Effie Dewa v Sibangani Mzizi and 3 Others

### Preamble
1
HB 154/21
HC 1418/17
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EFFIE DEWA

Versus

SIBANGANI MZIZI

And

GIVEN NYATHI

And

SIBONGILE GANDIYE

And

THE REGISTRAR OF DEEDS, N.O

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 18 SEPTEMBER 2020 AND 19 AUGUST 2021

Opposed Application

S Siziba, for the plaintiff

N. Mazibuko, for the 1st defendant

No appearance for the 2nd, 3rd and 4th defendants

TAKUVA J: 	On the 24th of August 2007, the plaintiff and 1st and 2nd defendants entered into an agreement for the “exchange” of her property namely Stand 4458 Bulawayo Township of Bulawayo with 1st and 2nd defendants’ property namely a restaurant registered under Richdena Investments (Pvt) Ltd.  Plaintiff unsuccessfully demanded company documents from 1st and 2nd defendants to enable her to effect transfer of the restaurant into her names.

Meanwhile, 1st and 2nd defendants did not only refuse to supply such documents but also proceeded on 28th August 2007 to forge the Power of Attorney to make transfer and effectively had the property transferred to the 1st and 2nd defendants without the plaintiff’s knowledge or consent.  Plaintiff filed a report of Fraud and Forgery to the Police in 2010 under CR 128/5/10 and 219/6/10 against 1st and 2nd defendants.  Subsequently the property was sold to the 3rd defendant by the 1st defendant in May 2013.  The 3rd defendant paid the full purchase price and duly performed all her other obligations in terms of the Agreement of Sale.  Thereafter she took transfer of ownership of the property through a Deed of Transfer.

Sometime in March 2015, plaintiff threatened and disturbed 3rd defendant’s peace at the property, leading to 3rd defendant filing proceedings against the plaintiff at the Magistrates Court on 3 March 2015.

Finally on 29 May 2017 the plaintiff issued summons against the respondents, in which was claimed –

“a)	An order declaring the transfer of Stand Number 4458 Bulawayo Township of Bulawayo Township Lands situate in the district of Bulawayo measuring 1152 square meters commonly known as house No. 12 Cromatu Road Quenspark East, to the names of the 1st defendant and all subsequent transfers an illegality due to forgery.

b)	An order declaring the reversal of all transfers of the property described in (a) above into the names of the plaintiff and the plaintiff restored possession of the property.

c)	Costs of suit.”

The 1st respondent’s answer to the action instituted against her was to file a special plea and an exception to the effect that, firstly, as regards the exception, the plaintiff’s summons and declaration do not disclose a cause of action in that the plaintiff never cancelled the agreement between herself and the 1st and 2nd defendants.  In other words, the plaintiff has no basis for seeking the reversal of the transfer of the immovable property which the plaintiff rendered to the 1st defendant in terms of the agreement between the parties.

As regards the special plea, the 1st defendant averred that the plaintiff’s cause of action first arose in 2007 when the defendants allegedly failed to comply with the terms of the agreement.  As the plaintiff’s summons and declaration were issued and served on the defendants long after the expiry of 3 years from 2007, it is contended that the plaintiff’s claims prescribed and are no longer actionable.

Further, even if it were to be taken that the cause of action arose in 2009 when the plaintiff first discovered the alleged fraudulent transfer of the immovable property, the plaintiff issued summons more than 3 years after that fact and, therefore, its claims are prescribed.

The plaintiff’s reply to the 1st defendant’s exception is as follows;

The 1st defendant has fallen foul of Rule 140 of the High Court Rules 1971 which stipulates that a letter of complaint must be served upon the other party by the excipient before taking an exception so as to afford the other party an opportunity to remove the cause of complaint.

The exception has no merit in that plaintiff’s cause of action is premised upon the need to nullify a fraudulent transfer of her property which she did not sanction since her signature was forged making such a transfer null and void and no valid title can flow therefrom.  The fact that there was an agreement to swop is irrelevant since 1st defendant has not sought to enforce such an agreement and at law he is not even entitled to enforce such agreement since he did not honour his own party of the bargain.

The plaintiff’s cause of action is for a declaratory order in terms of section 14 of the High Court Act (Chapter 7:06).  Plaintiff is seeking a declarator to the effect that the transfer of her stand from her names to those of the 1st defendant and all other subsequent transfers are illegal due to forgery.  The prayer for the reversal of the transfer is also a declarator but is consequential upon the court granting the substantive relief of the main declaratory order that is sought in terms of paragraph (a) (of the Draft Order).

Plaintiff’s substantive cause of action (specifically a declarator) “is not a debt in terms of the Prescription Act (Chapter 8:11).  A declaratory order does not prescribe at law as it is meant to define existing, future and contigent rights and obligations.” (my emphasis).

As regards non compliance with rule 140, my view is that while it is proper to consider the provisions of this rule when dealing with costs the non-service of the letter of complaint does not in any way render the exception less valid as the rule is directory and therefore discretionary.  See Salisbury Financial Holdings (Pvt) Ltd v Van Niekerk 1974(1) RLR 333 (G) at 335 D-E where the court expressed itself thus –

“It is accepted that the court in Diocesan Trustees made these remarks in connection with the wording of a statute, but it is my view that the meaning attributed to the words ‘may’ and ‘shall’ applies to those words in any context ‘may’ implies permissiveness, as in a discretion or a choice while ‘shall’ is an imperative, a duty or obligation to take the prescribed course of action.” (my emphasis)

See also Ecobank Zimbabwe Ltd v Chitando & Anor HH 787-16 at page 3 where it was stated that –

‘While such a letter is not a requisite as per the case of Ritenote Printers (Pvt) Ltd & Anor v A. Adam (Pvt) Ltd & Ors 2014(1) ZLR 160, even where it is written, the exception must nonetheless be taken within the time frame set out in rule 119.”

Accordingly, 1st respondent’s failure to state by letter to the plaintiff the nature of his complaint has no bearing on the validity of the exception.  Subrule (3) of Rule 140 makes it clear that such failure goes to the question of costs of any motion to strike out or of any exception.

The plaintiff’s cause of action arises from the fact that the transfer of the stand was done through forgery by the 1st and 2nd defendants.  Therefore the contention is that such a transfer is illegal and must be reversed.  See T.B.C (Pvt) Ltd v Mangenje & Ors SC 13-18.  That is her allegation in the summons and declaration.  It must be noted that a cause of action is simply a factual situation the existence of which entitles one person a remedy against another person – See Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999(1) ZLR 41.  It has also been defined as “every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to the judgment of the Court.  It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”  See Mckenzie v Farmers Co-op Meat Industries Ltd 1992 AD 16..

In casu, the 1st and 2nd defendants’ alleged forgery of a Power of Attorney and the subsequent fraudulent transfer of plaintiff’s immovable property to the 1st defendant qualify as a cause of action at law.  Such a factual situation entitles the plaintiff to seek re dress from a court of law.  It is on these grounds that the plaintiff seeks a remedy or relief in the form of a declaratory order.  In the circumstances, the defendants’ exception is devoid of merit and is hereby dismissed.

I move to the issue of whether or not the plaintiff’s claim is prescribed.  The Prescription Act (Chapter 8:11) regulates the acquisition of ownership of things by prescription, the acquisition and extinction of servitudes by prescription and the extinction of debts by prescription and to make provision for matters conceded therewith.  In terms of section 14(d) of the Act, the prescription period is three years.

Section 15(c)provided:

“Subject to the provisions of subsection (2) and (3) prescription shall commence to run as soon as a debt is due.”

“Debt” is defined in section 2(1) as follows –

“’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.”

In the circumstances of this case, there is no dispute that the summons and declaration were issued long after a period of three years had lapsed.  The issue is whether a declarator amounts to a debt as defined above.

Plaintiff argued quite strongly that a declarator is not a debt in terms of the Prescription Act.  Therefore, so the argument goes, a declarator does not prescribe at law.  Reliance was placed on National Social Security Authority v City of Mutare HH 385-18 where the court reasoned as follows:-

“This court’s power to grant a declaratory order is set out in section 14 of the High Court Act (Chapter 7:06).  It reads;

“ The High Court may, in its discretion, at the instance of any interested person, enquire into and determine any existing, future or contingent right or obligation, not withstanding that such person cannot claim any relief consequential upon such determination.”  I have considered the following cases: Munn Publishing (Pvt) Ltd v ZBC 1994(1) ZLR 337 (S), Matipano v Gold Driven Investments (Pvt) Ltd 2014(1) ZLR 344 (S) and Ndlovu v Ndlovu and Another 2013(1) ZLR 110 (H).  In essence, the court is required to analyse the pleadings to ascertain whether plaintiff’s claim is for a declaration of rights.

In the Ndlovu v Ndlovu (supra) matter NDOU J remarked in this regard on page 112:

‘It is clear from the pleadings that the plaintiff’s claim is for 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 Act, a debt is defined as follows;

‘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 debt arising from one of the stated basis.  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 & Others N.O v Directors of Local Government 1981 (2) 8A 477 at 492” (emphasis added)

On the other hand, the 1st defendant argued that plaintiff’s claim arises from a contractual obligation and therefore falls under the definition of a debt in the Prescription Act.  The 1st defendant relied on Syfin v Pickering 1982(1) ZLR at 19D-E wherein FIELSEND CJ stated:

“Debt” is defined in section 2(1) as follows –

‘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.”

This definition is clearly broad enough to include claims for specific performance or for declarations of rights in relation to any given set of circumstances.” (emphasis added).

In Chiparaushe & Ors v Triangle Ltd & Anor HH 196-15 at pages 13-14 of the cyclostyled judgment, CHIGUMBA J stated that –

“Prescription applies as much to a declarator as to an interdict which are common law remedies.”

In casu, I take the view that the plaintiff’s claim does not essentially emanate from non performance of a contract as 1st defendant alleges but from an illegality committed by the 1st defendant.  During the hearing counsel for the 1st defendant submitted that the forgery of the Power of Attorney is inmaterial.  I disagree.  The alleged forgery of the Power of Attorney is the basis for the relief sought by the plaintiff in the form of a declaratory order.

For these reasons, I find that the special plea of prescription has no merit.

Accordingly, both the exception and special plea are hereby dismissed with costs.

Ndove, Museta and Partners, plaintiff’s legal practitioners

Calderwood, Bryce Hendrie & Partners, 1st defendant’s legal practitioners