SMM Holdings (Pvt) Ltd & Anor v Nyaradzai Shumba

### Preamble
1
HB 164/25
HCBC285/25
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SMM HOLDINGS (PVT) LTD

THE ADMINISTRATOR, AFARAS MTAUSI GWARADZIMBA

(cited only in his official capacity as such)

vs

NYARADZAI SHUMBA

IN THE HIGH COURT OF ZIMBABWE

MUTEVEDZI J

BULAWAYO, 31 JULY and 8 OCTOBER 2025

Special pleas: prescription and lack of jurisdiction

Ms M. Guti, for the 1st and 2nd Plaintiff.

Mr S. Chamunorwa, for the Defendant

MUTEVEDZI J: It appears to me that often times, it escapes litigants’ and legal practitioners’ minds that an application or other process for eviction is essentially part of the rei vindicatio. It allows an owner of a property to repossess it from another who is in occupation of it without their blessing. Where such owner persuades a court to hand them back the property, the net effect is that the court will be directing the illegal occupier to vacate the property. Needless to state, in that process, the court is evicting the occupant. When it is understood that way, it becomes very difficult to conceptualize how a claim for eviction can be defeated by extinctive prescription in terms of section 14 (1) as read with section 15(d) of the Prescription Act [Chapter 8:11] (hereinafter the Prescription Act). As I will endeavour to demonstrate, the case before me typifies that difficulty.

Background

The first plaintiff is SMM Holdings (Pvt) Ltd, an entity under reconstruction in terms of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] (the Reconstruction Act). The second plaintiff is Afaras Mtausi Gwaradzimba, an individual who was appointed as the administrator of the first plaintiff pursuant to a Reconstruction Order issued by the Minister of Justice, Legal and Parliamentary Affairs (the Minister). That Reconstruction Order is still extant.  The defendant is Nyaradzai Shumba, a man who at some point was under the employ of the first plaintiff because in the course of the instant proceedings, it became common cause that he ceased to be such in 2009.  During his time as an employee of the first plaintiff, the defendant was allocated a residence which is owned by the first plaintiff, at number 4 Sables Drive, Advalorem, Zvishavane. The house was part of his employment benefits. At the time that the defendant’s contract of employment was terminated, the plaintiffs gave the defendant three months within which to vacate the property. The three months expired on 15 November 2009.  Notwithstanding the expiration of that notice period, the defendant is to date, still in occupation of the residence.

Given the above impasse, the plaintiffs were left with no choice but to approach this court to seek redress. They sued out a summons on 31 March 2024 for that purpose. In it they prayed for the eviction of the defendant and all those claiming a right of occupation of the residence through him together with costs of suit. The defendant entered appearance to defend the claim on 14 April 2025. In his plea, the defendant raised three grounds which he regarded as special pleas to the claim. The plaintiff replicated and the matter was ultimately set down for the hearing of the ‘special pleas’ which the defendant had stated as that:

the High Court has no jurisdiction because the plaintiffs’ claim arises from a labour case

the plaintiffs’ claim, having arisen on 15 November 2009, has since prescribed; and

the plaintiff is approaching the court with dirty hands.

At the hearing, the defendant conceded that the issue of dirty hands did not arise and was not part of the regime of special pleas in this jurisdiction. He abandoned that argument. The two which remained were therefore the question whether this court has jurisdiction and whether the plaintiffs’ claim has prescribed.

Jurisdiction

The defendant’s argument was straightforward. It was that the plaintiffs' cause of action is based on the Labour Act (Chapter 28:01). That it is so, so that argument went, is apparent from paragraphs 3 and 4 of the plaintiffs' declaration where they alleged that “the defendant was allocated accommodation as part of his employment benefits; and that “the right to this accommodation was inextricably entwined with the defendant's employment contract" (sic). The defendant further made the point that as such, the plaintiffs are for all intents and purposes trying to enforce section 12 (6) of the Labour Act, which forms part of the defendant's contract of employment. He further argued that it did not matter that the plaintiffs chose to characterise their claim as rei vindicatio, because it is clear that the claim arose from a labour relationship. For those reasons, the defendant said this court cannot and must not assume jurisdiction because doing so, would be akin to entertaining a labour matter, which in terms of sections 89(6) and 93 of the Labour Act rests with the Labour Court or a labour officer respectively. Counsel for the defendant referred me to the case of TN Harlequin Luxaire Ltd v Masvimbo & Ors SC84/22 in support of his propositions.

In response, the plaintiffs contended that the defendant’s argument that this court’s jurisdiction is ousted is misplaced because his employment contract with the first plaintiff was terminated in 2009. As such there no longer exists any employer-employee relationship which would warrant the treatment of the current dispute as a labour case. They further argued that this is a case entirely different from a scenario where the parties are still in an employment relationship and the employer is seeking to recover its assets from an employee. Counsel then referred the court to various authorities which I will in the course of this judgment advert to.

Prescription

Regarding the special plea of prescription, Mr Chamunorwa for the defendant contended that in case the court finds against the defendant and ruled that it has jurisdiction to hear the claim, it must still find in the defendant’s favour because the cause of action arose on 15 August 2009. As such, the plaintiffs’ rei vindicatio remedy prescribed a long time ago. He referred me to section 2 of the Prescription Act which defines a debt as “anything which may be used for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.” His argument was that a claim of rei vindicatio is a debt as defined in section 2 of the Prescription Act. It is therefore subject to the prescriptive period of 3 years stated in that provision. For that proposition, he urged the court to consider the Supreme Court decision in the case of John Conraide Trust v The Federation of Kushanda Pre-Schools Trust & Ors SC12-17 (“John Conraide”). He said that authority was binding on this court. To support the binding nature of the Supreme Court authority, he further argued that it had recently been followed in the case of Banket Trading CO. P/L v Chikwenga HH538/24.

In his parting shot, Mr Chamunorwa stated that there was no difference between an ordinary debt and a claim for rei vindicatio. For that reason, so he insisted, the plaintiffs were barred from suing for the defendant’s eviction. All they had to do was to wait for the defendant to die in order to reclaim their property. He prayed that the plaintiffs’ claim be dismissed with costs on attorney-client scale.

In response Ms Guti for the plaintiffs strenuously traversed the above contentions.  She submitted that the property in question is an immovable. A claim to it under the common law remedy of rei vindicatio cannot be defeated by prescription which affects ordinary debts. She referred the court to the case of Chimbetete vs Bako HH36-25 where in DUBE-BANDA J held that a claim of rei vindicatio, because it is based on ownership, cannot be described as a debt as contemplated in the Prescription Act.

Given the above, I asked Mr Chamunorwa, whether in John Conraide (supra), the Supreme Court had interpreted section 4 of the Prescription Act and what his view was regarding that provision. He conceded that it had not but still insisted that the provision which was applicable in the case was section 15(d) of the Prescription Act. In his view, s 4 did not at all matter.

The law on prescription and its application to this case

It is now trite in this jurisdiction that prescription is a defence and is therefore a matter of substance. The celebrated case of Brooker v Mudhanda & Anor; Pearce v Mudhanda & Anor 2018 (1) ZLR 33 (S) laid down the markers which a court dealing with the special plea of prescription ought to observe before disposing of such plea. The Supreme Court held that:

“Critically… when regard is had to the nature of the plea of prescription that is a determination on the facts as to when the cause of action arose, it must by implication become obvious that a factual dispute must be decided. This can only be determined by the parties leading viva voce evidence unless the dates are not in dispute.” (bolding in my emphasis.)

What the above means is that a court can only determine the plea of prescription pursuant to hearing evidence in one form or another. As is known, evidence can be heard through viva voce testimonies, by way of affidavit or through a statement of agreed facts. A trial of sorts must necessarily take place. The requirement for evidence can only be obviated where there is no contestation regarding the facts of the matter and the dates when the cause of action arose and prescription began to run.

In this case, the parties appeared to agree about everything else except the interpretation of the law. As stated in the introductory paragraphs of this judgment, the plaintiffs and the defendant agreed that the defendant was allocated the house at the centre of the dispute as part of his employment benefits. They equally admitted that the employment contract was terminated on 15 August 2009 after which the defendant was a given three months’ notice to vacate the house. He did not. The case for his eviction was only resuscitated some years later when the summons in this case was sued out. Because of those agreements, the parties’ shared view was that there was no need to lead viva voce evidence. They drew a joint statement in which the facts I have stated were laid out. The only issue which remained for debate was whether or not a claim for rei vindicatio is affected by the three-year prescription period under section 15 of the Prescription Act.

In John Conradie at pp. 4-5, the Supreme Court held that:

“The applicant’s proposition has no foundation at law. A perusal of the Prescription Act shows that nowhere does it prohibit or exclude third parties from raising prescription as a defence. What prescribes is the debt and not any of the parties concerned. It is therefore open to third parties to raise the defence of prescription in appropriate cases once prescription has run its course.

As we have already seen above, the circumstances under which prescription may be raised as a defence are clearly spelt out under s 15 (d) of the Prescription Act which provides that a debt except where statute provides otherwise, shall prescribe after 3 years. Section 2 of the Act goes on to define a debt as:

2 (1) 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 phrase, “anything which may be sued for” gives the term ‘debt’ a very wide meaning synonymous with cause of action as observed by GREENLAND J in Denton v Director of Customs & Excise 1989 (3) ZLR 41 at 48. In that case the learned judge had occasion to remark that:

“Note that the word “debt “used in this Act (Prescription Act) and the words “cause thereof” used in s 178 (4) of the Customs and Excise Act mean the same thing. This is because of the wide meaning of “debt” set out in the former.”

Since the applicant is suing the 3rd respondent for vindication, its suit falls squarely within the ambit of ‘anything which may be sued for.’ What this means is that a claim for vindication of property amounts to a claim for a debt in terms of the prescription Act. It therefore follows as a matter of common sense that the applicant’s suit being a claim for vindication, in legal parlance it is a debt which is subject to prescription in terms of the Act. For that reason, the learned judge in the court a quo cannot be faulted at all for determining that the applicant’s claim against the third respondent had prescribed.” (Bolding and underlining is my emphasis)

I read the above authority to mean a couple of things. First, the question before the Supreme Court was whether or not a third party to an agreement could validly raise the special plea of prescription. Needless to state, the Supreme Court said the Prescription Act does not proscribe that. As such third parties are permitted to rely on prescription where it has run its course. Second, I understand the decision to be unequivocal that a claim for rei vindicatio is a debt which is subject to prescription in accordance with the provisions of section 15(d) of the Prescription Act.

The decision in John Conradie was recently followed by this court in Banket Trading Co. P/L v Chikwenga HH 538/24, with DEMBURE J, emphatically restating the same position that rei vindicatio is a debt which prescribes once three years have run. His LORDSHIP’s view was squarely anchored on the doctrine of stare decisis.  He said the High Court was bound by the dicta in John Conradie.  There could not be any gainsaying the correctness of the above observations.  The argument in the case before me is however somewhat different. As I will show below, whilst the Supreme Court dealt with and answered in the affirmative, the question whether or not rei vindicatio is a debt which can prescribe in terms of s 15(d) of the Prescription Act, unlike in this case, the issues before it did not involve the interpretation of s 4 of the same Act.  That difference, in my view, releases me from the obligation to follow that authority.

The plaintiffs contend that if their claim to vindicate the first plaintiff’s house from the defendant is defeated by prescription in terms of section 15 (d) of the Prescription Act, the result is that the defendant would acquire that property by prescription. They appear to me to be correct to raise that argument. It is elementary that prescription comes in two forms. It is either acquisitive or extinctive. In fact, in its preamble, the Prescription Act attests that it is “AN ACT to provide for 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 connected therewith․” (bolding is my emphasis). On the one hand, acquisitive prescription is concerned with real rights, that is ownership of things as distinct from personal rights whilst on the other, extinctive prescription regulates the connection between a debtor and a creditor. In that regard, I cannot put it any better than it was stated in the case of Absa Bank v Keet (817/13) [2015] ZASCA 81 at paragraph 25, which DUBE-BANDA J cited with approval in Chimbetete vs Bako (supra).  The South African Supreme Court of Appeal said:

“In the circumstances, the view that the vindicatory action is a ‘debt’ as contemplated by the Prescription Act which prescribes after three years is, in my opinion, contrary to the scheme of the Act. It would, if upheld, undermine the significance of the distinction which the Prescription Act draws between extinctive prescription, on the one hand and acquisitive prescription on the other. In the case of acquisitive prescription, one has to do with real rights. In the case of extinctive prescription, one has to do with the relationship between a creditor and a debtor. The effect of extinctive prescription is that a right of action vested in the creditor, which is a corollary of a ‘debt’, becomes extinguished simultaneously with that debt. In other words, what the creditor loses as a result of operation of extinctive prescription is his right of action against the debtor, which is a personal right. The creditor does not lose a right to a thing. To equate the vindicatory action with a ‘debt’ has an unintended consequence in that by way of extinctive prescription the debtor acquires ownership of a creditor’s property after three years instead of 30 years that is provided for in s 1 of the Prescription Act. This is an absurdity and not a sensible interpretation of the Prescription Act.”

What must not be lost and which I must emphasise is that by extinctive prescription a creditor is stripped only of his/her/its legal ability to institute or bring a claim and seek redress in the courts for an infraction of a right or for wrongful conduct. The creditor does not lose a right to his/her/its property. To argue that the concept of extinctive prescription can be applied to cases of eviction clearly amounts to accepting that the defendant in this case can acquire ownership of the plaintiffs’ house by the mere lapse of three years.  It is not only untenable but absurd. To argue that rei vindicatio is affected by extinctive prescription is akin to saying the owner of a property loses only his/her/its right of action against the possessor yet in truth he/she/it loses the right to the property. If extinctive prescription as provided under section 15(d) of the Act were to be used to bar the first plaintiff from reclaiming its house from the defendant, then there would be nothing to stop the defendant from possessing the property for the uninterrupted period required for him/her to become its owner.

Mr Chamunorwa for the defendant, advanced the unconvincing argument that the plaintiffs could reclaim the house upon the death of the defendant. That contention presumes that such death would occur soon and in any event before the expiration of the thirty years required for the defendant to secure the house as his own in terms of section 4 of the Prescription Act. Yet counsel admitted the apparent fact that from a reading of the authority of John Conradie, the Supreme Court never dealt with or adverted to section 4 of the Prescription Act which deals with acquisitive prescription. It is for that reason that I earlier found the dispute before me to be clearly distinguishable from John Conradie. It is also for the reason I stated above, that I am constrained to fully associate myself with the remarks in Chimbetete v Bako (supra) that:

“In my view, there is merit in the argument that a claim under rei vindicatio, because it is a claim based on ownership of a thing, cannot be described as a debt as contemplated in the Prescription Act. If it were so, it would mean a possessor would, by extinctive prescription acquire ownership of a thing outside the provisions of section 4 of the Act, which says:

“4 Acquisition of things by prescription

Subject to this Part and Part V, a person shall by prescription become the owner of a thing 	which he has possessed openly and as if he were the owner thereof for—

(a) an uninterrupted period of thirty years; or

(b) a period which, together with any periods for which such thing was so 			possessed by his predecessors in title, constitutes an uninterrupted period of thirty 		years.”

The law requires that a party claiming acquisitive prescription of movable or immovable property must allege and prove civil possession – that is, possession with the intention to possess and control as if he or she were the owner; possession for an interrupted period of 30 years; and that possession was exercised openly. If a vindicatory action is defined as a debt, it would mean the possessor would become an owner after the expiry of three years, not thirty years as provided in section 4. In addition, the requirements of the law to anchor a successful plea of acquisitive prescription would fall away. Such cannot be correct.”

I find the above remarks to be not only forceful but to also eloquently explain that acquisitive prescription is not there for the taking after the expiration of a stated period. Instead, it is predicated on the fulfilment of set conditions. A person who possesses another’s property and wishes to acquire it by prescription ought to do so with the intention not only to possess but to also control the property in a way akin to that of an owner. In addition, that possession and control must have gone on for an uninterpreted thirty years; it must have been exercised without concealment or deception. Put in another way the possessor must have held the property with total frankness and honesty.

What further demonstrates the futility of the defendant’s special plea of prescription in this case is the holding of this court in the case of African Sun Zimbabwe (Pvt) Ltd v Mlongoni HH332-15 where it explained the defences which are available to a defendant or respondent who faces a suit under the remedy of rei vindicatio. It remarked thus:

“The respondent…must establish a claim of right in respect of the property sought to be vindicated.  An Introduction to Law, C.G. Van der Merwe & Je Du Plessis summarises defences available to a claim for vindication as follows:

the defendant had acquired the property by prescription;

the third party is the owner;

the property was alienated and destroyed; or

the defendant has a superior contractual right to possess.”

The defence of extinctive prescription is conspicuous by its absence from the list provided. What appears is acquisitive prescription which cannot be discussed outside the framework of s 4. Clearly therefore such acquisition does not and cannot happen in terms of section 15 (d) of the Prescription Act.

In Musindo v Kazambara & Anor HH 234-24, DEME J cited with approval his earlier remarks in the case of Merreta v Kanyongo & Anor HC1049-22 where he stated the purpose of prescription as:

“The law of prescription may be described as a case management mechanism meant to ensure that there should be a definitive period within which litigation must be instituted. Litigation must never be an eternal right without regulated time frames. Failure to have such cut off time frames will result in endless suits. This law warrants that the person likely to be dragged before the court may not limitlessly labour under perpetual fear of potential litigation. The law of prescription also makes litigation predictable.”

The above remarks obviously related to extinctive and not acquisitive prescription. Yet the respondent in this case sought to rely on extinctive prescription to deflect the plaintiffs’ claim to vindicate their property from him. It is not possible. A possessor can only become an owner of the property after the expiration of thirty years and not three years.  He or she ought to fulfil the conditions precedent to that acquisition. It is not a question of simply counting the years. If this were not the case, the Legislature would not have taken the trouble to distinguish between the two forms of prescription.

In the end, I therefore find the special plea of prescription raised by the defendant to be illogical. The right of the plaintiffs to the property cannot prescribe in terms of section 15(d) of the Prescription Act. It has not prescribed in terms of s 4 of the same Act. The special plea cannot therefore succeed. It is accordingly dismissed.

The law on jurisdiction and its application in the instant case

The argument that this court lacked jurisdiction to deal with the dispute was unenthusiastically pursued by counsel for the defendant. One could easily understand him. The odds were heavily staked against the defendant. I am not sure when the debate that a dispute between an employer and its former employee cannot be adjudicated on by the High Court started. I do not need to trace that history. What I can state with certainty is that it is a tired debate which only a party without a sustainable defence can raise.

As far back as 2014, it has repeatedly been stated that rei vindicatio is a common-law remedy which the Labour Court has no jurisdiction to deal with. In the case of Nyahora v CFI Holdings Private Limited SC 81/14, it was put beyond doubt that:

“… the right of an individual to approach the High Court seeking relief other than that specifically set out in s 89 1 (a) of the [Labour] Act, has not been abrogated.   Nothing in s 89(6) takes away the right of an employer or employee to seek civil relief based on the application of pure principles of civil law, except in respect of those applications and appeals that are specifically provided for in the Labour Act.  Nor is there contained in s 89 any provision expressly authorizing the Labour Court to deal with an application, such as in the instant case, for the common law remedy of rei vindicatio.  Such applications fall squarely within the jurisdiction of the High Court. (underlining is my emphasis)

That same position was taken by DUBE J (now JP) in the case of Surface Investments (Pvt) Ltd v Chinyani HH295-14 where she held as follows:

“The Labour Court is a creature of statute and is only empowered to deal with matters brought to it in terms of s 89 of the Act. This implies that it can only deal with disputes that are provided for in terms of the Act thus in terms of both the cause of action and the remedy sought. The rei vindicatio is a common law remedy and is not provided for in terms of the Act. The High Court can deal with this application as it is a court of inherent jurisdiction and it can do so regardless of the stage at which proceedings at the Labour Court are. This approach is based on the principle that despite an employee’s challenge to the dismissal, the employee stands dismissed. What is before me is not a labour dispute. Clearly the Labour Court was not conferred with the jurisdiction to deal with claims of rei vindicatio. A rei vindicatio is a common law remedy and the Labour Court has no jurisdiction to deal with common law remedies.”

See also the case of Tuso v City of Harare 2004(1) ZLR 1(HC).

The reasoning central to all the above authorities is that the Labour Court is a creature of statute and its jurisdiction is constricted by the power accorded to it by the statute. The provisions which circumscribe its jurisdiction have been interpreted in a number of cases. In DHL International (Pvt) Ltd v Clive Madzikanda HH 51-10 MAKARAU J (now JCC) held that section 89 of the Labour Act means that if a dispute is provided for in the Act both in terms of the cause of action and the remedy, then the Labour Court has jurisdiction over the matter. It means therefore that not only must the cause of action arise in terms of the Labour Act but that the remedy must also be provided in terms of the same Act. Similarly, in National Railways of Zimbabwe Artisans Union and Ors SC8-05, ZIYAMBI JA expressed the view that:

“Thus, the application and the remedies obtainable thereby must be authorised in the Act or the enactment authorising the application to the Labour Court. Nowhere in the Act is the power granted to the Labour Court to grant an order of the nature sought by the respondents in the court a quo, nor have I been referred to any enactment authorising the Labour Court to grant such an order.”

In this case, I have already stated that the parties agreed that the employment relationship between the first plaintiff and the defendant had long terminated. Once that happened, the application of employment legislation to the dispute becomes inapposite. In addition, the remedy sought is a common law one which the Labour court would have no power to grant. There could not, therefore, be a better forum for the resolution of the dispute than this court given its inherent powers.

Once again, I am constrained to find that the special plea that the High Court lacks jurisdiction to deal with the matter is unmeritorious. It ought to be dismissed.

Disposition

The conclusion I reach is that a claim by a plaintiff to evict a defendant occupying its premises cannot be defeated by extinctive prescription in terms of s 15(d) of the Prescription Act. Allowing such a defence is inconsistent with the objectives of the Prescription Act because such defendant will acquire the plaintiff’s property without satisfying the requirements of acquisitive prescription in terms of s 4 of the same Act.   In addition, eviction is a common law remedy which falls under the broad banner of rei vindicatio. The Labour Court has no power to grant it. Further, the rights and obligations of parties who are no longer in an employment relationship cannot be regulated by the Labour Court whose power is restricted to dealing with only those disputes the Labour Act allows it to determine.

Costs

Ordinarily, in this jurisdiction, costs follow the result. I did not hear any of the parties argue otherwise.  I, therefore, find no reason to depart from that cardinal rule.

In the circumstances, I order as follows:

Both the special pleas of prescription and lack of jurisdiction be and are hereby dismissed

The defendant shall pay the plaintiffs’ costs.

MUTEVEDZI J………………………………

Messrs Chigariro & Partners, for the Plaintiff

Calderwood, Bryce Hendrie & Partners, for the Defendant.