As
to prescription, counsel for the plaintiff argued that since the debtor is
outside Zimbabwe the plaintiff's position is saved by section 17(1)(c) of the
Prescription Act [Chapter 8:11]. The section provides that –
“(1)
If –
(a)
– (b) ...,.
(c)
The debtor is outside Zimbabwe;
(d)
– (e)..,.
and
the period of prescription would, but for this subsection, be completed before,
or ...
As
to prescription, counsel for the plaintiff argued that since the debtor is
outside Zimbabwe the plaintiff's position is saved by section 17(1)(c) of the
Prescription Act [Chapter 8:11]. The section provides that –
“(1)
If –
(a)
– (b) ...,.
(c)
The debtor is outside Zimbabwe;
(d)
– (e)..,.
and
the period of prescription would, but for this subsection, be completed before,
or on, or within one year after the date on which the relevant impediment
referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the
period of prescription shall not be completed before the expiration of the
period of one year which follows that date.”
Counsel
for the second defendant argued that as the plaintiff withdrew his earlier
action in HC4819/04 against the defendants it follows that prescription has run
and he is barred from bringing this suit. I did not hear him to say that the
effect of that withdrawal was to render the attachment to confirm jurisdiction
under HC1857/07 a nullity. Indeed, it may have been imperfectly drafted but the
court order makes it clear what the essence of the application was. The effect
of the order is in no doubt. It confirms this court's jurisdiction as there is
another jurisdictional basis upon which the claim against the defendants could
be entertained. The delict was committed in Zimbabwe. The attachment therefore
serves to confirm that jurisdictional ground.
The
accident in which the plaintiff was injured occurred on 8 February 2004. His
claim would be extinguished by prescription unless he served summons on or
before 8th February 2007. The plaintiff, by implication, admits that
prescription has run. He, however, relies on section 17(1) of the Prescription
Act [Chapter 8:11] for the proposition that prescription shall not be completed
before the expiration of a period of one year following that date. As the
debtor is resident outside Zimbabwe, in my view, the plaintiff can seek the aid
of section 17 of the Prescription Act [Chapter 8:11].
In the result, both special pleas are dismissed
with costs.
