there was a review of the decision of the fourth defendant to reopen the estate late Ernest Phillip Sithole and not the relief now being sought.

What remains is for me to deal with the issue of whether the death of Philimon Singo interrupted prescription as to bring the matter under the provisions of Section 17(1)(e) of the Prescription Act [Chapter 8:11]. Section 17(1)(e) of the Prescription Act [Chapter 8:11] provides -

“If the creditor or the debtor is deceased and an executor of the estate in question has not been appointed and the period of prescription would, but for this subsection, be completed before or on, or within one year after the date on which the relevant impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of one year which follows that date.”

The plaintiff was appointed executrix of the estate late Philimon Singo on 4^th April 2007. Computing the prescription period from April 2006, as I have already determined, the period of prescription would have been completed on the 30^th April 2009. For that reason, it would not have been completed “before, on or within one year after the impediment had ceased to exist.” In fact, it ceased to exist two years before prescription was due to be completed.

A simple interpretation of that provision means that the plaintiff does not have the benefit of an extra year in this matter because the running of prescription was not interrupted at all.

Can it be said that there was judicial interruption of the running of prescription as envisaged by section 7 of the Prescription Act [Chapter 8:11] and section 19 of the Prescription Act [Chapter 8:11]?  The two sections are almost identical.

Section 19(2) of the Prescription Act [Chapter 8:11] is a peremptory provision admitting no variation whatsoever. It specifically provides that prescription shall only be interrupted by “service on the debtor of any process whereby the creditor claims payment.” Section 7(2) of the Prescription Act [Chapter 8:11] is worded the same in respect of a claim for ownership.

In the premises, the issuance of the summons in this matter on the 3^rd April 2009 did not interrupt the running of prescription which continued to run until completion on the 30^th April 2009. I have used the last day of April 2009 because the exact date in April 2006 when the plaintiff, or is it the late Philimon Singo, became aware of the dispute has not been stated. Accordingly, when the summons was served on the first defendant, on the 22^nd June 2009, the plaintiff's claim had prescribed in terms of the Prescription Act [Chapter 8:11] and therefore unenforceable.

Prescription strikes at the root of the plaintiff's allegation of a right by asserting that such a right permanently ceased to be enforceable. See Reuben v Meyers 1957 (4) SA 57…., It merely bars the plaintiff's remedy although it does not extinguish the cause of action.

In the result I make the following order; that

1. The first defendant's plea in abatement on the basis of extinctive prescription be and is hereby upheld.

On 23 July 2007, Nkosikhona Ncube, who was driving a commuter omnibus, knocked down the plaintiff who was standing by the road side fracturing his right tibia and fibula resulting in a 25% disability. The cause of action therefore arose on 23 July 2007.

In addition to that, even if the applicant had a claim against the current registered owners such claim is prescribed in terms of the Prescription Act [Chapter 8:11].

In Singo v Sithole and Others HB114-10, I stated…., that -

The respondents' contention that the matter was prescribed was without basis.

The next issue relates to the defence on the merits. The first point raised by the applicant is that this matter has prescribed.

The allotment of shares which gave rise to this cause of action happened in November 1994. The first respondent…., wrote the first letter in this regard in June 1995. From the correspondence in the record the last communication between the parties in relation to this issue was in February 2006. In essence, the applicant's defence is that the claim is bad at law as the remedy sought had been extinguished by the provisions of section 14 of the Prescription Act [Chapter 8:11].

The respondents did not advance any meaningful argument in this respect despite some belated valiant efforts in oral submissions that the Prescription Act [Chapter 8:11] does not apply to the cause of action in this matter.

The first defendant filed a special plea in abatement on the grounds that the plaintiff's claim has been extinguished by prescription. 

The present claim, argues the first defendant, is a “debt” as defined in section 2 of the Prescription Act [Chapter 8:11]. The cause of action is a right of occupation acquired in 2005 at the time of acceptance of the offer letter. The summons was served on the first defendant on 7 April 2011. As more than three years have lapsed since the cause of action arose, the debt has been extinguished by operation of law.  For that reason, it is argued, the first defendant's special plea should be allowed and the claim against him dismissed with costs.

Section 2 of the Prescription Act [Chapter 8:11] defines the term “debt” as follows:

“'debt', without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.” 

It is agreed by the parties that the right to sue for eviction constitutes a “debt” as defined by the Prescription Act [Chapter 8:11].

Section 16(1) of the Prescription Act [Chapter 8:11] provides:

“Subject to subsection (2) and (3), prescription shall commence to run as soon as a debt is due.”

It is therefore trite that prescription runs from the date that a debt becomes due. A debt becomes due when the creditor becomes aware of the identity of the debtor and the facts giving rise to the cause of action. The cause of action in any action or claim is “the entire set of facts which give rise to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim “  - see Abrahamse and Sons vs South African Harbours  1933 CPD 626. See also Mukahlera vs Clerk of Parliament and Ors 2005 (2) ZLR 365.

The plaintiff's defence to this exception is to the effect that before the pronouncements of the Supreme Court in Commercial Farmers Union and Ors vs Minister of Lands and Rural Settlement & Ors SC31-10, handed down on 26 November 2010, the identity of the debtor was not known to him. Although he knew the first defendant as the person who had refused to vacate a portion of the farm offered him by the second defendant, the High Court persistently, and in many cases brought before it, ruled that the recipient of an offer letter had no locus standi to sue for the eviction of the former owner or occupier of gazetted land. Only the State could mount such a suit.

The position, however, changed when the Supreme Court, in the Commercial Farmers Union and Ors vs Minister of Lands and Rural Settlement & Ors SC31-10 case ruled to the contrary. At page 29 of the cyclostyled judgment…, CHIDYAUSIKU CJ had this to say -

“(8) While s3(5) of the Act confers on a criminal court the power to issue an eviction order against a convicted person, it does not take away the Minister's right or the right of the holder of an offer letter, permit or land settlement lease to commence eviction proceedings against a former owner or occupier who refuses to vacate acquired land. The holder of an offer letter, permit or land settlement lease has a clear right, derived from an Act of Parliament, to take occupation of acquired land allocated to him or her in terms of the offer letter, permit or land settlement lease. No doubt, the legislature conferred on the holder of an offer letter, permit or land settlement lease, the locus standi, independent of the Minister, to sue for the eviction of any illegal occupier of land allocated to him or her in terms of the offer letter, permit or land settlement lease.”

I therefore find acceptable the plaintiff's explanation that until 26 November 2010 he did not know the first defendant to be his debtor in terms of the Prescription Act [Chapter 8:11] and that, if he might have known, he was dissuaded from suing the defendant by the various judgments of this Honourable Court wherein it was stated categorically that the holder of an offer letter would not have the requisite locus standi to do so. Whilst some judges might have held differently, the least that could be said as a result is that the position of the holder of the offer letter was uncertain by virtue of the conflicting judgments emanating from this court.  Indeed, the position has since been clarified by the Supreme Court in the Commercial Farmers Union and Ors vs Minister of Lands and Rural Settlement & Ors SC31-10 case.

In any event, the plaintiff's right of use and occupation is one given by the second respondent, representing the State, the owner of the property. The second defendant has not opposed this application nor has he withdrawn the offer letter or otherwise cancelled the plaintiff's right of occupation. It is therefore doubtful whether the owner's right to determine who occupies its property at any given time could be curtailed, be it indirectly, by a plea of prescription against the authorized occupier.

In an opposing affidavit to this application, the respondent raised a point in limine.

The respondent argued that the application, having not been made within three months, as required by the Customs and Excise (General) Regulations, S.I.154 of 2001, was prescribed. The respondent correctly relied on the Notice of Seizure which states:

“If you wish, you may, within three months from the date of this notice, make your own representations to the Port Manager of the Port shown on this notice, for the release of the goods. Additionally or alternatively you may, within three months from the date of this notice, and subject to the submission of written notification 60 days beforehand and in terms of s196 of the Act, institute proceedings for the recovery of the goods from the Commissioner…,.”

The respondent submitted that, notwithstanding the fact that the applicant had engaged the respondent in discussions for the release of the motor vehicle, the applicant should have, all the same, filed this application three months from the date of seizure (i.e 21 October 2009).

The applicant, on his part, has argued that, given the appeals he made to the respondent, his application was filed within the requisite period.

Both parties have dealt with the issue of prescription at length in their heads of argument. I am, however, unwilling to accept that the applicant's application should be dismissed on the basis of prescription. I find it untenable for anyone to suggest that the applicant should be punished for his confidence in the internal remedies that the respondent can, in law, offer. Furthermore, even on 2 November 2009, the respondent was still in a position to allow the applicant to pay duty within a period of three months. That surely brought clear shifts in terms of time calculations.

It should also be noted that as late as 31 December 2009 the respondent was still saying the following:-

“We wish to advise that your client's appeal is still under consideration and you will be advised of the outcome in due course. Please bear with us in the meantime.”

In fact, at one stage in the process of preparing this judgment, I had formed the view that the relief that the applicant should seek is to compel the respondent to make a final decision. I, however, moved away from that view because in paragraph 18 of the opposing affidavit the respondent states the following:-

“It is admitted that the respondent advised that the applicant's appeal was still under consideration as the respondent had closely monitor the applicant's movement. A decision was eventually made and it was communicated to the applicant that his appeal was unsuccessful.”

There is no evidence of that finalisation.

Although I do not know when the final decision “was eventually made”, I thought it would only serve to delay finalisation of the issue if I were to suggest that what the applicant needed to do was to seek to compel the respondent to make a final decision. The papers before me suggest that the motor vehicle will not be released until the applicant complies with the requirements of the respondent as spelt out in the respondent's letter of 9 November 2009.

I heard argument on the merits of the special plea.

In terms of section 15 of the Prescription Act [Chapter 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 section 16 of the Prescription Act [Chapter 8:11], prescription begins to run as soon as the debt is due. The term “debt” is defined in section 2 of the Prescription Act [Chapter 8:11] 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 1999 is plainly a debt. It is any other debt. Therefore the applicable period of prescription is three years.

Counsel for Mrs Muringani submitted that Mrs Muringani's claim has not prescribed because she became aware of the judgment against Anthony Anesu Muringani (the deceased), of the sale in execution, and of the subsequent transfer, only in 2008 when Efrolou [Private] Limited 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 section 19 of the Prescription Act [Chapter 8:11], 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 [Private] Limited 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 [Chapter 8:11] 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 Anthony Anesu Muringani (the deceased)'s name to Efrolou [Private] Limited in 1999 when transfer was registered. Apart from the fact that Efrolou [Private] Limited 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 [Chapter 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…., 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 HC3285/10, 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 Anthony Anesu Muringani (the deceased) 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 Anthony Anesu Muringani (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….,.

Even if I am wrong in that conclusion, the respondent would still have the insurmountable difficulty of dealing with the issue of prescription - which the court is entitled to raise mero motu. 

Coming to the merits of the main matter.

The respondent contends that this matter has prescribed and that allowing the applicant to proceed to the main matter will serve no useful purpose.

The facts of this matter are that the applicant won a tender to construct substations for the respondent in 2003.The parties entered into a contract, but, due to financial challenges, the parties reportedly agreed to suspend the contract. The applicant avers that sometime in 2010, the respondent breached the contract when it engaged another contractor. Summons were issued in July 2012.

Even if one was to go by when the debt became due.

It is on record the second applicant once approached the courts on the same matter showing he had knowledge of his father's death and registration of the estate.

The respondent claims that part of the applicant's claim for improvements prescribed in November 2012.

The cause of action regarding some of the improvements and those effected before 2008 arose when absolution from the instance was granted in 2008. In fact, the applicant was well aware after the cancellation of the contract of sale that he was losing the property and he did not take any action then until September 2012 when he filed a claim for improvements. The applicant had three years within which to bring his claim for improvements made.

An issue of prescription arose at the beginning of the hearing. The court deliberately left the determination of that issue to the end as some of the findings on the merits have a bearing on this point.

The respondent's counsel submitted that the cause of action arose in the year 2000 when the transfer of the whole property was purportedly made to the respondent; that, therefore, the applicant's claim has prescribed.

The applicant opposed the preliminary point.

The applicant's counsel submitted that she only became aware of the transfer of the Stand into the respondent's name in the year 2012 after a deeds search. That she could not have taken any action much earlier than this date because she was not aware of the transfer of her share of the Stand into the respondent's name. The applicant referred the court to the case of Chirinda v Van Der Merwe and Anor HH51-13 for the requirement of knowledge of the debt or cause of action.

I am not convinced that this action has prescribed. At the time that transfer was purportedly transferred, there was no dispute between the parties and I have found that the applicant was not aware that her