NDOU
J: The plaintiff's claims against the defendants are for:-
“1.
An order declaring the sale of house number 3750 Magwegwe North, Bulawayo to 1st
defendant by Nkululeko Ndlovu unlawful, null and void.
2.
An order that the plaintiff is the rightful and legal owner of stand number
3750 Magwegwe North, Bulawayo.
3.
An order directing the 1st defendant to transfer stand number 3750
Magwegwe North, Bulawayo into the plaintiff's name at the 2nd
defendant's offices within 5 days of this order failure to which the Deputy
Sheriff be directed to sign transfer papers on the stead of the 1st
defendant
4.
An order directing the 1st defendant and those claiming through him
to vacate house number 3750 Magwegwe North, Bulawayo within 5 days of this
order failure to which the Deputy Sheriff be directed to evict the 1st
defendant and all those claiming through him.
5.
Alternatively, the 1st defendant be ordered to pay the plaintiff a
sum of R150 000 being the current market value of the house on grounds of
unjust enrichment within 10 days of this order.
6.
The 1st defendant to bear costs of suit at an attorney-client
scale.”
The salient facts of the matter are the following. The plaintiff
purchased the property in question from the 2nd defendant in
1978. Plaintiff lived in the house from 1978 to 1999 when he retired and
went to live at his rural home in Zhombe. He left his son Nkululeko
Ndlovu (“Nkululeko”) living in the property. It is the plaintiff's case
that Nkululeko sold the house to 1st defendant without his knowledge
and consent. It is alleged that he used a fake general power of attorney
to achieve this fraudulent sale of the property. As a result of this
fraudulent sale the plaintiff caused the arrest of his son, Nkululeko.
Nkululeko was charged with theft by false pretences. Nkululeko died in
prison before the criminal trial took place. The 1st defendant
has refused to vacate the house or transfer it back to the plaintiff or pay
current market value of the house. This resulted in this action against
the 1st defendant.
The 1st defendant has raised a special plea that the plaintiff's
claim has prescribed. The parties have made submissions on the question
of prescription and want me to determine this issue first. This judgment
is only confined to this issue of prescription. It is beyond dispute that
the plaintiff became aware of the sale to 1st defendant by his late
son as far back as 2002. In February 2005 he made valliant attempts to
reverse the sale using extra-judicial methods. He only approached this
court on 11 November 2009 when he instituted this action. The legal
proceedings were instituted well after three years. The issue is whether
the claim has prescribed in terms of the Prescription Act [Chapter 8:11] (the
“Act). It is clear from the pleadings that the plaintiff's claim is for a
declaratory order premised on the fact that the general power of attorney used
in selling his house was forged and therefore a nullity. In section 2 of
the Act a debt is defined as follows:
“In this Act –
“debt”, without
limiting the meaning of the term, includes anything which may be sued for or
claimed by reason of an obligation arising from statute, contract, delict or
otherwise.”
The point worth noting in this definition of “debt' is that the suit or claim
must be “by reason of obligation” on the part of the debtor arising from the
stated bases. In my view, a declaratory order is a remedy to secure the
public interest of certainty or correct legal position. Such a remedy
cannot prescribe – Oertel NNO v Director of Local Government
1981 (4) SA 491 (T) at 492. In this case the court held –
“Public rights
are excluded from the operation of the Prescription Act … and “debt” in the Act
must be necessarily restricted to such claims as arisen in the field of private
law. Whilst every debt encompasses an obligation not every obligation
constitutes a debt for the purposes of the Prescription Act.”
Further the claim is based on the fact that sale is null and void ab initio.
As stated by Lord Dennington in MacFoy v United Africa Co. Ltd
(1961) ALL ER 1169 (PC) at 1172 –
“If an act is
void, then it is in law a nullity. It is not only bad, but incurably
bad. There is no need for an order of the court to set it aside. It
is automatically null and void without much ado, though it is convenient to
have the court declare it to be so … you cannot put something on nothing and
expect it to stay there. It will collapse …” – Ngani v Mbanje
& Anor 1987 (2) ZLR 111 (SC) at 115E – F. This claim is based on
the alleged nullity of sale transaction and does not arise from a “debt” as
defined in the Act.
Accordingly, the 1st defendant's special plea of prescription is
dismissed with costs.
Cheda & Partners, plaintiff's legal practitioners
Samp
Mlaudzi & Partners, 1st defendant's
legal practitioners
