BHUNU
JA: This is a chamber application for condonation
and extension of time within which to note an appeal in terms of r 31 (3) of
the Supreme Court Rules 1964. At the
close of argument, I dismissed the application with costs with reasons to
follow. I now proffer the reasons for
that ruling.
The judgment which the
applicant seeks to appeal against was handed down by the High Court on 10 June
2015. No leave to appeal was required as
the judgment was final and definitive. In
terms of r 30, the applicant was required to file its notice of appeal within
15 days of the date of handing down judgment. The applicant did not however, file its notice
of appeal within the prescribed time limit. It only filed its notice of appeal with the
Supreme Court more than five months later, on 18 November 2015.
It being common cause
that the appeal was filed out of time it became incumbent upon the applicant to
give a reasonable explanation for the inordinate delay of 5 months. In a bid to discharge that onus Peter Mpiliwa a trustee of the
applicant and its erstwhile legal practitioner Gwinyai Mharapara deposed to
supporting affidavits vouching that despite making numerous enquiries from the
court a quo, the applicant only became
aware of the judgment through Mr Mharapara on 30 October 2015. Mr Mharapara in turn advised Mr Mpiliwa of
the existence of the judgment on 2 November 2015.
The respondents have no
knowledge as to when the appellant became aware of the impugned judgment. No verification has been sought from the
registrar and his staff concerning the truthfulness or otherwise of the factual
averments made by the applicant's representatives concerning this issue. For that reason the respondents have mounted no serious counter argument as to
when the applicant became aware of the judgment in question.
There being no serious
dispute to the factual averments made by the applicant's representatives in
this respect, it is entitled to the benefit of a reasonable doubt. I accordingly come to the conclusion that the
delay in noting the appeal was not wilful or deliberate. Having come to that
conclusion, I proceed to determine whether there are reasonable prospects of
success on appeal.
In determining the
applicant's prospects of success it is necessary to recap the facts pertaining
to the cause of action.
The
first respondent, that is to say, The Federation of Kushanda Pre-Schools is the
registered owner of Stand 1894 Marondera Township (the stand) held under deed
of transfer 2910/2006. The third respondent
bought and took occupation of the stand from the first respondent sometime in
September 2007. The applicant unsuccessfully sued the respondents in the High
Court from which it had sought the following relief:
1. To
be declared the lawful owner of the stand.
2. Cancelation of the 1st respondent's
title deeds.
3. Registration
of the stand in its own name and
4. Eviction
of the 3rd respondent and all those claiming occupation through it
from the stand.
At the hearing in the
court a quo the first respondent consented
to judgment. The second respondents did
not oppose the application. The third respondent however opposed the
application and took a special plea contending that the applicant's cause of
action had prescribed in terms of s 15 (d) of the Prescription Act [Chapter 8:11]. That section provides as follows:
“15 Periods of prescription of
debts
The
period of prescription of a debt shall be -
(a)
thirty
years, in the case of—
(i)
a
debt secured by mortgage bond;
(ii)
a
judgment debt;
(iii)
a
debt in respect of taxation imposed or levied by or under any enactment;
(iv)
a debt owed to the State in respect of any
tax, royalty, tribute, share of the profits or other similar charge or
consideration payable in connection with the exploitation of or the right to
win minerals or other substances;
(b)
fifteen
years, in the case of a debt owed to the State and arising out of an advance or loan
of money or a sale or lease of land by the State to the debtor unless a longer
period applies in respect of the debt concerned in terms of paragraph (a);
(c)
six years in the case of—
(i)
a
debt arising from a bill of exchange or other negotiable instrument or from a
notarial contract;
(ii)
a debt owed to the State; unless a longer
period applies in respect of the debt concerned in terms of paragraph (a)
or (b)
(d)
except
where any enactment provides otherwise, three years, in the case of any other
debt.”
The learned judge in the
court a quo upheld the special plea
with costs, hence this appeal. For the
applicant to succeed it must show on a balance of probabilities that it has
reasonable prospects of success on appeal. In doing so it must point to some
fault, misdirection, irregularity or impropriety in the judgment it seeks to
impugn. In short it must show on a
balance of probabilities that it has an arguable case on appeal.
It is now incumbent upon
me to determine whether the applicant has discharged that onus on a balance of probabilities.
The learned judge in the
court a quo made a specific finding
of fact at p 2 of his cyclostyled judgment that counsel for the applicant had
made an unequivocal concession that the applicant's cause of action had infact
prescribed. This is what the learned
judge had to say:
“Mr
Mharapara for the plaintiff (applicant) conceded that the running of
prescription commenced in September 2007 when the third defendant (3rd
respondent) purchased the stand and took occupation. He conceded that the
prescriptive period of 3 years has run its course.”
Having made that clear
concession Mr Mharapara nevertheless argued that prescription was not a remedy available
to 3rd respondent in the circumstances of this case. Strange
arguments were advanced both in the court a
quo and before me in chambers as to why third respondent should be
precluded from raising prescription as a defence. It was argued that third parties are precluded
from raising prescription as a defence if they have no real right or real
interest in the disputed property.
Apparently relying on the
well-known common law principle that the owner of property can vindicate it at
any time wherever he might find it, it was argued that prescription does not
apply where the owner seeks to vindicate its property from a third party. It was further argued that 3rd
respondent could not raise prescription as a defence because vindication was
not a claim for a debt. No authority was
cited for the strange proposition of law barring third parties from raising
prescription as a defence.
The applicant's
proposition has no foundation at law. A perusal of the prescription Act shows
that nowhere does it prohibit or exclude third parties from raising
prescription as a defence. What
prescribes is the debt and not any of the parties concerned. It is therefore open to third parties to raise
the defence of prescription in appropriate cases once prescription has run its
course.
As we have already seen
above, the circumstances under which prescription may be raised as a defence
are clearly spelt out under s 15 (d) of the Prescription Act which provides
that a debt except where statute provides otherwise, shall prescribe after 3
years. Section 2 of the Act goes on to
define a debt as:
2 (1) 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.”
(My emphasis).
The phrase, “anything
which may be sued for” gives the term 'debt' a very wide meaning synonymous
with cause of action as observed by GREENLAND J in Denton v Director of Customs & Excise 1989 (3) ZLR 41 at 48. In
that case the learned judge had occasion to remark that:
“Note that the word “debt “used in this
Act (Prescription Act) and the words “cause thereof” used in s 178 (4) of the
Customs and Excise Act mean the same thing. This is because of the wide meaning
of “debt” set out in the former”
Since the applicant is suing the 3rd
respondent for vindication, its suit falls squarely within the ambit of 'anything which may be sued for.' What
this means is that a claim for vindication of property amounts to a claim for a
debt in terms of the prescription Act.
It therefore follows as a matter of common sense that
the applicant's suit being a claim for vindication, in legal parlance it is a
debt which is subject to prescription in terms of the Act. For that reason, the learned judge in the
court a quo cannot be faulted at all for
determining that the applicant's claim against the third respondent had
prescribed. The mere fact that the first
respondent was consenting to the applicant's claim is an irrelevant
consideration which does not interrupt the running of or defeat the defence of prescription
in terms of the Act.
Once prescription has run its course it deprives the
aggrieved party of the remedy or relief sought regardless of whether or not one
has a valid claim on the merits. Thus an
owner forfeits his right to vindicate his property once prescription has run
its full course as happened in this case. The nature of the defence is that it
even allows a litigant at fault to keep his ill-gotten gains.
Prescription does not deal with the merits. It simply seeks to extinguish old stale debts
not claimed within the prescribed time limits. The rationale for prescription was amply
captured by the learned trial judge where he quotes Wessels in The Law of Contracts in South Africa,
Vol. II para 2766 where the learned author says:
“Creditors should not be allowed to permit
claims to grow stale because thereby they embarrass the debtor in his proof of
payment and because it is upsetting to the social order that the financial
relations of the debtor towards third parties should suddenly be disturbed by
the demanding from him payment of forgotten claims.”
The learned trial judge having correctly found that
the applicant's claim had prescribed, I accordingly find that he has forfeited
his right to vindicate the disputed property from the Applicant whether or not
he has a valid claim against it.
It is for the foregoing reasons that I dismissed the
applicant's application at the close of argument in chambers.
Mupanga Bhatasara Attorneys, applicant's
legal practitioners.
Scanlen & Holderness, 3rd
respondent's legal practitioners.
