Court Application – Ex Tempore
KAMOCHA J: This is an application for rescission
of a judgment granted to Barbara Murasiranwa on 16 October 2008 wherein she was
declared the owner of stand number 4935 Chinotimba Township, Victoria
Falls. The respondents in that case were directed to do all things
necessary to transfer stand number 4935 Chinotimba Township, Victoria Falls
into the name of Barbara Murasiranwa within 60 days of the court order.
The circumstances giving rise to this matter are briefly these:
On 6 October 1999 the applicant Alfred Mupfumbatwa sold the property at the
centre of this dispute to Edgar Mbwembwe the second respondent. A
dispute relating to their agreement of sale ensued resulting in Mupfumbatwa
instituting proceedings against Mbwembwe under HC 1083/02. He went on to
apply for summary judgment which he subsequently abandoned by withdrawing
it. He made no further claim against Mbwembwe. Following that
withdrawal Mbwembwe sold the property to Barbra Murasiranwa in 2001.
In 2008 which was 8 years later Barbara filed an
application under case number HC 16/08 seeking an order for transfer of the
property to her name which order was granted on 16 October 2008. It was
then that Mupfumbatwa challenged the application on the basis that he had
cancelled the agreement between himself and Mbwembwe.
Mupfumbatwa's claim against Mbwembwe has been prescribed in terms of section
15(d) of the Prescription Act [Chapter 8:11]. The matter between the two
is therefore, non- existent. Mupfumbatwa's rights were prescribed by
operation of law and are non-existent. He cannot try to assert his
non-existent rights against Barbara either. The explanation for failing
to file the application timeously is also not convincing. I am unable to
accept it.
In the light of the foregoing this application is hereby dismissed with costs.
Mashayamombe & Company, applicant's legal practitioners
Coghlan
& Welsh, 1st respondent's legal practitioners
