Brian Nyakuba (in his capacity as Executor and heir of Estate late Elias Zuze DNY w/05/16) v Givemore Renzva

### Preamble
1
HMT 26/22
HC 264/19
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BRIAN NYAKUBA (in his capacity as Executor and heir of

Estate late Elias Zuze DNY w/05/16)

versus

GIVEMORE RENZVA

HIGH COURT OF ZIMBABWE

WAMAMBO J

MUTARE, 6 September 2021 and 6 July 2022

Civil Trial

V Chinzamba, for the plaintiff

L Madhuku, for the defendant

WAMAMBO J:  This matter was set down for trial to commence on 6 September 2021.  Counsel for the defendant rose and informed me that he intended to raise an additional preliminary point.  The issue relates to what he termed the purported amendment of summons.  Both counsel proposed to file supplementary heads of argument.  In plaintiff’s supplementary heads of argument besides the amendment of summons and declaration issue he made additional submissions as regards the issue raised as early as the defendant’s plea, the issue of prescription.

The background is that plaintiff is an executor and heir to his father Elias Zuze’s estate.

Defendant and Elias Zuze were members of a mining syndicate called Chisero Mining Syndicate. There are conflicts and disagreements that arose as regards the mining arrangements and accountability.  To that end plaintiff made the instant application seeking the eviction of defendant and all those claiming through him from Shaft ‘A’ at Chisero Mining Syndicate.

The special plea of prescription is predicated upon the following:

Elias Zuze died in 2005.   Plaintiff alleges that defendant only took over the mine after Elias Zuze’s death.  Thus the cause of action arose in 2005.  More than three years have elapsed between 2005 and the issuance of summons in this case in September 2019.

According to s 6 (1)(c) of the Prescription Act [Chapter 8:11] the completion of prescription is only delayed if it began to run against deceased before his death.

The defendant makes the following point in para (s) 17 to 18 of the supplementary heads of argument:-

“17. Section 6 (1)(c) of the Prescription Act [Chapter 8:11] only applies to delay prescription  against a deceased estate when then prescription would have begun to run against the deceased before his death.  This is because of the use of the words ’the person’ at the beginning of para C.  The words used in the heading of s 6, in particular the words “completion” and delayed are also indicative of this legal position.  The word “completion” means the process (the running of prescription) had already commenced but is delayed by the event in para C (death).  In other words s 6 (1)(c)  of the  Prescription Act only arises when a person dies before the completion of prescription.  It comes in to delay prescription from continuing notwithstanding the death of the person”.

18. Section 6 (1)(c) of the Prescription Act does not apply to delay prescription where it is sought to be applied from the start, as is sought to be done here.”

Plaintiff on the other hand is of the view that the matter never prescribed.  His submissions on the issue are as follows:

Section 6 (1)(c) of the Prescription Act  provides that completion of prescription can be delayed if the person against whom or in favour of whom prescription is running is deceased and an executor of the estate in question has not yet been appointed.

Prescription in the instant case was delayed pending the registration of the estate.  The estate was registered in May 2017 and prescription only began to run from that time.

Section 16(1) of the Prescription Act provides that prescription starts to run as soon as a debt becomes due.  In this matter the claim became due after the registration of the estate in May 2017.  Before May 2017 the estate could not sue as it was not aware of the claims arising from the estate.

In the supplementary heads of argument plaintiff at para2 thereof takes the following position:-

“2 The point taken in relation to prescription is of no moment.  The relevant statutory position is clear in its unambiguous language that completion is delayed against, a deceased person to whom it was running in favour or against at the time of his death and will resume running and complete upon the appointed of an executor.  The ordinary grammatical meaning does not to any absurdity (sic) thus the  contentions of the defendant are clearly specious and the court is invited to adopt the ordinary, literal grammatical meaning of s 6 (1)(c) of the Prescription Act [Chapter 8:11].”

Section 6 (1) of the Prescription Act [Chapter 8:11] provides as follows:-

6. When completion of prescription is delayed.

(1) If …..

the person against whom the prescription is running is a minor or insane or is a woman whose property is controlled by her husband by virtue of marital power or is a person under curatorship or is a person whose behavior or physical or mental condition justifies his being placed under curatorship or who is prevented by superior forces or any enactment or order of court from interrupting the running of prescription in terms of section seven or ;

the person in favour of whom the prescription is running is outside Zimbabwe or is married to the person against whom the prescription is running or is a member of the governing body of a juristic person against whom the prescription is running; or

the person against whom or in favour of whom the prescription is running is deceased and an executor of the estate in question has not yet been appointed and the period of prescription would but for this subsection, be completed before or on, or within three years after the date on which the relevant impediment referred to in paragraph (a) (b) or (c) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of three years which follows that date”.

Section 16 of the Prescription Act is also relevant.  It prescribes when prescription begins to run in the following terms;

“16 When prescription begins to run

subject to subsections (2) and (3) prescription shall commence  to run  as soon as a debt is due.

If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of a debt.

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

Provided that a creditor shall be deemed to have become aware of such identity and such fact if he could have acquired knowledge thereof by exercising reasonable care”

In my analysis I will consider the aforementioned provisions of the Prescription Act.

The plaintiff’s declaration makes it clear that the cause of action arose after Elias Zuze’s death.  That is the period when plaintiff demanded defendant to close operations and vacate shaft ’A’ Plaintiff does not resist defendant’s claim that Elias Zuze died in 2005.

From my reading of the file the debt thus became due in 2005.  There is nowhere in the pleadings where it is mentioned or insinuated that the debt became due during Elias Zuze’s lifetime.  If the debt had become due during Elias Zuze’s lifetime then it could be interrupted by the appointment of an Executor.

In the instant matter I find that the interpretation placed upon s 6 (1)(c) of the Prescription Act [Chapter 8:11] by the defendant is correct.

In Jimmy Gazi v Mbalabala Properties HB 16/22 kabasa J citing from various case law said the following at p 10.

“In Read v Brown (1888) 22 QBD 128(CA) at 131, a cause of action was defined as follows:-

A cause of action is every fact that it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment of the court.  It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.  And in Lyon v SA Railways and Harbours 1930 CPD 276 at 285 Watermeyer J  averted the meaning ascribed to the phrase in Jackson v Spittaly 1970 LR 5 CP 542) as that particular act on the part of the defendant which gives plaintiff his cause of complaint” and added that he-

“…. would have preferred to call it the final cut on the part of the defendant which completes the plaintiff’s cause of action and gives him a right to involve the aid of the court”.

The learned Judge continued as follows:-

“In Brooker v Mudhanda and Another SC 5-18 Gowora JA had this to say:-

“At issue before the court a quo was whether or not the claims mounted against the appellants by the respondent had prescribed. The party who alleges prescription must allege and prove the inception of the period of prescription.  Generally prescription starts to run as soon as the debt becomes due.

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 prescribed and when specifically the cause of action arose”.

I have made specific findings on the cause of action and when it arose and find that prescription was not interrupted in terms of s 6 (1)(c) of the Prescription Act [Chapter 8:11].

I therefore find that plaintiff’s claim has prescribed.

In the circumstance I find it unnecessary to consider the other points in limine as my findings on prescription disposes of the matter.

I therefore order as follows:

The plaintiff’s claim having prescribed it be and is hereby dismissed.

The plaintiff shall pay the defendant’s costs.

Mugadza Chinzamba & Partners, plaintiff’s legal practitioners

Chatsanga & Partners, defendant’s legal practitioners