Special
Plea
MATHONSI
J:
Claiming
to be a trust duly registered in terms of the laws of Zimbabwe, the
plaintiff instituted summons action against the 4 defendants seeking
to be declared the rightful owner of Stand 1894 Marondera Township
(the Stand) currently held by The Federation of Kushanda Pre-Schools
by Deed of Transfer number 2910/2006 and the cancellation of that
title deed, the registration of the 1,7640 hectare Stand in its name
and the eviction of the third defendant and all those claiming
occupation through it from the Stand.
In
its declaration the plaintiff averred that in 1997 its beneficiaries,
being its employees, won some prize money which they invested in the
purchase of the Stand from the second defendant. However management
of the first defendant misrepresented to the second defendant that
the purchase was made by the first defendant resulting in the Stand
being registered in the name of the first defendant. On 27 April 2006
the Stand was registered in the name of the first defendant by Deed
of Transfer No. 2910/2006.
The
plaintiff averred further that in September 2007, the first
respondent sold the Stand to the third defendant without a Board
resolution resulting in the latter taking occupation. As the
registration of title was irregular the plaintiff prayed for judgment
aforesaid.
The
third defendant entered appearance and filed a special plea in the
following:
“The
3rd
defendant pleads as follows to the plaintiff's claim:
1.
According to the plaintiff's own papers the wrong alleged was
committed sometime in 2007. Summons claiming the property was issued
by other parties in 2007 but the matter was withdrawn. This is
confirmed by paragraph 8 and 11 of the plaintiff's further
particulars. The claim is now being reinstituted by another party
being the plaintiff in 2014 well in excess of the prescriptive three
year period. The plaintiff's cause of action is consequently
prescribed and the indebtedness has been extinguished by operation of
law. On this ground alone the plaintiff's claim must fail.
2.
As a result of the aforementioned special plea the 3rd
defendant is not obliged to plead over on the merits”.
Ms
Pasipamire
who appeared with Ms Masunda
for the third defendant submitted that the plaintiff's claim is
prescribed in terms of section 15(d) of the Prescription Act [Chapter
8:11]
because the cause of action arose in September 2007 when the third
defendant purchased the Stand from the first defendant and took
occupation. The plaintiff became aware of the identity of the third
defendant as well as its right to sue then but did not take steps to
prosecute the claim until March 2014 when it issued summons which was
subsequently served. The running of prescription started then and was
not interrupted until the prescriptive period of 3 years expired. The
special plea should therefore be upheld.
Mr
Mharapara
for the plaintiff conceded that the running of prescription commenced
in September 2007 when the third defendant purchased the Stand and
took occupation. He conceded that the prescriptive period of 3 years
has run its course. He submitted however that the plaintiff relies on
the argument that prescription as a remedy is not available to the
third defendant and therefore cannot be sustained. This is because
the third defendant's claim to the property is derived from that of
the first defendant who allegedly sold the Stand to it. As the first
defendant has consented to judgment, the third defendant cannot have
a derivative claim to the Stand and cannot raise prescription as a
defence to ward off an attack.
Mr
Mharapara
submitted
that while a third party can raise prescription it can only do so on
the basis of either a real right or a real interest. The third
defendant does not have a real right in the Stand but only a real
interest. The latter is only available where the third defendant can
prove that it was an innocent purchaser who bought the property in
good faith and in the absence of any contestation to the title. In
light of the fact that the first defendant has filed a consent to
judgment and it maintains that it did not sell the Stand to the third
defendant the latter cannot raise prescription.
In
my view this is a very awkward argument.
To
the knowledge of the plaintiff, the first defendant held the property
from 1997 and had it transferred to its name in 2006. Again to the
knowledge of both the plaintiff and the first defendant, someone
purporting to represent the first defendant sold the Stand to the
third defendant which immediately took occupation and has remained in
possession for an uninterrupted period of almost 8 years. It is
therefore not possible for the first defendant to only emerge now
consenting to a judgment in respect of a claim that is clearly
prescribed, where it long alienated its rights over the Stand and
then argue that it did not sell the Stand to the third defendant
merely because a resolution of its Board authorising the sale cannot
be located.
The
point is made by Marais AJ in Cape
Town Municipality v
Allie
N.O 1981(2)
SA 1 at p 5 that:
“….it
cannot be denied that society is intolerant to stale claims. The
consequence is that a creditor is required to be vigilant in
enforcing his rights. If he fails to enforce them timeously he may
not enforce them at all”.
The
same point was made by Wessels in The
Law of Contract in South Africa, Vol
II para 2766 that:
“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”.
In
fact there should be legal certainty and finality in the relationship
of parties after the lapse of a certain period of time. It would be
against public policy for one who has a complete cause of action to
sit on it and not litigate upon it ad
infinitum:
Maravanyika
v
Hove
1997
(2) ZLR 88 (H) 95C.
The
provisions of the Prescription Act [Chapter
8:11]
make prescription a matter of substantive law as opposed to
procedural law. They extinguish the claim as opposed to merely
barring the remedy: Coutts
& Co v
Ford
& Anor 1997
(1) ZLR 440 (H) 443B.
In
light of the prescriptive period which Mr Mharapara
conceded has lapsed, it's the end of the road for the plaintiff.
Even
if I am wrong in that finding, the plaintiff's claim will still
suffer the consequences of suing as a trust. The plaintiff being a
trust, is not a corporate body and therefore cannot appear as a
party. In WLSA
& Ors v
Mandaza & Ors
2003 (1) ZLR 500 (H) 505 E-H Smith J quoted with approval the
pronouncement of Steyn CJ in Commissioner
of Inland Revenue v
MacNeillie's
Estate 1961(3)
SA 833 (A) 840 F-H that:
“Like
a deceased estate, a trust, if it is to be clothed with juristic
personality, would be a persona
or legal entity consisting of an aggregate of assets and liabilities.
Neither our authorities nor our courts have recognised it as such a
persona
or entity”.
See
also Crundall
Bros (Pvt) Ltd v
Lazarus N.O & Anor 1990
(1) ZLR 290 (H) 298 E; Gold
Mining & Minerals Development Trust v
Zimbabwe Minerals Federation 2006(1)
ZLR 174(H) 177F.
The
plaintiff is simply non–suited. So is the first defendant.
In
the result, it is ordered that:
1.
The 3rd
defendant's special plea is hereby upheld.
2.
The plaintiff shall bear the 3rd
defendant's costs.
Mtombeni,
Mukwesha, Muzawazi & Associates,
plaintiff's legal practitioners
Scanlen
& Holderness,
defendant's legal practitioners
