Masamba v Hove and Others (68 of 2024) [2024] ZWCHHC 68 (19 August 2024)

TENDAI MASAMBA

Versus

PHENOMENAL HOVE

And

FELISTAS HOVE

(In her capacity as the Executrix Dative of the

Estate Late Cleopas Hove)

And

MACKINGTON KUDAKWASHE MURAHWE

And

REGISTRAR OF DEEDS, N.O

And

SHERIFF OF ZIMBABWE

And
CBZ AGRO YEILD (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 28 June – 19 August 2024

Opposed Civil Application: Special Plea

M. Mutsvairo, for the plaintiff

D. Chemhere for the 6^th defendant

No appearance for the 1^st, 2^nd,3^rd, 4^th and 5^th defendants.

BACHI MZAWAZI J: The plaintiff in the main action instituted summons against the respondents seeking a declaratory and consequential relief. The declaratory claim was for the nullification of the agreement of sale between the 1^st and 2^nd defendant, as well as, the registration of stand 174 Banket Township, Banket into the 1^st defendant’s name. In addition, the plaintiff sought the upholding of the plaintiff’s agreement of sale and the restoration of the property into the into the original owner’s name, Cleopas Hove, upon the reinstatement of the late Cleopas Hove’s Deed No 4439/97, alongside other ancillary issues.

Only the 3^rd and 6^th defendants entered their appearances to defend and pleas. The 6^th defendant entered his appearance to defend after having been initially excluded in the main summons and was then later joined to the proceedings through an order of this court on the 28^th of January 2024. On the 6^th of February 2023 the 6^th defendant filed a special plea of prescription simultaneously with their plea.

The 6^th defendant’s special plea was couched as follows:

1. The plaintiff cause of action, if any, for entering his alleged right arising from the agreement of sale arose on the 4^th of September 2018. Three years have lapsed and the running of prescription was not interrupted.

2. The plaintiff’s claim has thereafter prescribed in terms of s15 (d) of the Prescription Act [Chapter 8:11].

Wherefore, the 6^th defendant prays that the plaintiff’s claim be dismissed with costs on a higher scale.

The summarised facts are that, on the 15^th of July 2016, the 2^nd defendant was appointed the executor of estate late Cleopas Hove. Subsequently, on the 17th of July 2018, she was granted a consent to dispose of the property by the Master of the High Court, in terms of s120 of the Administration of Estates Act, [Chapter6.01]. Sometime around the 4^th of September, 2018, the 2^nd defendant entered into an agreement of sale of property stand 174 Banket, with the plaintiff. The sum of USD180, 000.00, was allegedly, the paid and agreed purchase price for the property. In turn, the original title deed was handed over to the plaintiff pending the conveyancing transactions and accompanying payments.

However, before the finalisation of the change of title to the plaintiff, the 2^nd defendant sold the same property to a third party, the 1^st defendant, her sister-in-law, married to her own brother. The property was expeditiously, transferred into the names of the second buyer, the 1^st defendant under title deed number, 4578/2019. This was done under the pretext that the original trust deed had been lost and after an application for a loss of the original title deed had been procedurally made and granted.

Notably, the process for the acquisition of the lost title titled deed is said to have been duly and diligently done following an advertisement in the Government Gazette, of the 19^th of August 2019. However, it is adverted that, the timelines for objections of 14 days which was supposed to commence on the 22^nd of August 2022, was not adhered to. It was further challenged that, the need to advertise the same application in the Daily local newspaper was subverted. The cumulative effect of the above three observations is according to the plaintiff evidence of fraudulent acts by both the 1^st and 2^nd defendants.

Consequently, the 1^st defendant used the property in contention as collateral security of a debt she owed to the 3^rd defendant resulting in the attachment of the property by the 5^th defendant on the 25^th of August 2023. This resulted in the registration of a mortgage bond on the property in contention. The 6^th defendant features as co- financier of the 1st defendant and a preferential creditor. They only came aboard to defend their interests through the above-mentioned court intervention in case HCC230/23, after being initially left out in the launching summons claim as already noted.

It is the 6^th defendant’s argument, in support of their special plea in abatement that their defence of prescription will dispose of the matter once and for all. Of note, the 3^rd defendant like the rest of the defendants did not file any opposing and or supporting papers to the special plea raised. The court is mindful, that both pleas by the 3^rd and 6^th defendants raised a lot of legal questions that are better left for the main action arguments. In casu, this court proceeds with, and is restricted to the determination on the interlocutory issue of prescription raised.

The 6^th defendant contends that, the plaintiff’s cause of action arose on the 4^th of September 2018, at the conclusion of the agreement of sale. Calculating from that date, the cause of action expired in 2021. Thus, prescription, was not interrupted as it can only be interrupted by an express or tacit acknowledgment of debt. They assert that it was imperative for the plaintiff to demand transfer and place the 2^nd defendant (who is interestingly now deceased but estate executor not cited) in mora, if indeed he was genuine. As such, the plaintiff’s lack of vigilance and sluggishness occasioned the delay in acquiring rights and title to the property in dispute. In that regard, the law is not for the sluggard. This is amidst corresponding slurs of fraud and collusion allegations against the plaintiff and some of the defendants.

The 6^th defendant concedes that the plaintiff has no cause of action directly against it however, as an interested party, being a preferential creditor, they have the right to raise a point of law of prescription even if it has not been raised by the 1^st and 2^nd defendants. It has the right to defend its interests at all costs, so they argue. The 6^th defendant cited the cases of Asharia v Patel & Ors 1991 (2) ZLR 276(S) and van Brooker v Mudhanda SC457/8 of 2015, judgment number SC5/18, Nguluwe v Dewa & 4 Ors 387/2023, amongst several other cases in support of their cause.

In response, the plaintiff raised a point of law that their cause of action, which is a declaratory claim cannot prescribe. On the merits, they advanced submissions in the main and alternative. In the main, they advert that, the cause of action arose after the plaintiff who had taken delivery of the property came across a notice of sale of his alleged property, in August 2023. This jolted him into action resulting in the summons initiating this action.

Further, the plaintiff asserts that, clause 5 of their agreement of sale, did not fix a date for the transfer of property. Thus, the plaintiff did not demand transfer from the seller, thereby putting her in mora. From their point of view prescription would have commenced from the time they would have put the 2^nd defendant in mora. As such, the cause of action would have been triggered by the Plaintiff’s action of demanding transfer. Since, Plaintiff had not done so, then prescription cannot be said to have started to run.

In the alternative, the plaintiff stated that in any event, the right person entitled to raise any eyebrows or prescription is the 1^st defendant who did not file an appearance to defend the matter. They argue that, the 6^th defendant only came into the picture in January 2023, when it registered the mortgage bond for a loan advanced to the 1^st defendant. They were only incorporated into the lawsuit later in the day, therefore, the defence of prescription is not available to the 6^th defendant, as far as the plaintiff is concerned

Against that background, the plaintiff’s right to sue or incorporate the 6^th defendant accrued after the 1^st defendant registered a mortgage bond No. 302/23 on the 3^rd of February 2023 and after their joinder to the proceedings of which those joinder proceedings interrupted any running of prescription. As such, the plaintiff’s cause of action differs with each defendant.

The plaintiff denies any fraudulent acts on their part but between the 1^st and 2^nd defendants. They relied more or less on the same authorities with the 6^th defendant. The cases of, NSSA v City of Mutare HH385/18, Wireless Ngilazi v Edith Mtemah and Master of the High Court, HH644/14 were additionally referred to alongside several others. The plaintiff also made reference to the Supreme Court case of Jennifer Nan Brooker v Mudhandha and Ors vs Richard Mudhanda and Anor, SC5/18, stating that it was their authority nailing their point that a declarateur does not prescribe. See Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H).

Apparently, from the oral and written submissions made, the first issue hinges on a question of law and the second on questions of both fact and law. The agreed approach is, arguments for both are presented and a resolution will be made on either one of them or both if need be.

These issues translate to:

1. Whether or not a remedy for a declaratory order or claim prescribes?

2. When did the plaintiff’s cause of action arise? and,

3. Whether or not the Plaintiff’s cause of action has prescribed in terms of the Prescription Act, [Chapter8:11]?

Whether or not a remedy for a declaratory order or claim prescribes?

The plaintiff argues, as a point of law, that on the basis of the cases of Ndlovu v Ndlovu & Anor HB18/2013, NSSA v City of Mutare HH385/18 Wireless Ngilazi v Edith Mutema and the Master of the High Court, HH645/2014, River Ranch Ltd v Delta Corporation Ltd HH1/10 a declaratory claim does not prescribe. They further contend that the position has been endorsed and laid to rest by the Supreme Court of Brooker v Mudhanda supra. Thus, the plaintiff prays for the dismissal of the special plea in abatement on the basis of this point of law alone.

Per contra, the 6^th Respondent, counter-argues that on the basis of a more recent judgment by MAXWELL J, in the case of Nguluwe v Dewa HH387/23 a declaratory claim prescribes.

It is evident that there are seemingly divergent views from this court as to whether a declaratory order or claim prescribes or not as cited by each party in support of their respective legal stances. However, I would like to believe that Mr. Mutsvairo for the plaintiff erroneously submitted the Supreme court in, Brooker v Mudhanda above made a definitive pronouncement that a declaratory claim does not prescribe. Indeed, Brooker v Mudhanda case above, is the impeccable authority on special pleas, their definition, application and differentiation. It dealt comprehensively and exhaustively with the issue of prescription founded on a declaratory claim but it did not categorically spell out that a declaratory claim does not prescribe as alluded to by Plaintiff’s counsel.

As a starting point, there is a distinction between a declaratory order granted and that being sought. Obviously, that which has been granted and is an order of the court, is legally binding and cannot be susceptible to prescription in terms of the Prescription Act. On the other hand, if it is a declaratory claim, relief, remedy or order still to be obtained after satisfying the statutory requirements of s14 of the High Court Act [Chapter7:06]¹ the characteristics of the claim determines whether it is a debt as defined in s2 of the Interpretation Act or not. ² See, Tinashe Kambarami v 1893 Mthwakazi Restoration Movement Trust plus 4 Ors Judgment No.SC66/21.

In the Off-Beat Case above, the South African Constitutional Court had the liberty to analyse the characteristics of a claim for the purpose of prescription and a declarateur through the exploration of both the narrow and broad constructions of the word ‘debt’ in their Prescription Act akin to ours as defined by their Superior courts.³

As can be seen, the cases relied upon by the plaintiff were context specific in concluding the issue on prescription on a declaratory claim. The leading case relied upon in concluding that a declaratory relief does not prescribe is supposedly the pronouncement made by Ndou J, in the case of Ndlovu v Ndlovu & Anor above, where he contextually stated that,

“The point worth noting in this definition of “debt’ is that, the suit or claim must be “by reason of Povall and Others1953 (2) SA 202 (SR); Barron v Greendale Town Management Board 1957 (2) SA 521 (SR); Musara v Zinatha 1992 (1) ZLR 9 (H) Lupu v Lupu 2000 (1) ZLR 120 (SC)). On the part of the debtor arising from the stated bases. In my view, a declaratory order is a remedy to secure the public interest of certainty or correct legal position. Such a remedy cannot prescribe.” (My underscoring)

In the Ndlovu case, the honourable judge capped his decision by remarking that,

“The claim is based on the alleged nullity of a sale transaction and does not arise from a debt as defined by the Prescription Act, [Chapter 8:11]”.

CHIKOWERO J, in the case of the cases of, NSSA v City of Mutare HH385/18 on the faith of the Ndlovu case, with the concordance of the legal representatives noted that a declaration of rights cannot prescribe. The reader of this case who was not privy to the arguments that convinced the court to come to that agreed standpoint is left in the dry cold as to the arguments in support of that stance.

In, Wireless Ngilazi v Edith Mutema and the Master of the High Court, HH645/2014, CHITAKUNYE J, as he then was, dismissed a defence of prescription, quoting the case of River Ranch Ltd v Delta Corporation Ltd HH1/10, where PATEL J, as he then was, commented that,

“A declaratory order is not founded on an obligation in contract or delict. It is essentially a proprietary claim for 30 years of open, adverse and uninterrupted possession and the prescriptive period does not operate to a party’s claim for ownership.” (My emphasis)

The case of, Oertel NNO v Director of Local Government 1981 (4) SA 491 (T) at 492which was heavily relied upon by the court in Ndlovu case supra, it was held that:

“ … . Whilst every debt encompasses an obligation not every obligation constitutes a debt for the purposes of the Prescription Act.”

What is worth noting is that, these and many other cases except the Ndlovu and NASSA cases above, which this court had the liberty of consulting, dealing with the thorny issue of the prescription and declaratory order, did not per se pronounce themselves in definite terms on whether or not a declaratory order prescribes in dismissing the defence of prescription, but relied on the contextual base of each case. A closer analysis of the, Wireless, Ranch, Oertel NNO and even, the Ndlovu case itself, reveals that the courts decided in favour of long-established possessory rights which they concluded were immune to prescription given the cumulative surrounding factors of each individual case.

The authority cited by the 6^th Defendant, as already observed, a more recent judgment by MAXWELL J, Nguluwe v Dewa HH387/23 did not shed much light by elaborating on why a declaratory claim prescribes. However, JUSTICE CHIGUMBA, in the case of Chiparaudze and 66 Others v Triangle Limited & Others HH196/15, in the context of the dispute then before her pronounced that prescription applies, as much to a declarateur as it does to an interdict after a thorough and detailed analysis of all relevant governing legal tenets on that subject.⁴

In my considered view, in casu, the plaintiff’s claim is founded on a debt which fits the description in section 15 of the prescription Act Chapter [Chapter 8:11]. It arose from the purchase of an immovable property. It suffices to conclude that, the sale transaction is a contractual obligation falling under the definition of a debt advanced in the Prescription Act. Therefore, it subscribes.

Thus, whether a declaratory order prescribes or not is context specific. This is evidenced by the approaches taken in the Ranch, Oertel ONN, Ndlovu and wireless cases above. They were content and claim specific. In our jurisdiction, the term debt has had a wider and broader construction which encompasses anything that can be sued for or claimed by reason of an obligation from statute, contract, delict or otherwise. See, Jennifer Nan Brooker vs Mudhanda and anor: Pierce v Richard Mudhanda and Anor above.

I associate myself with the dicta in the Off-Beat case above which held that,

“My solution is that courts restrict themselves to the text of the legal provision on which the claim is based. In order to identify what the relevant claim is, the court should use the applicants’ cause of action as guidance. However, the court is not beholden to the applicants’ characterisation of the claim, which might be at variance with the relevant legal provision. The latter governs.”

This means the point of law in limine has no merit and is dismissed. It then brings us to the second issue on the merits.

When did the plaintiff’s cause of action arise?

In that regard, what a cause of action is, has been amply spelt out by MALABA J (as he then was) now Chief Justice, in the case of Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H) at 54E-.⁵ The learned now Chief Justice cited with approval the dictum in both Controller of Customs v Guiffre 1971 (2) SA 81 (R) at 84A per, BECK J, and in Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637 where WATERMEYER J stated:

“The proper legal meaning of the expression 'cause of action' is the entire set of facts which gives rise to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action. Such cause of action does not 'arise' or 'accrue' until the occurrence of the last of such facts and consequently the last of such facts is sometimes loosely spoken of as the cause of action. (See Halsbury, vol 1, sec 3, and the cases there cited.)'” (Underlined for emphasis).

From the set of facts presented before this court I will agree with Mr Mutsvairo, that the cause of action arose when they first had knowledge of double sale in August 2023. They immediately took action and instituted these proceedings. I am not persuaded by the defendant’s argument that the cause of action arose in 2018 when the sale transaction was sealed. Everything was in place and there was rapport because the plaintiff was even given the original title deed and the conveyancing process was triggered until the August 2023when they became aware of the double sale.

The only impediment in the completion of the conveyancing process was as submitted by the plaintiff in his evidence on this interlocutory issue that after pumping out such large sums of money he did not have sufficient money to complete the process. Further, it was not disputed that he indeed took occupation through his tenant who was operating a crèche on the premises. Given that the ball to finalise conveyancing was in the plaintiff’s court. There was no need to place the seller’s representative in mora in order to effect transfer. Sluggard as he may have been in his delay to complete this feat, that does not alter the position as to when the cause of action arose.

Mr, Chemhere, for the defendant failed to discharge its onus on the discovery or knowledge rule. It did not adduce evidence to disprove that the plaintiff had knowledge of the cause of action prior to August 2023 or that there was need for the plaintiff to act in September 2018. This was clearly pronounced by MALABA J, as he then was, in the case of Peebles above. ⁶

Whether or not the Plaintiff’s cause of action has prescribed in terms of the Prescription Act, [Chapter8:11]?

A finding has already been made that the plaintiff’s cause of action arose on in August 2023. The summons where issued on24 August 2023.Prescription started running from August 2023 that is when the debt became due. The plaintiff is within its three-year timeframe stipulated by the Prescription Act. See Mudhanda case above.

In terms of s16 (1) of the Prescription Act [Chapter8.11] the prescription shall commence to run as soon as the debt is due. Section 16(3) denotes that A debt shall not be deemed to be due until the creditor becomes aware of the such identity of the debtor and the facts from which the debt arises, provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care. The failure by the plaintiff to see the notice in the Gazzette cannot be held against him. He countered that there was also the need to advertise the lost title deed notice in the readily accessible local newspaper as well as the Government gazette. The 6^th defendant did not rebut this averment by producing the requisite proof thereof.

In conclusion, the cause of action has not prescribed. The prescription started running in August 2023. The Summons were issued on the 24^th of August 2023, within the three-year extinctive period. Punitive costs are not justified as they defeat a party’s right of access to the courts and to be heard.

Accordingly, it is ordered that:

1. The plaintiff’s point of law in limine is hereby dismissed.

2. The plea of prescription is dismissed.

3. The matter is remitted to trial for continuation on the merits.

Mushonga, Mutsvairo & Associates, plaintiff ‘s legal practitioners
Mutuso, Taruvinga & Mhiribidi Attorneys, 3^rd defendant’s legal practitioners
Chimuka Mafunga Commercial Attorneys, 6^th defendant’s legal practitioners