3
HCC41/24
HCC 60/23
ARLINGTON KUMBULANI MNYULWA
Versus
GODFREY MAWONEKE
HIGH COURT OF ZIMBABWE
MUZOFA J
CHINHOYI, 26 February, 4 March & 30 April 2024
Civil Trial
U. Saizi, for the plaintiff
T. K. Chamutsa, for the defendant
MUZOFA J: The plaintiff instituted a claim against the defendant for eviction from stand 756 Karoi Township, Karoi “the property” on the basis of breach of contract. He also demands costs on a higher scale.
The defendant opposed the claim. After a request for further particulars then further and better particulars the plea was entered. In his plea, the defendant raised res judicata and that he had purchased the property.
This is a case of a friendship gone wrong. According to the plaintiff they were best friends with the defendant. The genesis of this dispute is from a cordial friendly agreement. The plaintiff had a cession over the property. The plaintiff owed the defendant ZWL$15000 which was a considerable amount around 2001 when the parties contracted. In order to settle the outstanding debt, the two friends happily agreed that the defendant takes over the plaintiff’s lease with Karoi Town Council in respect of the property. They entered into a written agreement in 2001 which was valid for 5 years .The relevant conditions were that the defendant would not pay any rentals to the plaintiff but would settle all Council bills as required. Contrary to the agreed terms and conditions the defendant failed to pay the Council dues resulting in arrears of ZWL$288 841.78.Having breached the contract the plaintiff sought eviction.
This court has to determine one issue that was referred to trial after the pre-trial conference. The issue is whether or not the plaintiff has a right to evict the defendant from the property.
The trial commenced and the plaintiff gave evidence. A second witness from Karoi Town Council also gave evidence. At the close of the plaintiff’s case, when the defendant’s legal practitioner was expected to either open the defendant’s case or apply for absolution if so inclined, he chose not to proceed either way. He rose and advised the court that he had instructions to raise the issue of prescription.
It was submitted that a point of law can be raised at any time during the proceedings. Indeed this is the correct position of the law. Mr Saizi for the defendant could not submit otherwise. In Muchakati v Netherburn Mine 1996 (1) ZLR 153 (5) the Supreme Court held that a point of law that goes to the root of the matter can be raised at any time on notice to the other party.
Mr Chamutsa for the plaintiff submitted that the cause of action arose in 2006, the plaintiff did not act until 8 years later. The claim must be dismissed with costs on a higher scale.
No meaningful submissions were made by the plaintiff’s legal practitioner. The submissions were an attempt to clutch at straws. It was submitted that the plaintiff’s cause of action was based on a lease with an option to purchase that the plaintiff entered into with the Council in 2022.The submission simply contradicted the plaintiff’s evidence and the his entire case. After a few questions from the Court Mr. Saizi conceded that the matter had prescribed.
In light of the concession it became unnecessary to proceed with the trial. It occurred to the Court that although the concession was properly made it was based on an incorrect appreciation of the facts and the law. I decided to issue a judgment to place all the facts and the law into the right perspective and also to give finality to the case bearing in mind the numerous attempts by the plaintiff to approach the Courts to protect his interests.
Factual background
For the purposes of making a determination on prescription I will summarise the evidence relevant to the issue. The plaintiff’s case demonstrates a failure by the Karoi Town Council to keep proper records which was compounded by a failure to properly conceptualise the facts and the law in this case.
This was the evidence. A company known as Mnyulwa Holdings represented by the plaintiff applied for land from the Council in 1995.According to a letter from the Council written in 2020 the property was offered to the Company and no cession to anyone was effected. The plaintiff said at the time of the application back then in the 1990s, Council did not issue lease agreements. He was the alter ego of the Company and commenced construction on the property. He referred the Court to construction documents some dated 2000.It appears that, when the dispute with the defendant arose he needed some proof that he was the owner of the property. He approached Council for a lease. A lease with an option to purchase generated in 2022 was issued. The folly in that lease is that he was now the lease holder and not Mnyulwa Holdings.
The second witness tried to sanitise the change over and said when the Company failed to comply with the terms and conditions the Council repossessed the property. The plaintiff then applied for a lease over the same property in his personal capacity. The lease was approved and formalised in 2022.If this was not a connivance to misrepresent facts then there is a high likelihood that something is completely wrong at the Council offices. A Council is an administrative body whose work is always supported by paper work. Secondly there must be a Council resolution to that effect. In this case there was no document to confirm the repossession, there was no paper trail to confirm the plaintiff’s application and approval of the application. There was no Council resolution. The only document is the lease agreement. It is difficult to understand how the property officially switched from being registered in Mnyulwa Holdings to the plaintiff. One cannot rule out some under hand dealings.
Despite the lack of clarity as to the actual holder of the lease, the plaintiff entered into the lease agreement with the defendant. According to the plaintiff in 2006 the written agreement lapsed, the two entered into a gentleman’s agreement that the defendant continues to occupy the property until the plaintiff required it. It was unclear if the money owed had been extinguished but the defendant was still required to make payments towards Council rates.
In December 2013 the plaintiff who was in South Africa beforehand returned to Zimbabwe and he put the defendant on 6 months’ notice to vacate the property. The defendant declined. This was the beginning of the plaintiff’s woes.
The plaintiff then issued summons in 2014 under C450/14 for the eviction of the defendant. When a preliminary raised by the defendant was upheld, he abandoned the matter and filed another case under C98/15. The matter suffered the same fate it stalled after a preliminary issue was raised and upheld. The plaintiff must have had enough of the litigation before the Magistrates Court, he approached the High Court, he filed two cases in Harare. According to him in one case a default order was issued. No further particulars were given about the default order but it appears it was issued against the plaintiff. The second one under HC2168/18 was withdrawn for convenience to issue summons before the High Court in Chinhoyi. Had the plaintiff obtained proper legal advice he could have simply requested for the transfer of the matter from Harare High Court to Chinhoyi through the Registrar of the High Court instead of withdrawing the matter. It is then that he issued out summons in this case in 2023.In all the matters that he approached the courts he sought the eviction of the defendant from the property.
The Law
The general rule on prescription of debts is that a debt extinguishes after 3 years from the date the debt became due. The plaintiff’s claim falls within the definition of a debt as espoused in Mukahlera v Clerk of Parliament & Others 2005 (2) ZLR 366 (H) at 368-369, that
“In terms of s 15 (d) of the Prescription Act [Chapter 8:11], the period of prescription applicable to debts general is three years. Section 16(1) provides that prescription commences to run “as soon as a debt is due”. The word “debt” in this context encompasses “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise” (see s 2 of the Act). By virtue of s 16(3), a debt is not deemed to be due “until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises”. However, a creditor is “deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care”.
It is common cause that the plaintiff entered into a contract upon which the plaintiff seeks relief. As stated in Brooker v Mudhadha & Anor (2) Pearce v Mudhadha 2018 (1) ZLR 33 a determination on prescription is a question of fact determined on the evidence before considering the law. The Court must make a factual finding on when the cause of action arose. In this case arties were agreed that the matter had prescribed to which the Court is also agreed but on different perspective.
Application of the law to the facts
I address at the outset the point initially taken on behalf of the plaintiff that the claim was based on the 2022 lease agreement with the Council. Besides being irrelevant, the submission literally put into disarray the plaintiff’s case. Firstly, the cause of action is based on a breach of contract entered between the plaintiff and the defendant in 2006. If the submission is to be taken seriously it means the plaintiff entered into the contract with the defendant when he hand no rights on the property. It is trite that no one can pass rights greater than what he or she holds. By parity of reasoning the plaintiff would not competent pass any rights when he held none over the property. Certainly the submission was an own goal.
Secondly the submission contradicted the plaintiff’s evidence that tried to show that Mnyulwa Holdings was the plaintiff .The Council witness also threw in some further confusion that the property was repossessed and offered to the plaintiff. In short the plaintiff’s case was saddled with contradictions.
In my view the cause of action did not arise in 2006. It arose in 2014 when the defendant failed to vacate the property after being given the 6 months’ notice. This is the reason why the plaintiff approached the Court from 2014.From 2006 after the expiration of the written agreement, there was a verbal agreement between the parties. It terminated in 2014 after the defendant remained in occupation having being given 6 months’ notice to vacate the property. No further agreement was entered into after this. The plaintiff had 3 years within which to protect his rights and interests.
That as it maybe, what exercised the court’s mind is whether the numerous litigation interrupted prescription. Section 19 of the Prescription Act deals with interruption of prescription. It reads in part as follows,
“19 JUDICIAL INTERRUPTION OF PRESCRIPTION
(1) ….
(2) The running of prescription shall, subject to subsection 3, be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.
(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) successfully prosecutes his claim under the process in question to final judgment but abandons the judgment or the judgment is set aside.”
From those provisions for prescription to be interrupted the following must be satisfied,
There must be process issued and served on the creditor.
The process must be for payment of the debt
The matter must be prosecuted to the end on the merits.
In Du Bruyn v Joubert 1982 (4) SA 69, the court after setting out the requirements of interruption it noted that for process to interrupt prescription, the claimant is required to prosecute the claim to final judgment and not abandon the matter. Also that if the judgment is set aside for whatever reason, interruption will not take place.
A matter is prosecuted to final judgment in the sense of it being determined on the merits. In this case the matter was disposed on preliminary points. Under C480/14 the Magistrates Court upheld a preliminary point. The judgment lacked the clarity expected of judgments. A judgment must capture the facts as pleaded. It is unclear what was raised which was upheld. There is a flirting reference to representation. In an equally very brief judgment under C98/15 I could at least understand what the preliminary point under C480/14 was all about. It appears a preliminary point was taken that the plaintiff had no locus standi to represent Mnyulwa Holdings in the absence of a Company resolution. Thus when the plaintiff approached the Court again under C98/15 the Court declined to deal with the matter on the basis of the finding under C480/14.If this was the case it was for the plaintiff to remedy the anomaly and prosecute his case to finality.
Instead of doing so he decided to approach this Court, this time in his personal capacity and not in the name of Mnyulwa Holdings but on the same facts. He literally ignored the processes he had instituted. That was wrong. A litigant cannot simply ignore litigation where an order exists and sue again on the same cause of action. This amounts to abuse of process. There is one judiciary, litigation before the Magistrates Court is no different from litigation before the High Court. Both Court orders have the force of law which must be upheld. The plaintiff was simply forum shopping.
Despite his merry-go-round, the plaintiff failed to prosecute his matters to finality before the High Court. No explanation was given for not pursuing the matter where a default order was granted.
Since the cause of action arose in 2014 the plaintiff’s right to litigate lapsed in 2017. The litigation that instituted in 2014 and 2015 did not interrupt prescription. I therefore agree with both parties that the matter had prescribed although on different facts.
On costs, Mr Chamutsa sought the dismissal of the case with costs on a higher scale. Generally our Courts will not resort to such drastic costs lightly for the reason that everyone has a right to approach the Courts for resolution of disputes. Granting such costs may turn out to close the door for litigants. AC Cilliers in The Law of Costs 2nd ed p 66, classified the grounds upon which would justify awarding the cost as between attorney and client as follows:
Vexatious and frivolous proceedings
Dishonesty of fraud of litigant
Reckless or malicious proceedings
Litigant’s deplorable attitude towards the court
Other circumstances
See also , Nel v Waterberg Landbouwers Ko-operative Vereeninging 1946 AD 597
While there was an attempt to justify costs on a higher scale that the plaintiff has unnecessarily put the defendant out of pocket through the numerous litigation, I was not persuaded. Indeed the plaintiff has demonstrated an unabated appetite to litigate on the same cause of action, abandoning processes at every turn leading to a multiplicity of cases thereby harassing the defendant but he was not alone in this. In my view the plaintiff was also a victim of incorrect legal advice. There is no doubt that the plaintiff and or Mnyulwa Holdings was the official lease holder and the defendant was a tenant. The defendant’s plea that he bought the property was likely to fail considering the facts. The plaintiff’s claim fails on a legal technicality which is not of his making. He did not sit on his laurels but had done everything a lay person can do but for some reasons he was unsuccessful. Saddling him with costs on a higher scale would be an injustice. He has already lost his property. The justice of the matter requires that each party bears its own costs.
Accordingly the following order is made.
The claim be and is hereby dismissed.
Each party to bear its own costs.
Saizi Law Chambers, plaintiff’s legal practitioners
Chamutsa and Partners, defendant’s legal practitioners