Chipo Dyanda v Zvimba Rural District Council [2025] ZWCHHC 3 (4 June 2025)

1 HCC 28/25 HCCC 18/25 CHIPO DYANDA And ZVIMBA RURAL DISTRICT COUNCIL HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 30 May & 4 June 2025 Special Plea - Prescription T. Magwaliba, for the plaintiff W. M. Phiri, for the defendant MUZOFA J: This is a plea in bar. The plaintiff issued summons for a declarator that the defendant’s conduct to downsize a farm known as Plot 190 Rainham Farm, Zvimba’ the farm’ by 12 hectares be declared unlawful and contrary to s3 of the Administrative Justice Act [Chapter 10:28] and the obtaining lease. Further an attempt to reduce the property by 10 hectares be declared unlawful. She also sought consequential relief and costs of suit on a higher scale. In her declaration the plaintiff averred that she entered into a lease agreement with the defendant in respect of the farm measuring 49.3 hectares. She applied for change of use of the farm from agricultural land to educational. The defendant approved the change of use. She intends to construct a school and the defendant is fully aware of the position. In breach of the lease agreement, the defendant purportedly reduced the size of the property from 49.3 hectares to 37.3 hectares and further to 27.3 hectares. The plaintiff averred that the defendant failed to comply with the Administrative Justice Act when it so acted. The defendant’s plea in bar is that the plaintiff’s claim is based on a lease agreement between the parties which terminated by effluxion of time in 2018 it was never renewed. Further that the downsizing of the farm occurred in 2014 and that is when the cause of action arose. The plaintiff should have instituted the claim within three years. In her replication the plaintiff denied that the claim has prescribed. She indicated that although the lease terminated in 2018, it was tacitly relocated. The plaintiff remained in occupation and defendant’s conduct throughout was such as to accept the relocation. As regards the downsizing in 2014, plaintiff averred that the defendant conceded the unlawful conduct and accepted the obligation to compensate the plaintiff. On the date of hearing, I drew Mr Phiri’s attention to the position in the Brooker v Mudhanda & Anor and Pierce Mudhanda & Anor SC 5/18 case which both counsel were HCC 28/25 HCCC 18/25 alive to. The case is authority that the court is required to hear evidence in the determination of prescription. This is becauseis because unlike with exceptions and applications to strike out which arise from pleadings, prescription derives from facts that may not be necessarily evident from the record. Mr Phiri requested for a window period for parties to engage. The court indulged them. It seems they could not find each other. The matter had to proceed. Surprisingly Mr Phiri well aware of the position sought to split hairs and submitted that there are no evidentiary issues for resolution in the matter. Mr Phiri’s submissions suffer from internal contradictions. Firstly, in the plea before the court, the defendant pleaded prescription based on two dates, 2018 that the lease terminated and 2014 when downsizing occurred. From those two dates the court must have evidence to decide from which date the cause of action arose. The next contradiction in terms is in the oral submissions before the court. It was submitted that the cause of action arose in 2018, in her replication the plaintiff introduced a new cause of action that of tacit relocation of the lease. Surely the court cannot split hairs. The cause of action is based on a lease whether it was a renewed lease, tacit relocation or any other form it remains a lease. Evidence will stand to confirm the type of lease. No new cause was introduced. Evidence remains indispensable. Further on the downsizing it was argued that the plaintiff conceded that it was done in 2014. The restricted and selective reference to the replication is regrettable. Clearly the plaintiff’s replication avers that the downsizing was not the complete cause of action. The defendant made some concessions. It is apparent that evidentiary issues arise. The plaintiff maybe raising interruption. It is unnecessary to muzzle the plaintiff and nitpick the replication. The averments by both parties cannot be decided on affidavits. The Court will remain at sea. This is what the court had in mind in Supa Plant Investments Pvt Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at 136 F-G when it succinctly defined what a material dispute of fact is, that, “a material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the court with no ready answer to the dispute between the parties in the absence of further evidence” See also GMB v Mandizha HH 14/14. In this case, the plaintiff’s replication raises issues that leaves the court with no ready answer as to whether the 2018 lease agreement was tacitly relocated. Secondly whether after the downsizing in 2014 the defendants made some concessions. I am of the firm view that there are material disputes of facts as to when the cause of action arose. HCC 28/25 HCCC 18/25 Both parties were alive to the possibility of such a finding. Mr Magwaliba submitted that the defendant can plead over in terms of R42 (7) so that the issues can be dealt with at trial. Mr Phiri was of a different opinion. He submitted that the rules do not provide for pleading over where a special plea is raised. In terms of R42 (1a) the special plea must be disposed of first. R42 deals with exceptions, special pleas, applications to strike out and applications for particulars. R42 (1a) relied upon by the defendant allows a party to take a plea in bar or in abatement which potentially disposes of the matter. It does not disallow pleading over. In my view, that the rules allow for pleading over is evident from R42 (7) relied upon by the plaintiff. It provides, (7) Wherever any exception is taken to any pleading or an application to strike out is made, until it has been determined, no plea, replication or other pleading shall be necessary except as provided for in sub rule (8). That rule is clear. It is only where an exception to any pleading or an application to strike out is made that no further pleadings maybe filed. That which is not prohibited can be done. The rationale is that an exception or an application to strike out are matters evidence ex facie the pleadings as opposed to special pleas that may require evidence. I therefore come to the point that this matter must be dealt with as a trial cause. For the avoidance of doubt, the matter is referred back to the trial cause roll so that the defendant can plead over. The main matter and the special plea shall be addressed simultaneously due to the need for evidence. I believed costs on a higher scale against the defendant was appropriate in this case. The defendant was adamant to proceed in the face of settled position of the law and the clear disputed facts of the case. I would have asked the legal representatives to address the court on the issue. However, both Mr Magwaliba and Mr Phiri did not appear before the court, they sent representatives. I shall therefore order that costs be in the cause. Accordingly, the following order is made; 1. The matter be and is hereby referred to trial. 2. The defendant shall plead over in the main matter and thereafter the matter shall proceed in terms of the rules. 3. Costs be in the cause. Magwaliba & Kwirira, the plaintiff’s Legal Practitioners Muvingi & Mugadza, the defendant’s Legal Practitioners