Vincent Tendayi v Twenty Third Century Systems (Private) Limited

### Preamble
Judgment No. SC 135/20
1
Civil Appeal No. SC 60/18
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REPORTABLE		(126)

VINCENT     TENDAYI

v

TWENTY     THIRD     CENTURY     SYSTEMS     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GOWORA JA, MAKONI JA & BERE JA

HARARE: OCTOBER 18, 2018

F Girach, for the appellant

T Mpofu, for the respondent

GOWORA JA:

[1]	This appeal is against part of the judgment of the High Court upholding a plea of prescription.  After perusing the documents filed of record in this matter, it was the unanimous view of the court that the appeal had merit. Accordingly an order was issued in the following terms:

IT IS ORDERED AS FOLLOWS:

The appeal be and is hereby allowed with costs.

The decision of the court a quo upholding the respondent’s special plea of prescription with an order of costs be and is hereby set aside.

The matter be and is hereby remitted to the court a quo for trial.

FACTUAL BACKGROUND

[2]	In August 2014, the appellant issued summons against the respondent out of the High Court. In the summons aforesaid the appellant’s claim was for the payment of the sum of USD 288 350.00 being money lent and advanced to the respondent sometime in November 2010. Attached to the summons was a copy of the loan agreement allegedly entered into by and between the parties.

[3]	The respondent pleaded to the summons.  Firstly, it pleaded that the contract attached to the summons was void or voidable on the premise that there were no clear or agreed terms and, further that the contract failed to identify the parties to the contract. In the alternative, it pleaded that to the extent that the contract was valid, it denied that any money had been loaned and advanced to it as alleged. It also denied the existence of a written agreement. It also pleaded that it never at any time acknowledged liability for any of the sums being claimed.

[4]	A pre-trial conference was held before a judge in chambers and the matter was referred to trial on two issues, how much was due and owing to the plaintiff, and whether the document attached to the summons was valid.

THE PROCEEDINGS IN THE COURT A QUO

[5]     On 23 June 2016, the date of trial, the respondent filed a special plea in which it raised a plea of prescription. It also filed an application for the striking out of paras 3 to 6 of the plaintiff’s declaration. The court gave leave to the parties to file submissions in support of the application and the opposition thereto. On 9 November 2016, the court rendered its judgment in which it upheld the special plea of prescription with the appellant paying costs. It dismissed the application to strike out paragraphs of the declaration.  The pertinent portion of the judgment which sets out in clear terms the procedure adopted by the court a quo in disposing of the plea of prescription reads as follows:

“The submission made on behalf of the defendant (applicant) that the alleged admission of liability on 25 June 2012 did not interrupt prescription were vigorously opposed by the plaintiff (respondent). The applicant contended that the e-mail in question did not contain an admission by the defendant of liability to pay to the plaintiff the sum claimed in the summons. Rather, it makes reference to an interest component of USD$35 000.00. There is no co-relation to that e-mail and the plaintiff’s claim in terms of the summons. The submission made is that the plaintiff fails to discharge the onus on him to show that the admission for liability in the sum of USD$35 000.00 for interest is an admission for liability for the claim in terms of the summons. For the applicable test on onus, or the burden of proof see MB Investments (Pvt) Ltd & Partners. We accept the submissions made on behalf of the plaintiff that further particulars form part of the pleadings and that the court must take cognizance of them and construe the plaintiff’s declaration as amplified and read together with them. See Chauvier & Ors v Pelical Pools (Pty) Ltd 1992 (2) SA 39, Armitage v Estate Armitage 1932 NLR 358, at 363, National Union of South African Students v Meyer, Curtis v Meyer 1973(1) SA 363(T), at 366B-367A, and Herbstein & Van Winsen, the Civil Practice of the High Court of South Africa, 5 ed, p644.”

THE APPEAL

[6]      The appellant has appealed against the part of the judgment upholding the special plea of prescription. The appellant has raised a number of grounds, which in the view of the court are not germane for the resolution of the appeal. The following grounds are pertinent:

“1.   The court a quo erred in failing to appreciate that the special plea had been raised contrary

to the provisions of s 20 of the Prescription Act [Chapter 8:11].

2.   The court a quo erred in entertaining the special plea without first granting the respondent leave to do so in terms of the proviso to s 20 (2) of the Prescription Act [Chapter 8:11].

3.  The court a quo erred in holding that the appellant’s claim had prescribed.

4.  The court a quo erred in holding that the further particulars furnished by the appellant on the 12 September 2014 did not include the e-mail of 25 June 2012 when in fact the same was attached thereto.

5.  The court a quo erred in holding that it could not read the wording of the e-mail of

25 June 2012 for itself when in fact the e-mail headed “repayment of loan” which the

court referred to in its judgment is the e-mail of 25 June 2012.

6.    The court a quo erred in holding that the respondent merely acknowledged liability in the

sum of $35 000.00 as interest when in fact in that e-mail respondent’s Mr Marufu clearly

stated that: “I am very confident that we can, by the end of August, as intimated during

our meeting earlier this year discharge our responsibilities to you as agreed in full” and

then went on to admit liability in the sum of $35 000.00 in respect of interest.”

[7]      A plea of prescription is by nature what is generally termed as a special plea. It is a plea which does not raise a defence on the merits but it sets up a special defence which is not apparent ex-facie the pleadings. The object of a special plea is either dilatory, which serves to delay the proceedings or declinatory which would quash the proceedings completely if upheld.

[8]     There is a difference between an exception and a special plea. An exception is confined to the four corners of the pleading, whilst a special plea may not necessarily appear ex-facie the pleading. Special plea must be established by the introduction of fresh facts from outside the pleadings. As a consequence the exception procedure does not lend itself to the determination of a special plea.

[9]      It is settled that the defence of prescription must be raised as a special plea for the reason that a plaintiff confronted with a claim of prescription may wish to replicate to the objection. This is particularly pertinent where a defendant pleads that a claim has prescribed with a plaintiff replicating that prescription has been interrupted.

[10]     A plea is the answer by a defendant to the claims of a plaintiff. A defendant who raises a plea of prescription bears the evidentiary onus to prove that the claim has indeed prescribed. In Pilly v Krishna 1946 AD, 946, the three basic rules on the incidence of onus were set out as follows:

if one person claims something from another in a court of law, then he has to satisfy the court that he is entitled to it.

where the person against whom the claim is made is not content with a mere denial of that claim, but set up a special defence, then he is regarded in respect of that defence as being the claimant. For his defence to be upheld he must satisfy the court that he is entitled to succeed.

he who asserts, proves and not he who denies, since a denial of a fact cannot naturally be proved provided that it is a fact that is denied and that the denial is absolute.

In Brooker & Anor v Mudhanda SC 8/18, the court had regard to the incidence of onus and said the following:

"In a plea of prescription the onus is on the defendant to show that the claim is prescribed but if in reply to the plea the plaintiff alleges that prescription was interrupted or waived, the onus would be on the plaintiff to show that it was so interrupted or waived. This principle was clearly set out in Cassim v Kadir 1962(2) 473 (NPD), at 475H-C as follows:

“In regard to the second answer to the plea of prescription, namely that there has been interruption, the evidence falls very far short of what is required. It is true that the plaintiff in his evidence verbally admitted signing the deed of donation, and that he had, at some time or other admitted that he was liable to transfer the property to the plaintiff. Even if I am to assume at this stage, for present purposes only, that plaintiff’s evidence is true, I am quite unable to determine from that evidence the date when such admission of liability was made. It is clear that defendant, according to plaintiff’s own evidence, maintained in 1955, or thereabouts, that plaintiff was not entitled to transfer, and disputed plaintiff’s alleged right to transfer of the property now claimed. He said, to use the plaintiff’s own words, in evidence, that plaintiff “had nothing”, meaning, quite clearly, that plaintiff had no right to the property which he seeks to claim. As I understood him, however, Mr Raftesath did not seriously urge that this interruption had been proved, and I do not think it is necessary to analyse the evidence further; nor is it desirable at this stage, for to do so would make it inevitable for me to express an opinion on the quality of the evidence given by the plaintiff in regard to the vital issue as to whether the deed was ever signed, and how the signed deed came to be lost.”

In Yusaf v Bailey and Others 1964(4) SA 117, the question of onus regarding the special plea of prescription was considered as follows:

“… A special plea was filed to the effect that plaintiff’s claim was prescribed by virtue of s 3(2) of Act 18 of 1943, as the issue of Drum was published on 20 June, 1961, and the summons was served on 29 June 1962. The replication to this special plea is that the article was brought to the plaintiff’s knowledge for the first time on or after 7 July, 1961, and that he ascertained the identity of the defendants on the same date as the defamatory article was first brought to his knowledge.

The point therefore arises whether the onus lies on the defendants to establish the special plea, viz, that the facts are such as to entitle them to a dismissal of the action because the claim has become prescribed or whether the onus lies on the plaintiff to establish the allegations contained in the replication to the special plea.

The onus then being on the plaintiff to satisfy the court in terms of his replication to the special plea that his claim had not become prescribed before service of summons and as the only evidence in this regard is that of the plaintiff himself consideration, as to whether that onus had been discharged cannot be divorced from an assessment of his credibility as a witness. Consequently, no decision on the special plea could, as originally suggested, be given before hearing the evidence on the whole case.”

[11]     Mr Mpofu on behalf of the respondent accepted that the procedure for the determination of a plea of prescription is what is set out the Brooker case (supra) and the authorities referred to therein. He however sought reliance on the dicta by SANDURA JA in Nexbak Investments (Pvt) Ltd & Anor v Global Electrical Manufacturers (Pvt) Ltd SC 43/09, to the following effect:

“In concluding that the running of prescription had been interrupted in 2005 the learned Judge relied upon a submission made to him by the legal practitioner who appeared for Global, which submission was not supported by any averment in the pleadings, as no replication had been filed.   I have no doubt in my mind that in this regard the learned Judge erred.

If Global wished to rely upon the alleged interruption of the running of prescription, it should have filed a replication to the special plea.   In the absence of a replication, the issues between the parties were to be found in the pleadings as they stood.   Those issues did not include the issue of whether the running of prescription had been interrupted."

[12]     It is correct that the appellant as plaintiff did not replicate to the plea of prescription. What it did was to attach an e-mail to its heads of argument. The court had regard to the e-mail in question. The court also had regard to the further particulars, the declaration and to the plea. Both parties in this debacle committed errors in the manner in which they placed the issue before the court. They ought not to have addressed the issue in their respective heads of argument. Those heads should only have related to the application to strike out. In its heads of argument, the respondent placed “facts before the court”. It made reference to the further particulars and commented on an e-mail attached to the further particulars. The heads of argument were filed a day after the special plea and application to strike out. This cannot have given the appellant room for the filing of a replication.

[13]     The court and the parties centred on the e-mail as the critical document for the resolution of the dispute. The issue was whether or not there had been an interruption. The allegation of admission of liability was already pleaded. It does not seem to me that there was need in the peculiar circumstances of this case for the appellant to replicate. In any event, despite the absence of a replication the court considered whether or not there had been an interruption based on the e-mail. No doubt the court a quo erred as argued by the appellant. Fundamentally it erred in the procedure it adopted in hearing the parties on the special plea. The e-mail constituted evidence. It was attached to heads of argument filed by one of the parties. This is not the correct manner of producing a document. In their book, The Law of Evidnce, the learned authors Hoffman & Zeffert state:

"A party who tenders a document is ordinarily required to adduce evidence to satisfy the court of its authenticity. This will usually mean proving that the document was written or executed by the person who purports to have done so. One could do this in a number of ways, of which the most common would be to call the writer to identify the document or tender the evidence of someone who saw him sign or write it, or who can identify his handwriting.

..............

If the authenticity of a document is not proved or admitted, its contents cannot be used either as evidence or for the purposes of cross-examination. Thus in Isrealsohn v Power N.O. (1) 1953 (2) SA 499, (W), a document purporting to be a statement by a witness in the action had been found in his house. The witness denied that he had written the statement or said what it contained, and the court ruled that in the absence of evidence proving the statement to be his, he could not be cross-examined upon its contents."

G D Nokes, in his book An Introduction to Evidence p 416 4ed states:

"To put in a document means to use it as evidence. More literally, to put in a document is to hand it to a witness in the box or to a judge or the associate or the clerk of the court, so that it is available for perusal by all concerned. But then or thereafter it must be proved, unless proof is dispensed with."

[14]     In casu, the court a quo dispensed with the necessity of calling evidence in respect of the documents it related to. It heard submissions. It should have held a trial on the issues in contention. It went on to make factual findings in the absence of a proper determination on the disputed facts as to the allegation that the claim had prescribed. This issue needed to be proved by evidence. The court did not have such evidence. On this score the court erred. See Brown v Vlok 1925 AD 56; Edwards v Woodnutt NO 1968 (4) SA 184(R), at 186E; Muller v Cook 1973(2) SA 247(N).

[15]     The court considered documents that were not properly produced. The e-mail constituted evidence. It was attached to further particulars and no witness was called to speak to it. The court said:

“We accept that the e-mail is headed repayment of a loan. We accept that it makes reference to failure by the defendant to meet proposed payment plans. We note however, that the defendant merely acknowledged liability for payment of USD$35 000.00 interest. Unfortunately, the further particulars which appear on p13 of the record do not include a copy of the e-mail of 25 June 2012 to enable the court to read the wording for itself. What is common cause is that the e-mail contained an admission of liability for payment of a sum of interest which does not form part of the plaintiff’s case as set out in the summons.”

[16]    A reading of that paragraph will tend to show that the court there was not dealing with an alleged admission to decide whether or not there had been an interruption of the running of prescription. The court was examining the documents with a view of ascertaining whether or not the documents showed that the appellant had indeed lent money to the respondent and how much the respondent admitted owing. In the Brooker case, the court said:

“It can therefore be accepted as settled that evidence is necessary when disposing of a matter in which a special plea of prescription is raised. The rationale behind this is that where a party raises a special plea as a defence, new facts arise and because of the introduction of fresh facts which did not appear in the declaration, there is need for a court to hear the evidence of the parties where facts are disputed before making a ruling on the plea.

In casu, the court a quo disposed of the matter in the absence of such evidence. Clearly, a dispute of fact as to when the cause of action arose was evident from the special plea and this could only have been resolved through viva voce evidence."

[17]     There is no suggestion anywhere in the record that in this case the defence of prescription appeared ex facie the pleadings filed by the parties thus precluding the need for the averment of some new fact not already pleaded. In such a case the court could have properly proceeded to deal with the matter as prefaced on the pleadings. The court however had to resort to documents which were attached to heads of argument filed by the parties. This was not only improper, it was irregular. The procedural manner of dealing with exceptions and special pleas was considered by PATEL JA in NECCI v Zimbabwe Nantong Int (Pvt) Ltd 2015 (2) ZLR 228, wherein he stated:

“As a general rule, exceptions taken by a defendant must be limited to objections or defences that arise ex facie the declaration itself. These would include averments that the declaration or part thereof does not disclose a valid cause of action or is vague and embarrassing. On the other hand, where the point taken constitutes a special defence, such as absence of jurisdiction, res judicata or prescription (cf. the pleas referred to above, as discussed by Herbstein & van Winsen, loc. cit), the procedure to be followed is by way of special plea. These are instances where the defence relied upon is not evident ex facie the declaration and involves the averment of some new fact or facts to be proved with fresh matter. The procedure by way of special plea enables the plaintiff to rebut the defence raised by replication and the adduction of further evidence where necessary. In exceptional cases, however, where the special defence in question is apparent ex facie the declaration itself, the court may allow the matter to be decided on exception. This is subject to the qualification that the plaintiff has nothing to adduce in rebuttal and will not be prejudiced by a decision being taken on exception.”

DISPOSITION

[18]    There was before the court a quo no proper hearing on the plea of prescription. The court a quo turned a trial issue into an exception. There was no evidence before the court. Despite this, the court made findings of fact on the trial issues. The entire proceeding was irregular. Instead of determining the question of prescription, the court went into an exercise to determine whether or not the appellant had established a claim as set out in the summons.

[19]     The appeal clearly has merit and it was for this reason that we allowed it on the turn and issued the order described at the commencement of this judgment.

MAKONI JA			:                   I agree

BERE JA			:                   I agree

Kanokanga & Partners, appellant’s legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners