At the onset of the proceedings, the defendants raised a
point in limine that the matter had
prescribed.
The defendants argued that at the time of the institution
of these proceedings, on 19 October 2012, the plaintiff's claim had prescribed.
The defendants submitted that the last acknowledgement they made for liability
of rental was on 5 August 2009 wherein they acknowledged owing rentals in the
sum of $30,000=. Thereafter, the
defendants denied ever authorizing any other person to acknowledge rent
arrears.
The plaintiff, on the other hand, opposed the defendant's
claim on prescription.
The defendants based its opposition on a letter written by
Annet Mbedzi, allegedly on behalf of the defendants, which letter the plaintiff
said they received on 22 October 2009. In that letter, Mr Annet Mbedzi acknowledged
owing rent arrears and undertook to settle same by 10 November 2009. The plaintiff
argued, therefore, that the debt had not prescribed at the institution of these
proceedings.
The defendants called one witness to testify on their
behalf. This witness was John Shumba, the second defendant in the matter.
John Shumba testified that as the Managing Director of the
first defendant he entered into a lease agreement with the plaintiff. The lease
agreement was for the lease of the plaintiffs' property, namely, Shop No.5
Zimre Centre, Cnr Kwame Nkrumah Avenue and Leopold Takawira Street, Harare by
the first defendant. It was this witness's testimony that the first defendant
failed to pay rentals in respect of the above property as from December 2008 to
about August 2009. He wrote a letter to the plaintiff acknowledging the arrear
rentals and promising to pay on several occasions. He testified that the last
such letter was written on 5 August 2009. It was his testimony that only Fungai
Danha, the first defendant's accountant, was authorized to acknowledge rentals
in his absence on behalf of the first defendant. No other person had the
authority to do so. Through this witness, the letter of 5 August 2009 was
admitted as exhibit 1. Such letter read;
“RE: OUTSTANDING ARREARS FOR ACCOUNT NO.10004
We refer to our discussion held this morning. We
acknowledge the outstanding debt of US$30,000=. We propose to make a deposit
payment of US$10,000= on or before the 14 August 2009, upon which the office
premises shall be opened, as per discussion. The balance of US$20,000= shall be
settled by 28 August 2009….,.
John S. Shumba.”
Under cross examination, he stuck to his story that indeed
the above letter was the last acknowledgement of debt by the defendants. He
refused ever authorizing one Annet Mbedzi to acknowledge rental arrears on
behalf of the first defendant. He however admitted that he knew Annette Mbedzi.
He denied that Annet Mbedzi was ever an employee of the first defendant. He
said he knew Annet Mbedzi as a relation to one of the plaintiff's Directors – a
Solomon Tembo. He suspected the letter by Annet Mbedzi was manufactured by the
plaintiff after the defendants raised the defence of prescription. He said such
letter was not dated; had the first defendant's address wrong; was not written
on the first defendant's letterhead; had conciliation which was not counter-signed;
used bad English; had so many spelling errors; and described Annet Mbedzi as
the first defendant's Financial Director. He said the first defendant only had
two Directors, that is, himself and his brother Gabriel Shumba. His brother was
the Financial Director and not Annet Mbedzi. He urged the court to disregard
the said letter as not authentic. John Shumba admitted, under cross-examination,
to have met Annet Mbedzi once after learning of the existence of the letter. It
was his testimony that he gave him his phone number and asked him to call.
The plaintiff called one witness, Mr Edson Muringi, the
Managing Director of ZIMRE Properties. He testified that he dealt with the
defendants in respect of the rental arrears. This witness testified that he
received a letter, exhibit 3, on 22 October 2009.
This letter forms the crux of this preliminary point. It is
pertinent to quote the letter verbatim. It provides;
“SAINTCOR HOLDINGS
Zimre Centre
Cnr Leopold Takawira Street/Kwame Nkrumah
Harare
Zimre Properties
P.O. Box 4839
Harare.
Attention Mr Muvingi
Dear Sir,
Re: Outstanding payments for rentals at Zimre Centre
We hereby submit this letter to appeal on our long standing
debt as per previous letter which payments were supposed to have been paid by
now, we were mislead by our debtor we have made new arrangements with Genesis
Global Botswana who is going to settle the full amount owed to yourselves by
the 10 November 2009, we assure you this amount will be paid by the date said
on this letter, the writer of this letter as the financial director of the
holding company. I guarantee yourselves payment will be done. As you are aware
of we have been renting these premises for along time we ask your authority
that we still need to continue doing business at the same premises, may you
give grace to continue operations at the same thank you very much for your long
understanding position in this matter, which has put you in uncomfortable
position.
Yours faithfully
Annet Mbedzi for Saintcor Holdings
Financial Director Contact Number 0913156096”
It was this witness evidence that he believed the above
letter was authentic as he had met Annet Medzi at the meeting of 5 August 2009.
Annet Mbedzi came for the meeting with the second defendant, Mr Kasvingo and Mr
Danda. This witness testified that the second defendant introduced the above
three as the team from the first defendant. He did not recall whether Annet
Mbedzi made any contributions during the meeting. He described Annet Mbedzi as
tall, medium built and dark but not very dark.
This description, of course, did not help the court much as
such Annet Mbedzi was never brought before the court.
This witness testified that he saw Annet Mbedzi thereafter
more than two times. Whenever he met Annet Mbedzi, the two would discuss
outstanding rentals and payment plan and the continued occupation of Number 5, Zimre Centre, by the first defendant. This
witness testified that at all times Annet Mbedzi was representing the second
defendant who was away in South Africa on business. This witness acknowledged
receiving a letter from the second defendant…,. He acknowledged that he spoke
with the second defendant when he was in South Africa and agreed that payment
of arrear rentals would be done by 15 September 2009.
This witness admitted Solomon Tembo was a Non-Executive Director
of the plaintiff. He denied knowledge of any relationship between Annet Mbedzi
and Solomon Tembo. He testified that Solomon Tembo would only know of cases as
this one when they are in court. He believed Solomon Tembo became aware of this
case around October 2012. He said he had no reason to lie against the
defendants. Under cross-examination, he
admitted the letter by Annet Mbedzi was not dated. He admitted he did not know
the date it was written. He admitted the signature was signed in blue ink and
cancellation of “Muringani” and replacement of Muringi was in black ink. Mr
Muringi admitted that as at August 2009 they had already evicted the defendants
from the premises. Asked why the letter used the address from which they had
been evicted he said it was because the premises were still empty. He admitted
Saintcor Holdings does not exist.
This court is called upon to determine whether exhibit 3 is
authentic and whether it constitutes an acknowledgement of debt by the
defendant which has the effect of interrupting prescription.
The inquiry is always a factual one - see Petzer v Radford
(Pvt) Ltd 1953 (4) SA 314 N…,.
Counsel for the plaintiff, in his address, aptly captured
the position that if this court finds that the letter marked as exhibit 3 is
authentic the defendant's point in
limine falls apart. If, on the other
hand, this court finds the letter is not authentic, then the defendants' claim
on prescription succeeds.
Firstly, the court had to look at the said letter and
scrutinize it to determine its authenticity. Was the letter written by the
defendants, and, on the face of it, is it genuine?
I noted, firstly, that the letter was not written on any
letterhead. It is common cause that all the other letters written of behalf of
the first defendant appeared on a letterhead of the first defendant and another
on V-Track (Private) Limited letterhead. Such other letters from the first
defendant had the first defendant's address as Block No. 5 Zimre Centre, Cnr L.
Takawira/Kwame Nkrumah Ave, PO Box A 1894, Harare and telephone numbers. Again,
all the other letters addressed their letters to the plaintiff at 6th
Floor Fidelity Life Towers, 5 Raleigh Street, Harare but the letter marked exhibit
3 used a Box Number, that is, “P.O. Box 4839, Harare”. Exhibit 3 is not on any
letterhead and it is written on behalf of Saintcor Holdings, Zimre Centre. Both
parties agreed such company does not exist.
Exhibit 3 was written to Mr Muringani and later cancelled
in black ink to put the name Muringi. It is common cause that there is no
Muringani at Zimre Properties. The defendants had been dealing with Mr Muringi.
It is buffling how the plaintiff, who has been dealing with the first defendant
for such a long time, would accept such letter as genuine.
The lease agreement was produced before me.
The lessee, who is the first defendant, is clearly spelt
out as “SAINTCOR (PRIVATE) LIMITED.''
Suddenly, on…, exhibit 3, a different entity is brought in – SAINTCOR
HOLDINGS. Saintcor Holdings in that letter is acknowledging unspecified debt on
behalf of itself. Nowhere in that letter is it suggested that the unspecified
rentals are acknowledged on behalf of Saintcor (Private) Limited. In the same
breadth, the said Annet Mbedzi wrote as the Financial Director of Saintcor
Holdings. He does not claim to be a Financial Director of Saintcor (Private)
Limited.
The question is whether the conclusion drawn by the
plaintiff would be reasonable; that Annet Mbedzi was a Financial Director of
Saintcor (Private) Limited and that the letter was written on behalf of
Saintcor (Private) Limited.
Such conclusion would be unreasonable.
With the educational backgrounds of Mr Muringi he could
have easily picked up the anomalies in the letters. Under cross-examination, he
failed to answer simple questions.
The defendants suggested the letter i.e exhibit 3 was
written with the collusion of the plaintiff. The evidence before me could not
lead this court to make that conclusive finding. However, it is my finding that
exhibit 3 is not a letter written on behalf of the first defendant. It is clear
it was written on behalf of Saintcor Holdings - which company does not exist.
The letter is not specific as to which debt is being acknowledged and is not an
acknowledgement of debt as envisaged under the Prescription Act.
In the result, the defence of prescription
succeeds and the plaintiff's claim is dismissed with costs.
