MAFUSIRE
J:
[1] This
was an action matter. On the date of trial, it was postponed sine
die
by consent. The defence had raised a special plea of prescription.
The plaintiff was not conceding it. In terms of a timetable agreed
upon, the parties would file their written submissions. Judgment on
prescription would be delivered on the papers. This now is that
judgment.
[2] The
facts were common cause. The parties filed a statement of agreed
facts. They were these. The defendant is a private company. It is
responsible for, among other things, the distribution of electricity
nationwide. In this regard it runs and maintains, among others,
electricity transmission conductors. The plaintiff sued it for
damages arising out of injuries sustained by him when he had come
into contact with live conductors.
[3] The
plaintiff's case was this. On 11 March 2009 he was herding cattle
in Mashava. He came into contact with naked electricity conductors.
They were live and concealed by grass in the grazing field. He was
electrocuted. He suffered severe burns from the chest to the knees.
He stayed in hospital for six months. His right hand had to be
amputated. The degree of his disability as a result of those burns
was estimated at 40%.
[4] The
plaintiff alleged the defendant had been negligent in the following
respects:
(i)
it had failed to inspect and detect that its conductors had fallen
onto the ground;
(ii)
it had failed to secure the conductors so that they would not fall to
the ground;
(iii)
it had failed to clear the grass along its transmission lines so that
fallen conductors could easily be detectable.
[5] The
plaintiff assessed his damages at $60,334 for pain and suffering,
medical expenses and the loss of amenities of life.
[6] The
plaintiff's summons was issued and served in March 2018. That was
exactly nine years after the incident. The defendant raised the
special plea of prescription. Generally, in terms of the Prescription
Act, Cap
8:11,
an
ordinary debt becomes prescribed after the lapse of three years from
the date when the cause of action arose. The defendant alleged the
plaintiff's cause of action arose on the date of the incident.
[7] On
the merits, the defendant completely denied the plaintiff's
allegations. It said he had been the author of his misfortune. He had
wanted to steal the electricity conductors. The defendant denied they
had fallen onto the ground. It claimed the plaintiff had tried to
pull them down with his axe from a height of about 2.5 metres above
the ground. That was when he had been electrocuted. The defendant had
actually reported the plaintiff to the police for theft. He had been
arrested. But in September 2016 the police had let him go for lack of
evidence. That was seven years later.
[8] In
his answer to the defence of prescription, the plaintiff maintained
that the cause of action had arisen in September 2016 when he had
been cleared by police. He said prescription had not begun to run
when the incident had occurred. Relying on cases such as Dube
v Banana
1998 (2) ZLR 92 (H); Mukahlera
v Clerk of Parliament & Ors
HH107/07; and Local
Authorities Pension Fund v Nyakwawa & Ors
2015 (1) ZLR 103 (H) which defined “cause of action” as the
combination or entire set of facts that are material for the
plaintiff to prove in order to succeed in his action, the plaintiff
argues that until the police had dropped the criminal charges against
him, he would not have been able to discharge the burden upon him
that it had been the defendant's negligence that had caused him the
injury and consequent loss to him.
[9] The
plaintiff further relies on the cases of Thompson
v Minister of Police
1971 (1) SA 371 (E) and Manjoro
v Minister of Home Affairs & Ors
2015 (1) ZLR 872 (H) for the argument that no action lies until the
criminal proceedings have terminated in favour of a plaintiff.
[10] Plainly,
the plaintiff's argument on prescription is ill-conceived. His
cause of action is manifestly prescribed. Both parties are agreed
that the plaintiff's cause of action is a 'debt' within the
meaning of section 2 of the Prescription Act, namely being a “debt”
that may be sued for or claimed by reason of an obligation arising
from statute, contract, delict or otherwise. The plaintiff's claim
arises from delict. It is an ordinary debt. The period of
prescription is three years.
[11] The
plaintiff's cause of action arose when the incident happened. In
terms of section 16 of the Prescription Act, prescription begins to
run as soon as a debt is due. A debt is due when the plaintiff has
gathered all the entire set of facts about the cause of action as are
material to prove his or her claim. In this case, the plaintiff's
cause of action was complete when he had gathered all the information
as to, among other things, whose electricity conductors they were;
allegedly that they had been in a state of neglect; allegedly that
they had been lying naked on the ground whilst concealed; the sort of
injuries that he had sustained; the monetary loss that he had
incurred, or would incur, and so on. Those are the kind of material
facts as are contemplated by cases such as Banana
above. If three years elapsed before the plaintiff had taken action
or interrupted prescription, then his cause of action would be
extinguished. The lapsing of a debt by prescription is absolute,
unless one can show that prescription does not apply or that the
running of it was delayed or interrupted.
[12] Section
17 of the Act provides for situations where the completion of the
period of prescription is delayed. None of them applies to the
plaintiff's case. Sections 18 and 19 of the Act provide for
situations where the running of prescription is interrupted. These
are when the debtor acknowledges liability and when the creditor
serves process on the debtor claiming the debt. The plaintiff
expressly concedes that none of these applies to him either. That
should mark the end of his case. But his counsel has crafted the
argument that prescription should not be raised against the plaintiff
because his cause of action only arose in September 2016 when the
police abandoned the criminal case against him.
[13] That
the plaintiff had been arrested by the police for the alleged theft
of the conductors and/or that it had taken the police seven years to
clear him is not one of the factors that interrupts or delays the
running of prescription. Whilst a single incident may give rise to
multiple types of proceedings including criminal and civil, the
outcome of one does not bind the other or others. The police and the
prosecution could well have been pursuing a criminal case. The
plaintiff was not precluded from pursuing his civil claim timeously
after he had become satisfied that his injury and loss had arisen by
reason of the defendant's negligent conduct.
[14] The
plaintiff's arguments that until the police had exonerated him of
the theft allegations, it was not known whether it was him or the
defendant who had been to blame for his electrocution or that without
having been so exonerated he would not have been able to prove his
cause of action, are thoroughly ill-informed. He himself knew and had
concluded that he had been electrocuted by reason of the defendant's
negligence. He did not need the police or anyone to tell him that.
Furthermore, and at any rate, even after being exonerated, he would
still need to prove liability on the merits as the defendant was
contesting it.
[15] Cases
like Thompson
v Minister of Police and Manjoro v Minister of Home Affairs
above, are completely inapposite and the plaintiff's argument
misconceived. These cases were concerned with situations where one
sues the police and its parent ministry in respect of wrongful
conduct, such as wrongful arrest or malicious prosecution. In such
situations, until the criminal proceedings terminate in favour of the
plaintiff, he or she would be hard pressed to prove wrongfulness or
malice on the part of the police. That is why he or she has to wait
for the proceedings to end, and to end in his or her favour. In
casu,
the plaintiff's situation is different and incomparable.
[16] It
is the finding of this court that the plaintiff's claim has
prescribed. Therefore, it is hereby dismissed with costs.
8
November 2019
Legal
Aid Directorate,
plaintiff's legal practitioners
Bere
Brothers,
defendant's legal practitioners
