Nyasha Muchesa v The Housing Director Chitungwiza Municipality N.O. and Chitungwiza Municipality and Peyamah Investments (Private) Limited and Towndie Elijah Dube and Ronika Kamukamu

### Preamble
1
HH 643-25
HCH 1250/25
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NYASHA MUCHESA

versus

THE HOUSING DIRECTOR CHITUNGWIZA MUNICIPALITY N.O.

and

CHITUNGWIZA MUNICIPALITY

and

PEYAMAH INVESTMENTS (PRIVATE) LIMITED

and

TOWNDIE ELIJAH DUBE

and

RONIKA KAMUKAMU

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE; 13 & 21 October 2025

Opposed Application

C Chikore, for the applicant

A Muchadehama, for the 1st & 2nd respondents

A Hwititi, for the 4th respondent

No appearances for the 3rd & 5th respondents

DEMBURE J:

INTRODUCTION

[1]	This matter was heard on 13 October 2025. The court, after hearing submissions from the parties’ legal practitioners, handed down an ex tempore judgment, the operative part of which was that the point in limine on the special plea of prescription was upheld and the application was dismissed with costs on a legal practitioner and client scale. The following are the full written reasons for the court’s decision.

[2]	This is a court application for a declaratur in terms of s 14 of the High Court Act [Chapter 7:06]. The applicant approached the court challenging the repossession of a residential stand which had been allocated to him by Chitungwiza Municipality and its subsequent reallocation and sale. The following relief was sought:

“a.	That the act or conduct by 1st and 2nd Respondents (Council) to repossess Stand No. 8505 Manyame Park, Chitungwiza, be declared illegal and therefore null and void.

b.	That 1st and 2nd Respondents’ conduct reallocating the said Stand to 3rd Respondent be declared illegal and of no legal force.

c.	That subsequently the agreement of sale between 3rd Respondent and 4th Respondent is declared a nullity.

d.	That subsequently the Applicant be and is hereby declared the legitimate holder of rights, title and interest in Stand No. 8505 Manyame Park, Chitungwiza.

c.	That the 1st and 2nd Respondents be ordered to pay costs of suit on a higher scale, jointly and severally, the one paying the other to be absolved.”

[3]	The application was opposed by the first, second and fourth respondents.

THE PARTIES

[4]	The applicant is Nyasha Muchesa, an adult Zimbabwean. The first and second respondents are cited as the Director of Housing, Chitungwiza Municipality, in his official capacity and Chitungwiza Municipality (“the Council”), a local authority established in terms of the Urban Council Act [Chapter 29:15], respectively. The third respondent is Peyamah Investments (Private) Limited, a company duly incorporated in accordance with the laws of Zimbabwe. The fourth respondent is Towndie Elijah Dube, a male adult in whose name the property in dispute is currently registered with the Council. The fifth respondent is Ronika Kamukamu, an adult individual with whom the applicant alleged he concluded an agreement of sale over the property in dispute, which was later cancelled.

THE FACTS

[5]	At the centre of the dispute is Stand No. 8505 Manyame Park, Chitungwiza (“the property”). It is common cause that the applicant was allocated the property, as a vacant residential stand by the second respondent, on 3 June 2009. Upon payment of US$200.00 on 19 June 2009, allegedly for the servicing of the stand, the applicant subsequently signed a lease agreement with the Council for the property commencing on 1 July 2009. The applicant alleged that he erected a temporary wooden structure on the property then and put a caretaker thereat. He said he would, however, relocate to South Africa before he could develop the property. It was then, in 2019, when he got information through the fifth respondent that someone was claiming ownership of the property. The applicant further averred that he failed to get clarification or verify that information until 2021, when he became aware of the repossession of the stand and its reallocation to the third respondent and the subsequent sale to the fourth respondent.

[6]	It was not in dispute that the applicant was served with a letter from the Council dated 20 May 2021. By his own admission, the applicant stated that he became aware of the alleged unlawful repossession and the reallocation of the stand in 2021 after the service of the letter dated 20 May 2021 from the second respondent. The said letter was duly served on 20 May 2021, and the applicant’s then legal practitioner, Mr Caleb Mutandwa, signed the acknowledgement of receipt thereof on the same date. The said acknowledgement is part of the same letter.

[7]	The applicant also averred that from the letter of 20 May 2021, he became aware that his property was repossessed and reallocated to the third respondent in 2016, who, in turn, sold the property to the fourth respondent. The agreement of sale of the stand between the third and fourth respondents was executed on 29 July 2016. The applicant contended that the conduct by the first and second respondents of repossessing and reallocating his stand was illegal and that any subsequent acts or processes were a nullity as they were based on the illegal repossession of his property.

[8]	It was further asserted that the repossession of the stand on the reason that it had not been developed was not procedural. He stated that there was no due process followed, as he did not receive any notice of intention to repossess the stand from the Council and was denied the right to be heard or to make representations in terms of the law. He also contended that there was no cogent reason for the repossession since Council had not serviced the area with water and sewer to enable him to erect any permanent structure on the land. The lease agreement prohibited him from occupying the stand without water and sewer connections.

[9]	The applicant also contended that Council did not comply with clause 7 of the lease agreement before resorting to clause 15. He argued that the requirements for repossession of the property set out in the Urban Councils Act were not complied with. His position was also that the notice of intention to repossess was not served on the address for service specified in the lease agreement. He argued that while Council stated that they issued a public notice of their intention to repossess the property through adverts in the public media in April 2016, they continued to accept his payments for service charges. It was also pleaded that before he had to cancel the agreement he had concluded with the fifth respondent, she had erected a seven-roomed structure up to roof level on the land.

[10]	It is common cause that before launching this application, the applicant, on 18 August 2023, lodged an application in the Commercial Division in Case No. HCHC540/23 seeking the same relief. The application was set down for hearing on 12 June 2024 before chilimbe J and was struck off the roll for the applicant’s non-appearance. The applicant was unsuccessful in his application for the reinstatement of the matter. The court struck the application for reinstatement off the roll on the ground that the dispute was not a commercial dispute. The applicants subsequently purported to withdraw the proceedings before the Commercial Division, which in any event were no longer pending and proceeded to file this application on 18 March 2025.

[11]	The first and second respondents, in their opposing affidavit, contended that the first respondent was neither a legal nor a natural person capable of suing or being sued. They challenged the allocation of the stand to the applicant, contending that the payment of US$200.00 cannot be for the servicing of the stand and its intrinsic value. They averred that the lease agreement was fraught with irregularities, rendering it a nullity.

[12]	The first and second respondents also raised an issue that the applicant’s claim had prescribed. They contended that the applicant had been aware of the repossession since 2019 and did nothing to assert his rights. The property was allocated to a third party in 2016, and he ought reasonably to have been aware of that fact. They further stated that the applicant did not adduce any evidence to prove that he was in South Africa for the whole period he alleged.

[13]	They went on to state that they complied with the requirement to give notice before the repossession of the stand. It was averred that the second respondent wrote a letter dated 25 February 2016 notifying the applicant before the repossession. The second respondent also gave notices of the repossession through adverts in The Herald Newspaper on 20 April 2016 and in the Sunday Mail of 24 April 2016. This was common cause. They also averred that a letter was written to the applicant on 24 May 2016 notifying him of the repossession. According to them, the applicant knew about the repossession but chose not to act. They also challenged the lease agreement as being irregular and unlawful for non-compliance with s 152(2) of the Urban Councils Act. The agreement was, therefore, a nullity and it also improperly conflated the value of the stand and service charges as US$200.00 corruptly when the applicant did not pay the intrinsic value. It was also pleaded that the applicant contradicted himself by alleging that he could not develop the property because the area had not been serviced yet contended on the other hand that the fifth respondent erected a seven-roomed structure thereat.

[14]	The fourth respondent also filed a notice of opposition. In his opposing affidavit, he raised the special plea of prescription as a point in limine. He contended that the applicant’s claim had prescribed. The cause of action was complete by June 2016, when the stand was repossessed by the second respondent for failure to develop. It was pleaded that the applicant became aware of the repossession in 2016 but decided not to act. He now approaches the court 9 years later. He further averred that when he bought the stand in 2016, he was confronted by the applicant and the fifth respondent when they started to erect illegal structures on the land. He then issued summons for the eviction of the fifth respondent in 2021. He further contended that the applicant was also informed of the repossession through an advert of a public notice published in April 2016.

[15]	It was further asserted that the applicant, by his own affidavit, admitted that he became aware of the repossession in 2021. Even from that date, the claim, when it was filed on 18 March 2025, had long prescribed. The running of prescription was not interrupted by the application filed in the Commercial Division, as it was not successfully prosecuted to finality.

[16]	On the merits, the fourth respondent contended that the agreement of sale he concluded with the third respondent was valid. He purchased the property in good faith and was a bona fide purchaser. The property was lawfully repossessed from the applicant by the second respondent in 2016 for non-development. The repossession was advertised in compliance with the Urban Councils Act. After the repossession, the land was reallocated to the third respondent in June 2016. He then purchased the property in July 2016, and the agreement was never cancelled. It is still valid and cannot be declared a nullity. He paid cession charges, and the property is registered in his name. He was confirmed as the lawful holder of rights, title and interest in the property by Council. He purchased the property when it was vacant and undeveloped. The fourth respondent prayed for the dismissal of the application with costs on a legal practitioner and client scale for lack of merit.

[17]	At the hearing, the parties’ legal practitioners had to address the court on the point in limine raised first, as it was capable of disposing of the matter. The point in limine advanced by the first, second and fourth respondents was that the applicant’s claim had prescribed and must be dismissed.

THE POINT IN LIMINE

THE SPECIAL PLEA OF PRESCRIPTION

[18]	The question for determination is whether the applicant’s claim has prescribed.

THE PARTIES’ SUBMISSIONS

[19]	Mr Muchadehama submitted that the first and second respondents raised the issue of prescription as had been raised by the fourth respondent. Heads of argument were also filed on the issue, and the point is motivated at pp 102-104 of the record from para (s) 32-42. By his own admission, the applicant became aware that the stand in question had been repossessed from him. He said he became aware by virtue of a letter on 20 May 2021 at p 17 to Mr Mutandwa. The present application was only filed on 18 March 2025. The application was served on the second respondent on 5 May 2025. As at 5 May 2025, calculated from 20 May 2021, that is a period well in excess of 3 years.

[20]	Counsel further argued that the matter is a debt as defined in the Prescription Act [Chapter 8:11] (“the Act”). He also referred to the debt as defined in case law cited in the heads of argument. One must claim from the date the cause of action arose. Once the applicant accepts that he became aware that the stand had been repossessed and reallocated in 2021, his cause of action arose then. The applicant did not do anything which arrested the running of prescription. There has been an attempt to say he instituted proceedings before the Commercial Court. They were struck off the roll and withdrawn, and, therefore, not prosecuted successfully to finality. There is nothing that interrupted the running of prescription. Prescription is a full defence to a claim before the court. The applicant has nothing to counter this argument. The matter ought to be resolved on the issue of prescription. The issue was raised right from the beginning. The applicant filed an answering affidavit but did not have an answer to the question of prescription. He filed heads of argument but did not have an answer. He also submitted that even before the court session commenced, he had raised this issue with Mr Chikore, but he still persisted with the case. This is an appropriate matter for the court to dismiss with costs on a punitive scale.

[21]	Mr Hwititi also submitted that he filed heads of argument at p 108. He raised a point in limine of prescription. The application should be taken in light of a debt as determined in the Prescription Act. In terms of the Act, a debt includes anything that can be sued for. The narration by the Act is very broad, and it includes claims for specific performance and declarations. For authority on this principle, the fourth respondent cited the case of Syfin Holdings Ltd v Pickering 1982 (1) ZLR 10 (S) in his heads of argument.

[22]	Counsel went on to argue that the claim by the applicant falls within a debt in terms of the Act. There are time limits within which creditors can act. The time limit is 3 years. The applicant is supposed to act within 3 years. The certificate of service was done in May 2025. In para (k) of the applicant’s founding affidavit at p 7, he said he became aware through the fifth respondent that someone was claiming ownership of the stand in 2019. Whether it was a rumour or not, he got the notice. That was constructive notice. From that date to date, it is more than 6 years. At para (i), the applicant admits that he became aware in 2021. If we are not going by the date in 2019, the applicant admits that he got to know of the repossession in May 2021. By simple calculation from that date to May 2025, there are more than 3 years. These are the admissions by the applicant.

[23]	It was further submitted that the claim had to be dismissed by the factual admissions of either 2019 or 2021. The claim had prescribed. The applicant said that he had instituted an application in the Commercial Court in 2023, which was judicial interruption. At p 6, there is a chronology of what happened. The matter was struck off the roll. On seeking reinstatement, it was also struck off the roll. The applicant withdrew the matter. In light of this, the matter was not prosecuted to finality in terms of s 19(3)(a). The application must be dismissed with costs on a higher scale.

[24]	Per contra, Mr Chikore submitted that there was no prescription at all in relation to this matter. He argued that even though it was clear that the matter in terms of s 19(3) was not prosecuted to finality, prescription did not apply. The meaning of a ‘debt’ has been expounded by case law. The meaning of a debt in terms of case law is actually context relative. Whether a matter prescribes or not depends on the circumstances of the matter. At p 6, the applicant indicates the nature of the relief he is seeking. It is not capable of being affected by prescription. It can never be affected by prescription at all.

[25]	Counsel further argued that there are certain declaratory matters where prescription is not covered. It is not covered by the meaning of a debt. The applicant is seeking a declaratory order which is context-specific. The applicant is saying that the conduct by Council to repossess the property without following the provisions of the Urban Councils Act is a nullity. Where a declaratur of nullity is being sought of anything that is illegal prescription cannot stand. The declaratory of rights does not fall under the definition of a debt. Mr Chikore referred the court to the cases of Dhliwayo v Bere & Anor HH 164/24, Masamba v Hove & Ors HH 68/24. He further argued that in Kadira & Anor v Nhemwa HH 592/22, which also related to the sale of a property, the court felt that it could not protect an illegality on the basis of prescription. We have to follow the rule in McFoy. The fact that 3 years have expired does not make it illegal. This is a case that borders on an illegality and cannot stand.

[26]	In reply, Mr Muchadehama argued that the Pickering case covers situations where declarations are applied for. That should be the end of the matter. The High Court decisions are not helpful. Mr Chikore’s arguments are not what he supported his case with. He formulated his arguments from the bar. He said that the matter arose from an illegality in respect of which he was attempting to address the merits. There is no admission on the part of the respondents that there was an illegality. This is a matter which arose from a contract. The applicant failed to develop the stand, and it was repossessed and reallocated to another. It does not matter how he formulated his case. The case is about contractual issues and not illegalities. There was nothing illegal about cancelling the contract. There are simply no illegalities to support his submissions. It was finally submitted that this was a matter which should be terminated on the basis of prescription, with costs on a legal practitioner and client scale.

[27]	Mr Hwititi, in reply, submitted that he sided with the submissions by the first and second respondents. There is no way out from the Syfin Holdings case. It was argued that the applicant was claiming a debt through the back door. The matter must be dismissed with costs on a legal practitioner and client scale.

THE LAW AND ANALYSIS

[28]	It is settled that a special plea of prescription is a complete defence to a claim. Once it is established, the court has no discretion on the matter: it must dismiss the claim. A claim must be instituted before prescription has run its course. In terms of s 15(d) of the Prescription Act, the prescription period for any other debt is three years except where any enactment provides otherwise. Section 15 thereof states as follows:

“15 Periods of prescription of debts

The period of prescription of a debt shall be—

…

…

…

(d) 	except where any enactment provides otherwise, three years, in the case of any other debt.” (my emphasis)

[29]	The definition of a “debt” in s 2 of the Act is very broad. Section 2 reads:

“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.”

In John Conradie Trust v Federation of Kushanda Preschools Trust & Ors SC 12/17, the Supreme Court aptly said:

“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.” (my emphasis)

[30]	The well-established principle of the law is that a claim for a declaration of rights or a declaratory order is a debt within the broad meaning of the word in terms of s 2 of the Act. This position has long been affirmed by the Supreme Court in Syfin Holdings Ltd v Pickering 1982 (1) ZLR 10 (SC) at 19D-E where GEORGES JA was very emphatic when he interpreted the meaning of “debt” as defined in terms of s 2 of the Act and said:

“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.” (my emphasis)

The Supreme Court had spoken, and its findings of the law are binding on this court. In terms of the principle of stare decisis, this court cannot competently open any debate on the legal position settled by the superior court. The position set out in Syfin (supra) must accordingly apply with full force as that is the law. It would appear that in all cases where there had been attempts by this court to redefine a ‘debt’, stating that the Prescription Act does not apply to a claim for a declaratur were made without a consideration of the decision in Syfin (supra), which had settled the issue.

[31]	Given the above legal position set out in Syfin (supra), Mr Chikore’s argument that the Act does not apply to an application for a declaratory order is utterly unfounded. The superior court was very emphatic that the term debt covers “declarations of rights in relation to any given set of circumstances.” The attempts, therefore, to allege that the circumstances of this case are different and that the relief sought in the context related to an illegality which does not fall within the definition of a ‘debt’ and, therefore, is not covered by the Act, are untenable. There is no way out, as the Syfin case (supra) does not differentiate depending on the circumstances of each case where a declaration of rights is sought. In any case, an argument about the alleged illegality, which was contested any way, concerns the merits of the matter. The defence of prescription has nothing to do with the merits.

[32]	I have duly considered the cases cited by Mr Chikore. First, the case of Dhliwayo v Bere & Anor HH 164/24 does not even support his argument. At p 5, tsanga J endorsed the decision of the Supreme Court in Syfin (supra) and correctly stated:

“In Syfin Holdings Ltd v Pickering 1982 (1) ZLR 10 (SC), a Supreme Court case, georges JA examined the definition of debt in the Prescription Act which in essence is “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise”. Importantly, he remarked that 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”. Syfin’s case regarding prescription encompassing declarations was cited with approval in Gregory Mapfumo Mupfumira v Infrastructure Development Bank of Zimbabwe HH 353/19.”

It would appear that counsel did not properly consider that judgment. It was not an authority in support of his contention at all.  The decision buttresses my view that the case of Syfin (supra) settled the law that claims for declarations of rights can prescribe in terms of the Act, and the specific circumstances of the case cannot change that position.

[33]	In the earlier case of Masamba v Hove & Ors HH 64/24, the court, per bachi mzawazi J, related to the so-called context-specific approach argued by Mr Chikore to the effect that whether or not prescription applies to a declaration of rights depends on the specific context or circumstances of each case.  She considered several conflicting decisions of this court on the issue and remarked as follows:

“It is evident that there are seemingly divergent views from this court as to whether a declaratory order or claim prescribes or not as cited by each party in support of their respective legal stances. However, I would like to believe that Mr. Mutsvairo for the plaintiff erroneously submitted that the Supreme court in, Brooker v Mudhanda above made a definitive pronouncement that a declaratory claim does not prescribe. Indeed, Brooker v Mudhanda case above, is the impeccable authority on special pleas, their definition, application and differentiation. It dealt comprehensively and exhaustively with the issue of prescription founded on a declaratory claim but it did not categorically spell out that a declaratory claim does not prescribe as alluded to by Plaintiff’s counsel.

As a starting point, there is a distinction between a declaratory order granted and that being sought. Obviously, that which has been granted and is an order of the court, is legally binding and cannot be susceptible to prescription in terms of the Prescription Act. On the other hand, if it is a declaratory claim, relief, remedy or order still to be obtained after satisfying the statutory requirements of s14 of the High Court Act [Chapter 7:06] the characteristics of the claim determines whether it is a debt as defined in s2 of the Interpretation Act or not. See, Tinashe Kambarami v 1893 Mthwakazi Restoration Movement Trust plus 4 Ors Judgment No.SC66/21.

In the Off-Beat Case above, the South African Constitutional Court had the liberty to analyse the characteristics of a claim for the purpose of prescription and a declaratur through the exploration of both the narrow and broad constructions of the word ‘debt’ in their Prescription Act akin to ours as defined by their Superior courts.

As can be seen, the cases relied upon by the plaintiff were context specific in concluding the issue on prescription on a declaratory claim. The leading case relied upon in concluding that a declaratory relief does not prescribe is supposedly the pronouncement made by ndou J, in the case of Ndlovu v Ndlovu & Anor above, where he contextually stated that,

“The point worth noting in this definition of “debt’ is that, the suit or claim must be “by reason of Povall and Others1953 (2) SA 202 (SR); Barron v Greendale Town Management Board 1957 (2) SA 521 (SR); Musara v Zinatha 1992 (1) ZLR 9 (H) Lupu v Lupu 2000 (1) ZLR 120 (SC)). On the part of the debtor arising from the stated bases. 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.” …

In the Ndlovu case, the honourable judge capped his decision by remarking that,

“The claim is based on the alleged nullity of a sale transaction and does not arise from a debt as defined by the Prescription Act, [Chapter 8:11]”.

chikowero J, in the case of, NSSA v City of Mutare HH385/18 on the faith of the Ndlovu case, with the concordance of the legal representatives noted that a declaration of rights cannot prescribe. The reader of this case who was not privy to the arguments that convinced the court to come to that agreed standpoint is left in the dry cold as to the arguments in support of that stance.

In, Wireless Ngilazi v Edith Mutema and the Master of the High Court, HH645/2014, chitakunye J, as he then was, dismissed a defence of prescription, quoting the case of River Ranch Ltd v Delta Corporation Ltd HH1/10, where patel J, as he then was, commented that,

“A declaratory order is not founded on an obligation in contract or delict. It is essentially a proprietary claim for 30 years of open, adverse and uninterrupted possession and the prescriptive period does not operate to a party’s claim for ownership.” …

The case of, Oertel NNO v Director of Local Government 1981 (4) SA 491 (T) at 492 which was heavily relied upon by the court in Ndlovu case supra, it was held that:

“…Whilst every debt encompasses an obligation not every obligation constitutes a debt for the purposes of the Prescription Act.”

What is worth noting is that, these and many other cases except the Ndlovu and NASSA cases above, which this court had the liberty of consulting, dealing with the thorny issue of the prescription and declaratory order, did not per se pronounce themselves in definite terms on whether or not a declaratory order prescribes in dismissing the defence of prescription, but relied on the contextual base of each case. A closer analysis of the, Wireless, Ranch, Oertel NNO and even, the Ndlovu case itself, reveals that the courts decided in favour of long-established possessory rights which they concluded were immune to prescription given the cumulative surrounding factors of each individual case.

The authority cited by the 6th Defendant, as already observed, a more recent judgment by MAXWELL J, Nguluwe v Dewa HH387/23 did not shed much light by elaborating on why a declaratory claim prescribes. However, JUSTICE CHIGUMBA, in the case of Chiparaudze and 66 Others v Triangle Limited & Others HH196/15, in the context of the dispute then before her pronounced that prescription applies, as much to a declaratur as it does to an interdict after a thorough and detailed analysis of all relevant governing legal tenets on that subject.

In my considered view, in casu, the plaintiff’s claim is founded on a debt which fits the description in section 15 of the Prescription Act [Chapter 8:11]. It arose from the purchase of an immovable property. It suffices to conclude that, the sale transaction is a contractual obligation falling under the definition of a debt advanced in the Prescription Act. Therefore, it prescribes.

Thus, whether a declaratory order prescribes or not is context specific. This is evidenced by the approaches taken in the Ranch, Oertel ONN, Ndlovu and Wireless cases above. They were content and claim specific. In our jurisdiction, the term debt has had a wider and broader construction which encompasses anything that can be sued for or claimed by reason of an obligation from statute, contract, delict or otherwise. See, Jennifer Nan Brooker vs Mudhanda and Anor: Pierce v Richard Mudhanda and Anor above.”

[34]	In the other previous case of Kadira NO v Nhemwa NO. & Ors HH 592/23, the court, per muchawa J, had stated briefly as follows:

“On the question of prescription, I found as follows;

“In casu, the application is based on the fact that the sale is null and void ab initio on account of the sale of estate property which was never declared by the then executor as estate property in the inventory having been sold without the Master’s authority and the proceeds of the sale not having been accounted for. Further an illegality flows from the nonpayment of the 4% Master’s fees and estate duty if applicable.”

This, in my considered opinion, is not a case where the Prescription Act would be applicable as alleged. I find no merit in this point in limine too.”

[35]	A clear reading of the case of Masamba (supra) and all the cases from this court cited therein in support of the court’s findings, as well as the Kadira case (supra), would show that the court was not alive to the decision of the Supreme Court in Syfin (supra). tsanga J in Dhliwayo (supra) was. If the court in those other cases, including in Masamba (supra), was alerted to the position set out in Syfin, it would certainly not have made those decisions. The Syfin case, being a Supreme Court authority, had already settled the law that no matter the given circumstances, a claim for a declaratory order or for a declaration of rights falls within the definition of a debt as “anything that can be sued for”.

[36]	It is an accepted principle of the law that courts are bound by the decisions of the superior courts and that courts will follow their own previous decisions unless they are clearly wrong. See R v Faithfull and Gray 1907 TS 1081; Fellner v Minister of Interior 1954 (4) SA 523 (A) at 542B and National Clemsearch (SA) v Borrowman & Anor 1979(3) SA 1092(T) at 1101. In R v Faithfull & Gray (supra), solomon J said:

“Of course, in ordinary circumstances the court will abide by its decisions; stare decisis is a good rule to follow. But where a court is satisfied that its previous decision was wrong, and more particularly where the point was not argued, then I think it is not only competent for the court, but it is its duty in such a case not to abide by its previous decision, but to overrule it.” (my emphasis)

See also Harris v Minister of Interior 1952 (2) SA 471 (A).

[37]	In casu, considering the position set out in Syfin, with respect, the decisions in Masamba and Kadira and all the other decisions of this court contradicting the legal position affirmed by the superior court are wrong. They ought not to be followed. With respect, the issue is not open for any debate in this court anymore. It is trite that once the Supreme Court has spoken, its opinion or decision is final except in relation to constitutional matters. Its decisions are binding on all courts except the Supreme Court itself, and its decision on a non-constitutional matter cannot be altered by any court. See Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CCZ 11/18. The same legal position was restated in Shah v Nherera SC 55/24, where chatukuta JA said:

“26. The Supreme Court had spoken. Decisions of this Court are absolute as the Supreme Court is the final court of appeal in all matters, except in matters of a constitutional nature.  The court in Kasukuwere v Mangwana SC 78/23, at p 17, quoted with approval the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ) at 757 A wherein it was held that:

“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct.

The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.”

27. The Supreme Court decision, being final, was correct. Because of the principle of stare decisis, the decision was binding on the court a quo. The principle of stare decisis is that a lower court cannot depart from findings on questions of fact and law made by a superior court. See Denhere v Denhere & Anor CCZ 9/19, Diana Farm (Pvt) Ltd v Madondo NO & Anor 1998 (2) ZLR 410 (H).” (my emphasis)

[38]	In light of the Supreme Court decision in Syfin, which is a binding authority, I have no option but to reject the argument by Mr Chikore that the defence of prescription does not arise in an application for a declaratory order of the nature sought by the applicant. It is a legally competent defence in any application for a declaratur, no matter the specific circumstances of the case and if upheld, can dispose of the matter without the court having to consider the merits. I agree with Mr Muchadehama that the Syfin case resolved the issue and that the said contrary decisions of this court are not helpful. They cannot assist the applicant’s case.

[39]	Having held that the special plea of prescription can be raised as a complete defence to an application of this nature, I will now proceed to determine whether, in this case, the applicant’s claim has prescribed. There is no doubt that the prescription period applicable in this case is three (3) years. It is settled law that to determine whether the claim has prescribed, the court must make a finding on the cause of action upon which the litigant’s claim is based and when that cause of action specifically arose. Thus, in Mudhanda v Van Brooker & Anor SC 5-18 at p 4, gowora JA (as she then was) stated:

“In order to determine the question of prescription, the court first had to make a finding on the cause of action upon which the respondent’s claim was premised and when specifically the cause of action arose. What constitutes ‘a cause of action’ was described in Abrahams & Sons v SA Railways and Harbours 1933 CPD 626. At 637 watermeyer J stated:

“The proper meaning of the expression ‘cause of action’ is the entire set of facts which gives rise to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action.”

[40]	It is also trite that prescription begins to run from the date the debt becomes due. Thus s 16(3) of the Prescription Act reads:

“A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises.”

The above legal position was also affirmed in Chirinda v Van der Merwe & Anor HH 51/13, where it was held:

“It is therefore trite that prescription runs from the date that a debt becomes due. A debt becomes due when the creditor becomes aware of the identity of the debtor and the facts giving rise to the cause of action. The cause of action in any action or claim is the entire set of facts which give rise to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim.”

[41]	In casu, the applicant’s cause of action is founded on what he alleged was the unlawful repossession and reallocation of his stand, an act done by the first and second respondents. He seeks to impugn the said respondents’ conduct as not done procedurally or without notice, and without complying with the requirements of the Urban Councils Act and the lease agreement before the stand was repossessed. He further averred that the subsequent reallocation and sale of the same property to the fourth respondent, being based on the alleged illegality, was consequently a nullity. The question is when did he become aware of the full facts, founding his claim for a declaratory order? The issue is easily resolved by the applicant’s own admissions. The applicant admitted that he became aware of the full facts of the illegal conduct or actions by the second respondent when he was served in May 2021 with a letter dated 20 May 2021. The letter was in response to his enquiries through his then legal practitioner. The letter sent to his erstwhile legal practitioners from Council, at p 11, reads:

“DATE:   20 May 2021

Mr C Mutandwa

Machinga Mutandwa Legal Practitioners

44 Freeday Drive

Eastlea

Harare

Dear Sir

RE: STAND NUMBER 8505 ST MARYS CHITUNGWIZA

We make reference to your letter of instant in connection with the above issue.

Kindly be advised that the stand was offered to Nyasha Muchesa on 3 June 2009. The stand was repossessed for failure to develop in 2016 (See attached letter and adverts). That stand was again re-allocated to Peyama Investments who sold the same to Elijah T Dube who happens to be the current owner according to our records.

Yours faithfully

M MASHIRI

For ACTING TOWN CLERK

Acknowledgments

…”

[42]	The above letter was duly stamped by Council and dated 20 May 2021. There is also a written endorsement by the applicant’s then legal practitioner, Caleb Mutandwa acknowledging receipt of the letter. The date of service is the same day, 20 May 2021. Mr Mutandwa further provided his National Identity and Cell numbers and signed the copy on the said date. There is no doubt, therefore, that the letter was served on the applicant, through his legal practitioner, on 20 May 2021. The applicant also admitted having received that letter on the said date. In para (i) of his founding affidavit, the applicant admitted that he became aware of the correct position that his stand had been repossessed and reallocated upon service of that letter in 2021. It is trite that an admission is binding on the party who makes it, and once made, it shall not be necessary or be required to prove any fact admitted or lead any evidence to contradict the admitted fact on record. See s 36 of the Civil Evidence Act [Chapter 8:01]

[43]	In Manyenga v Petrozim (Pvt) Ltd SC 40/23, the Supreme Court also outlined the law on the effect of an admission by a party in the following words:

“32. The effect of an admission has been held to be the following in the case of Potato Seed Production (Proprietary) Ltd v Princewood Enterprises (Pvt) Ltd & Ors HH 45-17 at p 4;

“Indeed, the effect of an admission is settled law. Once made it binds its maker with the attendant consequences see Kettex Holdings P/L v S Kencor Management Services P/L HH 236-15.”

33. The consequences of making an admission which is not withdrawn is that it will not be necessary to prove the admitted fact(s): Adler v Elliot 1988 (2) ZLR 283 (S) at 288C. In addition, this Court, in the case of Mashoko v Mashoko & Ors SC 114-22, held that:

“The law on admissions in pleadings and indeed in evidence, is also settled. A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party would have made. By equal measure, a party is not permitted to attempt to disprove admissions made.”

[44]	In this case, by his own admission, buttressed by Annexure “A” of the applicant’s own founding affidavit, the applicant clearly became aware of the identity of the debtor and the full facts upon which the debt arose on 20 May 2021. The cause of action fully crystallised on that date. Prescription accordingly began to run from that date. By a simple calculation, 3 years from 20 May 2021 lapsed midnight on 20 May 2024. The claim prescribed on 20 May 2024, and the applicant’s right to seek the declaratory order sought in casu was completely extinguished by operation of the law.

[45]	While at the hearing, Mr Chikore reformulated his case and turned to the argument that prescription was inapplicable; he had argued all along that he filed the court application in the Commercial Division, and the impression given in the applicant’s papers was that there was also judicial interruption. It is settled law that the onus is on the defendant to show that the claim has prescribed, but if the plaintiff alleges that prescription has been interrupted or waived, the onus shifts back to the plaintiff to prove interruption or waiver: Van Brooker v Mudhanda & Anor: Pierce v Mudhanda & Anor SC 5/18. The Act is very clear that judicial interruption arises upon service of the process instituting proceedings, but where the claim is not prosecuted successfully to finality, prescription shall not be deemed to have been interrupted. Thus s 19(3)(a) states as follows:

“(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)	…” (my emphasis)

[46]	The applicant instituted a similar application in the Commercial Division on 18 August 2023. It is common cause that the application was struck off the roll. It was not successfully prosecuted to finality. The applicant proceeded to lodge this application on 18 March 2025. Given that the application was previously unsuccessful as it was struck off the roll and withdrawn as alluded to by the applicant, there is no judicial interruption of the running of prescription to talk about in this case. Prescription ran its course, and the applicant’s claim lapsed on 20 May 2024. It is not in dispute that this court application was served on all the respondents on 5 May 2025, save for the fifth respondent, who was served on 6 May 2025. By the time the application was filed and even served, the cause of action had long prescribed in terms of the law.

[47]	There was an attempt in the applicant’s founding affidavit to explain the delay in taking action, linking it to COVID-19 travel restrictions. Unfortunately, that cannot assist the applicant. The Prescription Act does not give the court any discretion. Once the special plea is established, the court must simply uphold it. Equity does not arise or come into consideration. Thus, extinctive prescription makes the right unenforceable simply due to the lapse of time. Further, the court does not consider the merits of the case. It is, therefore, trite that the defence of prescription has nothing to do with the merits. No matter that a party has a good case on the merits, once the claim has prescribed, the court must uphold the defence and dismiss the matter. Accordingly, if successful, a party may even keep its ill-gotten gains. This position was affirmed in John Conradie Trust (supra), where bhunu JA had this to say:

“Once prescription has run its course it deprives the aggrieved party of the remedy or relief sought regardless of whether or not one has a valid claim on the merits. Thus, an owner forfeits his right to vindicate his property once prescription has run its full course as happened in this case. The nature of the defence is that it even allows a litigant at fault to keep his ill-gotten gains.

Prescription does not deal with the merits. It simply seeks to extinguish old stale debts not claimed within the prescribed time limits. The rationale for prescription was amply captured by the learned trial judge where he quotes Wessels in The Law of Contracts in South Africa, Vol. II para 2766 where the learned author says:

“Creditors should not be allowed to permit claims to grow stale because thereby they embarrass the debtor in his proof of payment and because it is upsetting to the social order that the financial relations of the debtor towards third parties should suddenly be disturbed by the demanding from him payment of forgotten claims.” (my emphasis)

[48]	In the premises, the argument about the impugned conduct being alleged to be illegal for the failure to comply with the provisions of the Urban Councils Act in the repossession of the stand by the second respondent was one on the merits of the case. It was the applicant’s own position related to the merits which was being challenged by the respondents. The defence of prescription does not deal with the merits of the matter. Mr Muchadehama did not resist the temptation to argue on the merits also when he made submissions relating to the dispute being contractual and that there was nothing illegal to cancel a contract. He too strayed unnecessarily into the merits of the dispute. Those arguments were, therefore, irrelevant to the determination of the issue before me. The cause of action having prescribed on 20 May 2024, the application can only be dismissed.

COSTS

[49]	Mr Muchadehama and Mr Hwititi submitted that the application ought to be dismissed with costs on a legal practitioner and client scale. Mr Muchadehama submitted that the application is an abuse of court process. He argued that the issue of prescription was raised in the notice of opposition, and the applicant had no answer. It was further argued in the heads of argument, and the applicant’s counsel stubbornly persisted with the case. It was also raised with Mr Chikore before the court session began, but he persisted. Mr Chikore did not address me on the issue of the costs, particularly sought against the applicant on a punitive scale. It is a settled principle that costs are within the discretion of the court. Generally, costs follow the cause. In casu, there is no reason to depart from that rule.

[50]	As for costs on a legal practitioner and client scale, it is trite that they are awarded in exceptional cases where the conduct of the losing party or the circumstances of the matter warrant such an order. See Nel v Waterberg Landbouwers Ko-operative Vereeniging 1946 AD 597 at 607, where the court said:

“The true explanation of awards of attorney and client costs not authorized by statute seems to be that, by reason of special considerations arising either from the circumstances which give rise to the action or from the conduct of the losing party, the courts in case considers it just, by means of such order, to ensure more effective than it can do by means of judgment for party and party costs that the successful party will not be out of pocket in respect of the expenses caused to him by the litigation .” (my emphasis)

The law on costs was also restated in Dongo v Naik & Ors SC 52/20 at p.11, where the Supreme Court stated:

“It is settled law that costs are at the discretion of the court. The award can only be set aside where the discretion was not exercised judiciously.  It is also settled that costs on a higher scale are granted in exceptional circumstances. The grounds upon which the court would be justified to make an award for costs on a legal practitioner and client scale include dishonest or malicious conduct, and vexatious, reckless or frivolous proceedings by and on the part of the litigant concerned.” (my emphasis)

[51]	The evidence shows that the applicant persisted with a claim absolutely indefensible on the ground of prescription. The applicant himself admitted that he became aware of the facts constituting the cause of action as long back as 20 May 2021. He also admitted that his application filed in the Commercial Division was not successfully prosecuted. It was struck off the roll. There was no judicial interruption, even to seek to cling to. Mr Chikore had to perform a volte-face at the hearing when he reformulated his argument, seeking to argue now that prescription did not apply. Outside that new position, which was unsustainable too, he could not advance any other or motivate his client’s case as had been pleaded. He was simply stuck and resorted to clinging to anything he could find in a desperate attempt to wriggle out of the defence of prescription, which was unavoidable.

[52]	Given the benefit he had of the Supreme Court authority of Syfin, which was very clear that no matter the given circumstances, the claim for a declaration of rights is a debt and prescribe in terms of the Act, he could not have unreasonably and stubbornly persisted with the case, which had long prescribed. The point was raised in the notice of opposition, and the facts supporting it were admitted by the applicant. Mr Muchadehama submitted that before the court session, Mr Chikore was again duly advised of the futility of the applicant’s case in the light of the Syfin case and the admissions made. He stubbornly argued on the issue where the law was settled by the Supreme Court. It was simply a waste of the court’s time, which ought to have been used for worthy causes. There was, in my view, abuse of court process.

[53]	The special plea of prescription was unassailable, and for wasting the court’s time, the applicant ought to be penalised with costs on a punitive scale.  Litigants and legal practitioners must not abuse the court process. A legal practitioner, as an officer of the court, also owes a duty to the court not to be complicit in instituting proceedings which amount to an abuse of court process. Such conduct justifies an award of costs on a legal practitioner and client scale. See Selex ES p.A v State Procurement Board & Ors SC 45/16 at pp 9-10. The respondents have been put out of pocket unnecessarily. Costs on a legal practitioner and client scale were warranted in the circumstances.

DISPOSITION

[54]	The law was settled by the Supreme Court in Syfin (supra) that a claim for a declaration of rights in any given set of circumstances constitutes a debt in terms of s 2 of the Prescription Act. It accordingly prescribes. The application fell to be governed by the prescriptive period of 3 years. The respondents established that the applicant’s cause of action or claim prescribed on 20 May 2024 after the lapse of 3 years from the date the cause of action arose. The facts establishing the special plea were admitted by the applicant and, therefore, common cause. The applicant, on the other hand, also failed to show that the running of prescription was interrupted by any judicial process.

[55]	Prescription has run its course, making this application legally unsustainable. The special plea of prescription must be upheld. There are no equities involved, and this court has no discretion where the special plea is established. It must dismiss the application. Whether or not a party has a good case on the merits is irrelevant.

[56]	The court accordingly entered the judgment as stated above.

DEMBURE J:   ………………………………………………

Chikore & Chigwaza Law Chambers, applicant’s legal practitioners

Mbidzo Muchadehama & Makoni, first and second respondents’ legal practitioners

Jackson Legal Practice, fourth respondent’s legal practitioners