Mukuradare and Another v Whitehead (15 of 2024) [2024] ZWCHHC 15 (23 February 2024)

1 HCC15/24 REF: HCCC240/23 ISAAC MUKURADARE And LUCIA MURWIRA Versus DAVID WHITEHEAD HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 12 January & 23 February 2024 Opposed Application K. Masasire, for the applicant L. Zinyengere, for the respondent9 MUZOFA J: The two applicants were employed by the respondent in different capacities. A labour dispute arose between the parties. Infact, with a lot more employees that are not before the court. By then the respondent was under judicial management. On 17 February 2017 before a labour officer in Kadoma, the parties settled the dispute and a certificate of settlement was issued. The certificate was issued in respect of three people as follows, ‘Jeremiah Sabamba $50 811- 35, Isaac Mukuradare $46 611-40 and Lucia Murwira $ 13 404-65. Full and final settlement. Payment plan would be provided by the employer’. The applicants seek registration of the settlement in terms of s93 (2) of the Labour Act [Chapter 28:01] as read with s30 of the Labour Amendment No 11 of 2023. The applicants aver that the certificate of settlement remained unregistered. The respondent was under judicial management and corporate rescue which was terminated sometime in 2022. The respondent has failed to pay in terms of the certificate of enforcement despite demand. The respondent opposed the application. The opposition is based on preliminary points taken. Technically the court’s role in such a case is purely administrative for purposes of enforcement. This court need not interrogate the merits of the case. See CFI Holdings t/a Farm and City-v-Machaya SC 37/23. HCC15/24 REF: HCCC240/23 A number of preliminary points were raised. To my mind they synthesize to two preliminary points for determination, that is whether the claim or certificate of settlement has prescribed and whether the application and draft order are defective. Prescription According to the respondent the certificate of settlement is an acknowledgment of debt. It was immediately executable upon registration with an appropriate court. The cause of action arose in 2017. In terms of s15 (d) and s16 of the Prescription Act [Chapter 8:11] civil disputes prescribe after 3 years from the date when the cause of action arose. The court was referred to the cases of Chirinda-v-Konrad Vander Merwe and Anor HH51/13, Zimasco (Pvt) Ltd-v-San He Mining (Pvt) Ltd HH 654/15 for this position of the law. Further, it was submitted that the prescription was not interrupted by either service of process or an acknowledgement of liability. Pocock-v-AFC 1995 (2) ZLR (2) ZLR 365 (S). In this case the litigation by the applicants was incompetent and it was not successfully prosecuted. Also, the engagements between the parties do not amount to acknowledgement of debt. In their heads of argument, the applicants tried to clutch at whatever straws they could to sustain their claim. According to the applicants prescription was interrupted. Firstly, there was pending litigation before the Labour Court under LC/H/LRA/33/19 which was then abandoned in 2012. Secondly there was an acknowledgment of debt through the respondent’s legal practitioners Tamuka Moyo, thirdly that the respondent could not be sued since it was under Judicial Management. Lastly that the certificate of settlement had a suspensive condition, the respondent was required to submit a payment plan which it never did. The last point by the applicant need not detain the court. A payment plan cannot be part of the agreement. A fortiori the applicants have approached the court without the payment plan. Nothing turns on it. The Law In Brooker-v-Mudhadha & Anor, Pierce-v-Mudhadha & Anor SC 5/18 the court opined that prescription is resolvable first by evidence to establish when the cause of action arose. In casu no dispute arises on when the cause of action arose. Both parties are agreed that in arose in February 2017. The dispute is essentially on the interpretation of documents HCC15/24 REF: HCCC240/23 which the applicants rely on to have interrupted prescription. Oral evidence is therefore unnecessary. As correctly stated by the respondent, the period of prescription for debts other than debts secured by notarial or mortgage bonds is three years. See s15 of the Prescription Act. Case law has established that a cause action arises in contract, upon breach of contract and in delict when damage is caused by the defendant’s negligence and the plaintiff is aware of the defendant. The prescription period is peremptory, it is only subject to delay or interruption in terms of the law (s17, 18, 19 of the Act). Whether prescription was interrupted by judicial process The applicants’ opposition is based on s19 of the Act, the relevant part provides 19 Judicial interruption of prescription (1) In this section— “process” includes— (a) a petition; (b) a notice of motion; (c) a rule nisi; (d) a pleading in reconvention; (e) a third party notice referred to in any rule of court; (f) any document whereby legal proceedings are commenced. (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.’ The point taken is hopeless, and lacks merit. Firstly, the litigation filed before the Labour Court was for confirmation proceedings. The process was untenable in view of s93 (2) of the Labour Act. What the applicants had in their possession was a certificate of HCC15/24 REF: HCCC240/23 settlement. It was capable of registration immediately after execution despite the payment plan that the respondent was to make. It is a legal nullity to issue process for the registration of a Certificate of Settlement. A Certificate of Settlement is a valid acknowledgement of debt whose enforcement is triggered by registration with an appropriate Court. Even if the process would be valid, in terms of s19 (3) (a) and (b), the process must be successfully prosecuted and is not abandoned or set aside. In their heads of argument, the applicants conceded that the process was eventually deemed abandoned by letter from the Registrar of the Labour Court. The applicants’ erstwhile legal practitioners DR Chirairo and Legal Practitioners confirmed the position by letter dated the 4th of June 2021. In view of such circumstances one wonders why the applicants insist that the process interrupted prescription. Clearly the applicants did not prosecute their already doomed claim to finality. There was no judicial interruption of the prescription. Whether there was an acknowledgement of liability According to the applicants, the respondent acknowledged the debt through its legal practitioners Tamuka Moyo Attorneys. A valid acknowledgement of debt which is a document that a debtor can use to claim provisional sentence was espoused in Forbes Investments (Pvt) Ltd & Anor, 2000 (2) ZLR 221 (S). The case laid down three considerations which define a valid acknowledgement of debt. These are; i) ii) iii) The acknowledgement must have been made by the debtor. There must be express or tacit acknowledgement of the existence of liability and The acknowledgement must have been made in favour of the creditor or his agent. The letter from Tamuka Moyo Attorneys is dated 22 June 2022 almost five years after the cause of action arose. For the applicants to raise the letter as interrupting prescription is either sheer abuse of court process or taking the Court for granted. The claim had already lapsed by prescription. Besides that, the letter was not an unequivocal acknowledgment of debt. It was a simple invitation to negotiate, to identify the affected employees, the amounts due and how the parties will engage. A series of engagements was to follow. There was no mention of any figures or even the names of the affected parties let alone the applicants’ HCC15/24 REF: HCCC240/23 names. For all intents and purposes this was the onset of a potential acknowledgement of liability but nothing materialised. It is my considered finding that no acknowledgment of liability interrupted prescription in this case. Whether respondent could be sued while under Judicial Management The third objection was that the respondent was under judicial management, so the applicants could not sue. The respondent was released from judicial management in 2022. Infact the letter from the Master of High Court to the Judicial Manager was dated 1 February 2023. The applicants’ heads of argument did not take the issue further except to regurgitate the point, no legal position was advanced. In my view the court order issued when the respondent was placed under judicial management resolves the issue. It was not attached, but the relevant paragraph was reproduced in the Labour Court case number LC/H/196/20 an application for condonation of late filing of response by the respondent under case number LC/H/LRA/33/19. The court cited paragraph 5 of the High Court order dated 19 March 2014 which placed the respondent under Final Judicial Management which was; “all actions and applications and the execution of all writs, summons and other process against 1st, 2nd, 3rd, 4th, 5th and 6th respondent companies shall be stayed and not proceed without leave of this court”. The order is clear that the placement on judicial management of the respondent was not a complete bar to litigation. It was for any party to seek leave of the High Court to sue. The applicants obtained the certificate of settlement in 2017, they were at large to seek leave. They sat on their laurels, it is trite that the law protects the vigilant. In the final, prescription is meant to underscore the time honoured principle of finality to litigation. Matters cannot remain hanging in perpetuity. They must be finalised so that people organise their lives. In this case, applicants seek to enforce a claim dating 2017 some six years later. Respondent is now out of the woods and is now being saddled with a claim that could have been handled by the judicial manager. The matter had prescribed. HCC15/24 REF: HCCC240/23 The audacity with which this claim was brought smacks of abuse of process. Costs on a higher scale would have been appropriate. Unfortunately, it is apparent that the applicants’ quest for their legitimate compensation was a subject to mishaps from the outset. First it was the labour officer who filed an application for confirmation instead of letting the applicants proceed in terms of s93 (2) of the Labour Act. Equally the documents filed of record show that the applicants engaged legal practitioners who also perpetuated their problems. Even this application was ill advised. An order for costs will be burdensome on the applicants. Each party must bear its own costs. The claim is prescribed and there was no interruption. That finding disposes of the matter, it becomes unnecessary to deal with the rest of the issues. The following order is made. 1. The preliminary point on prescription is upheld. 2. The matter is dismissed. 3. Each party to bear its own costs. Masasire Law Chambers, applicant’s legal practitioners Zinyengere Rupapa Legal Practitioners, respondent’s legal practitioners