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Prescription re: Approach, Interruption, Delay or Postponement in the Completion of Prescription

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

In so far as the issue that the agreement was cancelled is concerned, the attitude of Agro Chem is that any claim by the local authority seeking the cancellation has now prescribed. The agreement was concluded in 1995 and transfer to the purchaser was effected before the year was up. In terms of section 15(d) of the ...
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HH07-09 : CATHERINE CHIWAWA vs APOSTOLOS MUTZURIS and PANAYOTA MUTZURIS and GRAMMATIKI MUZTURIS and IRENE MUTZURIS and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

Counsel for the defendants submitted that on the evidence of the plaintiff, the plaintiff's claim, being a debt in terms of the Prescription Act [Chapter 8:11] (“the Act”), had been extinguished by prescription in that a period exceeding three years had lapsed between the date the plaintiff's cause of action arose and the date summons were ...
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HH87-12 : MARVELLOUS TARUONA vs MISHECK ZVAREVADZA and OTHERS
Ruled By: KUDYA J

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 ...
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HH01-10 : RIVER RANCH LIMITED vs DELTA CORPORATION LIMITED
Ruled By: PATEL J

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 1st 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 ...
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HH160-09 : SMART GONONDO vs ALICE MUTEPFA and PORTIA NYAMAROPA and CITY OF MUTARE (DIRECTOR OF HOUSING)
Ruled By: MAVANGIRA J

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 ...
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HB42-09 : MARGRET MOYO vs MR SIZIBA and DOKOTELA OMNIBUS, represented by R DOKOTELA and TRUST INSURANCE BROKERS
Ruled By: NDOU J

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. ...
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HH39-10 : HILDA SALILA AND MARIA SALILA vs GERRY MUNYARADZI SALILA N.O. and HUGHES SALILA MUSARIRA and MASTER OF THE HIGH COURT and THREE OTHERS
Ruled By: MUSAKWA J

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 ...
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HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

Again, in arriving at the conclusion that I do, I am guided by the remarks by GREENLAND J in Hodgson v Granger and Another 1991 (2) ZLR 10 (HC)... to the effect that the whole purpose of the Prescription Act, and other statutes of limitations is to penalize the dilatory creditor but not a ...
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HH154-10 : M CHANDAVENGERWA and T CHANDAVENGERWA vs W.M. MUTYANDA and MESSRS. ROBINSON & MAKONYERE
Ruled By: BHUNU J

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 ...
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HH206-10 : STANBIC BANK ZIMBABWE LIMITED vs FLAIR FURNITURE COMPANY (SUCCESSORS) LIMITED
Ruled By: MTSHIYA J

Counsel for the defendant went further to sate that an attempt on the part of the plaintiff to change the interest rate after six (6) years would be illegal as it would be in contravention of the Prescription Act [Chapter 8:11]. He said the interest rate used upon payment of a total of US$233,866=14 ...
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HH241-10 : MARY NYAMUTATA vs JOHN CHIKOMO and ARIMANDO BREAD and EPWORTH LOCAL BOARD
Ruled By: BHUNU J

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 ...
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HB08-10 : PHILLIP GUMBO vs JOYCE NDIWENI and DEPUTY SHERIFF and REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

Prescription in this matter was subject to judicial interruption in terms of section 7 of the Prescription Act [Chapter 8:11]. See section 7(2) of the Prescription Act [Chapter 8:11] and section 7(3) of the Prescription Act [Chapter 8:11].
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HB80-10 : NAISON CHAGARA GONOUYA vs SHADRECK HUKUIMWE and JUSTICE MUNYAMANA and BULAWAYO CITY COUNCIL
Ruled By: KAMOCHA J

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 ...
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HB87-10 : METALLION GOLD ZIMBABWE vs EUROTECH PLANT & EQUIPMENT (PVT) LTD and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

The request by the applicant for revised invoices was an admission of liability which clearly interrupted any prescriptive period which might have been running and there is no merit in the half-hearted argument over prescription.
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HB114-10 : MARIA SINGO (Executive Dative of the Estate Late Phillimon Singo) vs ROSE SITHOLE (as the executrix dative of the estate late Ernest Phillip Sithole) and OTHERS
Ruled By: MATHONSI J

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 ...
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HB115-10 : GORDON TUNDURE vs NKOSIKHONA NCUBE and D. MOYO
Ruled By: KAMOCHA J

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. The first defendant, who was served with summons on 2 August 2010, ...
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HB123-10 : EDGAR HOWERA vs HERBERT MUDZINGWA and NAOMI MUDZINGWA and DEPUTY SHERIF, KWEKWE and DIRECTOR OF HOUSING, MBIZO, KWEKWE and THE REGISTRAR OF DEEDS, BULAWAYO
Ruled By: MATHONSI J

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 - “Prescription strikes at the root of the plaintiff's allegation of a right by asserting that such ...
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HH44-11 : CHRISETTA CHIDZIVA (NEE CHINGOSHO) vs JULIET MUSARIRI and INNOCENT MUSARIRI and THE MUNICIPALITY OF MARONDERA
Ruled By: CHITAKUNYE J

The respondents' contention that the matter was prescribed was without basis. Clearly, on 4 June 2005, the first respondent acknowledged her obligations and under took to make good her side of the contract. In September of that year court process was started in the Magistrate's Court. When that was dismissed for lack of jurisdiction the ...
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HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

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 ...
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HH51-13 : CHIRINDA vs KONRAD VAN DER MERWE and MINISTER OF LANDS & RURAL RESETTLEMENT
Ruled By: CHIWESHE JP

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 ...
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HH90-11 : PATRICK MUSARARA vs THE COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY
Ruled By: MTSHIYA J

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, ...
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HH112-13 : EFROLOU [PVT] LTD and EMILY LUWACA vs MRS MURINGANI and EFROLOU [PVT] LTD and REGISTRAR OF DEEDS, BULAWAYO and THE MESSENGER OF COURT, KWEKWE
Ruled By: MAFUSIRE J

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 ...
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HH112-13 : EFROLOU [PVT] LTD and EMILY LUWACA vs MRS MURINGANI and EFROLOU [PVT] LTD and REGISTRAR OF DEEDS, BULAWAYO and THE MESSENGER OF COURT, KWEKWE
Ruled By: MAFUSIRE J

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 ...
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HB30-11 : FISO FIKILINI vs JUMA JAMU
Ruled By: MATHONSI J

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. If he were to prove the existence of a valid Sale Agreement concluded in 1998 as would entitle him to take ...
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HH85-14 : SIXTH CENTURY CONTRACTION (PRIVATE) LIMITED vs ZIMBABWE ELECTRICITY TRANSMISSION COMPANY (PRIVATE) LIMITED
Ruled By: DUBE J

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 ...
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HH288-14 : CHRISTINE GOREMUSANDU and GODFREY MAHENGA vs EUNICE CHITAMBARA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MWAYERA J

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 coming in, 8-9 years after the winding up of the deceased estate, cannot be viewed as ...
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HH311-14 : MAXWELL MATSVIMBO SIBANDA vs GYWNNE ANN STEVENSON and THE REGISTRAR OF DEEDS
Ruled By: DUBE J

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 ...
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HH315-14 : TECLA KAMBARAMI vs PETER MAJONGWE and THE REGISTRAR OF DEEDS and THE DEPUTY SHERIFF HARARE
Ruled By: DUBE J

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 ...
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HH318-14 : NOMSA CHIKWEZVERO vs TENDAI CHINAMORA
Ruled By: MWAYERA J

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) ...