Sikanyisiwe Phiri v Brighton Ndone and Simangaliso Murungi and Edmore Makonese and Legion Majahanda and Registrar of Deeds and NMB Bank and The Registrar General

### Preamble
1
HH 486-25
HC 4367/21
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SIKANYISIWE PHIRI

versus

BRIGHTON NDONE

and

SIMANGALISO MURUNGI

and

EDMORE MAKONESE

and

LEGION MAJAHANDA

and

REGISTRAR OF DEEDS

and

NMB BANK

and

THE REGISTRAR GENERAL

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE; 29 August 2025

Civil Trial- Special Plea

M T Nhleya and M D Mudiwa, for plaintiff

N Karimatsenga with K Ngove, for 4th and 5th Defendants

CHITAPI J: The parties are as cited in the heading above.  The brief summarized facts are that the plaintiff was under deed of transfer NO 4498/98 dated 12 October, 1998 the registered owner of an immovable property called Stand 189 Matsheumlope Bulawayo.  It was averred by the plaintiff that the deed of transfer aforesaid had a typographical error in the spelling of the name of the plaintiff and a wrong date of birth capture.  These issues which can be corrected are not material to the interlocutory matter before me which is to decide on two legal issues.  The first is whether a declaratur as a cause of action of action under s 14 of the High Court [Chapter 7:06] prescribes and secondly whether the plea of prescription has therefore been validly taken.

The plaintiff pleaded that she discovered in April, 2015 that owners’ charges bills were no longer being delivered to the property.  Upon enquiry with the local authority, Bulawayo Municipality, the plaintiff discovered that her property had been transferred under deed of transfer No 715/15 dated 29 April 2015 to the fourth and fifth defendants fraudulently as she alleged. She averred that she never alienated her property to anyone.  The property was further mortgaged to NMB Bank by the fifth and sixth defendants.  The plaintiff averred that she previously filed an application under Case No HC 1824/17 to vindicate her deed of transfer but withdrew the same when material disputes of fact surfaced.  It is not stated as to when the Case No HC 1824/17 was filed.  Again, the date of doing so is of no great moment regard being had to the issues I must determine.  The plaintiff then filed the claim in casu on 1 September, 2021 claiming the following relief as set out in the prayer to the declaration.

“WHEREFORE plaintiff prays for an order

3.1	Declaring Plaintiff in her personal capacity as the recognized owner of Stand Number 189 Matsheuhlope, Bulawayo registered under deed of transfer No 4490/98

3.2	Declaring Deed of Transfer number 715/15 dated 29 April made in favour of the fourth and fifth Defendant 2015 null and void.

3.3	Cancelling and reversing the fraudulent transfer of Plaintiffs property made in favour of the fourth and fifth Defendants 2015 (sic) under Deed of Transfer 715/15.

3.4	Declaring that Deed of Transfer No 4490/98 registered in the Plaintiff’s name be and is hereby revived.

3.5	The party opposing this action be and is hereby ordered to pay costs of such on an attorney- client scale.”

The fourth and fifth Defendants filed a combined plea in which they pleaded prescription.  In particular they pleaded as follows:

“THE  PLAINTIFF CLAIM IS PRESCRIBED

The cause of action arises in 2015 when he (sic) allegedly discovered that the property which is the subject of these proceedings had been transferred to the names of the fourth and fifth Defendants and she allegedly knew that the second and third Defendants had no authority from her to sell and transfer the property on her behalf

According in terms of  s 15(d) of the prescription Act [Chapter 8:11] her claim is now prescribed after the expiry of three years from the date in which the cause of action arose.

WHEREFORE fourth and fifth Defendants pray that the special plea be upheld with costs and that the Plaintiff’s claim be dismissed with cost at attorney and client scale.”

Upon the above plea, the question whether a declaration is subject to the defence of prescription in terms of s 15(d) of the Prescription Act [Chapter 8:11] arose.

Section 15 (d) provides that the period of prescription for “any other debt” is three years.  Any other debt refers to those debts which are not listed in s 15(a), (b) and (c).  The Act refers to a debt as a subject matter of prescription.  It is therefore necessary to understand from the Prescription Act what a debt is defined as.  In s 2 of the Act it is defined as

“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.”

What is key in the definition are the following

The act does not limit the definition of the word debt

Debt includes anything (own underlining) which can be sued for or claimed.

That anything which can be sued for or claimed must have arisen by reason of an obligation arising from statute, contract, delict or otherwise

The keyword in understanding the definition of the word debt other than as listed in the definition is that at all times the reason for the debt should arise from an obligation.  In other words the defendants or respondent as the case way be, the latter in the case of say, a counter claim must base his or her claim upon an obligation due to the claimant or upon which the claimant may lawfully sue on or claim.  A legal obligation in simple terms is a legal duty in terms of which a person is bound to do or refrain from doing a certain thing.

Section 14 of the High Court Act provides for the court’s power to issue a declaration.  It provides as follows:

“The High Court may in its discretion at the instance of any interested person inquire into and determine any existing; future or contingent right or obligation notwithstanding that such person cannot claim any relief consequential upon such determination”

In my interpretation of the s 14, the declaratur envisaged must relate to

any existing right, or

any future right, or

any contingent right, or

any obligation.

To the extent that s 15 of the Prescription Act refers to an “obligation”, then in my view a declaration which is sought must relate in that context to an obligation being sought to be declared. Such a claim should with respect be subject to prescription. From my reasoning as aforesaid it follows that if the declaration sought is for the court to declare an existing, future or contingent right, such claims are not included as falling for prescription under s 15 of the Prescription Act. I therefore must answer the question “Does a declaratur prescribe?” by holding that, yes, it is subject to prescription where the reason for seeking it is for the court to declare an obligation arising from statute, contract, delict or otherwise,” For the rest and specifically in regard to existing, future or contingent rights, a declaratur does not prescribe. Such extra claims are excluded from the operation and application of the Prescription Act.

In the case of Jasper Dhliwayo and Ors v Bere N.O and Ors H 164/24 Tsanga J relying on the judgement in Ndlovu v Ndlovu 2013 (1) ZLR 110 per Ndou J  noted that a declaratory order was not a debt which prescribes as envisaged in the Prescription Act because it is a remedy which secures certainty over or corrects a legal position.  In that case the applicant’s son sold the applicant’s house using a forged power of attorney.  The court noted that the alleged sale was null and void ab antio which meant that nothing could stand on a nullity.  No obligation could arise from the sale.

The learned judge further referred to the case of Oertel and Ors v Director of Local Government 1981(2) SA 477 (T) at 492 (also quoted by Ndou J in the case (supra) wherein it is stated:

“Public rights are excluded from the operation of the Prescription Act and “debt” in the Act must be necessarily restricted to such claims as have arisen in the field of private law.  Whilst every debt encompasses an obligation, not every obligation constitutes a debt for purposes of the Prescription Act.

In her analysis the learned judge referred to the Supreme Court decision in Syfin Holding Ltd v Pickering 1982 (1) ZLR 10  (SC) where Georges JA stated of and interpreting the meaning of debt under the Prescription Act that the definition of debt, is “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise “ was” clearly broad enough to include claims for specific performance or for declarations of rights in relation to any given set of circumstances”  see Mupfumisa v Infrastructure Development Bank of Zimbabwe HH 353/19.

The learned judge reasoned further and I am in agreement with her that the substance of the claim that gives rise to prescription  is the starting point.  If upon examining the nature of the claim, it emerges that it is one which could have been resolved through prescribed channels then prescription time limits must apply.  My view therefore becomes that where the underlining cause is a nullity, that is a fraudulent and therefore illegal sale, then there is a nothing which arises from those circumstances and prescription cannot run upon a nothing.  I do not read this interpretation to contradict the Syfin Holdings dicta of Georges JA because the reference to “any given circumstances” must of necessity refer to a transaction or circumstances that the court can give recognition to.  Thus, where the circumstances if they be so called are in the eyes of the court a nullity or a nothing to see, prescription cannot run on nothing.

To answer the question whether a declaration is subject to prescription, the answer cannot be a blanket yes or no.  It all depends on the circumstances of each case and in particular the causa itself.  The causa must not be one which the court does not see for nullity.  The dicta of LORD DENNING in the case of Mcfoy v United Africa Company Limited 1961 93 All ER 1169 and as quoted with approval in the case of Yubin Lin v Revai Gutu v Barbra Cook and 4 ors SC 31/23 is apposite wherein Chiweshe JA stated at page 4 of cyclostyled judgement thus,

“A forged will is a nullity and so is everything done in its name.  It cannot be executed.  That is the public policy of Zimbabwe.  We agree with the first respondent when she submits that a nullity begets a nullity. Her counsel correctly referred us to the case of Tamanikwa and Anor v Zimdef and Anor SC73/17 wherein at p 6 the court stated.

“ The authorities are clear and it is now a matter of settled elementary law that when a proceeding is a nullity, every proceeding based on it is also a nullity as observed by Korsah J in Ngavi v Mbruye and Anor 1987 (2) ZLR III at p 115 where the learned judge relying on the dicta in McFoy v United Africa Company Ltd All ER 1169 remarked- if an act is in law a nullity it is not only bad but incurably bad.  There is no need for the order of court to set it aside, It is automatically null and void without more ado though it is sometimes more convenient to do so.  And every proceeding founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there. It will collapse”.

It follows in my view that a declaratur will not prescribe where the underlying causa is a nullity.

The second issue I was required to decide was whether the plea of prescription has been properly taken in this matter.  The answer is, it has not been properly taken because the underlying cause being the sale of the plaintiff’s house fraudulently would if that fact is established be a nullity.  Since a nullity is a nothing, prescription cannot completely be raised to a nullity.

Accordingly, I grant the following answer

Whether or not a declaration prescribes is determined by an examination of the causa.  Where the causa is a nullity, prescription does not kick in.

The defendant’s plea in casu is not properly taken bearing in mind the causa which arises from an alleged sale and transfer of the plaintiff’s immovable property without her consent

The Registrar shall enroll the matter for case management before the presiding judge for interrogation of the way forward to dispose of this matter.

Costs are reserved.

Chitapi J:........................................................................

Dube and others, applicant legal practitioners

Mangeyi Law Chamber, fourth and fifth legal Practitioners