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 half share had been transferred to the respondent. In Chirinda v Van Der Merwe and Anor HH51-13, the court held that a debt will become due when a creditor becomes aware of the identity of the debtor and the factors upon which the debt arises. Similar sentiments were expressed in Hadson v Granger and Anor 1994 (2) ZLR 10 (HC) where the court held that prescription starts to run from the date when the creditor becomes aware of all the factors necessary to create the need to approach the court. In this case, it was only after the deeds search, in February 2012, that the applicant became aware that transfer of the full Stand had been effected into the respondent's name. That is when her cause of action arose. It appears to me that it is this realisation that necessitated the need to take action.

In any event, it is clear from section 15 of the Prescription Act [Chapter 8:11] that prescription begins to run as soon as the debt is due; that is, when the creditor became aware of the facts from which the debt arises and becomes aware of the debtor.

In the case of Shell Zimbabwe (Pvt) Ltd v Webb 1981 ZLR 498 it was spelt out that a cession places the cessionary in the shoes of the cedent. 

The evidence presented before the court can be briefly outlined as follows. The plaintiff was allocated the Stand in 2005 and signed a lease agreement with the Ministry. It was after the husband, Edgar Chikwezvero, had died, in 2003, and the Ministry saw it appropriate to allocate the plaintiff with the same Stand. The scheme clearly spelt out that developing was to be effected after servicing of Stands before any construction occurred. In 2010, when the plaintiff noticed construction on the piece of land, she instituted action in the Magistrates Court, then 2011 in the High Court for want of jurisdiction in the Magistrates Court. Given Mr Tshuma's evidence, the plaintiff's evidence that construction was to begin after serving of Stands and Mr Tshuma's evidence that some Ministry officials at some stage used underhand means to sell Stands to other parties not on the list of beneficiaries of the scheme, the plaintiff's position that she was not aware of developments and the identity of the defendant until 2010 when there was a structure cannot be said to be farfetched or improbable. The defendant's evidence is that the plaintiff ought to have known earlier. That position, in the wake of the purported underhand and fraudulent manner the Stand was allegedly sold cannot cloud the position that the plaintiff sprout to action when she got to know of the facts from which the debt arose and identified the debtor.

The learned Judge also misdirected himself by holding that the prescription, if it was valid, would have started to run from 12 March 2000 at which time the first contract had not been performed to give rise to a cause of action against the first respondent.

It is therefore the unanimous view of the Court that the appeal be allowed. It is therefore ordered as follows:

“1. The appeal is allowed with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

“The point in limine is dismissed with costs”.

Prescription may be interrupted by an acknowledgment of liability, which, on the facts of this case,

occurred on 12 December 2000 when the principal debtor sent an e-mail to the respondent.

Once prescription has run its course it deprives the aggrieved party of the remedy or relief sought regardless of whether or not one has a valid claim on the merits.

Thus, an owner forfeits his right to vindicate his property once prescription has run its full course as happened in this case. The nature of the defence is that it even allows a litigant at fault to keep his ill-gotten gains.

Prescription does not deal with the merits.

It simply seeks to extinguish old stale debts not claimed within the prescribed time limits. The rationale for prescription was amply captured by the learned trial judge where he quotes WESSELS in The Law of Contracts in South Africa, Vol. II…, where the learned author says:

The plaintiff claims for additional compensation in terms of section 9 of the National Social Security Authority (Accident Prevention and Workers Compensation Scheme) Notice (1990) (hereinafter referred to as “the Notice”).

The plaintiff is a former employee of the first defendant. The second defendant is the General Manager of the National Social Security Authority (NSSA). He is cited in his official capacity in terms of section 9 of the National Social Security Authority (Accident Prevention and Workers Compensation Scheme) Notice (1990).

The analogy of events leading to this claim is as follows.

The plaintiff was employed by the first defendant from 1990 to February 2006 as a Cibra Machine Operator and as an assistant operator of a Tapeline machine. On 20 April 2006, the plaintiff was involved in a workplace accident resulting in his right hand getting trapped between the rollers of the Tapeline machine which had developed a fault. The plaintiff's hand was crushed resulting in him suffering 65 per cent permanent disability. The plaintiff permanently lost the use of his right hand and he received compensation from the National Social Security Authority under the Workers Compensation Insurance Fund in 2007 and receives a monthly pension. The plaintiff claims that the accident was caused by the negligence of the employer.

In January 2008, the plaintiff instituted a claim against the first defendant under HC421/08. The claim was based on the averment that the defendant caused the accident through its negligence and the plaintiff claimed damages for loss of income, pain and suffering, permanent disfigurement, loss of future earnings and future medical expenses. At the end of the hearing, the trial judge entered judgment in favour of the plaintiff. The court found that the claim before him was one for additional compensation and awarded the plaintiff damages. The first defendant appealed the decision on the basis of two main grounds;

(i) The first ground was that the court a quo erred at law in finding that the claim by the plaintiff was one for additional compensation in terms of the National Social Security Authority (Accident Prevention and Workers Compensation Scheme) Notice (1990).

(ii) Secondly, that the court a quo erred in its approach to quantification of damages.

The Supreme Court set aside the decision of the High Court on September 20, 2011.

No reasons were given for the order.

In November 2011, a fresh set of summons was issued by the plaintiff against the first and second defendants.

The plaintiff brought yet a similar claim, in terms of section 9 of the National Social Security Authority (Accident Prevention and Worker's Compensation Scheme) Notice (1990).

The second defendant emerged joined to the claim.

In this claim, the second defendant is cited in his official capacity as General Manager of the National Social Security Authority. The plaintiff claims additional compensation on the basis that the compensation from the National Social Security Authority is inadequate. He claims compensation under the same categories as in the first claim. He gives particulars of negligence which I will not summarise as they are not relevant to this judgment. The plaintiff justified the claim on the second basis that a new party, thus the General Manager for the National Social Security Authority has been added to the claim.

At the hearing of this matter, counsel for the defendants…, raised two points in limine which she requested the court to deal with before going into the merits of the matter. Counsel submitted that the claim has prescribed, and, further, that the matter is res judicata.

Counsel representing the plaintiff opposed the application.

Counsel for the plaintiff submitted, in response, that the plaintiff prosecuted his claim to final judgment and that the previous claim was interrupted in terms of section 19(3) of the Prescription Act [Chapter 8:11].

Prescription begins to run when the debt or other cause of action arises.

Prescription is interrupted by the service of process on the debtor thus commencement of a suit. In Du Bruyn v Joubert 1982 (4) SA 69, the court laid down the requirements of interruption as follows;

(1) There must be process;

(2) The process must be served on the debtor; and

(3) By that process, the creditor must claim payment of the debt.

For process to interrupt prescription, the claimant is required to prosecute the claim to final judgment and not abandon the matter. In the same case, the court held that if the judgment is set aside for whatever reason, interruption will not take place.

The first issue that this court is being asked to resolve is whether this claim has prescribed.

Section 19 of the Prescription Act [Chapter 8:11] deals with interruption of prescription. It reads, in part, as follows,

“19 JUDICIAL INTERRUPTION OF PRESCRIPTION

(1) ….,.

(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, or

(b) Successfully prosecutes his claim under the process in question to final judgment but abandons the judgment or the judgment is set aside.”

This section deals with judicial interruption of prescription.

This court had occasion to consider the issue of judicial interruption of prescription in Chiwawa v Mutzuris 2009 (1) ZLR 72. The facts of this case are as follows. The parties entered into a verbal agreement for sale of a property in November 2002. This was followed, in July 2003, by a signed written agreement over the same property and transfer was not effected. In June 2004, the plaintiff filed an application for transfer of the property and the court dismissed the application in May 2005 on the basis that there were disputes of fact that could not be resolved on the papers and that the matter should have come by way of trial. In November 2006, the plaintiff issued summons to compel transfer of the property. The defendant raised the defence of prescription and the court upheld the defence.

The plaintiff appealed to the Supreme Court under SC4/11. The plaintiff contended that prescription had been interrupted by the issue of process in 2004 and insisted that the claim had not prescribed.

GARWE JA considered the use of the word 'successfully' in the phrase “does not successfully prosecute his claim under the process to final judgment,” in section 19(3)(a) of the Prescription Act [Chapter 8:11]. To aid it in its interpretation, the court followed the interpretation given to section 15(2) of the Prescription Act 68 of 1969 of South Africa in the case of Van Der Merwe v Protea Insurance Co Ltd 1982 (1) SA 770 (E). That section is similar to our section 19. At p 773 C-D, SMALBERGER J remarked as follows;

“It seems to me that the whole purpose of s15(2) is that, if a creditor fails to prosecute successfully his claim under the process which interrupts prescription, either in the court in which such process commences legal proceedings, or on appeal to a higher tribunal, or, having been successful in the initial prosecution of his claim, abandons the judgment in his favour, or it is set aside on appeal at the instance of the debtor, the running of prescription is deemed not to have been interrupted. (Evins v Shield Insurance Co. Ltd 1980 (2) SA 814 (A) at 827G-828A; Titus' case supra at 704C [Titus v Union & SWA Insurance Co. Ltd 1980 (2) SA 701 (Tk)]…,.”

The court, at p 793A-C, went further and remarked as follows;

“The 'process in question' is clearly that by which prescription was originally interrupted. It is that process which must be successfully prosecuted to final judgment by the creditor, and not any other. The reference to 'final judgment', in the context, contemplates judgment in the court in which process is instituted or, if the creditor is unsuccessful in such court, any higher tribunal in which the creditor is ultimately successful on appeal in relation to the 'process in question.' When a creditor is successful in the court in which the process in question commences legal proceedings prescription stands interrupted until the judgment is abandoned or set aside on appeal.”

After analysing this case, and others, the court in Chiwawa v Mutzuris 2009 (1) ZLR 72 held that;

“The creditor is required to successfully prosecute his claim to final judgment before prescription shall be deemed to have been interrupted. He is not simply required to prosecute his claim to final judgment and that there must be a successful prosecution to final judgment in the sense that the creditor must obtain a judgment in its favour.”

The court in Chiwawa v Mutzuris 2009 (1) ZLR 72 held, further, as follows;

“Paragraph (b) of subs 3 of s 19 has, without doubt, put the matter beyond argument. It has provided that if the creditor successfully prosecutes his claim under the process in question to final judgment but abandons the judgment or the judgment is set aside then prescription shall not be deemed to have been interrupted. As the respondents' have correctly pointed out in their heads of argument, one can only abandon a judgment given in one's favour. Similarly, in the context of subs 3(b), only a judgment in one's favour can be set aside on appeal or review.

I am satisfied that on a correct reading of the section and regard being had to the cases cited above, the correct interpretation is that there must be a successful prosecution to final judgment in the sense that the creditor must obtain a judgment in its favour. The suggestion by the appellant that the section simply means that the creditor must pursue the matter to final judgment ignores the use of the word 'successfully' and renders the word superfluous.”

The effect of section 19 of the Prescription Act [Chapter 8:11] is succinctly explained in these cases. I agree with the position adopted in these cases. Put simply, the effect of section 19(2) of the Prescription Act [Chapter 8:11] is that  process issued in respect of a debt and served on a debtor within three years of the cause of action has the effect of interrupting prescription. The running of prescription shall not be deemed to have been interrupted, in terms of section 19(3) of the Prescription Act [Chapter 8:11] if the creditor;

(a) Does not prosecute the proceedings under that process to finality; or

(b) Successfully prosecutes the claim under the process in question to final judgment but he abandons the judgment or the judgment is set aside.

The mischief behind the section is that the creditor must successfully prosecute the matter to final judgment and must get a judgment in his favour. If he does not, he is entitled to pursue the matter until he gets final judgment in his favour. He is only entitled to successfully prosecute to final judgment the proceedings under the process in question that is, the process by which prescription was originally interrupted and not any other.

The defendant was injured in 2006. That is the date when the plaintiff's cause of action arose. The prescriptive period began to run from the date the plaintiff sustained the injury. The plaintiff was required to bring proceedings within three (3) years of the occurrence in terms of section 15 of the Prescription Act [Chapter 8:11].

The first claim against the first defendant was bought in 2008.The first suit against the first defendant was brought within the prescription period. It was timely brought. The effect of the service of summons commencing action in the High Court action had the effect of interrupting prescription. The plaintiff was entitled to successfully prosecute this claim to final judgment. The judgment of the High Court was set aside on appeal. It does not matter whether it was set aside on the basis of the merits or on technicalities. Prescription stood interrupted as the plaintiff had not successfully prosecuted his claim to final judgment. The plaintiff was entitled to pursue his claim under the process in question until he obtained final judgment in his favour.

The plaintiff did not prosecute the first claim to finality. Those proceedings stand interrupted. The plaintiff can still pursue these proceedings

This matter is on all fours with Chiwawa v Mutzuris 2009 (1) ZLR 72. In both cases the plaintiffs did not prosecute the initial proceedings to finality. They then sought to bring fresh proceedings.

The plaintiff claims for additional compensation in terms of section 9 of the National Social Security Authority (Accident Prevention and Worker's Compensation Scheme) Notice (1990). Section 9 of the Notice states as follows:

“Notwithstanding anything to the contrary contained in this scheme, if a worker meets with an accident which is due:-

(a) To the negligence -

(i) Of his employer; or

(ii) Of a person entrusted by his employer with the management or in charge of such employer's trade or business or any branch or department thereof; or

(iii) Of a person having the right to engage or discharge workers on behalf of his employer; or

(b) To a patent defect in the condition of the premises, works, plant or machinery used in such trade or business, which defect his employer or any person referred to in para (a) has knowingly or negligently failed to remedy or caused….,;

the worker or, in the case of his death as a result of such accident, his representative, may, within three years of such accident, proceed by action in a court of law against his employer, where the employer is an employer individually liable, or otherwise against his employer and the General Manager, jointly, for further compensation in addition to the compensation ordinarily payable under this scheme. Provided that in the case of an action in which the employer and the General Manager are joined, nothing in this section shall be construed to mean that any compensation awarded under this section is payable by the employer.”

Liability in a claim for additional compensation is based on proof of negligence on the part of the employer. A party bringing a claim for additional compensation is required to cite both the employer and the National Social Security Authority. He has to cite the employer in order that he may be able to establish the negligence element of the claim and the National Social Security Authority because it is the authority responsible for payment of compensation.

The claim cannot be successful in the absence of either of the two defendants and hence the decision to join the second defendant.

Although the reasons why the judgment of the High Court was set aside were not given, it appears that the first defendant's ground of appeal that the court erred in finding that the claim before it was for additional compensation was upheld. Realising that a claim for additional compensation would not succeed without adding or joining the second defendant to the claim, the plaintiff issued summons against both defendants. A second set of summons was issued in November 2011. To this claim is now introduced the second defendant who was not previously cited.

These are fresh proceedings.

In order for additional compensation proceedings to succeed they ought to be brought within three years of the accident.

When one has regard to the requirements of interruption of prescription, it is clear that none of the requirements were met. There was no process served on the second defendant within the three year prescriptive period. The second defendant was not served with any summons until the plaintiff lost in the Supreme Court - and more than five (5) years after the occurrence of the accident. By this time, the prescriptive period had run out and the cause of action against the second defendant lapsed. The plaintiff failed to bring the claim against the second defendant within the prescription period as required in terms of the law. The second defendant was not part of the interrupted proceedings. Because the plaintiff failed to bring the second defendant to the fore within the required time, he cannot do that now.

Where a suit has been timely filed against one defendant, the filing of that suit does not interrupt prescription as against other defendants not served with the process. Prescription is not interrupted where a party is subsequently added to the same suit in circumstances where the party sought to be joined was not timely served with process. The proceedings by which prescription was originally interrupted are the proceedings which must be prosecuted to finality under the process. A litigant cannot bring a fresh set of summons and hope that those too will fall under cover of previous process that interrupted process in the first claim. The second defendant was not part of the initial proceedings, the claim against him has prescribed.

The second set of summons was brought out of time for both defendants. The preliminary point disposes of the case. It will not be necessary for me to determine the second point related to res judicata. The defendants' special plea is upheld.

In the result, it is ordered as follows;

1. The defendants are absolved from the instance.

In Latin, it is said “vigilantibus non dormientibus jura subveniunt.” The English equivalent is 'the law helps the vigilant but not the sluggard.'

The respondents argue that the matter had become prescribed because the applicant had allegedly slept on his rights since 2009 [the application having been filed in 2015]….,.

In casu, against all what the applicant had said to prove that he had never sold away his rights, the respondents just casually alleged that they had spoken to him on the telephone in 2009.

About what? Why would they have been speaking to him? ...,

Prescription

The second preliminary point taken by the respondent is that the applicant seeks the liquidation of the respondent on the basis of claims that have prescribed.

It is argued that once a claim is prescribed it cannot be revived. It is contended, further, that the payment which the applicant seeks to enforce is for debts which arose from 2009 to 2014. Given that the proceedings were instituted in April 2015, all claims going up to March 2012 are prescribed. The respondent contends that the applicant's right to seek liquidation of the respondent has also prescribed and the application ought to fail on that basis.

The difficulty in the respondent's argument on prescription is that it is not stated what portion of the debt is prescribed. It is common cause that on 28 November 2013 the respondent signed an agreement undertaking to make certain payments to the applicant, including an amount relating to what was referred to as the “Legacy Debt.” In its opposing affidavit, Richard Davies, a Finance Officer employed by the respondent deals with the issue of prescription as follows;

“The applicant in this matter is seeking payment for fertilizer that was delivered during the period 2009 to 2014. However, a portion of the applicant's claim is clearly prescribed by section 15 of the Prescription Act [Chapter 8:11]. I am advised and verily believe that the applicant can only claim payment for fertilizer supplied for the period 2012 to 2014. It's a result applicant's claim against the respondent is significantly reduced and this will, in fact, result in a material dispute of fact.”

The debt ensuing from the Memorandum of Agreement dated 28 November 2013, was clearly not prescribed. In fact, the argument by the respondent is that there is a dispute regarding the amounts owed by the respondents.

Whether the plaintiff's claims are prescribed

The first issue I will determine is whether the plaintiff's claims are prescribed by virtue of the provisions of the Prescription Act [Chapter 8:11]. The relevant provisions of the Prescription Act state as follows:

“Section 16 When prescription begins to run

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

(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 the facts if such could have acquired knowledge thereof by exercising reasonable care.”

It is common cause that Credsure refused to honour the claim by the plaintiff in a letter dated 12 April 2012. In this letter, Credsure gives reasons why the claim was repudiated. The summons in the present matter was only served on the defendant on 17 August 2015 - more than three (3) years after the plaintiff was advised that no Export Credit Insurance cover had been put in place in respect of ZAMCON Trading. The plaintiff's claims, in my view, are prescribed in accordance with the provisions of section 15 as read together with section 14 of the Prescription Act [Chapter 8:11].

The summons were served on the defendant more than three (3) years after the cause of action arose.

It is clear that the cause of action arose on 12 April 2012 when Credsure notified that the claim in respect of ZAMCON Trading had been repudiated by reason of Credsure not having agreed to cover limit. It seems logical that it is on that date that the cause of action arose against the defendant. Section 16 of the Prescription Act [Chapter 8:11] provides that prescription shall commence to run as soon as the debt is due. It further 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 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.

See the cases of Reuben Nyamusara v Halwick Enterprises (Pvt) Ltd t/a Whelson Transport HH215-01; Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR (H); Nomsa Chikwezvero v Tendai Chinamora HH318-14 and Eagle Insurance Co. Ltd v Grant 1989 (3) ZLR 278 (SC).

The plaintiff argues that the claim is not prescribed against the defendant in that after Credsure repudiated the claim herein, the defendant engaged the plaintiff and attempted to secure a settlement with Credsure.

In my view, an attempt to resolve a matter out of court does not interrupt the running of prescription. It is usually the case that parties to a dispute will engage each other in spite of pending legal suits. In this instance, the plaintiff was not prevented from instituting legal action against the defendant within the prescribed timeframe. The defendant did not acknowledge liability for the debt. I am satisfied that the plaintiff's claim is time-barred and that on that basis alone the special plea must be upheld and the plaintiff's claim ought to be dismissed.

I consider it unnecessary to consider the exception and application to strike out filed by the defendant. To do so, would be, in my view, an academic exercise.

In the circumstances, the following order is made:-

1. The defendant's special plea in bar is hereby upheld.

2. The plaintiff's claim is dismissed with costs.

The issue of prescription, which was pleaded by the defendants and also mentioned repeatedly during cross examination, was not made an issue for trial.

In her closing address, counsel for the defendants, however, did not deal with the issue of prescription and the defendants' witnesses said nothing about it. Being an issue of law, I have to touch on it.

Section 14(1) as read with section 15(d) of the Prescription Act [Chapter 8:11] fixes the prescriptive period for a debt at three years from the date the cause of action arose. The question which arises though is: When did the cause of action arise?

An assessment of the lease agreement shows that where there is a dispute over fair rent, such rent has to be determined by an arbitrator. In terms of clause 5(f), the arbitrator is enjoined to determine the annual escalation of rent for each successive year of the period of the dispute. This was done and the arbitral award was only made on 28 March 2014. There can be no doubt that the cause of action in respect of arrear rent only arose then. The summons was served on 28 July 2014.

Clearly, therefore, the claim had not prescribed. The same applies to the claim for operating costs which are claimed as part of the holding over damages from July 2014.

With regards to prescription, the first defendant's argument is that if, as the plaintiff claimed in her evidence, the agreement dates back to 1979, then it had prescribed by 1981.

The case of Nyarai Hwaire v Mbare Development Ltd t/a Shelter Zimbabwe & Others HH105-05 was cited in support of the contention that an Agreement of Sale is a debt in terms of the Prescription Act [Chapter 8:11]. Also cited was the case of Coutts and Company v Ford & Another 1997 (1) ZLR 440 (H).

The plaintiff counter-argued that her claim was not prescribed since, in relation to deceased estates, the date of the appointment of executor governs the prescription of any claim that relates to that estate.

To this, the first defendant's argument was that there are timeframes, according to section 5(1) and section 14(1) and (3) of the Administration of Estates Act [Chapter 6:01] which govern time limits within which a death must be notified and the process of administration of such estate initiated. The essence of his argument is that these time frames have not been observed….,.

I do not think that the argument of prescription pertains to this matter since at the very core of the dispute is whether there was ever an agreement to swop that could be subject to lapse in terms of the relevant Act. Indeed, the resolution of the case rests on resolving these factual disputes.

As regards the time frames stipulated by the Administration of Estates Act [Chapter 6:01], it is true that these were not observed. However, with the administration of deceased estates, being an area of law characterised by lay people only seeking to register an estate in the face of a problem, it would hamper the administration of justice to insist on formalism.

It is best, in my view, to allow cases of this nature involving families and emotional ties to be resolved on the merits rather than on technicalities in the hope that this will bring up some lasting resolution to a dispute.

The appeals are against two separate judgments by the High Court dismissing special pleas of prescription raised by the appellants in respect of a claim for specific performance launched by the respondent.

The following are the salient facts to the dispute;

The two appellants are sisters. In November 2014, the first respondent (hereinafter referred to as the respondent) issued summons under separate case numbers against the appellants in the High Court claiming transfer of certain immovable properties from the appellants on an individual basis. Under Case No. HC10410/14, in which the respondent sued the first appellant, the respondent alleged, in the declaration, that the first appellant had sold to him two immovable properties, namely, Stands 285 and 286 Colne Valley Township, held under Deed of Transfer numbers 1788/69 and 1688/69 respectively. In respect of the second appellant, under Case No. HC10411/14, the respondent alleged that the former had sold to him Stands 296 and 297 Colne Valley Township held under Deed of Transfer numbers 1597/69 and 1602/69.

In both declarations, which, with the exception of the names of the defendant and the identity of the Stands in dispute, were identical, the respondent alleged that after the sale he had sought to consolidate his title over the properties by way of registration at the offices of the Registrar of Deeds. He had then realized that the appellants were opposed to the registration.

Each of the appellants entered an appearance to defend the claims. Subsequent to this, they filed special pleas. I set out hereunder the plea by the first appellant:

“1.Even if Plaintiff's averment that he personally acquired his rights in respect of the two properties on 6 August 2002 was correct (although it is denied), the consequent obligations allegedly owed to him personally by First defendant were extinguished after three years elapsed by reason of s14 and 15 of the Prescription Act [Chapter 8:11].

2. The defence raised in Paragraph 1 above is one of substance which does not involve going into the merits of the case and which, if allowed, will dispose of the case.

3. Plaintiff's averment that until 2015 he mistakenly believed that the rights flowing from the Agreement of Sale of 6 August 2002 were owed to his company, rather than himself, does not assist his supposed cause of action and is irrelevant.

Wherefore, first defendant prays that the plaintiff's claim be dismissed with costs of suit.“

The second appellant filed an identical plea, the only difference being the dates as to when prescription was alleged to have set in.

Neither filed a plea on the merits.

Thereafter, the two matters were set down on separate dates for hearing before the same judge who issued two separate judgments.

In the court a quo, the finding was that the Agreement did not state when ownership should have passed to the purchaser, and that, in the absence of an agreed date, the purchaser should have placed the seller in mora. In both cases, the court held that from the papers it was not clear whether demand had been made, if at all, and therefore it could not make a finding that the claim had prescribed.

It proceeded to dismiss the special plea in both cases.

The first appellant contends that the court a quo erred in the following respects: -

(i) In not finding that the respondent's supposed cause of action for the transfer of the properties arose on signature of the alleged Agreement on 4 May 2002 and hence prescribed on 4 May 2005;

(ii) In finding that a demand for transfer was an ingredient in the respondent's supposed cause of action and not merely a step in the enforcement of the purported claim;

(iii) Alternatively, in not finding that the first respondent himself impliedly claims to have made such demand in 2009, such that even on the reasoning that is respectfully criticized in the second ground of appeal, the claim would have prescribed sometime in 2012;

(iv) In not finding that the first respondent's claim was prescribed and in not dismissing the action.

In my view, the issues in the appeal are two-pronged;

(a) The first issue is concerned with the question of cause of action as determined by the court a quo.

(b) The second issue is related to the manner in which the court a quo arrived at its determination that the debt had not prescribed resulting in the dismissal of the two pleas filed by the appellants.

At issue before the court a quo was whether or not the claims mounted against the appellants by the respondent had prescribed.

The party who alleges prescription must allege, and prove, the date of the inception of the period of prescription. Generally, prescription starts to run as soon as the debt becomes due.

In order to determine the question of prescription, the court first had to make a finding on the cause of action upon which the respondent's claim was premised and when specifically the cause of action arose. What constitutes 'a cause of action' was described in Abrahams & Sons v SA Railways and Harbours 1933 CPD 626. At 637 WATERMEYER J stated:

“The proper meaning of the expression 'cause of action' is the entire set of facts which gives rise to an enforceable claim and includes every act which is material, to be proved, to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action.”

In casu, the cause of action is the right of the respondent to transfer of the properties in terms of the alleged Agreements of Sale. The court a quo dealt with the issue in the following terms;

“Other than the above clause there is no other clause which deals with the issue of transfer of ownership. It is clear from the above clause that it does not say when exactly transfer of ownership should be effected. In the absence of an agreed date of transfer of ownership, the first defendant's submission that prescription began to run on 6 August 2002 cannot be said to be correct. It cannot be correct because the debtor, who was the seller, was never placed in mora. The seller was never made aware that she was now supposed to effect transfer of ownership.”

The clause relating to transfer in the alleged Agreement of Sale read as follows:

“OCCUPATION, RISK AND PROFIT

Seller shall give vacant possession of the property on or before the date of transfer. Risk and profit shall pass on to the Purchaser on the date of occupation or transfer whichever is the earlier.

…,.

…,.

PAYMENT OF PURCHASE PRICE

The purchase price shall be paid after transfer.”

In paragraphs 5 and 6 of the declaration, in both actions, the respondent set out his cause of action for an order for specific performance. Both read:

“5. Sometime in 2002, the plaintiff and defendant entered into a Sale Agreement relating to the two Stands. Plaintiff thereafter complied with all his obligations in terms thereof.

6. Plaintiff subsequently sought to consolidate his title via registration through second Defendant's office and realized that the first defendant was in fact opposing such overtures.”

Generally, the making of a contract of sale does not, per se, pass ownership in the thing sold. The authorities are clear that the signing of an agreement does not automatically translate to the transfer of property but that transfer can be effected at an agreed time or upon demand.

In Smart v Rhodesian Machine Tools Ltd 1950 (1) SA 735 (SR), TREDGOLD J…, accepted the general rule that where a contract fixes no time for performance, the debtor is not in mora until a reasonable time for performance has elapsed and the creditor has demanded performance.

This principle, as stated above, was also highlighted in Asharia v Patel & Ors 1991 (2) ZLR 276 (S), wherein GUBBAY CJ outlined the applicable principle where the time for performance in an agreement has not been agreed in the agreement itself. He stated:

“The general rule is that where the time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform. This form of mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default. The demand, or interpellatio, may be made either judicially by means of a summons or extra-judicially by means of a letter of demand or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance which is not unreasonable. If unreasonable, the demand is ineffective.”…,.

The appellants allege that the cause of action would have arisen in 2002, with the respondent contending that demand was necessary to place them in mora for failure to abide by their obligation in terms of the alleged agreements of sale. Absent such demand, it was contended by the respondent that there would have been no cause of action. It was further contended by the respondent that the appellants had failed to show when such demand placing them in mora was made. To this end, it was argued that they had both failed to show when exactly prescription began to run.

The term debt refers to anything that is owed or due, such as money, goods or services which one person is under an obligation to pay or render to another. Debt is defined in the Prescription Act as follows:

“2 Interpretation

In this Act -

“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.”

Going by the definition of debt, as contained in the Prescription Act, the right of the purchaser to place a seller in mora is itself a debt in favour of the purchaser which debt can prescribe. In the context of this dispute, debt would constitute the right to have transfer into the respondent's name. Critically, the Act provides that prescription starts running as soon as a debt becomes due. Section 16 of the Prescription Act reads:

“16 When prescription begins to run

(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.”

The issue before the High Court was centered on the date that the debt became due.

In considering the issue, the court a quo drew a distinction between a debt due under an Agreement of Sale and an agreement for the transfer of property. The court held that the issue of transfer of an immovable property was a separate issue which ought to have been agreed between the parties. The alleged agreements of sale which were placed before the court a quo were silent as to when transfer was supposed to have been effected. In casu, no date had been agreed upon in the alleged agreements and no evidence was led by any of the parties regarding the issue as whether demand had been made or not, and if it had, when such demand had been made.

The question centered on when the cause of action was alleged to have arisen and the matter therefore has to be decided in the context of the pleadings filed in the court a quo.

For purposes of calculating the relevant time when prescription begins to run, in respect of a debt, regard must be had to the date when the cause of action arose.

In opposing the prayer for the upholding of a plea of prescription, the respondent filed written submissions. The facts relied upon by the respondent were, contrary to the law, set out in the heads. It is pertinent to set the submissions in detail:

“(i) The debt was paid through the transfer made in favour of the plaintiff's company. Both parties believed that the obligation has been, though erroneously, properly extinguished. Under the circumstances, there was no knowledge that there was a debt which needed to be paid because parties believed they had performed the contract fully. Therefore, from the time the properties were registered to the nullification of the title deed, the creditor had no knowledge of the debt and prescription could not be said to be in operation; and

(ii) The debt only arose after this Honourable Court cancelled the Deed in terms of Case Number HC6909/11. It is from this period that the plaintiff/creditor became aware of the debt, that is the time the cause of action was created. Three years have not yet elapsed from the day the court granted an order cancelling the title deed.

(iii) It is respectfully submitted that by signing the power of attorney to pass transfer and declarations the first defendant was tendering payment of the debt, that is, performing the obligations in terms of the contract. The only issue is that payment was made to a proxy. The plaintiff believed that his rights were properly secured by his proxy, that is, the company. Clearly, under the circumstances, it cannot be said plaintiff knew that the debt was still owing.”

It is trite that after demand is made for transfer prescription would have commenced to run.

The court declined to grant the plea in the absence of evidence as to when the appellants were placed in mora for the transfer of ownership in the Stands in question.

From the grounds raised by the appellants, the issue that arises for determination in this court is whether or not the court a quo erred in finding that the respondent's claims against the appellants had not been hit by prescription. To this end, it was argued, on behalf of the appellants, that the respondent was entitled to demand transfer upon signing the agreement, and, in the absence of such demand, the claim had prescribed.

The court a quo correctly found that for prescription to start running there was need for the respondent to place the appellants in mora by demanding transfer. Having found that the cause of action must be triggered by a demand the court was obliged to then determine whether or not there was such a demand, and, if so, whether or not prescription was established. It could only have dismissed or upheld the plea upon a correct finding of the above two issues.

Generally, a plea is the answer by a defendant to the claim by the plaintiff as set out in particulars of claim or in a declaration, as the case may be. In addition to a plea which raises a defence on the merits of a claim, a defendant may also raise a special plea which has its object either to delay the proceedings or to quash the action altogether.

The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules, 1971. Order 21, Rule 137 specifies the manner in which a party wishing to rely on a special plea may raise such.

Order 21, Rule 137 provides:

“SPECIAL PLEAS, EXCEPTIONS, APPLICATIONS TO STRIKE OUT AND APPLICATIONS FOR PARTICULARS

137. Alternatives to pleading to merits: forms

(1) A party may -

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defence as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars.

[Subrule amended by S.I.120 of 1995].”

In dismissing the special plea filed by the first appellant the court said:

“As I have already stated, following the agreement of sale the purchaser (plaintiff) ought to have demanded transfer of ownership from the seller (first defendant) thereby placing the debtor in mora. Although the plaintiff, in his summons, says that he demanded transfer of ownership, nothing in the papers shows when demand was done. With this, the court cannot tell when prescription began to run…,. In the absence of evidence showing when exactly the first defendant was placed in mora by the plaintiff for transfer of ownership of the properties from the first defendant to the plaintiff, I am not inclined to grant the first defendant's special plea.”

The second appellant's plea also got similar treatment with the court remarking as follows:

“The problem I am faced with is that I cannot tell from the papers when plaintiff demanded transfer of ownership of the Stands following the agreement of sale. The plaintiff simply said that when he demanded transfer of ownership the first respondent refused to effect it. However, he does not say when he demanded transfer. On the other hand, the defendant disputes that the parties ever entered into an agreement of sale vis-à-vis the two Stands. So, under the circumstances, there is no way the plaintiff could ever have demanded transfer of ownership from the defendant. What this simply means is that the first defendant is saying that she was never placed in mora. If I go by the plaintiff's submissions all I can say is that although demand for transfer was made thereby placing the first defendant in mora, the date on which transfer should have been made is not stated and therefore that is unknown. Under the circumstances, I cannot tell when prescription should have begun to run. For these reasons, it cannot be said that the plaintiff's claim is prescribed.”

The court a quo found that the parties had not made it clear in the Agreement of Sale as to when transfer was to be effected.

The court was correct.

However, it then went on to to find that the purchaser should have put the seller in mora by demanding transfer and that that is the date from which the debt would have become due.

I think the court a quo cannot be faulted in concluding, as it did, that the cause of action, as related to the obligation to transfer, where an Agreement of Sale does not specify a time, such obligation only arises upon demand by the purchaser.

In a plea of prescription, the onus is on the defendant to show that the claim is prescribed, but if, in reply to the plea, the plaintiff alleges that prescription was interrupted or waived, the onus would be on the plaintiff to show that it was so interrupted or waived. This principle was clearly set out in Cassim v Kadir 1962 (2) 473 (NPD)…, as follows:

“In regard to the second answer to the plea of prescription, namely, that there has been interruption, the evidence falls very far short of what is required. It is true that the plaintiff, in his evidence, verbally admitted signing the Deed of Donation, and that he had, at some time or other admitted that he was liable to transfer the property to the plaintiff. Even if I am to assume, at this stage, for present purposes only, that plaintiff's evidence is true, I am quite unable to determine from that evidence the date when such admission of liability was made. It is clear that defendant, according to plaintiff's own evidence, maintained in 1955, or thereabouts, that plaintiff was not entitled to transfer, and disputed plaintiff's alleged right to transfer of the property now claimed. He said, to use the plaintiff's own words, in evidence, that plaintiff “had nothing”, meaning, quite clearly, that plaintiff had no right to the property which he seeks to claim. As I understood him, however, Mr Raftesath did not seriously urge that this interruption had been proved, and I do not think it is necessary to analyse the evidence further; nor is it desirable at this stage, for to do so would make it inevitable for me to express an opinion on the quality of the evidence given by the plaintiff in regard to the vital issue as to whether the Deed was ever signed, and how the signed Deed came to be lost.”

In Yusaf v Bailey and Others 1964 (4) SA 117, the question of onus regarding the special plea of prescription was considered as follows:

“…,. A special plea was filed to the effect that plaintiff's claim was prescribed by virtue of s 3(2) of Act 18 of 1943, as the issue of Drum was published on 20 June 1961 and the summons was served on 29 June 1962. The replication to this special plea is that the article was brought to the plaintiff's knowledge for the first time on or after 7 July 1961 and that he ascertained the identity of the defendants on the same date as the defamatory article was first brought to his knowledge….,.

The point therefore arises whether the onus lies on the defendants to establish the special plea, viz, that the facts are such as to entitle them to a dismissal of the action because the claim has become prescribed or whether the onus lies on the plaintiff to establish the allegations contained in the replication to the special plea….,.

The onus then being on the plaintiff to satisfy the court, in terms of his replication to the special plea, that his claim had not become prescribed before service of summons and as the only evidence in this regard is that of the plaintiff himself consideration, as to whether that onus had been discharged cannot be divorced from an assessment of his credibility as a witness. Consequently, no decision on the special plea could, as originally suggested, be given before hearing the evidence on the whole case.”

After being served with the special plea of prescription, the respondent should have replicated.

The purpose of a replication is to inform the court and the defendant of the plaintiff's rebuttal to the special plea. The failure by the respondent to file a replication to the special plea means that there are no disputes for determination on the special plea. In the absence of such replication there would be no issue for determination by the court a quo.

When one speaks of the need to discharge an onus it immediately becomes clear that there is an evidentiary burden that must be met. There is no suggestion that such burden, as required to be met, was met by documents filed of record. There were no affidavits placed before the court a quo.

Neither of the parties led evidence.

Thus, there was no evidence as to when demand for transfer was made. There was no evidence as to when the cause of action actually arose and given the fact that this was dependent on whether or not the appellants were placed in mora, the court was left in suspense on these very crucial issues. The court seems to have been alive to the fact that there was a need for a factual basis to be placed before it to facilitate a determination on the crucial issue of when prescription could be said to have started running.

The remarks by the learned judge show that the court made a decision on the special pleas in the absence of evidence.

By adopting such an approach the court erred.

It was critical for the court to understand the nature of the defences of prescription. The court disposed of the special pleas in the same manner as provided for exceptions and applications to strike out in the Rules of the High Court, 1975. The distinction between these procedures was highlighted by MURRAY CJ in Reuben v Meyers 1957 (4) SA 57 (SR).., wherein the learned judge stated:

“According to the modern practice, a defence of prescription is raised by special plea; in the Courts of Holland this was done by exception, a term which, as pointed out by INNES C.J. in Western Assurance Co. v D Caldwell's Trustee 1918 AD 262 at p 270, is used not in the narrow sense applied to it in South Africa (and Southern Rhodesia), but as covering a number of what would here be called special pleas.”

A special plea is an objection on the basis of certain facts which do not appear in the plaintiff's declaration or particulars of claim and has the effect of either destroying or postponing the action. The various forms of special pleas and the rationale underlying the procedure were set out by GILLESPIE J in Doelcam (Pvt) Ltd v Pichanick & Others 1999 (1) ZLR 390 (H)…, in which he said:

“The purpose of a special plea is to permit a defendant to achieve prompt resolution of a factual issue which founds a legal argument that disposes of the plaintiff's claim. Special pleas are three in kind. The plea in bar, by which a party may interpose a purely formal objection to the jurisdiction of the court. The plea is available as a plea to the jurisdiction or as a plea for the recusal of a judge and in no other case. Other special pleas are available to disclose some ground either for quashing or for delaying proceedings. Both are usually termed pleas in abatement, although that expression is properly used to describe the declinatory, rather than merely dilatory, plea. The plea in abatement, strictly so called, avers some good ground, not disclosed in the declaration, which otherwise is admitted, for denying the plaintiff relief. The dilatory plea advances some fact, not disclosed in the declaration, which is otherwise admitted, and which entitles the defendant to a stay of proceedings.

Since a special plea involves the averment of a new fact, it is susceptible of replication and of a hearing at which evidence on this new fact alone may be led.”

The above dictum shows that a special plea enables a litigant to obtain prompt resolution of a dispute because it either delays the proceedings or quashes them. Because of its ability to extinguish a claim there is need for a judge faced with such a plea to hear evidence from the parties. HERBSTEIN & VAN WINSEN: The Civil Practice of the Supreme Courts of South Africa 5ed Vol 1…, in explaining the essential differences between an exception and a special plea, articulated the need to adduce evidence in the case of a special plea as follows:

“The essential difference between a special plea and an exception is that in the case of the latter the excipient is confined to the four corners of the pleading. The defence raised on exception must appear from the declaration itself; the excipient must accept as correct the allegations contained in it and he may not introduce any fresh matter. Special pleas, on the other hand, do not appear ex facie the pleading. If they did, then the exception procedure would have to be followed. Special pleas have to be established by the introduction of fresh facts from outside the circumference of the pleading and those facts have to be established by evidence in the usual way. Thus, as a general rule, the exception procedure is appropriate when the defect appears ex facie the pleading, whereas a special plea is appropriate when it is necessary to place facts before the court to show that there is a defect. The defence of prescription appears an exception to this rule for it has been held that the defence should be raised by way of special plea even when it appears ex 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.”

In BECK's Theory and Practice of Pleading in Civil Actions 6^th ed., the learned author ISAACS…, states:

“Pleas in bar and pleas in abatement differ from exceptions precisely in this, that they do always introduce fresh matter which must be proven by evidence.”

In fact, when one has regard to the Rules of the High Court, one discerns a difference in the manner in which special pleas and exceptions ought to be dealt with. Rule 140 is pertinent in this regard. The Rule reads:

“140. Complaint by letter before applying to strike out or filing exception

(1) Before -

(a) Making a court application to strike out any portion of a pleading on any grounds; or

(b) Filing any exception to a pleading;

the party complaining of any pleading may state, by letter, to the other party the nature of his complaint and call upon the other party to amend his pleading so as to remove the cause of complaint.

[Subrules amended by S.I.43 of 1992]

(2) The costs of any such necessary letter and of any matters incidental to it, including any necessary conferences with another legal practitioner, shall be allowable on taxation.

[Subrule amended by S.I.277 of 1981]

(3) In dealing with the costs of any motion to strike out or of any exception, the provisions of this rule shall be taken into consideration by the court.”

Whilst prescription is by way of a plea, an exception is raised by way of a court application. In terms of our Rules of Court, an application shall be accompanied by an affidavit from a deponent who can swear positively to the facts contained therein. Critically, there is no provision for the filing of a court application where a special plea is filed, and when regard is had to the nature of the plea of prescription, that a determination on the facts as to when the cause of action arose, it must, by implication, become obvious that a factual dispute must be decided. This can only be determined by the parties leading viva voce evidence unless the dates are not in dispute.

This position of the law was put beyond question by BEADLE CJ in Edwards v Woodnut NO 1968 (4) SA 184 (R), in which he stated the following:

“The basic difference, however, between an exception and a plea in abatement is that in the case of a plea in abatement evidence must be led, whereas in the case of an exception the facts stated in the pleadings must be accepted.”

It can therefore be accepted as settled that evidence is necessary when disposing of a matter in which a special plea of prescription is raised. The rationale behind this is that where a party raises a special plea as a defence, new facts arise and because of the introduction of fresh facts which did not appear in the declaration, there is need for a court to hear the evidence of the parties where facts are disputed before making a ruling on the plea.

In casu, the court a quo disposed of the matter in the absence of such evidence. Clearly, a dispute of fact as to when the cause of action arose was evident from the special plea and this could only have been resolved through viva voce evidence.

The respondent did not raise an objection to the special pleas - he filed heads of argument. The purpose of heads of argument is to expound on the law applicable to the facts placed before the court - and one cannot plead through written submissions. It is also trite that one cannot adduce evidence through heads of argument but one may do so either in affidavits or viva voce evidence.

In casu, there were no affidavits filed which could have justified the manner of disposal of the dispute by the court a quo. In his book Extinctive Prescription, the learned author M.M. LOUBSER, says the following…,:

“From one point of view, extinctive prescription simply concerns questions of fact, namely, whether a particular period of time, prescribed by statute in respect of a particular obligation, has passed, and whether other conditions prescribed by statute on prescription have been met. If so, and if the debtor chooses to rely on it, prescription takes effect.”

The failure by the court a quo to call evidence was akin to a court which determines a matter through the application procedure in the face of material disputes of fact. The learned judge in the court a quo failed to appreciate that prescription is a defence and therefore a matter of substance. The court a quo and the parties before it, ignored the nature of the pleading that was central to the dispute. Essentially, what had to be disposed of was a plea. Its nature did not change by virtue of having the adjective special placed before it. It remained a plea which is a defence and which the court could only determine after hearing evidence unless the facts surrounding the plea were common cause or admitted. The facts were in dispute. It was therefore a matter for a trial cause. It is referred to as a special plea mainly due to its ability to destroy the action or postpone the proceedings….,.

In the event, the court a quo did not properly exercise its jurisdiction.

In my view, due to the manner of pleading or lack thereof, there were no issues for determination before the court a quo. The failure by the respondent to file a replication to each of the pleas of prescription disabled the court a quo from determining the real issues between the parties. There was no basis, on the record, justifying the dismissal by the court a quo of the pleas of prescription. In so doing, the court a quo misdirected itself.

In view of the failure to adhere to the correct procedure, the judgments by the court a quo must be set aside.

In my view, the court should have, in terms of the Rules, given directions to the parties on how the matter should have proceeded. There was nothing which precluded the court from directing the respondent to file a replication and from thence to hear the matter on the issues raised in the plea and the replication. In the circumstances, it seems to me just that this is the procedure that the court should adopt in order for the special pleas to be properly dealt with, and an order for the remittal of the matter to the court a quo would best achieve this.

In the premises, the following orders will issue:

Case Number SC457/15

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside.

3. The matter is remitted to the court a quo for a proper determination of the plea of prescription on evidence.

Case Number SC458/15

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside.

3. The matter is remitted to the court a quo for a proper determination of the plea of prescription on evidence.

On 25 November 2014, the plaintiff issued summons for an order compelling the first defendant to sign papers for the transfer of Stand numbers 285 and 286 Colne Valley Township held under Deeds of Transfer numbers 1788/69 and 1688/69 in the plaintiff's favour. The plaintiff also wants an order directing the second defendant to process the envisaged transfer.

In the declaration, the plaintiff said that in 2002 he entered into a Sale Agreement in respect of these two Stands with the first defendant. The plaintiff says that he complied with all his obligations but when he wanted to have the Stands registered in his names the first defendant opposed the overture.

The first defendant entered an appearance to defend the claim and later filed a special plea to the effect that even if the plaintiff's averment that he personally acquired rights in respect of the two properties on 6 August 2002 was correct (although it is denied), the consequent obligations owed to him by the first defendant were extinguished after three (3) years by reason of section 14 and 15 of the Prescription Act [Chapter 8:11]. The first defendant's counsel argued that prescription begins to run when the debt becomes due and a debt is due from the moment the cause of action is complete i.e. when the facts from which the claim arises have all occurred. To support his submission, he cited the case of Peebles v Dairibord Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H)…,. On this basis, the first defendant prayed for the dismissal of the plaintiff's claim.

It is the issue of prescription that I am supposed to determine.

In opposing this special plea of prescription, counsel for the plaintiff argued that in 2009 the plaintiff once had the two properties registered in the name of his company, Humworthy Investments (Pvt) Ltd. He argued that when the two properties were registered in the plaintiff's company's name, in 2009, transfer of ownership was deemed to have been effected. He submitted that, as such, the debt had been settled and prescription was no longer running.

It is not in dispute that in 2009 the plaintiff had the two properties registered in his company's name. The name of the company is Humworthy Investments (Pvt) Ltd. It is also common cause that on 18 July 2011, the first defendant made an application in this court, under case number HC6909/11, for the cancellation of the transfers of the two immovable properties to Humworthy Investments (Pvt) Ltd which application was granted on 27 October 2014.

Counsel for the plaintiff argued that during the time the properties were registered in the name of the plaintiff's companies there was no cause of action as both parties believed that the contract had been performed fully. He submitted that the cause of action only arose after the nullification of the title deed in 2014. Counsel for the plaintiff argued that the prescription period therefore started to run on the date this court pronounced an order nullifying the registration of the properties in the name of the company - which is 27 October 2014. He argued that from 27 October 2014 three years have not yet lapsed. Counsel for the plaintiff's argument gave the impression that the registration of the properties which happened in 2009 had been done by the consent of the first defendant and the plaintiff and that what caused the cancellation of the registration of the properties in the name of Humworthy Investments (Pvt) Ltd was that the properties had been wrongly registered in the name of the plaintiff's company instead of the plaintiff.

In response, the first defendant's counsel argued that the plaintiff, having signed the Agreement of Sale himself, he could not have been mistaken as to the identity of the person who was supposed to obtain transfer of the properties between himself and his company. Counsel for the first defendant further argued that the mistake of having the properties registered in the name of the plaintiff's company in 2009 was completely unreasonable and since it was a mistake as to the identity of the creditor and not the debtor, it is therefore irrelevant to the question of prescription. He submitted that that mistake did not interrupt the running of prescription….,.

Section 16(1) of the Prescription Act [Chapter 8:11] says that prescription shall commence to run as soon as a debt is due. The crucial question in the present matter is when did the debt become due? In other words, when was ownership supposed to be transferred from the seller (first defendant) to the buyer (plaintiff)?

To begin with, it must be realised that an Agreement of Sale is not an agreement to transfer ownership. MACKEURTAN: Sale of Goods in South Africa…, states that there are three (3) essential elements of a contract of sale. They are;

(i) The agreement (consensus ad idem);

(ii) The thing sold (merx); and

(iii) The price (pretium).

The parties enter into a contract with a view to exchange the thing for a price. If the three elements are there, there is a sale. Neither delivery nor the payment of the purchase price is necessary for the creation of the contract. Delivery and payment fall within the category of the performance of the contract.

A contract of sale merely obliges the seller to pass vacua possessio. As a result, it is not a pre-requisite of the contract of sale that the seller be the owner of the merx. In other words, a non-owner of a property can enter into a valid agreement of sale. This means, therefore, that the signing of an Agreement of Sale does not automatically result in ownership being transferred to the buyer. Parties should therefore agree on when transfer should be effected. If they agree on the date of transfer, it is on that agreed date that the debt becomes due in terms of section 16(1) of the Prescription Act [Chapter 8:11]. Prescription begins to run as from that date as the seller (debtor) would have been placed in mora.

Looking at the purported Sale Agreement which the plaintiff relies on which forms part of file number HC6909/11, which the parties referred me to, there is no reference as to when ownership should have passed from the seller to the buyer. The agreement only makes reference to the issue of the seller (the first defendant) giving vacant possession of the property to the buyer (the plaintiff) on or before the date of transfer. The relevant clause reads;

“Occupation, Risk and Profit

The seller shall give vacant possession of the property on or before the date of transfer. Risk and Profit shall pass on to the purchaser on the date of occupation or transfer whichever is the earlier.”

Other than the above clause there is no other clause which deals with the issue of transfer of ownership. It is clear from the above clause that it does not say when exactly transfer of ownership should be effected. In the absence of an agreed date of transfer of ownership, the first defendant's submission that prescription began to run on 6 August 2002 cannot be said to be correct. It cannot be correct because the debtor, who is the seller, was never placed in mora. The seller was never made aware that she was now supposed to effect transfer of ownership. It is wrong to say that since the parties signed the Agreement of Sale on 6 August 2002 therefore the seller should have passed ownership with effect from that date and that, as such, prescription began to run from that date. There is no basis for making that averment. In order for prescription to begin to run there is need for the creditor to place the debtor in mora first. In Asharia v Patel & Others 1991 (2) ZLR 276 (SC)…, GUBBAY CJ said:

“The general applicable rule is that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform. This form of mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default. The demand, or interpellatio, may be made either judicially by means of a summons or extra-judicially by means of a letter of demand or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance which is not unreasonable. If unreasonable, the demand is ineffective.”

In the circumstances of this case, whereby the parties did not make it clear in the agreement of sale when transfer was supposed to be made, the purchaser should have placed the seller in mora by demanding transfer of the properties. After the demand for transfer, prescription would have begun to run from the date the parties agreed transfer should be effected. That date would have been the date when the debt became due.

The papers before me do not say when the plaintiff demanded transfer of ownership of the two properties but it is common cause that in 2009 the plaintiff had transfer of ownership effected in the name of his company - although the registrations were later cancelled by this court on 27 October 2014.

The first defendant having averred that her properties were transferred fraudulently without her knowledge and consent and obtained judgment in her favour cancelling the registrations, I will completely disregard the whole period when the two properties were registered in Humworthy Investments (Pvt) Ltd's name. Since the transfers were said to have been done fraudulently, I will take that period as a non-event, as if no transfer of ownership ever happened.

As I have already stated, following the Agreement of Sale, the purchaser (plaintiff) ought to have demanded transfer of ownership from the seller (first defendant) thereby placing the debtor (first defendant) in mora. Although the plaintiff, in his summons, says that he demanded transfer of ownership, nothing in the papers shows when this demand for transfer was done. With this, the court cannot tell when prescription began to run….,.

In the absence of evidence showing when exactly the first defendant was placed in mora by the plaintiff for transfer of ownership of the properties from the first defendant to the plaintiff, I am not inclined to grant the first defendant's special plea.

In the result, it be and is hereby ordered that:

1. The special plea of prescription raised by the first defendant is dismissed.

2. The first defendant is to pay costs.

The plaintiff conceded that she only instituted these proceedings after she learnt that the first defendant wanted to sell the property.

In her evidence, the plaintiff was unconvincing as to why from 2000 up to 2011, a period of 11 years, she had not sought to enforce her rights - moreso after investing heavily in the property as she alleges.

While this defence of prescription, as provided in the Prescription Act [Chapter 8:11],] may be available to the first defendant, I am unwilling to make a finding in this regard.

The plaintiff explained that she consistently, between 2003 to 2011, asked the first defendant to transfer the property in her name and that of her husband. If this is true, it means that the running of the prescription was interrupted at various stages until in 2011 when the plaintiff said the first defendant, for the first time, denied liability.

The law helps the vigilant and not the sluggard.

Ndebele v Ncube 1992 (1) ZLR 288, 290; Masama v Borehole Drilling (Private) Limited 1993 (1) ZLR 288 (SC); Mubvimbi v Maringa & Anor 1993 (2) ZLR 24 (HC); Maravanyika v Hove 1997 (2) ZLR 88 (HC); Beitbridge Rural District Council v Russel Construction Co (Private) Limited 1998 (2) ZLR 190 (SC); and Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (SC).

Claiming to be a trust duly registered in terms of the laws of Zimbabwe, the plaintiff instituted summons action against the four (4) defendants seeking to be declared the rightful owner of Stand 1894 Marondera Township (the Stand) currently held by The Federation of Kushanda Pre-Schools by Deed of Transfer Number 2910/2006 and the cancellation of that title deed, the registration of the 1,7640 hectare Stand in its name and the eviction of the third defendant and all those claiming occupation through it from the Stand.

In its declaration, the plaintiff averred that in 1997 its beneficiaries, being its employees, won some prize money which they invested in the purchase of the Stand from the second defendant. However, management of the first defendant misrepresented to the second defendant that the purchase was made by the first defendant resulting in the Stand being registered in the name of the first defendant. On 27 April 2006 the Stand was registered in the name of the first defendant by Deed of Transfer No. 2910/2006.

The plaintiff averred, further, that in September 2007 the first respondent sold the Stand to the third defendant without a Board resolution resulting in the latter taking occupation. As the registration of title was irregular the plaintiff prayed for judgment aforesaid.

The third defendant entered appearance and filed a special plea in the following:

“The 3^rd defendant pleads as follows to the plaintiff's claim:

1. According to the plaintiff's own papers the wrong alleged was committed sometime in 2007. Summons claiming the property was issued by other parties in 2007 but the matter was withdrawn. This is confirmed by paragraph 8 and 11 of the plaintiff's further particulars. The claim is now being re-instituted by another party, being the plaintiff, in 2014, well in excess of the prescriptive three year period. The plaintiff's cause of action is consequently prescribed and the indebtedness has been extinguished by operation of law. On this ground alone the plaintiff's claim must fail.

2. As a result of the aforementioned special plea the 3^rd defendant is not obliged to plead over on the merits.”

Counsel for the third defendant submitted that the plaintiff's claim is prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11] because the cause of action arose in September 2007 when the third defendant purchased the Stand from the first defendant and took occupation. The plaintiff became aware of the identity of the third defendant as well as its right to sue then but did not take steps to prosecute the claim until March 2014 when it issued summons which was subsequently served. The running of prescription started then and was not interrupted until the prescriptive period of three (3) years expired. The special plea should therefore be upheld.

Counsel for the plaintiff conceded that the running of prescription commenced in September 2007 when the third defendant purchased the Stand and took occupation. He conceded that the prescriptive period of 3 years has run its course. He submitted, however, that the plaintiff relies on the argument that prescription, as a remedy, is not available to the third defendant and therefore cannot be sustained. This is because the third defendant's claim to the property is derived from that of the first defendant who allegedly sold the Stand to it. As the first defendant has consented to judgment, the third defendant cannot have a derivative claim to the Stand and cannot raise prescription as a defence to ward off an attack.

Counsel for the plaintiff submitted that while a third party can raise prescription it can only do so on the basis of either a real right or a real interest. The third defendant does not have a real right in the Stand but only a real interest. The latter is only available where the third defendant can prove that it was an innocent purchaser who bought the property in good faith and in the absence of any contestation to the title. In light of the fact that the first defendant has filed a consent to judgment and it maintains that it did not sell the Stand to the third defendant the latter cannot raise prescription.

In my view, this is a very awkward argument.

To the knowledge of the plaintiff, the first defendant held the property from 1997 and had it transferred to its name in 2006. Again, to the knowledge of both the plaintiff and the first defendant, someone purporting to represent the first defendant sold the Stand to the third defendant which immediately took occupation and has remained in possession for an un-interrupted period of almost 8 years. It is therefore not possible for the first defendant to only emerge now consenting to a judgment in respect of a claim that is clearly prescribed, where it long alienated its rights over the Stand and then argue that it did not sell the Stand to the third defendant merely because a resolution of its Board authorising the sale cannot be located.

The point is made by MARAIS AJ in Cape Town Municipality v Allie N.O 1981 (2) SA 1..., that:

“…, it cannot be denied that society is intolerant to stale claims. The consequence is that a creditor is required to be vigilant in enforcing his rights. If he fails to enforce them timeously he may not enforce them at all”.

The same point was made by WESSELS in The Law of Contract in South Africa, Vol II..., that:

“Creditors should not be allowed to permit claims to grow stale because thereby they embarrass the debtor in his proof of payment and because it is upsetting to the social order that the financial relations of the debtor towards third parties should suddenly be disturbed by the demanding from him payment of forgotten claims.”

In fact, there should be legal certainty and finality in the relationship of parties after the lapse of a certain period of time. It would be against public policy for one who has a complete cause of action to sit on it and not litigate upon it ad infinitum: Maravanyika v Hove 1997 (2) ZLR 88 (H)...,.

The provisions of the Prescription Act [Chapter 8:11] make prescription a matter of substantive law as opposed to procedural law. They extinguish the claim as opposed to merely barring the remedy: Coutts & Co v Ford & Anor 1997 (1) ZLR 440 (H)...,.

In light of the prescriptive period, which counsel for the plaintiff conceded has lapsed, it's the end of the road for the plaintiff....,.

The plaintiff is simply non–suited. So is the first defendant. In the result, it is ordered that:

1. The 3^rd defendant's special plea is hereby upheld.

2. The plaintiff shall bear the 3^rd defendant's costs.

Once it has run its course, prescription constitutes an absolute bar to claim.

Statutes of limitation are a common factor of legal life the world over.

The law helps the vigilant, not the sluggard. The rationale for the existence of such limitations is expediency. It is logical and practical that civil suits be brought within certain timeframes.

In Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC)…, GUBBAY JA…, drawing from the American case of Chase Securities Corporation v Donaldson [1944] 325 US 304 said:

“Statutes of limitations find their justification in necessity and convenience rather than in logic. They represent expedients rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defence after memories have faded, witnesses have died and disappeared, and evidence has been lost.”

There is a distinction between issuing of summons and the actual service of summons; the running of prescription is only interrupted when service of summons has been effected. See Masenga v Minister of Home Affairs 1998 (2) ZLR 183....,.

Limitation periods, in general, are justified on three primary grounds;

(i) The first is in the repose or finality to claims argument. It is essentially that there should be a fixed time when a potential defendant knows that he or she will not be held accountable for ancient obligations.

(ii) The second justification is an evidentiary one, namely, that claims should not be based on stale evidence.

(iii) The third rests on the need for diligence on the part of those who seek to claim in the sense that litigants should not “sleep on their rights”.

Statutes of limitation, therefore, act as an incentive for plaintiffs to act in a timely fashion.

In the case of Stambolie v Commissioner of Police 1989 (3) ZLR 287 SC..., GUBBAY JA..., drew on Chase Securities Corporation v Donaldson (1944) 325 US 304 in which the following observations were made by Justice JACKSON regarding statutes of limitations:

“…,. Statutes of limitations find their justification in necessity and convenience rather than in logic. They represent expedients rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defence after memories have faded, witnesses have died and disappeared, and evidence has been lost.”

As was stated in Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC)….,.:

“It has been said that statutes are conservators without which society cannot wholly govern. They are founded on grounds of public policy and give effect to two maxims:

(i) First, interest reipublicae ut sit finis litium – the interest of the State requires that there should be a limit to litigation.

(ii) Second, vigilantibus non diormientbus jura subveniunt - that laws aid the vigilant and not those who slumber.

They exist to prevent oppression; to protect individuals from having to defend themselves against claims when the basic facts have become obscured with the passage of time.”