This
judgment is only confined to this issue of prescription.
It is
beyond dispute that the plaintiff became aware of the sale to the first
defendant by his late son as far back as 2002. In February 2005, he made
valliant attempts to reverse the sale using extra-judicial methods. He
only approached this court on 11 ...
This
judgment is only confined to this issue of prescription.
It is
beyond dispute that the plaintiff became aware of the sale to the first
defendant by his late son as far back as 2002. In February 2005, he made
valliant attempts to reverse the sale using extra-judicial methods. He
only approached this court on 11 November 2009 when he instituted this action.
The
legal proceedings were instituted well after three years.
The
issue is whether the claim has prescribed in terms of the Prescription Act
[Chapter 8:11].
It is
clear from the pleadings that the plaintiff's claim is for a declaratory order
premised on the fact that the general power of attorney used in selling his
house was forged and therefore a nullity. In section 2 of the Prescription
Act [Chapter 8:11] a debt is defined as follows:
“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.”
The
point worth noting in this definition of “debt' is that the suit or claim must
be “by reason of obligation” on the part of the debtor arising from the stated
bases. In my view, a declaratory order is a remedy to secure the public
interest of certainty or correct legal position. Such a remedy cannot
prescribe - Oertel NNO v Director of Local Government 1981 (4) SA 491 (T)…,.
In this case, the court held -
“Public
rights are excluded from the operation of the Prescription Act…, and “debt” in
the Act must be necessarily restricted to such claims as arisen in the field of
private law. Whilst every debt encompasses an obligation not every
obligation constitutes a debt for the purposes of the Prescription Act.”
Further,
the claim is based on the fact that the sale is null and void ab initio. As stated by LORD DENNINGTON in MacFoy v United Africa Co. Ltd
(1961) ALL ER 1169 (PC)…,. -
“If an
act is void, then it is, in law, a nullity. It is not only bad but
incurably bad. There is no need for an order of the court to set it
aside. It is automatically null and void without much ado, though it is
convenient to have the court declare it to be so…, you cannot put something on
nothing and expect it to stay there. It will collapse…,.” –
Ngani v Mbanje & Anor 1987
(2) ZLR 111 (SC)…,.
This
claim is based on the alleged nullity of a sale transaction and does not arise
from a “debt” as defined in the Prescription Act [Chapter 8:11].
Accordingly,
the first defendant's special plea of prescription is dismissed with costs.
