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

Appealed
SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

On the issue of prescription, the court a quo held that the respondents had not proved, to its satisfaction, that the appellant's claims had prescribed in terms of section 15(d) of the Prescription Act [Chapter 8:11]….,. PRESCRIPTION I have already determined that the court a quo properly dealt with the respondent's special defence on cause of action and ...

PRESCRIPTION

I have already determined that the court a quo properly dealt with the respondent's special defence on cause of action and that its decision on the merits stands unchallenged on appeal. I entertain the view, in the light of this, that once the appellant is found, as in casu, to have had no cause of action against the respondents, no useful purpose would be served by considering the question of whether or not the various claims brought against them have prescribed. This is because the running of prescription and any attendant considerations, like its interruption, if any, cannot be determined in a vacuum but must be anchored on facts that establish a valid cause of action.

One matter in relation to prescription, however, calls for comment.

The appellant averred, in relation to the third respondent, that the court a quo misdirected itself in fact and law in not holding that, in any event, the prescriptive period relating to a mortgage bond was thirty years.

However, a perusal of the judgment of the court a quo shows that the court did not determine this issue on its merits. Rather, it did so on another basis, that is, the non-existence of a cause of action, as is evident from the following excerpt therefrom:

“And since I was not inclined to amend the loan agreements between the plaintiff and Stir Crazy Group of Companies to refer to Stir Crazy Investments (Pvt) Ltd, there is no causal connection between the loan agreement and the security mortgage that the third defendant provided. Therefore, I cannot find that the prescription period ought to be 30 years. Consequently, I cannot hold that the Plaintiff's claim against the third defendant had not prescribed.”

The appellant's ground of appeal in this respect is therefore misplaced. I have, in any case, found that the question of prescription became irrelevant once the absence of a cause of action against the respondents was established.

View Appeal
HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

WHETHER PLAINTIFF'S CLAIMS HAVE PRESCRIBED Whether or not I am wrong on locus standi and cause of action, the plaintiff's claim must still satisfy the requirements for prescription. The plaintiff alleged that payment was due to it as follows: (a) Claim 1: 11 December 2009; (b) Claim 2: 19 May 2010; (c) Claim 3: 15 January 2011; and (d) Claim 4: 31 January 2012 and ...

WHETHER PLAINTIFF'S CLAIMS HAVE PRESCRIBED

Whether or not I am wrong on locus standi and cause of action, the plaintiff's claim must still satisfy the requirements for prescription.

The plaintiff alleged that payment was due to it as follows:

(a) Claim 1: 11 December 2009;

(b) Claim 2: 19 May 2010;

(d) Claim 4: 31 January 2012 and 31 July 2012.

The defendants argued that the plaintiff's claims, being for debts, they were subject to extinction three years after they became due in accordance with sections 14 and 15 of the Prescription Act [Chapter 8:11] (“the Act”).

The third defendant therefore argued that, based on the allegation in the summons, the plaintiff's Claims 1-3 were destroyed by reason of prescription, as three years had elapsed from the date they became due to the date of service of summons, in accordance with section 15(d) of the Prescription Act.

The first and second defendants took the argument further to argue that all four claims had prescribed as they became due from the dates the loans were agreed on, that is on 30 April 2009, 19 May 2010, 27 October 2010 and 3 August 2011. For this assertion, they relied primarily on Chiwawa v Mitzuris & Ors 2009 (1) ZLR 72, where MAKARAU JP…, held that the date of the agreement from which obligations arose is the date upon which the cause of action arises.

The plaintiff, on the other hand, argued that its claims had not prescribed because:

(i) They were secured by mortgage bonds registered in favour of the plaintiff by the first defendant and another judgment debtor, which prescription period is thirty (30) years, in accordance with section 15(a) of the Prescription Act.

(ii) Alternatively, the principal debtor was not in mora prior to liquidation due to indulgencies the plaintiff granted to it, which therefore precluded pursuance of the claims against guarantors, (per Millmann and Another v Masterbond Participation Trust Managers (Pty) Ltd (Under Curatorship) and Others 1997 (1) SA 113); or

(iii) Alternatively, the principal debtor fell in mora upon entering into liquidation, and such placement into liquidation of Stir Crazy Investments (Pvt) Ltd, on 19 September 2012, interrupted prescription as provided for in section 17(1)(d) of the Prescription Act; or

(iv) Finally, the issuance and service of summons in HC589/13, though withdrawn against some of the defendants, interrupted the running of prescription. Reliance for this averment was put on Union Government v Willemse 1922 OPD 14…,.

The Law

It is trite that the general prescription period for all debts is three years, in accordance with section 15(d) of the Prescription Act [Chapter 8:11], while that for debts secured by mortgage bonds is 30 years in terms of section 15(a) of the Prescription Act. It is also trite that the completion of prescription is delayed where debts are against a company which has entered into liquidation (see section 17(1)(d) of the Prescription Act). Finally, it is settled law that prescription can also be interrupted by judicial process (see section 19 of the Prescription Act).

I also agree with the plaintiff, with regard to sureties, that the correct position is as summarised in Millmann & Anor v Masterbond Participation Trust Managers (Pty) Ltd (under curatorship) & Ors 1997 (1) SA 113C when FRIEDMAN JP and FARLAM J said:

“In our view, the legal position was correctly stated by Professor JG Lots, in, Joubert (ed) The Law of South Africa Volume 26 paragraph 161 where the following statement appears:

'Unless the parties have agreed otherwise, a surety's debt normally becomes enforceable as soon as the principal debtor is in default, subject, however, to the surety's right to claim that the principal debtor first be excused. If the surety has bound himself as co-principal debtor, his debt becomes enforceable at the same time as the principal debt.'”

Application of the law to the facts

From the above legal principles, I am of the view that, as a general principle, in a matter involving a loan or debt with agreed payment terms, as long as the principal debtor is not in mora prescription does not begin to run, as the debtor will be complying with the terms of the agreement and there is no cause to bring suit against it. However, where a debt is due to be paid on or from a particular date, and/or instalment payments are not made accordingly, then the principal debtor is in mora as at that date and prescription begins to run therefrom as that is the date the cause of action arose.

For instance, where a party enters into a five year loan agreement and makes the required repayments faithfully for the first four years, prescription does not begin to run. But, once the party defaults, then the cause of action arises and prescription then runs from that date.

I do not understand the provisions of the Prescription Act to mean that prescription runs from the date of the agreement where a party is not in mora as that would mean issuance and service of court process to interrupt prescription where there is no cause, thus creating a bane to commerce. For that reason, it is my view that the position in Chiwawa v Mitzuris & Ors 2009 (1) ZLR 72 is distinguishable. There, the judge was dealing with a situation where a party's right to transfer was at issue. She correctly held that the plaintiff was entitled to transfer of property from the date the agreement was concluded and prescription therefore began to run from that date.

In the present case, we are concerned with the issue of loan repayments, where a debtor can only be in mora from the date he defaults on his repayments.

In casu, it has not been established, on the record, exactly when the principal debtor went into mora by dint of defaulting in repayments. The plaintiff claims it was at the time Stir Crazy Investments (Pvt) Ltd went into liquidation, while the defendants claim that it was at the time the loan agreements were entered into.

Now, if the principal debtor is Stir Crazy Group of Companies, as appears on the loan agreements, then, of course, it went into mora as at the date of the loan agreements, as that non-existent company never made any payment to the plaintiff; and since there are no security mortgage bonds to secure its indebtedness, the plaintiff's claim had prescribed by the time summons were issued. Chiwawa v Mitzuris & Ors 2009 (1) ZLR 72 being the case in point.

It is another matter if the principal debtor was Stir Crazy Investments (Pvt) Ltd. If the parties agreed various indulgencies in its favour (which I assume to be debt rescheduling agreements), as alleged by the plaintiff, then it only went into mora upon entering into liquidation in 2012. Therefore, regardless of the existence of security mortgage bonds, the plaintiff's claim would still have been live as at the date of summons - Chiwawa v Mitzuris & Ors 2009 (1) ZLR 72 being inapplicable.

However, the plaintiff has not produced or proven the existence of these debt rescheduling agreements, leaving it unproven that Stir Crazy Investments (Pvt) Ltd was not in mora until it went under liquidation.

Therefore, assuming that the principal debtor is Stir Crazy Investments (Pvt) Ltd, the surety's liability in this case did not arise at the inception of the loans, but at the undetermined time that the principal debtor defaulted in meeting the repayment terms, which obviously is after the dates of 30 April 2009, 19 May 2010, 27 October 2010 and 3 August 2011 for claims 1-4, as it is standard practice that loan repayments cannot be due on the dates of the loan advances but subsequently. And from the plaintiff's own assertions that indulgencies were granted to Stir Crazy Investments (Pvt) Ltd prior to liquidation, then the dates of defaults were certainly before the date the company entered into liquidation. Consequently, with regard to Stir Crazy Investments (Pvt) Ltd, I am unable to accept both parties' assertions that prescription began to run from the date of the loan agreements or from the date of liquidation.

Regarding the plaintiff's averment that the running of prescription was judicially interrupted, I take note that the plaintiff instituted legal proceedings in HC589/13. However, such process was withdrawn with respect to the defendants herein after summons had been served.

I do not find favour with the plaintiff's argument that the fact of serving the summons was enough to interrupt prescription in terms of section 19 of the Prescription Act. This is because this provision requires that the creditor must successfully prosecute his claim to a final judgment of the court [see section 19(3)(a) of the Prescription Act], otherwise prescription shall be deemed not to have been interrupted. I have not been referred to nor have I found any authority for the position that if a plaintiff successfully prosecutes his claim against one debtor prescription is interrupted from running as against another. In fact, such a principle would render ineffectual the entire purport of the Prescription Act. Likewise, while it is true that prescription is delayed as against the principal debtor once it is placed under provisional liquidation before any of the plaintiffs' claims prescribed, I do not believe that it necessarily follows that section17(1)(d) of the Prescription Act is always applicable to claims against sureties (see Professor JG Lots, in, Joubert (ed) The Law of South Africa Volume 26). On the face of it, section 17(1)(d) of the Prescription Act is unambiguous: it provides for delay in completion of prescription where “the debt…, is the subject matter of a claim filed…, against a company in liquidation”…,.

In casu, prescription would certainly have been delayed as against the principal debtor, but the defendants are not companies which had entered into liquidation for which prescription could have been delayed. Therefore, had the principal debtor defaulted long before it went into liquidation, prescription for the defendants would have started to run as soon as the principal debtor went into default. I do not hold that subsequent liquidation of the principal debtor would have been a factor for the prescriptive period of the defendants.

In so far as the security mortgage bonds are concerned, and assuming the validity thereof, there is no doubt that the first defendant provided a surety mortgage bond to the plaintiff on behalf of the principal debtor to secure its indebtedness to the plaintiff. This is clear on the face of the bond at pp 39-42 of the plaintiff's bundle of documents. Consequently, the prescription period for the debts secured by this bond (if valid) is 30 years and thus would not have prescribed at the time that summons was served.

However, it is also clear from the record that the first defendant did not provide any unlimited guarantee. Therefore, it seems to me that the first defendant's exposure to the principal debtor's liability is limited to its obligations under the security mortgage bond. At the time that summons were issued, the first defendant was liable to the plaintiff in the amount of $1,050,000= secured by mortgage bond number 8776/03 dated 31 October 2003 over Stand 9064 of Salisbury Township. This is therefore the debt I would have found not to have prescribed had I ruled otherwise on cause of action. There is no evidence on the record that the second defendant ever provided any security mortgage bond. It however did provide an unlimited guarantee, in favour of Stir Crazy Investments (Pvt) Ltd, which, of course, had no effect on the running of prescription. I am, however, unable to find that all claims against the second defendant had prescribed or not, as neither party was able to prove, to my satisfaction, the exact date when prescription started to run.

It is another matter with regard to the third defendant.

She gave an unlimited guarantee in favour of Stir Crazy Group of Companies and provided a surety mortgage bond in favour of Stir Crazy Investments (Pvt) Ltd valued at $300,000=. However, I accepted her argument, on determining the question of cause of action, that the unlimited guarantee which she provided was in favour of a non-existent company, and was consequently a nullity. By extension therefore, I am unable to fault the logic that nothing can stand on nothing: once the unlimited guarantee is a nullity, then it cannot validly ground the mortgage bond. And since I was not inclined to amend the loan agreements between the plaintiff and Stir Crazy Group of Companies to refer to Stir Crazy Investments (Pvt) Ltd, there is no causal connection between the loan agreements and the security mortgage bond that the third defendant provided. Therefore, I cannot find that the prescription period ought to be 30 years. Consequently, I cannot hold that the plaintiff's claim against the third defendant had not prescribed.

In the event, I cannot agree with the plaintiff that the defence of prescription was wrongly taken….,.

1….,.

2….,.

3. The defendants defence of prescription is upheld;

HH167-12 : ZIMBABWE DEVELOPMENT BANK vs GENERAL ACCIDENT INSURANCE COMPANY
Ruled By: CHIWESHE J

The guarantee was for an indefinite period. In other words, it would hold for as long as the plaintiff remained indebted. For that reason, the question of prescription cannot arise.

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

Prescription applies as much to a declaratur as to an interdict, which are common law remedies. See Syfin v Pickering 1982 (1) ZLR 10 (SC)…,.; Maharaj v National Horseracing Authority of Southern Africa 2008 (4) SA 59 (N)…,.; Harker v Fussel 2002 (1) SA 170 (T). The purpose of the Prescription Act has been described as follows in the case of Uitenhague Municipality v ...

HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The appellant was an aspiring Presidential candidate in the 29 March 2008 harmonized elections. On the 15th of February 2008, he presented his nomination papers to the first respondent who refused to accept them.

He alleges that he arrived at the Nomination Court at around quarter to four while another aspiring candidate, Advocate Justin Chihota, was being attended to. He approached the first respondent who told him to await his turn as he the first respondent was attending to another candidate.

He alleges that in spite of his having been asked to await his turn he was eventually told that he could not be attended to as the Nomination Court had closed at 16:00 hours.

It was contented, on his behalf, that the first respondent's conduct was contrary to the provisions of the Electoral Act [Chapter 2:13] herein after called the Electoral Act.

The first respondent is the Constituency Registrar, who presided over the Nomination Court for Presidential candidates. The second respondent is the Chairman of the Zimbabwe Electoral Commission, which oversees the conducting of elections in Zimbabwe.

Before the hearing of the appeal, counsel for the respondents raised a point in limine.

He submitted that the appeal was out of time as it was lodged after the four days prescribed by section 46(19)(c) of the Electoral Act.

Section 46(19)(c) of the Electoral Act [Chapter 2:13] provides as follows:-

“If no appeal in terms of paragraph (b) is lodged within four days after the receipt of notice of the decision of the Nomination Officer, the right of appeal of the candidate shall lapse and the decision of the Nomination Officer shall be final.”

Counsel for the respondents referred to this court's decision in the case of Edson Nyamapfeni v The Zimbabwe Electoral Commission and 3 Others E/P 7/08, in which I held that the time within which an appeal should be noted is reckoned from the second day after the day on which the candidate's nomination is rejected, and that the period includes Saturdays and Sundays.

In Heads of Argument prepared by Mr Samkange, but argued in chambers by Mr Chinyama, it was contented that the filing of the urgent application which was dismissed by GUVAVA J interrupted the running of prescription and the four days prescribed by section 46(19)(c) of the Electoral Act only started running on the 21st February 2008, the day GUVAVA J dismissed that application.

The Heads of Argument do not indicate which section of the Prescription Act [Chapter 8:11], hereinafter called the Prescription Act, the appellant is relying on.

A reading of the Prescription Act leaves no doubt that only Part IV would apply to prescription through the lapsing of time periods prescribed in statutes. Sections 13(1)(a) and (b) and 14 refers.

The appellant's counsel's argument is not consistent with the provisions of section 19(2) and (3) of the Prescription Act which provides for judicial interruption of prescription as follows:-

“(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.”

It is clear, from subsection (2), that the service of process interrupts prescription. That is, however, subject to subsection (3) which makes the confirmation of such interruption subject to:-

(1) The debtor acknowledging liability in which case the proceedings need not result in a final judgement in the creditors favour; or

(2) The creditor successfully prosecuting his claim to final judgment - which means the creditor should win the case.

If the above does not happen, as was the case in the application which was dismissed by GUVAVA J, prescription is not interrupted.

In this case, the respondents, who are the debtors, did not, in the application proceedings, acknowledge that the appellant, then applicant's nomination papers had been incorrectly refused. On the contrary, the respondents successfully raised points in limine which led to the dismissal of the appellant's application.

Success was therefore not on the appellant's side; yet, that is what could have interrupted the running of prescription against him.

Therefore, since the appellant did not succeed to final judgement in his favour in the application proceedings, and the respondents did not concede that he should have been nominated, the interruption of prescription by service of the application lapsed, and the running of prescription is not deemed to have been interrupted.

The appellant's claim, that the running of prescription against the four day period was interrupted, could only have succeeded if he had succeeded in the application proceedings to final judgment.

I therefore find that the period during which the appeal should have been lodged lapsed on the 19th February 2008 two days before this appeal was lodged.

Mr Chinyama also argued that in view of the provisions of section 165(4) of the Electoral Act and Order 1 Rule 4A of the High Court Rules, Saturdays and Sundays are not included in the reckoning of time.

Counsel for the respondents submitted that, that issue had already been decided in Edson Nyamapfeni v The Zimbabwe Electoral Commission and 3 Others E/P 7/08, and stressed that Rule 4A refers to time periods within which “anything is required by these rules or an order of court to be done.”

Mr Chinyama persisted with his argument and asked for time so that he could identify a rule in the High Court Rules which specifies time periods for the noting of appeals which is relevant to these proceedings.

An adjournment was granted after which he came back conceding that he could not find the Rule and was no longer persisting with his argument.

In Edson Nyamapfeni v The Zimbabwe Electoral Commission and 3 Others E/P 7/08, commenting on the provisions of section 165(4) of the Electoral Act and Order 1 Rule 4A of the High Court Rules, I…, said:-

“It is true that this court can rely on High Court Rules, but, the issue to be determined is whether or not the provisions of Rule 4A extend to time limits prescribed in an Act of Parliament.”

I, thereafter, commenting on Rule 4A, said:-

“The key words in Rule 4A are 'where anything is required by these rules or in any order of the court to be done within a particular number of days.'

This means the Rule applies to anything required to be done by any rule in the High Court Rules or an order of the court. It does not extend to situations not provided for by the rules or court orders. It therefore does not assist in the construction of section 46(19)(c) of the Electoral Act, which is not a provision of the High Court Rules, but a provision of the Electoral Act.”

I am therefore satisfied that Mr Chinyama has properly conceded that his argument on this point is untenable.

Counsel for the respondents sought costs on the legal practitioner and client scale against the appellant, the appearing legal practitioner, and the instructing law firm.

He submitted that the same issue has been before GUVAVA J as an urgent application instead of an appeal because of the appellant's legal practitioner's failure to correctly apply the provisions of section 46(19)(a)(b) and (c) of the Electoral Act.

In that application, the respondents raised preliminary issues on the inapplicability of the Urgent Application procedure as it is not provided for in section 46 of the Electoral Act. The appellant's legal practitioners persisted with that application until it was dismissed by GUVAVA J with costs on the legal practitioner and client scale.

Mr Chiyama did not dispute that the application was dismissed because it had not been lodged in terms of section 46(19) of the Electoral Act.

The provisions of section 46(19)(b) and (c) of the Electoral Act are clear. They provide for an appeal, not an application.

If the appellant and his legal practitioners were acting reasonably they would have withdrawn the application and immediately lodged the appeal instead of persisting with the application until it was dismissed with costs on the higher scale on the 21st February 2008.

This appeal was lodged on the day the urgent application was dismissed.

At the hearing of this case, the appellant's counsel exhibited the same unreasonable persistence in the face of clear facts that the appeal was out of time.

I am satisfied that the costs sought by counsel for the respondents should be granted.

It is therefore ordered that:-

The appellant's appeal be and is hereby dismissed with costs on the legal practitioner and client scale against the appellant, the appearing legal practitioner, and the law firm jointly and severally the one paying the others to be absolved.

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court granting an application for specific performance lodged by the first respondent against the appellants. Apart from granting the relief sought, including the payment of damages in the alternative, the court a quo also ordered the appellants to pay costs ...

Background

The first respondent is an association of residents of the Knowe Housing Development based in the town of Norton. These residents purchased Stands on the development site from the first appellant whose business is to develop and sell housing Stands.

The second appellant is apparently the only active director of the first appellant.

The second respondent is the Norton Town Council. It did not appear at the hearing of this appeal, having filed heads of argument indicating that it would abide by the decision of this Court.

The first appellant, as the owner and seller of Lot 2 of Knowe Suburb, entered into sale agreements with the first respondent's members in 1998 (Phase 2) and later in 2003 (Phase 3). The Phase 2 residents complied with their respective agreements by paying the first appellant in full over a period of 30 months. The Phase 3 residents also duly complied by paying the first appellant in full within the agreed period of 60 months that ended on 1 February 2008.

The first respondent averred that the first appellant had breached its contract of sale with the Knowe residents. It filed an application for specific performance or the payment of damages in the alternative.

The appellants opposed the application on the merits and also raised three points in limine at the hearing a quo.

High Court Judgment

The court a quo dismissed all three points in limine.

As regards the first point, relating to prescription, the court found that the permits granted to the first appellant did not give any time limit within which the infrastructural development was to be completed and that the contracts with the residents did not specify any time limits for suing the first appellant. Whatever was to be done by the first appellant was to be done within a reasonable time.

With respect to the second point, the court found that there were no material disputes of fact and that, therefore, it was proper for the first respondent to proceed by way of application rather than by way of action.

Lastly, the court dismissed the third point objecting to the citation of the second appellant in his personal capacity on the basis that he was responsible for the first appellant's administrative affairs.

On the merits, the court a quo found that the members of the first respondent had duly performed their part of the agreements. Conversely, the first appellant had performed some part of the agreements but had not fully complied with the agreements and development permits. The court was not satisfied that this failure to perform was mainly because of inflation. The court further found that the first appellant had failed to establish that performance was now impossible in the era of dollarisation.

If the first appellant had serviced the Stands at the time the purchase prices were paid, between 1998 and 2008, there would have been no difficulty in the performance of the contracts. The court rejected the defence of impossibility of performance on the basis that any hardships now encountered by the appellants were self-created.

Finally, the court held, that, if the appellants were unable to comply with an order for specific performance, they must, in the alternative, pay damages.

In the event, the court ordered the appellants to fully service the Stands in Phases 2 and 3 within 90 days to the second respondent's satisfaction and specifications. The latter was ordered to ensure that the relevant statutory requirements were met. Alternatively, the appellants were ordered to pay the sum of US$192,901,995 to the first respondent's members within 30 days. If they failed to pay, the Sheriff was authorised to attach and sell the appellants' property in execution in satisfaction of the damages awarded. Lastly, the appellants were ordered to pay the costs of suit on an attorney and client scale.

Grounds of Appeal and Relief Sought

The 10 grounds of appeal hereunder are unduly prolix and repetitive. They attack the judgment a quo on the following broad bases:

(i) The appellants were not in breach of their obligations in the absence of a finding as to the time when performance was due, and, therefore, the application a quo was premature and not enforceable.

(ii) The claims in casu were prescribed following the execution of their obligations by the residents, and, in that respect, the court misconstrued the first appellant's contractual obligations and its duties in terms of the permits issued by the second respondent.

(iii) The claim for damages required the quantification of damages by way of action, and, consequently, the claim for damages was not proven according to law.

(iv) The court erred in ordering the second appellant to pay damages personally, and, in so doing, it mis-applied the doctrine of piercing the corporate veil.

(v) The court failed to deal with and pronounce upon the defence of currency nominalism and ordered the payment of damages in the currency of circulation and not the currency of performance.

(vi) The court improperly failed to consider the feasibility of performance against the defence of supervening impossibility.

The appellants pray that the appeal be allowed with costs and that the judgment a quo be set aside and substituted with an order dismissing the application with costs.

At the hearing of the appeal, counsel for the appellants moved an amendment to the relief sought, substituting the prayer for dismissal with one for remittal to the court a quo. Counsel for the first respondent had no difficulty with the prayer being substituted as amended. The prayer was accordingly amended, by consent, to provide for the remittal of the matter rather than the dismissal of the application a quo....,.

Prescription of Claims

Counsel for the appellants submits that the question of prescription is also one that raises issues requiring evidence.

The cause of action of each member of the first respondent would vary according to individual circumstances pertaining to questions of demand of performance and the placing of the first appellant in mora. There was, so he contends, no evidence on these issues in the proceedings a quo.

He further submits that the first respondent's members could have become aware of the alleged breaches upon exercising reasonable care within the contemplation of section 16(3) of the Prescription Act [Chapter 8:11].

This was also a factual issue requiring further evidence.

I note that, in motivating the prescription argument, counsel for the appellants appears to have side-stepped the stated grounds of appeal premised on the position that the claims in casu were prescribed, in terms of section 15(d) of the Prescription Act, three years after the first respondent's members had executed their own obligations to pay the purchase price in full.

In any event, counsel for the first respondent submits that there is no merit in the prescription argument.

All the pleadings, including the opposing affidavit of the second appellant, are clear that the contracts of sale do not stipulate any time frames for the completion of works by the first appellant. She further notes that the second appellant appears to equivocate as to the running of prescription.

It is trite that for prescription to commence running regard must be had to the date when the cause of action first arose. This ordinarily occurs when the claimant becomes aware of all the relevant facts grounding his or her claim. Additionally, the claimant must make a demand for performance placing the other party in mora: see Brooker v Mudonda SC05-18.

In casu, the first respondent wrote a letter, dated 12 March 2015, addressed to the appellants, bemoaning the lack of activity on their part and enquiring when they would attend to the servicing of the Stands in Phases 2 and 3.

The contents of this letter obviously served to place the appellants in mora.

The response from the appellants' lawyers, dated 20 April 2015, purported to raise various evidently disingenuous queries as to the current status of development at Knowe Suburb.

On 15 May 2015, the first respondent's lawyers replied to those queries, and, additionally, sought a commitment date from the appellants, failing which the first respondent would deem such conduct as an unwillingness to comply on the part of the appellants and proceed to enforce its rights in terms of the law.

In my view, it was at this stage that the first respondent's cause of action arose against the appellants.

The court a quo relied on this correspondence to find, quite correctly, that the first respondent's claim, having been instituted on 15 December 2017, had not prescribed.

In the premises, I am satisfied that the third and fourth grounds of appeal also lack merit and must therefore be dismissed.

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

The application before me is a special plea and exception.

The brief facts surrounding this claim are as follows:

The plaintiff was employed by the Confederation of Zimbabwe Industries reporting to the first defendant who was its President and Chief Executive Officer. On 18 June 2014, the plaintiff issued summons against the two defendants claiming damages for shock, non-patrimonial damages, post traumatic damages and pain and suffering.

The plaintiff claims that during the course of her employment with the second defendant, which ran between September 2002 and June 2003, she was sexually harassed by the first defendant who would pester her for an improper relationship. She claims that her resistance to the sexual advances culminated in the termination of her employment by the first defendant for a petty offence.

She challenged the dismissal.

The matter ended up at arbitration. An arbitrator ruled in her favor after having found that she had been sexually harassed by the first defendant. The arbitrator ordered the defendants to jointly compensate her for the damages she had suffered as a result of the sexual harassment.

The defendants have filed a special plea and also except to the plaintiff's summons and declaration. They take two points:

(i) The first point both defendants take is that the plaintiff's claim has prescribed.

The defendants submitted that by the time summons was issued, on 18 June 2014, the plaintiff's claim had prescribed.

(ii) The second defendant challenges the summons on the basis that it does not disclose a cause of action against it. It avers that the second defendant's liability can only be vicarious.

The second defendant challenges the declaration on the basis that it does not allege that the actions against the plaintiff were committed “during the course and within the scope of his employment.”

The defendants contend that the omission is fatal to the plaintiff's claim....,.

The next issue is that of prescription.

I have chosen to deal with this point first as it is capable of disposing of the matter without the need to delve into the second point raised on the merits.

It is trite that a debt or cause of action prescribes after three (3) years in terms of section 15(a) of the Prescription Act [Chapter 8:11], as read with section 2.

The term 'cause of action' was succinctly defined in Chiwawa v Mutzuris and Ors HH07-09…, where the court stated as follows;

“It is now settled 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 that cause of action.”

See also Shinga v General Accident Insurance Co. (Zimbabwe) Ltd 1989 (2) 268.

Prescription begins to run when a litigant becomes aware of all the facts that she requires to allege in her prayer for judgment.

There are instances when the setting in of prescription is delayed.

One such instance is provided for in section 17(1)(d) of the Prescription Act. The section provides that prescription is delayed “if the debt is the subject matter of a dispute submitted to arbitration…,.”

Section 17 of the Prescription Act covers a situation where a debt or cause of action has been submitted to arbitration. Section 17(1)(d) is applicable where the subject matter of a dispute is submitted to arbitration.

The rationale behind the section must have been to ensure that litigants who pursue the arbitration route do not get barred from bringing their claims to the formal court system should they wish to do so; that after the expiry of three years from the time the cause of action arose. The time that litigants take when attempting to get the dispute resolved by way arbitration is not counted for purposes of determining if the debt or cause of action has prescribed.

Prescription is, in those circumstances, delayed until the arbitration proceedings are either finalized or abandoned.

The cause of action, as outlined in the summons, is the sexual harassment that occurred during the time the plaintiff was employed by the second respondent. The plaintiff was employed by the second defendant between 2 September 2002 and 19 June 2003. The cause of action arose during that period.

Summons was only issued on 18 June 2014 - some 11 years after the plaintiff had left the second defendant's employment. The plaintiff was, by the end of June 2003, aware of every fact which was necessary for her to prove in order to support her claim for damages for sexual harassment.

Instead of approaching the High Court claiming damages for sexual harassment, she went for conciliation with a complaint of sexual harassment and claiming that an unfair labour practice had occurred and that she had been wrongly dismissed.

The matter ended up with an arbitrator who on 28 March 2014.

The terms of reference of the arbitrator did not include determination of the question of damages for sexual harassment. The questions referred by the conciliator were simply whether she had been sexually harassed and the issue concerning her dismissal. The arbitrator ruled that the plaintiff was sexually harassed by the first defendant and both defendants were ordered to jointly compensate the plaintiff for damages for sexual harassment.

The jurisdiction of arbitrators, when dealing with unfair labour practices, is limited to stopping the conduct complained against. The role of the Labour Court and arbitrators, when dealing with claims involving sexual harassment, is to make a finding on allegations of unfair labour practice and only seek to stop the practice.

The Labour Court or tribunal does not have jurisdiction to assess damages arising from a complaint of an unfair labour practice.

Similarly, a Labour Court or tribunal faced with a complaint of sexual harassment cannot proceed and make an award for damages arising out of the sexual harassment.

The claim for damages was never properly before the arbitrator.

The arbitrator erred in dealing with the issue regarding damages suffered as a result of the sexual harassment as damages were not part of the arbitrator's terms of reference. His terms of reference were clear that he was required to deal with the unfair labour practice only. He dealt with the claim for damages out of his own initiative and wrongly so. He went on a frolic of his own.

The award was subsequently set aside by this court on the basis that the arbitrator lacked jurisdiction to award civil damages.

The claim for damages was not properly before the arbitrator. If it was not properly so, then there was no submission and hence there is no delay to talk about. There, setting in of prescription was not delayed by the purported submission to arbitration because the claim for damages was improperly before the arbitrator.

Section 94 of the Prescription Act [Chapter 8:11] deals with prescription of labour disputes and hence has no relevance to this claim.

The issue of damages is being raised for the first time in a competent court well after the claim has prescribed.

By the time summons were issued, the claim had prescribed.

In the result, it is ordered as follows:

1. The defendant's special plea is upheld.

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

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo ...

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.

The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo be set aside and substituted with an order dismissing the special plea with costs.

Background

This protracted and bitterly contested matter emanates from the following factual background:

The appellant was employed by the second respondent, reporting to the first respondent, who was the Chief Executive Officer of the second respondent. On 18 June 2014, the appellant issued summons against the respondents claiming damages for shock, pain and suffering, arising from alleged sexual harassment by the first respondent between September 2002 and June 2003.

According to the appellant, her resistance to the first respondent's unsolicited and predatory advances culminated in her dismissal from the second respondent's employment. Her dismissal was challenged and referred to arbitration. The arbitrator found in her favour after finding that she had been sexually harassed by the first respondent.

The arbitrator initially ordered both respondents to jointly compensate the appellant, but, in subsequent proceedings, he referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment.

Before the High Court, the respondents filed a special plea that the claim had prescribed by the time that summons were issued in June 2014.

The second respondent also excepted to the declaration on the basis that it did not disclose a cause of action by reason of the appellant's failure to specifically and properly allege vicarious liability on its part in respect of the first respondent's conduct.

The court a quo found that, by the end of 2003, the appellant was aware of every fact necessary to prove her claim for damages. However, instead of approaching the High Court for damages, she pursued her claim through the labour relations mechanisms of conciliation and arbitration. The arbitrator had no jurisdiction to assess damages arising from an unfair labour practice, and, therefore, could not award damages for sexual harassment. The claim for such damages was not part of the arbitrator's terms of reference and was not properly before the arbitrator.

In the circumstances, the court held that the setting in of prescription was not delayed, in terms of section 17(1)(d) of the Prescription Act, by the purported submission of the claim to the arbitrator. The claim for damages was raised before a competent court well after it had prescribed.

In the event, the court upheld the respondents' special plea of prescription and dismissed the appellant's claim with costs.

Submissions on Appeal

The appellant's position, as appears from her grounds of appeal and voluminous heads of argument, is that the question of sexual harassment was a labour matter to be first determined and disposed of by the arbitrator before any claim for delictual damages could be lodged at the High Court.

She further submits that the issues of sexual harassment and vicarious liability were part of the arbitrator's terms of reference.

Moreover, the arbitrator's finding of sexual harassment was not appealed against and remained unchallenged.

Thus, she contends that the question of damages, having been properly raised before the arbitrator, was not raised for the first time before a competent court well after her claim had prescribed.

Counsel for the first respondent submits, that, there is a fundamental distinction between a claim for compensation in a labour dispute and a claim for damages under the lex Aquilia. Therefore, since there was a different cause of action before the arbitrator as compared with that before the High Court, the reference to arbitration did not operate to interrupt the running of prescription on the claim for damages.

Counsel for the second respondent echoes the same position, but from a slightly different angle.

He submits that the appellant's claim of sexual harassment created two distinct rights:

(i) One was an exclusively labour matter;

(ii) While the other was purely for civil damages.

Consequently, the appellant's claims before the arbitrator did not have the effect of suspending the running of prescription as against the appellant's claim in the High Court.

However, he accepted that the rationale behind section 17(1)(d) of the Prescription Act was the need to avoid the multiplicity of litigation in respect of the same cause of action.

In casu, there are two critical factors that are not in dispute:

(i) Firstly, one of the questions referred to the arbitrator for determination was “whether or not sexual harassment was perpetrated on R.M. Mbatha by F.B. Zizhou in his capacity as Confederation of Zimbabwe Industries Chief Executive Officer.”

(ii) Secondly, in March 2014, the arbitrator found that the appellant had been sexually harassed and ordered the respondents to compensate her for the damages she had suffered.

However, as I have already indicated, the arbitrator subsequently referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment, as that was a matter that fell outside his jurisdictional remit.

In any event, the arbitrator's finding, that the appellant had been sexually harassed, remains extant. It has not been appealed against or otherwise challenged.

Whether Prescription Interrupted by Arbitration Proceedings

In light of the exchanges between the Court and the parties at the hearing of the appeal, the principal issue for determination in casu is the meaning to be ascribed to section 17(1)(d) of the Prescription Act [Chapter 8:11].

Section 17 of the Prescription Act enumerates the various circumstances in which the completion of prescription is delayed. Section 17(1)(d), which is specifically relevant in casu, provides as follows:

“(1) If -

…,.

(d) The debt is the subject matter of a dispute submitted to arbitration, or is the subject matter of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of a debtor or against a company in liquidation or against an applicant under the Agricultural Assistance Scheme set out in the Third Schedule to the Agricultural Finance Corporation Act [Chapter 18:02]; or…, 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.”

As a matter of interpretive principle, in the context of statutory provisions, it is trite that the courts lean towards an interpretation that gives full effect to the purpose for which the provision under consideration was enacted.

In my view, a broad and generous interpretation of section 17(1)(d) of the Prescription Act would give effect to the twofold purpose for which it was enacted:

(i) The foremost rationale of the provision is to avoid the situation where the same dispute is submitted for adjudication before multiple fora.

(ii) The second objective is to ensure that litigants whose disputes are submitted to arbitration are not prejudiced by being precluded from instituting proceedings before the courts, should it become necessary to do so, in respect of the same matters.

On this broad and purposive approach, where a matter is submitted to arbitration, the running of prescription would be arrested notwithstanding that a different remedy is later sought, provided that remedy arises from the same cause of action. To hold otherwise would, in my view, operate to erode the purpose for which section 17(1)(d) of the Prescription Act was created.

While I accept that a cause of action is conceptually distinct from the overlying debt that is claimed, the latter cannot exist in vacuo and must be predicated on the underlying cause of action.

In the instant case, the debt, being the claim for damages for sexual harassment, cannot be severed or divorced from the cause of action, which is the sexual harassment itself.

The question that was submitted to the arbitrator for determination was whether or not sexual harassment was perpetrated on the appellant. This is the same cause of action from which the appellant's claim for damages emanates.

On this basis, it must be accepted, that, the debt claimed by the appellant, being the damages for sexual harassment, constitutes the subject matter of the dispute that was submitted to arbitration.

It then follows that the running of prescription on the claim for damages was interrupted in accordance with the provisions of section 17(1)(d) of the Prescription Act.

The same conclusion is arrived at if one has regard to the broad definition of the term “debt” in section 2 of the Prescription Act [Chapter 8:11], viz:

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

The debt sued for in the court a quo arose from the delict of sexual harassment, which delictual matter was also competently before the arbitrator.

The debt in casu comprises two separate but interrelated components, to wit, the delictual conduct perpetrated by the first respondent and the consequent claim for damages.

The arbitrator dealt with and determined the first component of the debt, which consequently gave rise to the claim for damages in the court a quo.

Thus, inasmuch as an essential component of the debt was before the arbitrator, the debt was the subject matter of the dispute submitted to arbitration, thereby interrupting the running of prescription on the claim for damages in the court a quo.

Potential Plea of Lis Alibi Pendens

I am fortified in the foregoing conclusion from a different practical perspective.

The argument that the appellant should have simultaneously, or conjunctively with the arbitration proceedings, pursued a separate suit for delictual damages in the High Court results in the untenable scenario where the arbitrator might possibly have made findings contradictory to those made by the High Court.

Quite apart from this potentially anomalous scenario, the principles governing the special plea of lis alibi pendens would have operated to impede the successful institution of a claim for delictual damages. This is because the claim would be premised on the same cause of action in a dispute between the same parties already pending before an arbitral tribunal.

The rationale behind the special plea of lis alibi pendens is akin to that underlying section 17(1)(d) of the Prescription Act, viz. the need to avoid potential duplication of litigation founded on the same cause of action.

This point was highlighted by the Appellate Division in Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571…, in interpreting the South African equivalent of section 17(1)(d) of the Prescription Act [Chapter 8:11]:

“The same duality of purpose can be seen, in my view, in section 13(1)(f) of the Act which is of direct relevance to the present case. The subsection applies 'if…, the debt is the object of a dispute subjected to arbitration.'

An arbitration agreement does not necessarily oust the jurisdiction of the court.

Despite the existence of such an agreement, the creditor may elect to institute legal proceedings, although he might be met by an application for stay of proceedings or a special plea to the same effect…,.

The court would, in practice, normally order a stay if requested to do so…,.

An arbitration agreement is therefore, in a sense, an impediment to the recovery of a debt by means of legal proceedings, but it is one, because it provides an alternative means of resolving disputes, which carries the approval of the law.

This applies a fortiori where a dispute has actually been subjected to arbitration.

The creditor is protected against the running of prescription because there exists an impediment to his approaching the ordinary courts, and the impediment exists because he is taking appropriate alternative steps to recover his debt. It is against this background that section 13(1)(f) of the Act should, in my view, be interpreted and applied.”

In casu, it would not have been practically possible for the appellant to institute proceedings for delictual damages in the High Court when another competent tribunal was already seized with an unfair labour practice arising out of the same cause of action.

This is so because the respondents would undoubtedly have pleaded lis alibi pendens and succeeded in that plea, thereby preventing the appellant from prosecuting her claim for damages.

Disposition

It follows from all of the foregoing that the appeal must succeed on the basis that the running of prescription against the appellant's claim for damages was interrupted by the submission to arbitration of her claim of sexual harassment by the respondents.

Thus, the prescriptive period would only have expired, in terms of section 17(1)(d) of the Prescription Act [Chapter 8:11], one year after the date of the award rendered in her favour.

Consequently, the appellant's claim for damages for sexual harassment, having been lodged in June 2014, within three months of the award rendered in March 2014, must be regarded as having been timeously lodged in the High Court.

It is accordingly ordered that:

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

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

“(i) The defendants' special plea of prescription is dismissed with costs.

(ii) The defendants shall plead to the plaintiff's claim within ten days from the date of the judgement handed down by the Supreme Court in Case No. SC80/18 as Judgment No. SC69/2018.”

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

Prescription for an ordinary debt is three years....,.In terms of section 17 of the Prescription Act [Chapter 8:11], and in paraphrase, the period of prescription, in respect of, among other things, a debt which is the subject matter of proceedings on arbitration, is extended for one year from the end ...

SC05-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: PATEL JA, BHUNU JA and BERE JA

This appeal emanates from an election petition lodged with the Electoral Court to nullify the election of the respondent and to declare the petitioner (the appellant herein) duly elected as the Member of Parliament for Chegutu West. The disputed election was held on 30 July 2018.BackgroundAfter the relevant election forms ...

Background

After the relevant election forms were collated and compiled, the respondent was declared duly elected by 10,932 votes as opposed to 10,828 votes attributed to the appellant. The appellant asserted that the Zimbabwe Electoral Commission (ZEC) officials made mistakes in capturing data from the ward centres. He lodged a complaint with the ZEC District Elections Officer after the discovery of the mistake which was then admitted by ZEC. Before the Electoral Court, the appellant sought the correction of the erroneous declaration. The respondent took various points in limine.

Judgment of the Electoral Court

The court a quo considered the provisions of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995. It found that Rule 21 of the Rules sets out certain peremptory requirements pertaining to the form and content of an election petition. Amongst other things, Rule 21 requires the petitioner to state the grounds of the petition and the exact nature of the relief sought on the face of the petition. The court took the view that Rule 21 is peremptory and must be strictly complied with and that substantial compliance is not acceptable. Consequently, a petition that fails to comply with the form and content as set out in Rule 21 is fatally defective.

In the instant case, the court found that the exact relief sought by the appellant was clear ex facie the petition and that the appellant was entitled to bring the petition in terms of section 167 of the Electoral Act [Chapter 2:13] to rectify the alleged irregularity.

The court further found that the relief seeking the nullification of the declaration by the Zimbabwe Electoral Commission (ZEC) of the appellant as having been duly elected was competent by virtue of section 171 of the Electoral Act. The court accordingly dismissed the points in limine taken by the respondent on these three aspects.

As regards the fourth point in limine, the court reiterated that it was imperative for a petitioner to follow the format prescribed in Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995.

In casu, the appellant brought the petition on notice and therefore fell foul of Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995.

The form and content of the petition did not comply with Rule 21, rendering it fatally defective. The appellant had failed to present his case in the proper format required by law. There was therefore no valid petition before the court.

In the event, the court could do nothing to salvage the situation, even where the petition might appear to have merit. The court's residual power to condone infractions in electoral matters was curtailed. The petition was accordingly dismissed with costs. Additionally, the Registrar was directed to serve copies of the order on the Zimbabwe Electoral Commission (ZEC) and the Clerk of Parliament.

Grounds of appeal and respondent's preliminary objections

The gravamen of the appeal against the judgment a quo is threefold:

(i) The first is that the petition was not fatally defective for having been brought on notice as section 169 of the Electoral Act makes such notice mandatory.

(ii) The second is that the court a quo could have condoned non-compliance with the Rules as section 17(9) of the Electoral Act vests the court with such competence to condone.

(iii) The third is that the court failed to consider the merits of the petition despite the Zimbabwe Electoral Commission (ZEC) having acknowledged the error that resulted in the undue return complained against.

On 12 April 2019, the respondent gave written notice, in terms of Rule 51 of the Supreme Court Rules 2018, that he intended to rely on two preliminary objections in the proceedings.

The less consequential objection is that the relief sought in the notice of appeal is both incompetent and defective in seeking that the matter be referred to trial on the merits before a different judge of the Electoral Court.

The more significant and weighty objection is that the adjudication of the present appeal is now statute barred on account of section 182(2) of the Electoral Act.

At the hearing of the appeal, following an exchange with the Court, counsel did not motivate any argument on the former point and focused their submissions on the latter objection.

Submissions by counsel

Counsel for the respondent submits, that, section 182(2) of the Electoral Act imposes a clear statutory bar on the adjudication of an electoral appeal.

Once the prescribed period of three (3) months has expired, the Court has no jurisdiction to entertain the matter.

The appellant was the dominus litis and was required to ensure that the matter was heard within the prescribed period by approaching the Registrar to expedite the matter.

Counsel for the appellant submits that section 182 of the Electoral Act does not operate to bar the Court from determining this appeal since the appellant has already filed process and the matter is pending. No directions were issued in this matter, as provided by section 182, and the provision was not intended to non-suit a litigant who is already before the Court.

There is no provision barring the Court from hearing and determining a matter that is already pending before it.

The Court should adopt a reasonable interpretation that is constitutionally compliant. Any provision ousting the Court's jurisdiction must be clear and unequivocal and restrictively interpreted. There is nothing in section 182 of the Electoral Act to oust the Court's jurisdiction in clear terms.

The appellant herein acted timeously by filing the appeal and his heads of argument in time. It was the duty of the Chief Justice or Judge President to issue the directions envisaged in section 182(3) of the Electoral Act. Such directions should have been issued generally for dealing with all election petitions and appeals as soon as section 182(3) of the Electoral Act was introduced.

In response, counsel for the respondent reiterates that the petitioner in an electoral matter is the dominus litis and cannot simply sit back. What is involved is a party-driven process. The appellant's interpretation gives rise to the absurdity that an electoral appeal can be dealt with whenever a petitioner deems fit - even after the challenged electoral term of office has expired.

Section 182(3) of the Electoral Act requires that the directions in question must meet the timeframes stipulated in section 182(1) and section 182(2). These time limits are immutable and must be complied with. If the prescribed time limit is extended beyond three (3) months, then the rule of law is violated.

Where a statutory power is being exercised, the Court cannot assume and exercise its inherent powers beyond or outside the governing statutory provision.

In this case, the appellant did nothing to expedite the appeal process. Section 182(3) of the Electoral Act does not envisage the issuing of general directions. The directions should be specific to each case having regard to the particular circumstances of that case.

Lastly, counsel for the respondent submits that section 182 of the Electoral Act is not directory but peremptory, and the prescribed timelines must be strictly complied with.

Rule 4 of the Supreme Court Rules, 2018 only applies to departures from the Rules. It does not allow any departure or condonation for breach of a statute unless that statute specifically allows such departure or condonation.

Following the foregoing submissions by counsel on the import of section 182 of the Electoral Act [Chapter 2:13], the Court reserved judgment on the preliminary objection relating to compliance with the time limits stipulated in that provision.

Timeous disposal of election petitions and appeals

Section 182 of the Electoral Act governs the time within which election petitions and appeals are to be determined. The provision that was originally in force was repealed and substituted by section 34 of the Electoral Amendment Act, No.6 of 2018.

Section 182 of the Electoral Act, in its present form, stipulates as follows:

“(1) Every election petition shall be determined within six months from the date of presentation.

(2) An appeal under section 172(2) shall be determined within three months from the date of the lodging of the appeal.

(3) For the purpose of ensuring that an election petition, or an appeal, is determined within the time-limit prescribed in subsection (1) or (2), as the case may be —

(a) The Judge President of the High Court or the presiding judge of the Electoral Court, in the case of an election petition; and

(b) The Chief Justice or the senior presiding judge of the Supreme Court, in the case of an appeal from a decision on an electoral petition; may, notwithstanding any other enactment, give such directions as to the filing of documents and the hearing of evidence and argument as will, in his or her opinion, ensure that the time-limit is met, and the parties shall comply with those directions.”

The interpretation and application of the provisions of section182 of the Electoral Act raise the following questions for consideration in casu:

(i) Upon whom does the duty lie to ensure compliance with the time limits stipulated in that section and how is that duty to be performed? and

(ii) What are the consequences of the failure to meet the prescribed time limits?

Both questions were fully canvassed and definitively determined in the recent judgment of this Court in Sibanda & Anor v Ncube & Ors / Khumalo & Anor v Mudimba & Ors SC158-20 (handed down on 20 November 2020).

In addressing the first question, it was held, at p12:

“…, it is incumbent upon all the players involved in the adjudication of electoral matters to ensure compliance with the time limits stipulated in subsections (1) and (2) of section 182.

That this is so is made abundantly clear by the provisions of subsection (3) of section 182.

What is not explicitly articulated is the extent to and manner in which each player is expected to carry out his or her respective role in the adjudicative process. These are matters to be inferred from other relevant statutory provisions and from the rules of practice and procedure generally.”

It was further held, at p13:

“Ultimately, it seems to me that it is for the parties themselves, and the petitioner or appellant in particular, qua dominus litis, to initiate the process of seeking and obtaining the requisite directions envisaged in section 182(3) of the Act.

It is they, and their legal practitioners, who should be especially vigilant in monitoring and managing the progress of their own cases in order to meet the stipulated time limits: and, it is the parties, through their lawyers, who should take the initiative to approach the relevant Registrar to apprise him or her of the specific difficulty that may have been encountered in complying with the provisions of subsections (1) or (2) of section 182, as the case may be.

Indeed, this is entirely consistent with prevailing practice in the conduct of litigation generally insofar as concerns adherence to the procedural timelines set out in all our rules of court.”

The answer to the second question hinges upon a consideration of whether the stipulated time limits are mandatory or purely directory.

Having regard to the relevant rules of statutory interpretation, the Court held as follows, at pp19-20:

“The legislative history of these provisions, captured in their genesis and subsequent development, makes it abundantly clear that the purpose for which they were designed was to expedite the final determination of electoral petitions and appeals and thereby curtail the perceived mischief of interminable electoral proceedings.

In addition, the discretionary powers conferred by subsection (3) were deliberately inserted in 2018 so as to achieve and secure that legislative purpose and design.

To construe the provisions of section 182, taken as a whole, as being merely directory would only serve to frustrate and defeat the clear intention of the legislature and the objective that it sought to attain.

It follows, in my view, that the provisions of subsections (1) and (2) are imperative and therefore mandatory and that the time limits stipulated in those provisions cannot be exceeded under any circumstances.

It also follows that any adjudicative proceedings that may be conducted beyond those time limits are rendered nugatory and must be regarded as being null and void. Put differently, the courts are not at liberty to entertain such proceedings outside the mandated timelines.

To conclude this aspect of the matter, the foregoing construction of section 182, as demanding strict compliance with its prescribed time limits, although seemingly draconian in effect, substantially accords with its plain and grammatical meaning. In this respect, I am unable to perceive any glaring absurdity or inconsistency in the adoption and application of that construction.”

With reference to the Constitutional dimension, in particular, the possible violation of the right to a fair hearing, the right of access to the courts in all civil matters, and the associated entitlement to challenge election results, enshrined in sections 69 and 157(1)(g) of the Constitution, the Court, at p20, was not persuaded by the argument that the strict interpretation of section 182 of the Electoral Act operated to violate any interpretive or substantive norm of the Constitution.

In this regard, the Court took the view, at p21, that:

“The restrictions imposed by section 182 are eminently 'fair, reasonable, necessary and justifiable in a democratic society', taking into account the relevant factors delineated in section 86(2) of the Constitution.

In particular, they are necessary in the general public interest to secure the expeditious determination of electoral challenges.

Furthermore, given that the timeframes stipulated are not unduly attenuated, they do not operate to impose any greater restrictions on the rights concerned than are necessary to achieve their intended purpose.

Lastly, I am unable to conceive any less restrictive means of achieving the purpose of the limitations imposed by section 182.”

The Court accordingly concluded as follows, at p22:

“To conclude my analysis of section 182 of the Electoral Act, I take the view that the time limits imposed by that provision on the determination of election petitions and appeals are mandatory and must be strictly complied with. Moreover, the adoption and application of this strict construction does not entail any contravention or violation of constitutional rights and freedoms.”

Disposition

The petition in casu was lodged with the Electoral Court on 10 August 2018. It was determined and dismissed by the court a quo on 18 October 2018, not on the merits, but, on a preliminary point relating to non-compliance with the Electoral Rules.

The present appeal was lodged on 2 November 2018. The appellant's heads of argument, on the merits, were filed four (4) months later, on 7 March 2019 and the respondent's preliminary objections were noted on 12 April 2019. The appeal was first set down for hearing on 24 May 2019 and then later reset to be heard on 29 July 2019.

In terms of section 182(2) of the Electoral Act [Chapter 2:13], this appeal should have been determined within three (3) months of its having been lodged, i.e. by 2 February 2019 - a month before the appellant filed his heads of argument.

I am unable to perceive any cogent basis for departing from the reasoning and consequent judgment of this Court in Sibanda & Anor v Ncube & Ors / Khumalo & Anor v Mudimba & Ors SC158-20.

This is so notwithstanding the seemingly meritorious case instituted and presented by the appellant in the proceedings before the court a quo.

In the result, the respondent's point in limine, challenging the continued adjudication of this appeal beyond the time limit prescribed by section 182(2) of the Electoral Act [Chapter 2:13, is sustained and must be upheld.

Consequently, the appeal can no longer be heard or determined by this Court for want of jurisdiction.

As regards costs, there can be no doubt that the disposition of this appeal revolves around a point of great public importance.

It was heard on 29 July 2019, only a few days after the hearing of the appeal in Sibanda & Anor v Ncube & Ors / Khumalo & Anor v Mudimba & Ors SC158-20. In the event, I fully agree with the position taken by counsel for the respondent that each party should bear its own costs, whichever way the preliminary objection in casu was eventually determined.

It is accordingly ordered that the present appeal, having ceased to be properly before this Court by reason of the time limit stipulated by section 182(2) of the Electoral Act [Chapter 2:13] having been exceeded, be and is hereby removed from the roll with each party to bear its own costs.

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM
Ruled By: CHIGUMBA J

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“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 defense 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.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial....,.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed...,.

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

The genesis of this matter lies in proceedings held under case number HC8844/12. In that matter, the respondent in casu obtained an order against the applicants as follows:

1. Judgement be and is hereby entered in favour of the plaintiff against defendants jointly and severally the one paying the other to be absolved in the sum of US$43,065.

2. Defendants pay, jointly and severally, the one paying the other to be absolved penalty interest at the rate of 4% per month on the sum of US$41,800 from the 24th of August 2021 to date of payment in full.

3. Costs of suit on an attorney and client scale.

The applicants' case is as follows:

The second applicant entered into a loan facility with the respondent for a total sum of US$45,000 constituting US$15,000 roll over and a new sum of US$30,000. This money was disbursed to the applicants.

It was a material term of the loan agreement that since the respondent is a foreign entity, it had to obtain exchange control approval from the Reserve Bank and this was also in terms of Clause 7:10.

Such proof was never furnished despite the payment supposedly coming from Mauritius.

In pursuance of a writ of execution in case no. HC8844/12, the Sheriff of the High Court visited the first applicant's place of residence armed with a notice of seizure and attachment. This writ was in Zimbabwean dollars and her legal practitioners paid on her behalf the sum of ZW$50,878.

The respondent's legal practitioners however insisted that the payment had to be in United States Dollars. This was ostensibly on the basis that the amount owed was a foreign debt.

The circumstances of the loan however point out to the fact that it was not a foreign obligation as claimed. It was actually a fraud based on the fact that no exchange control authority was sought and obtained.

The loan agreement was executed in Harare, the funds were to be used in Zimbabwe, the laws of Zimbabwe apply and the respondent's representative ordinarily resided in Zimbabwe.

The applicants therefore sought an order declaring the loan agreement entered into by the parties on the 18th of November 2010 as null and void and the discharging of the sureties.

In addition, they sought an order of costs on a higher scale.

Alternatively, they sought a declaratur that the ZW$50,878 is in full and final settlement of the respondents judgment debt.

In responding to the application, the respondent raised points in limine.

They contended that the applicants and respondents entered into the loan agreement in 2010 and the applicants defaulted in 2012 leading to institution of proceedings. They were aware of the existence of the agreement but did not challenge it. They entered into a Deed of Settlement which resulted in the default judgment against them when they failed to honour the agreement. They should have challenged the validity of the agreement within three (3) years but they did not do so. They cannot seek to enforce an agreement nearly nine years after.

Their claim for a declaratur has prescribed.

Additionally, the relief they seek has been overtaken by events. The Deed of Settlement settled the obligations between the parties which Deed became the cause of action resulting in the obtaining of the default judgment. The judgment remains extant and they have not challenged its validity. The applicants are estopped from challenging the validity of the loan agreement.

In any event the applicants are seeking an opinion and not a declaratur.

On the merits, the respondent averred as follows:

It is a duly registered company located in Mauritius. A copy of a certificate of incorporation was attached.

The second applicant and the respondent entered into a loan agreement as stated in the founding affidavit. The advance was made from Mauritius where the respondent is incorporated. Inserted into the loan agreement were warranties to ensure compliance with the laws of Zimbabwe.

The loan agreement did not require exchange control authority as contended by the applicants.

The loan amount was credited into the second applicant's Standard Chartered bank account held in Zimbabwe. The applicants made some payments, specifically a payment of US$2,000 (two thousand) via telegraphic transfer on the 15th of June 2012 to the respondent's bank account held in Mauritius but subsequently defaulted which resulted in the institution of legal proceedings on the 8th of August 2012.

Thereafter, the respondent obtained judgment against the applicants based on a Deed of Settlement.

Further, that the debt is owed to a foreign entity and should be paid in United States Dollars.

The fact that the writ and notice of removal by the Sheriff was in Zimbabwe dollars does not make it less so. The court order upon which the debt is based is expressed in United States dollars. The fact that the loan agreement was executed in Zimbabwe, by a borrower in Zimbabwe, for use in Zimbabwe is irrelevant as is the fact that the respondent's representative was based in Zimbabwe.

What defines whether or not a loan is a foreign obligation is the source of the funds.

The applicants cannot deny that the respondent is registered in Mauritius and funds were transferred from a bank in Mauritius.

At the hearing, after counsel for the respondent had made submissions on the points in limine, counsel for the applicants, in response, abandoned the main relief sought and submitted that the applicants were now only seeking the alternative relief.

The alternative relief is couched as follows:

Alternatively -

(a) It is declared that the applicants payment of ZW$50,878 is a full and final settlement of the respondent's judgment debt.

(b) The respondent shall pay costs of suit on the higher scale of legal practitioner and client scale.

SC64-21 : PATRICK MANJOVHA vs DELTA BEVERAGES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

This is an appeal against the whole judgment of the Labour Court (the court a quo). The order appealed against is dated 14 November 2018.

That order upheld the respondent's objection in limine to the effect that the appellant's claim had prescribed.

Consequently, it dismissed the appellant's application for condonation of late noting of appeal and extension of time within which to note the appeal.

Aggrieved by the judgment a quo, the appellant approached this Court, on appeal, for relief.

The appellant subsequently applied for leave to appeal to this Court. The application was granted by the court a quo on 19 December 2018 with costs being costs in the cause....,.

BRIEF SUMMARY OF THE CASE

The appellant was employed by the respondent as a truck driver/salesman. He was charged with theft of his employer's property and he paid an admission of guilt fine to the police. He was subsequently dismissed from employment for theft in terms of the respondent's registered Code of Conduct on 29 January 2015.

He appealed to the Works Council without success.

On 18 March 2015, he was served with a letter advising him of the dismissal of his appeal, and, if aggrieved, to appeal to the court a quo within a period of 14 days in terms of the registered Code of Conduct.

The appellant did not appeal to the court a quo within the prescribed time limit.

He applied for condonation of late noting of appeal and extension of time within which to note the appeal. His application was successful, and, on 20 January 2016, he was ordered to lodge his appeal within seven (7) days of the order.

The appellant was, again, in default, by failing to comply with the seven (7) days period.

He, again, belatedly approached the court a quo two (2) years later, on 17 August 2018, with an application for condonation of late noting of appeal and extension of time within which to note the appeal.

The application was unsuccessful hence this appeal.

FINDINGS OF THE COURT A QUO

In dismissing the application, the court a quo found, that, the appellant's cause of action had prescribed in terms of the Prescription Act [Chapter 8:11]. This was because of his failure to successfully prosecute his appeal within the prescribed 3 year period from the date of his dismissal.

The court a quo also found, that, in the absence of a provision in the registered Code of Conduct authorising it to extend the 14-day period within which the appellant was obliged to appeal, it had no jurisdiction to extend the dies induciae.

THE APPELLANT'S GROUNDS OF APPEAL

Arising from the above two findings of the court a quo, the appellant has raised the following two grounds of appeal:

“1. The court a quo erred and misdirected itself at law by concluding that the appellant's right to appeal the decision of the Works Council had prescribed in terms of the Prescription Act [Chapter 8:11] by computing the period (of) prescription began to run from 18 March 2015, while overlooking the fact that the Appellant's right to appeal, and time to appeal, had been successfully condoned and extended under LC/H/19/16 granted on the 20th of January 2016.

2. The court a quo erred and misdirected itself by concluding that (the) Labour Court does not have jurisdiction and power to condone late filing of appeals sought to be made outside the days stipulated by an Employment Code agreed to by the parties and neither can the Labour Court extend the time within which such appeals can be made outside the days stipulated in an employment Code.”

ISSUES FOR DETERMINATION

The grounds of appeal raise two issues for determination:

1. Whether or not the appellant's cause of action has prescribed.

2. Whether or not the Labour Court has the jurisdiction to extend the time within which to appeal set out in the employment Code of Conduct.

WHETHER OR NOT THE APPELLANT'S CAUSE OF ACTION HAS PRESCRIBED

It is trite that ordinary debts are irrevocably extinguished by prescription after three (3) years in terms of section 15(d) of the Prescription Act.

Section 2 of the Prescription Act defines a debt as including anything that may be sued for. That definition squarely brings an appeal within the ambit of the definition of a debt.

The definition therefore renders an appeal subject to the Prescription Act.

It is therefore necessary to ventilate the time frames in this case to see if the appellant's appeal falls foul of the Prescription Act.

In this regard, it is common cause that the appellant's cause of action arose from his dismissal from employment by the disciplinary committee on 29 January 2015. The notice of dismissal was served on him on 6 February 2015.

He lodged various appeals and applications which interrupted the running of prescription in terms of section 7(2) of the Prescription Act. Subsection (3)(b), however, provides, that, if one fails to successfully prosecute his cause of action, and, in this case, his appeal, to finality, the interruption shall lapse and the running of prescription shall not be deemed to have been interrupted.

The subsection provides as follows:

“(3) Any interruption in terms of subsection (2) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the person claiming ownership in the thing in question —

(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.”

The section is couched in clear, unambiguous terms.

Once a litigant has failed to successfully prosecute his cause of action, and, in this case, his appeal, to finality, the interruption lapses and the running of prescription is not deemed to have been interrupted.

APPLYING THE LAW TO THE FACTS

It is common cause, that, on 20 January 2016, the court a quo gave the appellant seven (7) days within which to prosecute his appeal with effect from the date of the order. He failed to prosecute his appeal within the prescribed period with the result that his appeal lapsed and prescription was deemed not to have been interrupted by operation of law.

Prescription began to run on 6 January 2015 when he was served with notice of dismissal; the set period of prescription of three (3) years had already set in as at the time of the court a quo's judgment on 14 November 2018.

In Hodgson v Granger & Anor 1991 (2) ZLR 10 (H) the court articulated the purpose of prescription, it said:

“It is important, in this exercise of interpretation, to emphasise, that, it is trite that the whole purpose of statutes of limitation is to ensure that a person who has a valid cause of action, of which he is aware, proceeds reasonably timeously to prosecution thereof before events become 'stale'. It is absolutely clear that the purpose is to penalise the dilatory creditor but not a creditor who is unaware, through no fault of his own, of the cause of action at his disposal.”

As the appellant was eminently aware of his cause of action right from the beginning, way back in January 2015, his dilatoriness in prosecuting his appeal deserves censure to give effect to the purpose of the Prescription Act.

DISPOSITION

The net effect of the appellant's failure to prosecute his appeal in the court a quo is that there can be no valid appeal before this Court in the absence of any appeal having been placed before the court a quo in respect of this matter.

The appellant's failure to successfully note his appeal with the court a quo within the 7-day period, as ordered by the court, sounded the death knell for his appeal as the 3-year prescription period had already run its course.

From the foregoing, the learned judge a quo cannot be faulted for holding that the appellant's appeal has prescribed for want of successful prosecution within a period of three (3) years.

That finding of fact strips the court of the jurisdiction to determine the second issue.

That being the case, the appeal can only fail. Costs follow the cause.

It is accordingly ordered that:

1. The appeal be and is hereby dismissed.

2. The appellant is to bear the costs of suit.

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the Labour Court confirming, with an amendment, a ruling by a Labour Officer that the appellant was guilty of an unfair labour practice and that the appellant pays to each of the respondents arrear compensation due to them for the period March 2011 to September 2015.

The appellant seeks an order setting aside the confirmation, and, in its place, another order dismissing the application for confirmation with no order as to costs.

Having gone through the papers filed in this matter, and after hearing counsel, I am not persuaded that the Labour Court was, except for part of its order, wrong in confirming the ruling by the Labour Officer.

BACKGROUND FACTS

The first respondent herein, Fungai George Mutasa, is a Labour Officer to whom an allegation of unfair labour practice was referred by the second to the eleventh respondents (“the respondents”) (A.B. Morar, A.J. Bosch. E. Eston, E. Gavaza, A.J. Van Rensburg, R.T. Karidza, L. Mabika, D.I. Mackintosh, I. Middleton and Mushoriwa).

He unsuccessfully attempted to settle the matter by conciliation following which he then heard the parties in order to come up with a draft ruling in terms of section 93(5)(c) of the Labour Act [Chapter 28:01] (“the Act”).

The respondents are employed by the appellant and fall in what the appellant calls the E Band employment grade. The appellant is a wholly-owned subsidiary of Tongaat Hullett, a South African company.

In addition to the benefits they enjoyed in Zimbabwe, in terms of their conditions of employment commensurate with their grade, the respondents also enjoyed membership of the Tongaat Hullett Pension Fund, a South African registered pension fund as well as the Discovery Essential Saver Plan, which enabled them to access medical services in South Africa.

On 21 February 2011, the respondents were advised of the intention to terminate their entitlement to both the Pension Fund and the Discovery Essential Saver Plan with effect from 28 February 2011.

It was indicated, in that communication, that, the respondents would each be paid accrued benefits in cash or alternatively such benefits would be transferred to a retirement annuity or pension preservation fund held in each employees name with a registered entity of the employee's choice in South Africa. It was further indicated that the cost related to the current monthly fund contributions would be incorporated into each employee's monthly United States Dollar package in Zimbabwe with effect from 1 March 2011.

As regards the Discovery Essential Saver Plan, compensation was to be paid by incorporating the monthly member contributions, which translated to a hundred per cent contribution by Tongaat Hullett, into each employee's monthly United States Dollar package in Zimbabwe.

The exchange of correspondence between the parties reveals that the respondents made several follow-ups to have the compensation paid and the contributions incorporated into their cash packages.

This was to no avail.

The papers further show that the appellant demanded that the respondents move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan Pension Scheme to enable these benefits to be processed.

Owing to the stalemate, the respondents approached the High Court, and, in an order dated 26 February 2015, the court determined that the Triangle Senior Staff Pension Fund (TSSPF) remained valid and binding and that there was no obligation on the respondents to migrate to the Money Plan. The court consequently ordered the appellant to commence making its contributions and to actuate the Triangle Senior Staff Pension Fund (TSSPF). The appellant was further ordered to pay the costs of the application.

That order remains extant as it was not appealed against.

Notwithstanding that order, the appellant did not pay compensation or incorporate the monthly contributions into the employee's monthly United States Dollar package.

In their statement of claim before the Labour Officer, the respondents averred, that, in addition to benefits accruing in Zimbabwe, their conditions of service also provided for contractual entitlements to the Tongaat Hullett Pension Fund and the Discovery Essential Saver Plan, both of which were operational in South Africa.

They further averred, that, it was the appellant that undertook to pay to each employee the accrued fund benefits or to transfer such fund to a retirement pension preservation fund and to incorporate the monthly fund contributions into the cash packages in Zimbabwe.

They averred, further, that, the pension fund and Saver Plan were open to all employees in the E Band regardless of the nature of one's pension in Zimbabwe.

The decision not to pay the respondents was a punitive measure because the respondents had dared to assert their rights to membership of the Triangle Senior Staff Pension Fund (TSSPF) in the High Court.

The respondents further alleged, that, the appellant had accepted its obligation to compensate the respondents when it communicated its decision to terminate the two benefits.

The appellant had then proceeded to pay those employees who had agreed to join the Money Plan Pension Scheme in Zimbabwe but had then withheld compensation to the respondents.

They therefore submitted, that, by withholding the compensation, the appellant and its directors were guilty of an unfair labour practice.

They therefore asked for a ruling directing the appellant to cease the unfair labour practice and to pay the arrear compensation. They further averred that the amounts should be paid “without any additional tax losses” by them.

In its response to the complaint, the appellant stated that the benefits which formed the subject of the matter were availed as a measure to cushion the employees from the harsh economic situation obtaining in Zimbabwe at the time and that these benefits were being administered by Tongaat Hullett, a South African company and the holding company of the appellant.

The benefits did not become vested in the contracts of employment of the respondents and remained discretionary on the part of the holding company. Therefore, so the appellant argued, whatever obligations the holding company created pursuant to the grant of these benefits do not bind the appellant. The benefits were paid and administered by Tongaat Hullett, and, consequently, the appellant, as a subsidiary, had no obligation to actuate those benefits.

The appellant further submitted, that, any claims that had arisen more than two years before the hearing of the matter were prescribed in terms of section 94 of the Labour Act. In other words, if it was found that an unfair labour practice resulting in the underpayment of the respondents had taken place, then the monthly underpayments would constitute separate causes of claim.

In his analysis of the evidence and submissions made on behalf of the parties, the Labour Officer found that the letter of 21 February 2011 unequivocally placed an obligation on the appellant to compensate the respondents and to incorporate the monthly fund contributions and member contributions into the respondents United States Dollar cash package in Zimbabwe with effect from 1 March 2011.

He further found, that, the fact that the pension fund was administered by another agency other than the appellant itself did not mean the employees were employed by that agency.

He therefore concluded that the payment of compensation of accrued benefits was a right.

This was moreso given the fact that the other employees in the same grade as the respondents, who had migrated to the Triangle Money Plan, have accessed their pension fund contributions and have had their Saver Plan incorporated into their monthly cash package in Zimbabwe.

On the question of prescription, he found, that, as the parties had been communicating over the issue, the matter was of a continuous nature and therefore the claim had not become time-barred.

Lastly, he found, that, when the appellant's Managing Director wrote to the respondents, at no stage did he indicate that he was not writing on behalf of the appellant and that he was doing so on behalf of the holding company.

Consequently, he concluded, that, by withholding the benefits, the appellant was guilty of an unfair labour practice. He therefore ordered that the appellant cease such unfair labour practice and pay individual arrear compensation to each of the respondents.

PROCEEDINGS BEFORE THE LABOUR COURT

Having made the above draft ruling, the Labour Officer referred the same to the Labour Court for confirmation in terms of section 93(5)(a) of the Labour Act.

In its submissions before the Labour Court, the appellant argued that the Labour Officer had grossly erred in finding that the benefits, the subject of this matter, had become vested in the contracts of employment entered into by the respondents. The benefits remained discretionary on the part of Tongaat Hullett.

It further argued that whatever obligations Tongaat Hullett may have created were not binding on the appellant, a mere subsidiary.

Lastly, the appellant submitted that the Labour Officer had misdirected himself in not finding that some of the claims by the respondents had prescribed.

Having submitted their complaint to the arbitrator in September 2015, the respondents would only have succeeded on those claims that had arisen after September 2013, i.e. within the period of two years from the date when the unfair labour practice or dispute arose. The monthly underpayments would have constituted separate causes of action. Therefore, the pensions claimed from March 2011 to September 2013 would have become prescribed.

In their submissions before the Labour Court, the respondents stated as follows:

The appellant was attacking findings of fact made by the Labour Officer. There was no allegation that such findings were irrational.

On prescription, they submitted that the unfair labour practice was continuing at the time the matter was referred to the Labour Officer and that, in terms of section 94(2) of the Labour Act, the claims had not prescribed.

The Labour Court agreed with the Labour Officer, but for a different reason; that the unfair labour practice was continuing and therefore the claim was not prescribed in light of section 94(2) of the Labour Act.

The court agreed with the other factual findings made by the Labour Officer but was of the view that the order directing the Managing Director and Board of Directors to effect payment was irregular as they had not been heard before the order was made.

The court accordingly confirmed the draft ruling but amended it to remove the reference to the Managing Director and Board of Directors from the order.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the outcome of the confirmatory proceedings, the appellant noted an appeal to this Court. It alleged that the Labour Court had erred:

(i) In determining that the respondents claim was not prescribed.

(ii) In confirming the finding by the Labour Officer that the appellant had an obligation to pay the respondents when it was apparent that the benefits claimed had arisen from an agreement to which the appellant had not been a party.

(iii) In making a finding as regards the respondents attendant tax obligations and placing an obligation on the appellant to pay any ensuing tax penalties.

(iv) In assuming review and/or appellate jurisdiction during the confirmation proceedings when the court has no such power.

In its heads of argument before this Court, the appellant has submitted as follows:

Section 94 of the Labour Act provides for a prescriptive period of two years from the date when the dispute or unfair labour practice first arose. Having submitted their claim to the arbitrator on 9 September 2015, any claims by the respondents prior to 9 September 2013 would have become prescribed as each monthly underpayment constituted a separate cause of action.

The appellant further submitted, that, the benefits were initially offered by Tongaat Hullett, its South African holding company, which subsequently terminated the benefit. Its own attempts to incorporate the benefits into the respondents contracts of employment were not accepted by them and consequently never became a contractual entitlement. The benefits could therefore be extinguished without the consent of the respondents.

It further submitted, that, not being privy to the agreement between the respondents and Tongaat Hullett, it had no obligation to pay any of the benefits, and, consequently, no unfair labour practice has been perpetrated by it.

On the order directing the appellant to pay ZIMRA tax penalties, it was its submission that this was a declarator which the court a quo had no jurisdiction to make. The court had determined a contingent right, being the contingent tax penalty which had not arisen and may not arise at all.

Lastly, it submitted that the Labour Court misconstrued its powers during confirmation proceedings. It could not, in terms of the law, rehear the matter. Nor could it amend the ruling to remove reference to the Managing Director.

The respondents pray that the appeal be dismissed with costs. They have submitted as follows:

In terms of section 94(2) of the Labour Act, prescription does not apply to a dispute or unfair labour practice which is continuing at the time it is referred to a Labour Officer. The appellant continues to discriminate against the respondents and has refused to pay them their monthly dues. The wrong was a continuous one and the respondents claim was therefore not prescribed.

The respondents have further submitted that they had no relationship with Tongaat Hullett outside of their employment contracts, which contracts entitled them to the benefits now the subject of this matter. The appellant had at all times accepted its obligation to pay the benefits.

They further argue, that, the order directing the appellant to pay tax penalties was proper and that the court a quo correctly exercised its confirmatory jurisdiction.

During oral argument, counsel for the respondents raised an objection to the submission by the appellant's counsel, that section 94(2) of the Labour Act did not arise because the matter between the parties was a dispute and not an unfair labour practice.

She submitted that this was a new point being taken on appeal for the first time.

The effect of that submission was that section 94(2) of the Labour Act would not arise because the issue before the Labour Officer was a dispute and not an unfair labour practice. At no point had the appellant taken the position that the matter between the parties was a dispute and not an unfair labour practice.

She submitted, that, in any event, regard being had to section 6(1)(e) of the Labour Act, the appellant's conduct constituted an unfair labour practice as the latter had withheld the benefits due to the respondents as punishment for having sought recourse in the High Court. This conduct, in addition to the failure to pay the benefits, falls squarely within the ambit of an unfair labour practice as defined in section 8 of the Labour Act.

Moreover, the challenge in the first ground of appeal is whether or not the unfair labour practice was continuous and not whether the conduct was an unfair labour practice in the first place.

Counsel for the appellant denied that it had changed its submission on the question of prescription, thereby taking the respondents by surprise.

He submitted, that, it was the appellant's primary position, that, there was no unfair labour practice and that even if it were so, the two year prescriptive period would still apply. The respondents cause has always been that the conduct by the appellant, of withholding compensation, was their basis for alleging an unfair labour practice. The appellant has always argued that the claims were prescribed and that no reliance could be placed on section 94(2) of the Labour Act. What the court a quo determined was the time when the dispute arose. On a proper appreciation of the common cause facts, the respondents claims for compensation were prescribed.

ISSUES FOR DETERMINATION

From the foregoing, it seems to me that four issues arise for determination by this Court:

(i) The first issue relates to the question whether the matter referred by the respondents to the Labour Officer was referred as a mere dispute or an unfair labour practice, and, concomitantly whether the claim by the respondents had become prescribed.

(ii) The second issue is whether the court a quo was correct in confirming the Labour Officer's ruling that the appellant had an obligation to pay the benefits.

(iii) The third is whether the court a quo correctly confirmed the order directing the appellant to pay additional tax losses by the respondents.

(iv) The last is whether the court a quo could, in confirmation proceedings, re-hear submissions and amend the ruling....,.

WHETHER THE MATTER REFERRED TO THE LABOUR OFFICER WAS A MERE DISPUTE

The contentious issue that arises is whether the matter referred by the respondents to the Labour Officer was so referred as a mere dispute or as an unfair labour practice, and, whether, in terms of section 94(2) of the Labour Act, the claims by the respondents were prescribed.

There is no doubt in my mind, that, although the respondents did not, at the time they approached the labour officer, specifically refer to the provisions of section 8 of the Labour Act, dealing with unfair labour practices by an employer, the gravamen of their complaint was one of an unfair labour practice and not just a dispute.

The letter referring the matter to the Principal Labour Officer, by the respondents legal practitioner, is dated 8 September 2015. It states, in no uncertain terms, that, the matter being referred was one “of breach of employment contracts and unfair practices by Triangle Limited.” It makes the allegation that the appellant had “withheld payments due to them as a way of punishing them for asserting their rights in court.” It further alleges “unlawful conduct which is not only discriminatory and breach of employment contracts but a blatant unfair labour practice which we hereby request your office's intervention in terms of the Labour Act.” It then requests the Labour Officer to proceed in terms of section 93 of the Labour Act.

It is the contents of that letter that kick-started the process of conciliation.

When conciliation failed, the Labour Officer came up with a draft ruling which was then referred to the Labour Court for confirmation.

In the draft ruling, the labour officer found, that, when the employees turned down the request for them to exit from the Triangle Senior Staff Pension Fund (TSSPF) to the Triangle Money Plan, the appellant had “proceeded to compensate all executives who are members of the Money Plan Pension Scheme in Zimbabwe and withheld compensation only to those executives who all along have been and are still members of the Triangle Senior Staff Pension Fund.”

He further found the employees “assertion of discrimination persuasive” and that the appellant “should not have precluded them from enjoying the incorporation of compensation into the cash package or their salaries on the basis of their refusal to exit from the Triangle Senior Staff Pension Scheme as prescribed by the respondent.”

The labour officer concluded, that, by withholding compensation, “the appellant, its Managing Director and Board of Directors” were guilty of an unfair labour practice.

In his founding affidavit to the application for confirmation, the labour officer states that he “presided over the matter on 25 September 2015 on the alleged breach of contract of employment and unfair labour practice.”

Although the labour officer, on occasions, used the terms 'matter; dispute' it is clear he used these interchangeably with the term unfair labour practice.

At no stage did the labour officer entertain the idea that what he was dealing with was a mere dispute as opposed to an unfair labour practice. It was for that reason that the labour officer went on to consider “whether the matter…, between the contending parties were (sic) of a continuous nature” - a clear reference to section 94(2) of the Labour Act.

The appellant itself accepted that the issue before the labour officer involved an investigation into whether or not it (the appellant) had committed an unfair labour practice.

In its written response to the complaint raised before the labour officer, it submitted that the respondents were only entitled to those claims which had arisen within two years of the date of the submission of the matter to the labour officer. It even accepted, that, were it to be found that it had committed an unfair labour practice resulting in underpayment every month, then such monthly underpayments would constitute separate causes of action.

It submitted, that, the respondents could not rely on subsection (2) of section 94 of the Labour Act and argue that the unfair labour practice (if such was one) was still continuing.

In other words, the appellant accepted that should the labour officer find that there was an unfair labour practice, he should further find that each such monthly underpayment constituted a separate cause of action in respect of which the two-year prescriptive period provided in sub-section (2) of section 94 of the Labour Act would apply.

At no stage did the appellant argue that the matter before the labour officer was not an unfair labour practice but rather a mere dispute – a point belatedly raised during oral argument.

In all the circumstances therefore I hold that the issue before the labour officer was whether the appellant had committed an unfair labour practice by deliberately withholding monthly payments of benefits and whether the individual monthly claims were in any way affected by the two-year prescriptive period.

WHETHER THE RESPONDENTS CLAIMS HAD PRESCRIBED

Having found that the issue before the labour officer was whether the appellant had committed an unfair labour practice, the issue that consequently arises before this Court is whether the monthly benefits, or any of them, had become prescribed.

As already noted, the appellant's position was that the respondents cause of action would arise every month, and that, in terms of section 94 of the Labour Act, such cause of action would become prescribed after a period of two years from the date when it arose. Accordingly, the respondents were only entitled to succeed on those claims that had arisen within the period of two years before the lodgement of their complaint.

The appellant, in its heads of argument before this Court, argued that the respondents cannot rely on subsection (2) of section 94 because the section “clearly states as to when such a prescriptive period must be reckoned from.”

However, the appellant, as is clear from its heads, made no effort to interpret what sub-section (2) of the section means.

That subsection states, in short, that, prescription shall not apply to an unfair labour practice which is continuing at the time it is referred to a labour officer.

The question before the court a quo, and this Court, is the interpretation to be accorded to the phrase “which is continuing at the time it is referred.”

Whilst the principle of a continuous unfair labour practice has not been fully developed in our jurisdiction, the South African Labour Appeals Court has had occasion to consider the interpretation to be accorded to a similar phrase in their labour legislation. A case in point is that of SABC Ltd v CCMA & Ors 2010 (3) BLLR 251 (LAC). At paragraph 27 of the judgment, the court remarked as follows:

“…,. The problem, however, is that the argument presented by the appellant is premised upon the belief that the unfair practice or unfair discrimination consisted of a single act. There is, however, no basis to justify such belief.

While an unfair labour practice or unfair discrimination may consist of a single act, it may also be continuous, continuing or repetitive.

For example, where an employer selects an employee, on the basis of race, to be awarded a once-off bonus, this could possibly constitute a single act of unfair labour practice or unfair discrimination, because, like a dismissal, the unfair labour practice commences and ends at a given time. But, where an employer decides to pay its employees who are similarly qualified, with similar experience, performing similar duties, different wages, based on race or any other arbitrary grounds, then, notwithstanding the fact that the employer implemented the differential on a particular date, the discrimination is continual and repetitive.

The discrimination in the latter case has no end and is therefore ongoing and will only terminate when the employer stops implementing the different wages. Each time the employer pays one of its employees more than the other, he is evincing continued discrimination.”

I agree with the above remarks.

Where, as in this case, the monthly benefits are withheld, the unfair labour practice is continual and repetitive. It will only terminate when such discriminatory conduct ceases and all the employees are treated the same.

Section 94(2) of the Labour Act makes it clear, that, in such a case, the prescriptive period of two years does not apply. In other words, even in a situation where the amounts claimed cover a period of, say, three years, the prescriptive period of two years would not apply as the unfair labour practice would be of a continuous nature.

In the present case, it is not in dispute that the monthly benefits to which the respondents were entitled were being withheld. The practice was continuing. In terms of section 94(2) of the Labour Act, the claims, even those that arose beyond the period of two (2) years, were not prescribed.

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

When a party brings an unsavoury situation upon himself, by taking a lackadaisical approach to litigation in which he is involved, and showing utter disinterest for a long time, the arrival of the day of reckoning does not create a calamity in respect of which the court should drop everything ...

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

This is an opposed chamber application for condonation of non-compliance with the Supreme Court Rules 2018 and for extension of time within which to appeal.

Though at the outset the applicant did not state the Rule that was not complied with and the Rule under which this application is brought, it is apparent from the founding papers that the Rule not complied with is Rule 38(1)(a) and the application is in terms of Rule 43(1) of the aforesaid rules.

The intended appeal is against a judgment of the High Court handed down on 29 October 2020 upholding special pleas and dismissing the applicant's claim.

The applicant seeks an order in the following terms:

1. The application for condonation for non-compliance with the Supreme Court Rules 2018 be and is hereby granted.

2. That the application for extension of time within which to file and serve the appeal in terms of the Rules be and is hereby granted.

3. The appeal shall be deemed to have been filed on the date of this order.

4. There will be no order as to costs.

BACKGROUND

The applicant issued summons against the respondents on 9 June 2020 seeking an order:

(a) That the agreement of sale between the applicant and the first respondent be declared valid and still operational;

(b) Declaring the agreement of sale that was entered into between the first, second, and third respondents null and void;

(c) Nullifying the transfer of title of land by the fourth respondent into the third respondent's name; and

(d) That respondents pay costs of suit.

The facts giving rise to the above claim may be encapsulated as follows:

The applicant entered into an agreement of sale with the sellers of an immovable property described as Lot Number 17 Weirmouth Small Holdings of Weirmouth on 23 June 2014, namely, Laureen Tatenda Mvududu and Maureen Mazviita Middleton.

The first and second respondents acted as agents for the sellers in the transaction.

The agreement was in the names of the sellers.

The agreement of sale was subsequently cancelled and the applicant was advised of the same on 14 September 2015.

On 22 January 2016, that same property was sold to the third respondent through the agency of the first and second respondents.

Transfer was subsequently effected to the third respondent in that same year.

In his suit, the applicant did not cite the sellers upon whose mandate the first and second respondents acted.

The three cited respondents filed special pleas seeking the dismissal of the applicant's claim.

The first and second respondents sought the dismissal of the claim on the grounds, that, the claim had prescribed, that they had been wrongly cited, that the matter was res judicata and lis pendens.

The third respondent also sought the dismissal of the claim on the grounds, that, the claim had prescribed, the matter was res judicata, and that the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

The applicant argued, that, the claim has not prescribed and that the matter was neither res judicata nor lis pendens.

He also argued, that, the sale to the third respondent was not above board. He alleged that the sale to the third respondent was fraudulent since there was no proper cancellation or termination of the sale agreement between him and the sellers.

The issues for determination on the special pleas were as follows:

(i) Whether or not the claim had prescribed;

(ii) Whether or not the matter was res judicata;

(iii) Whether or not the matter is lis pendens;

(iv) Whether or not the non-joinder of the former registered owners who sold the immovable property to the third respondent was fatal to the claim; and

(v) Whether or not the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

After hearing submissions on the special pleas, the court a quo noted, that, the issue of lis pendens was not persisted with as the case that had given rise to it, namely, HC67/2020, had since been withdrawn by the applicant.

The court a quo proceeded to make a determination on the other grounds.

It held that the first and second respondents, being the agents who facilitated the sale and subsequent transfer of property to the third respondent for and on behalf of their principals, were unnecessarily joined to the action procedure.

The sellers and transferors having been known, their non-joinder in the case was thus fatal.

The non-joinder was coupled with misjoinder of the first and the second respondents who were discharging legal functions for and on behalf of their principals; there was therefore no valid claim against them.

The court further held, that, in terms of the Prescription Act [Chapter 8:11], section 15(d), the claim should have been made within three (3) years of the cause of action.

The judge a quo reasoned, that, the cause of action arose in 2015 when the applicant was notified of the cancellation of his agreement of sale with the sellers. It was also noted, that, despite knowledge that the property had subsequently been sold and transferred to the third respondent, in 2016, the applicant had not acted to protect his perceived interests till June 2020 when he issued the summons in question.

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

The adage “the law helps the vigilant and not the sluggard” enunciated in Ndebele v Ncube 1992 (1) ZLR 288…, is applicable in this instance.

HB33-15 : MASIWA HWARA vs EUBERTINNAH MUDIMU (as Executrix of Estate Late Felix Mudimu) and ADDITIONAL ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: MUTEMA J

The applicant herein seeks an order that the second respondent re-open the estate of the late Felix Mudimu so that she may lodge her claim for the transfer of a property known as House Number 5747 Nketa 9, Bulawayo.The application is opposed by the first respondent who is the widow ...

The applicant herein seeks an order that the second respondent re-open the estate of the late Felix Mudimu so that she may lodge her claim for the transfer of a property known as House Number 5747 Nketa 9, Bulawayo.

The application is opposed by the first respondent who is the widow of the late Felix Mudimu....,.

The following salient facts have been established on the papers:

The applicant and the late Felix Mudimu concluded a written agreement of sale of Stand Number 5747 Nketa 9, Bulawayo for an agreed purchase price of Z$14,000.

As lay persons are wont to do, the parties drafted a simple handwritten agreement of sale on 2 December 1993 (Annexure 'P').

However, when the parties attended at the offices of Beverley Building Society, who held a mortgage bond over the house, they were advised to seek services of a legal practitioner and have a proper sale agreement drafted.

This they did at Webb, Low & Barry Legal Practitioners on 9 March 1994.

The late Mudimu acknowledged receipt of a deposit of Z$6,000 by 9 March 1994 as reflected on Annexure “Q”.

The applicant lodged the agreement with Beverley Building Society and took over the monthly repayment for the mortgage bond number 8490/91 in the sum of Z$8,000 which was due and owing then. By 19 December 2002 the applicant had completed payment of the mortgage bond.

Meanwhile, unbeknown to the applicant, Felix Mudimu had passed away, on 25 May 1997, in Chivhu rural.

When the applicant traced the late Mudimu to his rural home, in Chivhu, with a view to have the house transferred into her name, she discovered that Mudimu had died.

The applicant tracked down Wonder Mudimu, Felix's brother, in Harare and requested him to register Felix's estate, but Wonder indicated that he could not since the first respondent was alive. She then waited for the first respondent to register the estate.

Since the date of signing the sale agreement, the applicant has enjoyed undisturbed possession of Stand Number 5747 Nketa 9, Bulawayo. She has never paid rent or any other consideration to the first respondent during her tenure at the property neither has the first respondent made any claim to the property until she registered the estate of the late Felix Mudimu in August 2013.

The applicant has extended and developed the structure from a single room to a seven roomed house during her tenure and has paid all water, rates, and electricity charges thereon for the entire period of her occupation.

The first respondent only registered the estate after Wonder had informed her that the applicant wanted assistance in transferring the property from the estate into her name.

The first respondent registered the estate without informing the applicant and she went on to advertise for claims against and for the estate in 2013, which advertisements the applicant never saw.

Despite the fact that the first respondent was well aware of the sale of the property to the applicant, she willfully chose not to alert the applicant about the registration of the estate.

However, in spite of the foregoing, the first respondent opposed the application.

Three main planks were raised as the basis of the opposition, viz, in limine:

(i) That, there is no founding affidavit by the applicant because the signature thereon is not hers hence no court application before the court; and

(ii) That, if the property was purchased on 9 March 1994, then, the applicant's claim is prescribed; and

(iii) Lastly, on the merits, that the agreement of sale is not valid therefore not enforceable at law.

I will deal with the three points raised in opposition hereunder....,.

2. WHETHER APPLICANT'S CLAIM FOR TRANSFER OF THE PROPERTY IS PRESCRIBED

The first respondent premised this point on the Prescription Act. She simply averred, that, because the applicant purchased the house on 9 March 1994, then, in terms of that Act, her claim is prescribed.

She did not state what chapter is the Prescription Act, what the period of the alleged prescription is or what section of that Act is the applicable one as if her allegation is trite.

This is bad pleading.

If the first respondent was alluding to the three year period of prescription of debts in section 15(d) of the Prescription Act [Chapter 8:11] then she must have missed her law by a mile.

That provision does not apply to the instant case.

The applicable provision here is section 17(1)(e) of the Prescription Act. It provides as follows:

“17. When completion of prescription delayed

1. If –

…,.

(e) The creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed;
and the period of prescription would, but for the 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.”

Clause 8 of the Agreement of Sale states, that, transfer of the property would only be effected once the applicant had completed paying off the mortgage bond to Beverley Building Society.

The applicant fulfilled this suspensive condition on 19 December 2002.

Meanwhile, Felix Mudimu had died on 25 May 1997 in Chivhu. The applicant could not claim transfer from a deceased person and also before fulfilling the suspensive condition. Only the executor of the estate, once the suspensive condition had been fulfilled, could legally pass transfer of the house.

The estate was only registered, and the executrix appointed, on 9 August 2013.

On the authority of section 17(1)(e) of the Prescription Act, by the time the applicant put in motion the legal process of claiming transfer, viz 3 March 2014, the one year prescriptive delay had not yet run its full course from 9 August 2013.

In the result, it is a legal fallacy to allege that the applicant's claim has prescribed.

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.Against that order, the appellant now appeals to this court.BACKGROUNDIn October 2012, the appellant, as plaintiff, issued summons against both ...

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.

Against that order, the appellant now appeals to this court.

BACKGROUND

In October 2012, the appellant, as plaintiff, issued summons against both respondents before the High Court, Harare, claiming payment of the sum of $30,094=98 being arrear rentals in respect of the respondents tenancy of premises known as Shop 5, Zimre Centre, Corner Kwame Nkrumah Avenue and Leopold Takawira Street, Harare.

The second respondent had bound himself as surety and co-principal debtor in respect of the first respondent's indebtedness.

In their plea, the respondents, as defendants, raised the defence of prescription. More specifically, they averred, that, in instituting proceedings on 19 October 2012, more than three years after the debt became due, the claim had become time-barred.

The plea was not set down for hearing. Instead, the defendants pleaded over to the merits in the same plea.

In its replication, the appellant denied that the claim had prescribed. It averred, that, the first defendant had, on 22 October 2009, acknowledged the debt and had undertaken to pay the outstanding amount in full by 10 November 2009.

There was no rejoinder by the respondents.

In a joint pre-trial conference minute, the parties agreed, that, the issues requiring determination at trial were:

(a) Whether the plaintiff's claim had prescribed;

(b) Whether the first respondent had breached the lease agreement by failing to pay rental and other costs;

(c) Whether the respondents were liable to pay the sum of US$30,094=98 together with interest and costs of suit;

(d) Whether there had been mutual termination of the agreement between the parties and whether the appellant had unlawfully and unilaterally ejected the respondents from its premises; and

(e) Whether such conduct had resulted in the respondents suffering damages “in respect of the first respondent's assets and business” and, if so, the quantum thereof.

PROCEEDINGS BEFORE THE COURT A QUO

At the hearing of the matter, the respondents, through their lawyer, sought the leave of the court to deal with the issue of prescription first and lead evidence on it.

Despite opposition from the appellant, the court a quo decided that the issue of prescription be determined first, and, thereafter, depending on the outcome, the court would again hear evidence on the remaining issues.

In its judgment, the court a quo was of the view, that, the issue that fell for determination was the authenticity of the letter purportedly written by one Annet Mbedzi on behalf of Saintcor Holdings in October 2009.

In this regard, it made a number of observations.

The letter was not written on any letterhead, unlike in previous correspondence; it reflected the appellant's postal address; the letter was also written on behalf of Saintcor Holdings, a company both parties were agreed does not exist and was not a party to the lease agreement; the letter was addressed to a Mr Muringani, but, the name had been cancelled in black ink and in its place the name Muringi inserted; nowhere in the letter is it suggested that Saintcor Holdings was acknowledging indebtedness on behalf of Saintcor (Pvt) Ltd.

On a consideration of all these features, the court a quo concluded, that, the letter had not been written on behalf of the first respondent.

Consequently, the court upheld the plea of prescription and dismissed the plaintiff's claim with costs, hence this appeal.

GROUNDS OF APPEAL

In its grounds of appeal, the appellant has attacked the decision of the court a quo on the basis that it:

(a) Erred in fact and at law in holding that the appellant's claim had prescribed;

(b) Misdirected itself by holding that the letter that was received by the appellant on 22 October 2012 was not authentic;

(c) Misdirected itself by making a finding that the author of the letter that was received by the appellant on 22 October 2009 did not have authority to author the same.

It is apparent from the above grounds, that. it is the conclusion reached by the court a quo, that the letter in question had not been written on behalf of the respondent that the appellant is challenging.

PRELIMINARY ISSUES RAISED BY THE RESPONDENTS

In their heads of argument, the respondents raised two points in limine:

(i) The first was that the judgment of the court a quo reflects three different dates as the dates when the judgment was handed down.

The date of the judgment reflected in the Notice of Appeal is at variance with the date appearing ex facie the judgment itself, and, consequently, there has been no compliance with Rule 29 of the Rules of this Court.

(ii) Secondly, the relief sought is defective as it seeks to substitute the decision of the court a quo with one referring the matter back to the court a quo itself.

In his response, counsel for the appellant drew the attention of the court to a letter from the Registrar of the High Court which states, that. the ex-tempore judgment was handed down on 10 February 2015, which is the date appearing in the Notice of Appeal.

On the prayer, he conceded, that, the wording was inelegant but argued that the relief sought was clear. He submitted that the inelegance does not invalidate the appeal as ultimately the court will make an order it deems appropriate in the circumstances.

After hearing argument on the two preliminary issues, this court was of the view, that, the issues be rolled over for determination together with the issues that arise on the merits.

APPELLANT'S SUBMISSIONS ON APPEAL

In both his heads of argument and oral submissions, counsel for the appellant raised the following issues:

(i) First, that the judgment of the court a quo does not derive from the pleadings.

(ii) Second, the appellant's cause of action was predicated upon a valid cancellation of the lease agreement. Such cancellation was effected on 18 November 2009 and the cause of action would have accrued on that day. Therefore, when the appellant issued summons on 22 October 2012, the debt had not prescribed.

(iii) Third, that the appellant would have had no reason to cause the letter of 22 October 2012 to be generated. Once it had accepted that the letter had not been generated by the appellant, the court should have concluded that the letter had indeed been authored by the respondents.

(iv) Fourth, that the second respondent knew how to contact Annet Mbedzi, the author of the letter in question. Annet Mbedzi had been involved in the goings-on at the premises of the first respondent, and yet both respondents had not found it proper to call him.

(v) Lastly, counsel for the appellant submitted, that, it was improper for the court to have heard evidence piecemeal. Once the plea of prescription had not been set down and the respondent had then proceeded to plead over to the merits, the court should have heard evidence on all the issues and an assessment of the credibility and integrity of the witnesses undertaken only after all the evidence had been led.

RESPONDENTS SUBMISSIONS ON APPEAL

In response, counsel for the respondents made the following submissions:

(i) First, that, what is being attacked by the appellant are findings of fact which cannot be interfered with on appeal in the absence of a finding of irrationality on the part of the trial court.

(ii) Second, that, the court a quo was correct in its findings that the letter received by the appellant on 22 October 2009 had not been written by or for the respondents. This is because the appellant had admitted that, by that date, the first respondent had been evicted from the premises, and, consequently, the first respondent would not have used that address in correspondence with the appellant.

(iii) Third, that, the appellant has not established a lawful basis for the suggestion that the judgment does not derive from the pleadings as no leave of the court had been sought to advance argument on this ground, contrary to the Rules of this court. In any event, the respondents, in their plea, had placed prescription in issue.

(iv) Lastly, that, the debt did not become due on cancellation since rent was due monthly in advance, and, therefore, the cause of action arose whenever such rental was not paid on due date. The appellant had, in any event, evicted the first respondent in August 2009 for non-payment of rent and the “debt” included outstanding rentals up to the date of such eviction.

ISSUES FOR DETERMINATION

It is clear from the above, that, a number of issues arise before this court. These will be dealt with in turn....,.

WHETHER DEBT BECAME DUE ON CANCELLATION OF THE AGREEMENT

It was counsel for the appellant's submission, that, the appellant's cause of action in the court a quo was predicated upon a valid cancellation of the lease agreement. Put differently, he sought to argue, that, the debt which was sought to be recovered would have become due upon cancellation of the lease agreement.

In my view, this contention also lacks merit.

It was common cause, that, rental payments were due and payable monthly in advance. Indeed, following the failure by the first respondent to pay rentals on due date, the appellant caused the eviction of the first respondent in August 2009.

In the circumstances, I agree with the respondents, that, the debt became due each time the first respondent failed to pay rent on due date and that the debt would include all rentals owing up until eviction in August 2009.

WHETHER THE COURT A QUO ERRED IN MAKING FINDINGS OF FACT

The appellant has attacked various findings made by the court a quo on the facts, and, in particular, the finding that the letter received by the appellant on 22 October 2009 was not authentic and that the author of the letter did not have authority to write the same.

The court a quo made the following findings of fact:

(i) First, that the letter was written for and on behalf of an entity called Saintcor Holdings and not Saintcor (Pvt) Ltd.

(ii) Second, the name of the addressee had been incorrectly spelt.

(iii) Third, the letter was not written on the first respondent's letter head.

(iv) Fourth, the appellant's address, reflected in the letter, was incorrect.

(v) Fifth, the letter of acknowledgment had been written in October 2009 and yet purported to use the same address from which the first respondent had been evicted.

(vi) Sixth, the company that the author, Annet Mbedzi, purported to represent in the capacity of Financial Director does not in fact exist, and the company does not, in any event, purport to act on behalf of the first respondent.

On the basis of the above observations, the court reached the conclusion, that, the letter had not been written on behalf of the first respondent and that the letter did not specify which debt was being acknowledged.

The above conclusion cannot be said to be irrational: nor can it be said that it is not supported by the evidence.

The position is now settled, that, an Appellate Court will not interfere with the findings of fact made by a trial court unless the court comes to the conclusion, that, the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion.

Where there has been no such misdirection, the Appeal Court will not interfere.

This position was aptly captured by this court in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S). At 670, KORSAH JA remarked:

“The general rule of law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied, that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”

DISPOSITION

In my view, this appeal lacks merit and must therefore fail.

The appeal is accordingly dismissed with costs.

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J

This was an action matter. On the date of trial, it was postponed sine die by consent.

The defence had raised a special plea of prescription. The plaintiff was not conceding it. In terms of a timetable agreed upon, the parties would file their written submissions. Judgment on prescription would be delivered on the papers.

This now is that judgment.

The facts were common cause. The parties filed a Statement of Agreed Facts. They were these:

The defendant is a private company. It is responsible for, among other things, the distribution of electricity nationwide. In this regard, it runs and maintains, among others, electricity transmission conductors. The plaintiff sued it for damages arising out of injuries sustained by him when he had come into contact with live conductors.

The plaintiff's case was this:

On 11 March 2009, he was herding cattle in Mashava. He came into contact with naked electricity conductors. They were live and concealed by grass in the grazing field. He was electrocuted. He suffered severe burns from the chest to the knees. He stayed in hospital for six months. His right hand had to be amputated. The degree of his disability, as a result of those burns, was estimated at 40%.

The plaintiff alleged the defendant had been negligent in the following respects:

(i) It had failed to inspect and detect that its conductors had fallen onto the ground;

(ii) It had failed to secure the conductors so that they would not fall to the ground;

(iii) It had failed to clear the grass along its transmission lines so that fallen conductors could easily be detectable.

The plaintiff assessed his damages at $60,334 for pain and suffering, medical expenses, and the loss of amenities of life.

The plaintiff's summons was issued and served in March 2018. That was exactly nine years after the incident.

The defendant raised the special plea of prescription.

Generally, in terms of the Prescription Act [Chapter 8:11] an ordinary debt becomes prescribed after the lapse of three years from the date when the cause of action arose.

The defendant alleged the plaintiff's cause of action arose on the date of the incident.

On the merits, the defendant completely denied the plaintiff's allegations. It said he had been the author of his misfortune. He had wanted to steal the electricity conductors. The defendant denied they had fallen onto the ground. It claimed the plaintiff had tried to pull them down with his axe - from a height of about 2.5 metres above the ground. That was when he had been electrocuted. The defendant had actually reported the plaintiff to the police for theft. He had been arrested; but, in September 2016, the police had let him go for lack of evidence.

That was seven years later.

In his answer to the defence of prescription, the plaintiff maintained, that, the cause of action had arisen in September 2016 when he had been cleared by police. He said prescription had not begun to run when the incident had occurred.

Relying on cases such as Dube v Banana 1998 (2) ZLR 92 (H); Mukahlera v Clerk of Parliament & Ors HH107-07; and Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H) which defined “cause of action” as the combination or entire set of facts that are material for the plaintiff to prove in order to succeed in his action, the plaintiff argues, that, until the police had dropped the criminal charges against him, he would not have been able to discharge the burden upon him that it had been the defendant's negligence that had caused him the injury and consequent loss to him.

The plaintiff further relies on the cases of Thompson v Minister of Police 1971 (1) SA 371 (E) and Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H) for the argument that no action lies until the criminal proceedings have terminated in favour of a plaintiff.

Plainly, the plaintiff's argument on prescription is ill-conceived. His cause of action is manifestly prescribed.

Both parties are agreed, that, the plaintiff's cause of action is a 'debt' within the meaning of section 2 of the Prescription Act [Chapter 8:11], namely, being a “debt” that may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.

The plaintiff's claim arises from delict. It is an ordinary debt. The period of prescription is three years.

The plaintiff's cause of action arose when the incident happened.

In terms of section 16 of the Prescription Act, prescription begins to run as soon as a debt is due. A debt is due when the plaintiff has gathered all the entire set of facts about the cause of action as are material to prove his or her claim.

In this case, the plaintiff's cause of action was complete when he had gathered all the information as to, among other things, whose electricity conductors they were; allegedly that they had been in a state of neglect; allegedly that they had been lying naked on the ground whilst concealed; the sort of injuries that he had sustained; the monetary loss that he had incurred, or would incur, and so on. Those are the kind of material facts as are contemplated by cases such as Dube v Banana 1998 (2) ZLR 92 (H).

If three years elapsed before the plaintiff had taken action or interrupted prescription, then, his cause of action would be extinguished. The lapsing of a debt, by prescription, is absolute, unless one can show that prescription does not apply or that the running of it was delayed or interrupted.

Section 17 of the Prescription Act provides for situations where the completion of the period of prescription is delayed. None of them applies to the plaintiff's case.

Sections 18 and 19 of the Prescription Act provide for situations where the running of prescription is interrupted. These are when the debtor acknowledges liability and when the creditor serves process on the debtor claiming the debt.

The plaintiff expressly concedes that none of these applies to him either.

That should mark the end of his case – but, his counsel has crafted the argument that prescription should not be raised against the plaintiff because his cause of action only arose in September 2016 when the police abandoned the criminal case against him.

That the plaintiff had been arrested by the police for the alleged theft of the conductors and/or that it had taken the police seven years to clear him is not one of the factors that interrupts or delays the running of prescription.

Whilst a single incident may give rise to multiple types of proceedings, including criminal and civil, the outcome of one does not bind the other or others.

The police and the prosecution could well have been pursuing a criminal case. The plaintiff was not precluded from pursuing his civil claim timeously after he had become satisfied that his injury and loss had arisen by reason of the defendant's negligent conduct.

The plaintiff's arguments, that, until the police had exonerated him of the theft allegations, it was not known whether it was him or the defendant who had been to blame for his electrocution or that without having been so exonerated he would not have been able to prove his cause of action, are thoroughly ill-informed.

He himself knew, and had concluded, that, he had been electrocuted by reason of the defendant's negligence. He did not need the police or anyone to tell him that. Furthermore, and at any rate, even after being exonerated, he would still need to prove liability on the merits as the defendant was contesting it.

Cases like Thompson v Minister of Police 1971 (1) SA 371 (E) and Manjoro v Minister of Home Affairs & Ors 2015 (1) ZLR 872 (H) are completely inapposite and the plaintiff's argument misconceived.

These cases were concerned with situations, where, one sues the police and its parent ministry in respect of wrongful conduct, such as wrongful arrest or malicious prosecution. In such situations, until the criminal proceedings terminate in favour of the plaintiff, he or she would be hard pressed to prove wrongfulness or malice on the part of the police. That is why he or she has to wait for the proceedings to end, and to end in his or her favour.

In casu, the plaintiff's situation is different and incomparable.

It is the finding of this court, that, the plaintiff's claim has prescribed. Therefore, it is hereby dismissed with costs.

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Law Portal
Zimbabwe

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

Appealed
SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

View Appeal
HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

HH167-12 : ZIMBABWE DEVELOPMENT BANK vs GENERAL ACCIDENT INSURANCE COMPANY
Ruled By: CHIWESHE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

SC05-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: PATEL JA, BHUNU JA and BERE JA

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM
Ruled By: CHIGUMBA J

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

SC64-21 : PATRICK MANJOVHA vs DELTA BEVERAGES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

HB33-15 : MASIWA HWARA vs EUBERTINNAH MUDIMU (as Executrix of Estate Late Felix Mudimu) and ADDITIONAL ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: MUTEMA J

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J

Categories

Law Portal Zimbabwe

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

Appealed SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

View Appeal HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS Ruled By: CHAREWA J

HH167-12 : ZIMBABWE DEVELOPMENT BANK vs GENERAL ACCIDENT INSURANCE COMPANY Ruled By: CHIWESHE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND Ruled By: CHIGUMBA J

HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: DUBE J

View Appeal SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAFUSIRE J

SC05-21 : GIFT KONJANA vs DEXTER NDUNA Ruled By: PATEL JA, BHUNU JA and BERE JA

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM Ruled By: CHIGUMBA J

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED Ruled By: CHIRAWU-MUGOMBA J

SC64-21 : PATRICK MANJOVHA vs DELTA BEVERAGES (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE Ruled By: HLATSHWAYO JA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS Ruled By: CHITAKUNYE AJA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT Ruled By: NDEWERE J

HB33-15 : MASIWA HWARA vs EUBERTINNAH MUDIMU (as Executrix of Estate Late Felix Mudimu) and ADDITIONAL ASSISTANT MASTER OF THE HIGH COURT N.O. Ruled By: MUTEMA J

View Appeal SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY Ruled By: MAFUSIRE J

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Law Portal
Zimbabwe

Appealed
SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

View Appeal
HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

HH167-12 : ZIMBABWE DEVELOPMENT BANK vs GENERAL ACCIDENT INSURANCE COMPANY
Ruled By: CHIWESHE J

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

HH20-08 : DANIEL SHUMBA vs CONSTITUENCY REGISTRAR, MR MUSHANGWE and CHAIRMAN OF ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

SC05-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: PATEL JA, BHUNU JA and BERE JA

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM
Ruled By: CHIGUMBA J

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

SC64-21 : PATRICK MANJOVHA vs DELTA BEVERAGES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

HB33-15 : MASIWA HWARA vs EUBERTINNAH MUDIMU (as Executrix of Estate Late Felix Mudimu) and ADDITIONAL ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: MUTEMA J

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HMA52-19 : JUSTICE GUMBOCHUMA vs ZIMBABWE ELECTRICITY TRANSMISSION & DISTRIBUTION COMPANY
Ruled By: MAFUSIRE J