Joseph Dongo v Champion Construction (Pvt) Ltd

### Preamble
1
HH 625-25
HCH 11 460/17
HCH 11 460/17
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JOSEPH DONGO

versus

CHAMPION CONSTRUCTION (PVT)LTD

HIGH COURT OF ZIMBABWE

MANYANGADZE J

HARARE, 4 June & 13 October 2025

Summons matter: special plea

F Chinwawadzimba, for the plaintiff

W Zhangazha, for the defendant

MANYANGADZE J: This is a summons matter which was met by a special plea of prescription from the defendant. In his summons, the plaintiff claims damages arising from the cancellation of an agreement of sale involving an immovable property, described as Stand No. 3175 of Subdivision A of 159 Prospect, Waterfalls (“the property”). The claim is in the following terms:

“a) Payment of damages in an amount equivalent to 40% of the cost of improvements on Stand 3175 of Subdivision A of 159 Prospect Waterfalls;

b)  Payment of damages equivalent to the market value of Stand 3175 of Subdivision A of 159 Prospect Waterfalls;

claim (a) to be quantified by a registered Quantity Surveyor and claim [b] by a registered Estate and Property Valuer, both to be appointed by the Master of High Court.

c)  Interest on the above sums, at the prescribed rate from date of Summons to date of full and final payment; and

d) Costs of suit on a higher scale of Legal Practitioner and client.”

The background to the claim, briefly stated, is that the plaintiff and the defendant entered into an agreement of sale on 20 December 2002, in terms of which the defendant sold the property to the plaintiff.

In August 2005, the defendant wrote a letter to the plaintiff, cancelling the agreement. The basis for the cancellation was an alleged breach of the agreement, being non-fulfilment of the agreed terms of payment of the purchase price.

The defendant raised a special plea to the plaintiff’s summons, to the effect that the claim has prescribed. The defendant avers that the cause of action arose in August 2005, when the agreement was cancelled. The defendant indicates that in terms of ss 14 (1), 15 (d) and 16 (1) of the Prescription Act [Chapter 8:11], the plaintiff should have brought his claim within three years from August 2005, when the cause of action arose. This means the claim prescribed at the end of August in 2008.

The defendant pointed out that the plaintiff instituted his claim in December 2017, 9 years after it had prescribed.

In countering the defendant’s averments, the plaintiff asserted that prescription was interrupted in this matter. The plaintiff indicated that he first issued summons in 2005 under Case No HC 6039/05. The claim sought an order declaring the cancellation of the agreement null and void. It also sought an order compelling transfer of the property.

In a judgment handed down in December 2014, the court ordered, per MAFUSIRE J, absolution from the instance.

The plaintiff issued further summons on 8 December 2017, the instant summons, on the same cause of action. Terms of the claim are cited above. The only difference is that the plaintiff is no longer pursuing transfer of the property, as the defendant has since sold the same to a third party.

The plaintiff contends that prescription was interrupted by the issuance and service of summons, which culminated in the judgment of December 2014. In this regard, the plaintiff cited s 19 (2) of the Prescription Act, which provides that:

"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."

The plaintiff referred to the cases of Zimbabwe Banking Corporation and Anor v Efficient Security (Pvt) Ltd and Anor 2001 (2) ZLR 55 (H), Maria Singo v Rose Sithole & Anor HB114/10, Efrolou (Pvt) Ltd & Anor v Muringani & Ors HH 112/13. Reference was also made to the book by Herbstein and van Winsen, The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa, 2009 ed p 354-5, where the learned authors state that:

“The service of a summons commencing action serves to interrupt the running of prescription.”

The plaintiff contends that the judgment of absolution from the instance had the effect of allowing the plaintiff to reinstitute his claim within 3 years, which he did in 2017.

The defendant accepts the chronology of events presented by the plaintiff. It insists, in its principal heads of argument, that the claim prescribed  3 years after the cancellation of the agreement in 2005.

However, in its supplementary heads of argument, the defendant differs significantly in its interpretation and application of the law to the admitted facts. To begin with, the defendant avers that the plaintiff’s case under HC 6039/05 was not successfully prosecuted. For the running of prescription to be interrupted, the plaintiff must successfully prosecute the summons action. In this regard, the defendant cites s 19 (3) of the Prescription Act, which reads as follows:

“(3) Any interruption in terms of subsection (2) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the person claiming ownership in the thing in question-

does not successfully prosecute his claim under the process in question to final judgment;”

The defendant’s argument on this point is captured in paragraph 6 of its heads of argument, in which is stated:

“ There is no ambiguity in this Legal Provision so its ordinary grammatic meaning will be applied in this submission. The result of Plaintiff's prosecution of Case Number HC 6039/05 as will more appear from High Court Judgment Number HH691-14 by Mafusire J was an absolution from the instance in favour of the Defendant. The Plaintiff can thus not plead that he successfully prosecuted Case Number HC 6039/05 to final judgment. An absolution from the instance is an indictment that the Plaintiff's Case was prosecuted so badly and so unsuccessfully that it deserves no answer from the defendant or final judgment from the Court. It is as if the Plaintiff never filed the case at all.”

Thus, according to the defendant, prescription was not interrupted at all because the plaintiff did not successfully prosecute the summons proceedings, as required by s 19 (3). In other words, subsection (2) must be read with subsection (3).

The defendant also advances two alternative arguments, which it avers defeat plaintiff’s contention that prescription was interrupted.

Firstly, defendant avers that the new summons issued by the plaintiff, in December 2017, is fatally defective. This defect is the citation of a wrong defendant. This means that there is no process before the court from the time the summons was issued in 2014 to date. In view of this, there was no interruption of prescription.

Secondly, the defendant contends that the summons issued after absolution from the instance, apart from being fatally defective, were only served in 2021, after the prescription period.

As already indicated, the defendant’s special plea was predicated on the averment that the plaintiff’s claim prescribed in August 2008.  A reading of his special plea clearly reveals that as the basis on which the plea was raised. His heads of argument went on to argue this point. However, the undisputed chronology of litigation is that the plaintiff filed summons in November 2005, leading to the judgment of absolution from the instance in 2014. Thus, the plaintiff prosecuted his case up to that judgment. The judgment did not seal his fate. It was not a dismissal of his case. Neither did the defendant win the case. It was open to the plaintiff to reinstitute proceedings. This is what he went on to do, leading to the instant matter.

In the circumstances, I am unable to sustain the defendant’s contention that prescription was not interrupted. The defendant’s averments gave the impression that the plaintiff did nothing until 2017, when the instant summons was issued. This is what the defendant asserts, in paragraph (4) of its special plea. It then prays for the dismissal of the plaintiff’s claim on that basis, in paragraph (5). These paragraphs read:

“4. The plaintiff instituted summons in this matter on 8 December 2017 i.e. (9) years after any debt due to him was extinguished.

5. Accordingly, the plaintiff’s claim must be dismissed with costs at a higher scale.”

The defendant does not, conveniently it seems, disclose the fact that the period between the cancellation of the agreement in August 2005 and the issuance of summons in 2017 was not a silent period. Litigation had been set in motion and was ongoing. The defendant was less than candid in this respect.

After the plaintiff’s replication, the defendant then tries to deal with the issues in supplementary heads of argument. However, it does so in a way that attempts to supplant his original special plea with a new one, through heads of argument. It is impermissible to plead through heads of argument.  Heads of argument are not meant to be a substitute for foundational pleadings on which the parties’ case is built. This important point was highlighted in Cargill Zimbabwe v Culvenham Trading (Pvt) Ltd HH 42/06. MAKARAU J (as she then was), stated, at p 2:

“In my view, a dispute between the parries (sic) can only arise ex facie the pleadings filed with the court. It cannot be assumed or presumed from the mere fact of the entry of an appearance to defend. It is my further view that the dispute cannot be brought to the attention of the court in the heads of argument for counsel cannot plead on behalf of the parties. It is trite that heads of argument are counsel’s conclusions and opinion of the facts and law applicable to the facts of the matter.  They are not part of the pleadings.”

In this regard, I am in full agreement with the submissions made in paragraph 19 of the plaintiff’s supplementary heads of argument, wherein is stated:

“A reading of the Heads of Arguments of the Defendant makes it clear that what the Defendant  has now raised in its Supplementary Heads of Arguments was never raised in its pleadings or any papers placed before the Honourable Court. Moreover, the Special Plea of the Defendant is clear and another special plea cannot be smuggled through a supplementary heads of argument. The Defendant's attempt to remake the case in its heads of argument is also clear. It is trite that Counsel cannot plead on behalf of the party.”

Mr Zhangazha, on behalf of the defendant, tried to justify this approach to the case by arguing that a point of law can be raised at any point. I am unable to uphold this contention in the context of this matter. It cannot be used to justify a violation of the abovementioned principle i.e. counsel cannot plead a party’s case through heads of argument.

In the circumstances, it is my considered view that the defendant has failed to establish a case for his special plea.

In the result, it is ordered that:

The defendant’s special plea be and is hereby dismissed.

The defendant bears the plaintiff’s costs.

HON. MANYANGAZE J……………………………………..

Sinyoro & Partners, plaintiff’s legal practitioners

Chinogwenya & Zhangazha, defendant's legal practitioners