MAKARAU JP: On 29 November
2006, the plaintiff issued summons against the defendants seeking an
order compelling the defendants to pass transfer of certain immovable
property to her. She also sought an order evicting the defendants and
all those occupying through the defendant from the property in
dispute.
As the basis for her claims, the details of which appear in paragraph
7 of her declaration, the plaintiff averred that from all the
defendants, second to fourth defendants being represented by the
first defendant under a general power of attorney, she had purchased
the property in dispute in July 2003 under a written agreement of
sale. She further averred that she had paid all the amounts necessary
to obtain rates clearance and tax clearance certificates in respect
of the property.
The suit was defended.
The defendants denied having sold the property to the plaintiff and
disputed the signatures appearing on the agreement of sale as theirs.
Further, they averred that after the plaintiff had realized that
there were problems attendant upon the alleged sale of the property,
she sought and was refunded the amount she had paid as the purchase
price for the property, thus compromising her claims under the
agreement of sale. Finally and in the alternative, the defendants
pleaded that the plaintiff's claim had prescribed by the date she
issued summons in the matter.
The defendants also filed a counterclaim in which they sought an
order declaring invalid the agreement of sale between the parties.
At the pre-trial conference of the matter, four issues were
identified as being the issues for trial. These were:
1. whether the plaintiff's
claim has prescribed;
2. whether or not an agreement of
sale was entered into between the plaintiff and the defendants;
3. whether the agreement of sale,
if any cancelled by reason of the plaintiff accepting a refund of the
purchase price; and
4. whether the immovable property
should be transferred to the plaintiff.
The plaintiff gave evidence at the trial of the matter. Her evidence
in chief was to the following effect.
She is a businesswoman,
specializing in the retail of ink and/or computer cartridges. In or
about 2002, she went to the offices of the defendants' legal
practitioners, intending to have a Will drafted for her. She gave
instructions for the drafting of the Will to a secretary, one Evelyn
Saidi (“Evelyn”). After this had been done, she told Evelyn that
she was looking for property to buy. At the time she made the
inquiry, the first defendant was present at the lawyers' offices.
He had a property to sell. He gave the address of the property to
Evelyn who in turn passed it to the plaintiff. The first defendant
gave her directions to the property. She viewed the property and
liked it. She returned to the offices of the legal practitioners and
found the first defendant still present. She inquired as to the
purchase price and the first defendant indicated that the sellers
wanted twenty-five thousand pounds. Evelyn then cross rated the
figure and advised her that it equated to Z$15 million. She indicated
then in the presence of the first defendant that she would bring the
$Z15 million the following day.
The following day, the plaintiff gave the sum of Z$15 million cash to
Evelyn. Evelyn was going to change the money into pounds. On the day,
she did not get a receipt for the payment she had made. When she
asked for a receipt, she was told that the other secretary,
presumably who was responsible for issuing receipts, was not in the
office on the day. She went back the following day and was asked to
come back the following week. It was only on 26 March 2003 that she
was given an old receipt bearing not her name but her husband's and
recording a different transaction to the one in respect of which she
had made the payment. The receipt was dated 26 March 2003, the date
when it was issued and not the date on which she made the payment.
When she showed the receipt to her husband, he was of the opinion
that it was insufficient to prove that she had purchased a property
and advised her to request for an agreement of sale in addition. It
took some time to have the agreement of sale prepared. Later she was
called in to sign the agreement. She signed the agreement on 3 July
2003. A few days later, she was called in to collect her copy. The
agreement had been signed and witnessed on behalf of the first
defendant.
When she asked to move into the property purchased, she was informed
that she could not do so before transfer was effected. To facilitate
the transfer, she was asked to clear the rates and obtain a rates
clearance certificate and a tax certificate in respect of the
property, which she proceeded to do. By 27 July 2003, she had made
all the relevant payments and had given the rates and tax clearance
certificates to Evelyn.
On one occasion when transfer was taking long, she went to the
lawyers' offices with someone from the Office of the President and
Cabinet, who during the course of talking to Evelyn, managed to get
into his possession the deed of transfer in respect of the property
and advised Evelyn that he would not give this back as the plaintiff
was entitled to transfer of the property.
She took the matter to a lawyer and instructed the lawyer to demand
transfer of the property. The lawyer also used to do debt collection
on her behalf as she was then in the money-lending business. She did
receive a cheque from the lawyer in the sum of $15 million but this
could not have been a refund of the purchase price as she had not
instructed the lawyer to demand or accept the refund.
Under cross-examination, the plaintiff testified that sometime in
2004, she filed a court application with this court for an order
compelling transfer from the four defendants. The application, which
was defended, was dismissed on 26 May 2005. She also testified that
she was unaware that Evelyn had been charged with fraud and has
absconded after being granted bail.
After giving evidence, the
plaintiff closed her case without calling any other witness. This
prompted Advocate
Fitches for the
defendants to apply for absolution from the instance, relying on the
long accepted test employed by our courts in such matters and as
discussed in such cases as Supreme
Service Station (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd
1971 (1) ZLR 1. Advocate
Fitches submitted that
taking the evidence of the plaintiff in totality, there was no
evidence before me upon which I could make a reasonable mistake and
give judgment for the plaintiff. In particular, he submitted that
there was no evidence that the first defendant had signed the
agreement of sale relied upon by the plaintiff. Secondly, he
submitted that the agreement of sale relied upon by the plaintiff was
tainted with illegality in that the asking price was fixed in
currency other than Zimbabwean currency. Finally, he submitted that
on the evidence of the plaintiff, the plaintiff's claim, being a
debt in terms of the Prescription Act [Chapter 8.11], (“ the Act”),
had been extinguished by prescription in that a period exceeding
three years had lapsed between the date the plaintiff's cause of
action arose and the date summons were issued in the matter.
In response, Advocate
Zhou submitted that
the matter before me was not a proper matter in which to grant
absolution from the instance as it involved a counterclaim by the
defendants. He also urged me to find that there was an oral agreement
between the parties, concluded when they met in the offices of the
defendants' legal practitioners. In his submission, the oral
agreement constituted prima
facie evidence of an
agreement of sale between the parties upon which I can make a
reasonable mistake in favour of the plaintiff.
I understood this submission to be an acknowledgment on his part that
there may be difficulties in the cogency of the evidence led by the
plaintiff in respect of the written agreement of sale.
As his third submission, Advocate
Zhou argued that the
plaintiff's claim has not prescribed as prescription was judicially
interrupted by the issuance of process in 2004 in the form of the
court application, which was filed on 11 June 2004 and was dismissed
on 26 May 2005.
It is my intention to deal with his last submission first for in my
view, I can dispose of this matter on this issue alone.
The plaintiff has approached this
court on the basis that she has a valid contract of sale with the
defendants. In her pleadings, she alleges that the parties had a
written agreement. She further pleads that the agreement of sale was
concluded on 26 March 2003 when she was issued with a receipt for
$Z15 million by Evelyn even though she had paid the sum in or about
November 2002. Thus, according to the plaintiff, there are three
possible dates as to when the parties concluded the agreement of
sale. It could be in November 2002 as argued by Advocate
Zhou. It could be on
26 March 2003 when she was issued with a receipt for the payment of
the purchase price or finally, it could be 9 July 2003 when the first
plaintiff purportedly signed the agreement of sale.
At this stage I wish to point out
that I agree with the observation by Advocate
Zhou that at this
stage in the trial, I may not make recourse to any findings I may
have made on the credibility of the plaintiff as a witness. I also
cannot determine the application for absolution on the basis of
probabilities as I cannot justly arrive at these without hearing the
other side. I take the view that the exercise I have to undertake at
this stage is to simply but critically analyze the evidence adduced
by the plaintiff and assess whether on the basis of such, without
passing a judgment on whether I believe it or not, I can make a
reasonable mistake and pass judgment in her favour.
Advocate Zhou
has submitted that the plaintiff's cause of action against the
defendants arose when she obtained the last clearance certificate to
facilitate transfer as she had assumed these obligations in terms of
the agreement between the parties.
With respect, I cannot agree.
It may be pertinent at this stage
to observe that the term “cause of action” as used by Advocate
Zhou above has been
the subject of many court decisions. It is now the settled position
in our law, in my view, that the term refers to when the plaintiff is
aware of every fact which it would be necessary for him or her to
prove in order to support his or her prayer for judgment. It is the
entire set of facts that the plaintiff has to allege in his or her
declaration in order to disclose a cause of action but does not
include the evidence that is necessary to support such a cause of
action. (See Shinga v
General Accident Insurance Co (Zimbabwe) Ltd
1989 (2) ZLR 268 (HC) at 278 A- C).
Applying the above to the facts before me, it is my view that the
plaintiff's cause of action arose when she concluded the agreement
of sale with the first defendant. It is at that stage that she at law
became entitled to receive transfer from the defendants against
payment of whatever was due from her in terms of the agreement of
sale. As indicated above, this could have been as early as November
2002 or at the latest, on 9 July 2003 when the written agreement of
sale was allegedly signed.
It is my further view, that using all the possible dates upon which
the agreement of sale could have been concluded, I am coming to the
same conclusion, that by the time summons were issued in this matter,
a period in excess of three years had lapsed from such date.
Accepting therefore the submission by Advocate Zhou, but without
determining the probabilities of the matter that the plaintiff became
aware that she had a cause of action against the defendants after she
had paid for the rates and tax clearance certificate, I would hold
that the plaintiff's claim had been extinguished by prescription at
the time she issued summons in the matter. The plaintiff adduced
evidence to the effect that she obtained the tax clearance
certificate last and that this is dated 27 July 2003. She only issued
summons in this case on 29 November 2006. A period in excess of three
years had clearly elapsed.
The period stipulated in the Act for the extinction of debts is
peremptory. It cannot be waived. It is neither fixed in the
discretion of court nor can the court extend the period for good
cause shown. Like the sword of Damocles, it falls on all uncollected
debts and falls on a pre-determined date.
Advocate Zhou
argued that the filing of the court application in June 2004 had the
effect of not only judicially interrupting prescription but of
suspending the running of prescription as does the death of a party
to litigation pending the appointment of an administrator to the
deceased's estate. His argument was that after the plaintiff filed
the court application on 11 June 2004, prescription stopped running
up to 26 May 2005 when judgment in the application was handed down.
Prescription then continued to run after 27 May 2006 such that by the
time summons were issued in November 2006, the claim was still within
the prescription period.
Again with respect, I am unable to agree.
Civil action in this court may be
commenced by the filing of a court application, and, in the absence
of an appeal, it is finally brought to a conclusion by the judgment
of the court on that application. One of the judgments which this
court can return on an application is a dismissal of that application
because it raises a dispute of fact that cannot be resolved on the
basis of the affidavits filed of record. Such a ruling is a judgment
disposing of the application filed but not of the matter between the
parties. It follows that when the court dismisses an application on
account of dispute of facts arising, it finally disposed of that
application and, although the applicant may be entitled to issue
fresh process, the first action filed with the court is at an end and
at an unsuccessful end for that. Whether or not an applicant who
would have unsuccessfully prosecuted the first application is able to
issue fresh process in the matter depends in my view on whether the
new action can be commenced within three years of the date the cause
of action arose. The unsuccessful application has no bearing on the
prescription of the debt and will act as if the applicant did nothing
in the matter. (See Minister
of Police and Another v Gasa
1980 (3) SA 387 (N)); Van
der Merwe v Protea Ins Co
1982 (1) 770 (ECD) and Savanhu
v PTC SC 124/97).
Advocate Zhou
has referred me to the authority of Van
Vuuren v Boshoff 1964
(1) SA 395 (TPD) as authority for the submission he made in the
matter to the effect the service on the debtor of an unsuccessfully
prosecuted process has the effect of delaying the completion of
prescription. In that matter, the learned judge had to deal with a
provision of the then Prescription Act, 18 of 1943 whose section 6
provided that:
“extinctive
prescription shall be interrupted by…..
(b) service on the debtor of any
process whereby action is instituted…. and shall begin to run de
novo from the date of when the interruption occurred.”
(The emphasis is mine).
In that case, the learned judge
came to the conclusion that the plaintiff's claim had not
prescribed because firstly, the plaintiff's cause of action was not
complete when it is alleged that prescription had commenced to run,
and, secondly, on the fact that on the construction of the statute
that was governing prescription in the matter before him, the process
issued in the matter prior was invalid but not fatally defective and
prescription started running de
novo from the date of
service on the debtor of such process.
With respect, the wording of the
statute under consideration in the Van
Vuuren matter and
section 19 of the Prescription Act are different and the obiter in
that case cannot bind me in the circumstances.
I also note that the case was not
followed in any of the other divisions in South Africa and that later
decisions construing relevant provisions of the South African
prescription legislation that are similar to the provisions of our
current legislation have not come to the same conclusion as was
reached in the Van
Vuuren matter.
Further, it is my view that if
the legislature intended to provide that the filing of court process
would have the effect of delaying the completion of prescription, it
would have provided for this in clear language as it did in section
17 of the Act where a list of circumstances delaying the completion
of prescription are provided for. It would have provided as was
specifically provided for in the South African Act of 1943 that
prescription would commence to run de
novo from the date of
the interruption or that it would continue to run after the
interruption had ended.
Section 19(2) and (3) of the Act reads:
“(2) The running of
prescription shall, subject to subsection (3), be interrupted by the
service on the debtor of any process whereby the creditor claims
payment of the debt.
(3) Unless the debtor acknowledges liability, the interruption of
prescription in terms of subsection (2) shall lapse and the running
of prescription shall not be deemed to have been interrupted, if the
creditor —
(a)
does not successfully prosecute his claim under the process in
question to final judgment; or
(b)
successfully prosecutes his claim under the process in question to
final judgment, but abandons the judgment or the judgment is set
aside.”
In my view, the language used in the section is quite clear.
It provides that the running of
prescription may be interrupted by the service on the debtor of
process. This is trite. It then provides that unless the debtor
acknowledges liability, the interruption of prescription will lapse
and the running of prescription shall not be deemed to have been
interrupted if the creditor does not successfully prosecute his or
her claim to final judgment. I understand this to mean that the
creditor has to obtain judgment in his favour on the process issued
under subsection (2). Any other meaning would lead to an absurd
result for there would be no finality to litigation and the
limitation imposed by the statute would be rendered nugatory if a
litigant who loses a case can arrest prescription indefinitely by
bringing suits within three years of each unfavourable judgment as
long as he can avoid the plea of res
judicata.
In casu,
it is common cause that the plaintiff was unsuccessful in the earlier
proceedings.
There is no evidence that the defendants acknowledged liability at
any stage and thus the interruption of prescription by the filing of
the court application lapsed and the running of prescription should
not be deemed to have been interrupted as the plaintiff did not
succeed in her prosecution of the claim in the court application
proceedings. Thus, on her own evidence, the plaintiff brought the
current action outside the three year period from the date when her
cause of action against the defendants arose.
It is my view that I do not have
any prima facie
evidence before me that the plaintiff's claim is still extant and
has not been extinguished by prescription.
In view of the conclusion that I have arrived on prescription, it is
not necessary in my view that I consider the rest of the submissions
made by counsel.
There is one other administrative issue that remains outstanding.
It is the disposal of the
original Deed of Transfer that was adduced into evidence by the
plaintiff. Without in any way commenting on the manner in which she
obtained the Deed, it is my order that the Deed be returned to the
Deeds Registry as the legal custodian of all original copies of such
documents. It is from this office that the parties may seek for
copies in accordance with the law and after having set out their
respective rights to copies of the Deed.
In the result, I make the following order:
1. The defendant is absolved from
the instance.
2. The plaintiff shall bear the
defendants' costs of suit.
3. The Registrar of this court is
hereby directed to return into the safe custody of the Deeds
Registry, Exhibit No.3 being the original Deed of Transfer No4530/76
in respect of Stand 12886 Salisbury Township of Salisbury Township
Lands.
B Nyamusamba & Partners, plaintiff's legal
practitioners.
Granger & Harvey, defendants' legal practitioners.
