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Judgment No. HB 62/2003
Case No. HC 424/2001
PETROS KUNENE
Versus
LOBELS BISCUITS (PVT) LTD
IN THE HIGH COURT OF ZIMBABWE
NDOU J
BULAWAYO 4 OCTOBER 2002 AND 22 MAY 2003
S Mlaudzi for the plaintiff
Ms P Dube for the defendant
Judgment
NDOU J: The plaintiff, hereinafter referred to as Mr Kunene is suing the
defendant, hereinafter referred to as Lobels Biscuits for damages. Mr Kunene claims
special damages in the sum of $405 150,12, general damages in the sum of $200 000
with interest thereon and costs of suit. The cause of action arose on 8 February 1998
when Mr Kunene was injured at his place of employment by Lobels Biscuits. It is
common cause that the summons and the declaration were issued and served on
Lobels Biscuits on 9 February 2001. Prima facie, the period of three years within
which Mr Kunene had to serve on Lobels Biscuits had prescribed. Unless Mr Kunene
proves that there was some interruption within the meaning of the Prescription Act
[Chapter 8:11] he has lost his rights to sue Lobels Biscuits through effluxion of time.
This is extinctive prescription – see Wille’s Principles of South African Law (8ed) by
D Hutchinson, B van Heerden, D P Visser and C G van der Merwe at page 499 and
Introduction to South African Law and Legal Theory (2nd ed) by W J Hosten, A B
Edwards, F Bosman and J Church at page 767.
In terms of the Prescription Act (supra) the type of debt under consideration in
this matter is generally extinguished by prescription after the lapse of the prescribed
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period of three years. It is always important in prescription to first establish when the
plaintiff’s cause of action arose. This is so because in law prescription only
commences to run when the plaintiff’s cause of action reaches completion – see
Denton v The Director of Customs and Excise HH-216-89, E M Power Point (Pvt)
Ltd t/a Power Point Building Contractors v City of Bulawayo HB-5-01 and Old
Mutual Property Investment Corporation (Pvt) Limited v Grain Marketing Board
HH-216-02. Prescription cannot begin to run against a creditor before his cause of
action is fully accrued i.e. before he or she is able to pursue his or her claim – see Van
Vuuren v Boschoff 1964(1) SA 395at 401; The Master v I L Back & Co Ltd and Ors
1983 (1) SA 986 (A) and HMBMP Properties (Pty) Ltd v King 1981(1) SA 909
(NPD).
According to section 16(1) of the Prescription Act (supra) “prescription shall
commence to run as soon as a debt is due.” In its ordinary meaning a debt is “due”
when it is immediately claimable by the creditor by the creditor and, as its correlative,
it is immediately payable by the debtor – see Van Rensburg and Geldenhuis Deep Ltd
v Superior Trading Co. 1933 TPD 423 and White v Municipal Council of
Potchefslsoon 1906 TS 47. A debt can only be said to be claimable immediately if
the creditor has the right to immediately institute an action for its recovery – see
Honey and Blanckenberg v Law 1966(2) SA 43 (R) at page 47 and Erins v Shield
Insurance Co Ltd 1980 (2) 814 (A) at 838.
Mr Kunene’s debt only becomes due when he acquires a complete cause of
action for its recovery – McKenzie v Farmers Co-operative Meat Industries Ltd 1922
AD 16 at 23; Abrahamse & Sons v S A Railways and Harbour 1933 CPD; Coetzee v
SA Railways & Harbour 1933 CPD 565 at 570-1; Mohammed v Nagdee 1952(1) SA
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410(A) at 418 and Santam Insurance Co Ltd v Vilakazi 1967(1) SA 246(A). In the
circumstances of this case when did Mr Kunene acquire a complete cause of action
for damages claimed? It seems to me that 8 February 1998 is the date on which the
cause of action commenced to run. It is certainly not the date on which Mr Kunene’s
cause of action fully accrued. On 8 February 1998 got injured, went into a coma or
became unconscious and was hospitalised at the Intensive Care Unit (ICU) of United
Bulawayo Hospitals. He remained in the ICU for a period is excess of two weeks.
Mr Kunene is claiming both special and general damages. Some of the damages
occurred well after 8 February 1998. The entire set of facts which give rise to Mr
Kunene’s enforceable claim against Lobels Biscuits includes every fact which it
material to be proved to entitle him to succeed in his claim. It includes all that Mr
Kunene must set out in his declaration in order to disclose a cause of action. His
cause of action does not “arise” or “accrue” until the occurrence of the last of such
facts.
Mr Kunene was unconscious from the accident for about two weeks after the
accident. During this period he was hospitalised in the ICU. In my view during this
period he was not aware of the “identity of the debtor and of the facts from which the
debt arises” as required by the provisions of section 16(3) of the Prescription Act
(supra). Prescription began to run only when he gained consciousness and became
aware that he was injured at Lobels Biscuits factory through the negligence of the
latter. This, of course, subject to the accrual of a full course of action as I described
above. Mr Kunene’s declaration is lacking in details of dates e.g. it is not clear when
his wages were stopped. What is, however, discernable is that for about two weeks
after the accident prescription did not begin to run. Taking this factor into account,
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the summons were issued well within the three year period. In light of this finding it
is not necessary to determine when a complete cause of action for the recovery of Mr
Kunene’s damages accrued. I, however, doubt whether Mr Kunene’s complete cause
of action accrued by 9 February 1998 bearing in mind the nature of claims. The
claims are such that they could not immediately be claimable by Mr Kunene and
correlatively, immediately payable by Lobels Biscuits on 8 February 1998. The
occurrence of some facts, or at the least the last of such facts was well beyond 8
February 1998. In the circumstances, even if one assumes that Mr Kunene was
conscious from the date of the injuries it does not seem to me that his claim has
prescribed. From the above, it is therefore evident that Mr Kunene’s claims have not
prescribed and Lobels Biscuits’ special plea must fail on that account.
I accordingly, dismiss the defendant’s special plea with costs.
Advocate S K M Sibanda and Partners, plaintiff’s legal practitioners
Messrs Coghlan & Welsh defendant’s legal practitioners