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

1 HCC 68/24 HCC 185/23 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 6th defendant No appearance for the 1st, 2nd,3rd, 4th and 5th 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 1st and 2nd defendant, as well as, the registration of stand 174 Banket Township, Banket into the 1st 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 3rd and 6th defendants entered their appearances to defend and pleas. The 6th 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 28th of January 2024. On the 6th of February 2023 the 6th defendant filed a special plea of prescription simultaneously with their plea. The 6th defendant’s special plea was couched as follows: HCC 68/24 HCC 185/23 1. The plaintiff cause of action, if any, for entering his alleged right arising from the agreement of sale arose on the 4th 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 6th defendant prays that the plaintiff’s claim be dismissed with costs on a higher scale. The summarised facts are that, on the 15th of July 2016, the 2nd 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 4th of September, 2018, the 2nd 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 2nd defendant sold the same property to a third party, the 1st defendant, her sister-in-law, married to her own brother. The property was expeditiously, transferred into the names of the second buyer, the 1st 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 19th of August 2019. However, it is adverted that, the timelines for objections of 14 days which was supposed to commence on the 22nd 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 1st and 2nd defendants. Consequently, the 1st defendant used the property in contention as collateral security of a debt she owed to the 3rd defendant resulting in the attachment of the property by the 5 th defendant on the 25th of August 2023. This resulted in the registration of a mortgage bond on HCC 68/24 HCC 185/23 the property in contention. The 6th 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 6th 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 3rd and 6th 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 6th defendant contends that, the plaintiff’s cause of action arose on the 4th 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 2nd 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 6th 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 1st and 2nd 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 HCC 68/24 HCC 185/23 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 2nd 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 1st defendant who did not file an appearance to defend the matter. They argue that, the 6th defendant only came into the picture in January 2023, when it registered the mortgage bond for a loan advanced to the 1st defendant. They were only incorporated into the lawsuit later in the day, therefore, the defence of prescription is not available to the 6th defendant, as far as the plaintiff is concerned Against that background, the plaintiff’s right to sue or incorporate the 6th defendant accrued after the 1st 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 1st and 2nd defendants. They relied more or less on the same authorities with the 6th 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. HCC 68/24 HCC 185/23 These issues translate to: a. Whether or not a remedy for a declaratory order or claim prescribes? b. When did the plaintiff’s cause of action arise? and, c. 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 6th 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 1 High Court may determine future or contingent rights The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination. The meaning of this section was amply pronounced in Johnsen v Agricultural Finance Corporation 1995 (1) ZLR 65 (S) at 72E-F where GUBBAY CJ said that: HCC 68/24 HCC 185/23 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 condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a prerequisite to the exercise of jurisdiction.” MALABA J.as he then was in the case of Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H)highlighted that, ‘The power of this court to issue a declaratory order in the matter is not in dispute. It is trite that where there is a concrete controversy involving the invasion of an applicant's rights, the courts will issue a declaratory order in the matter, whether it is exercising its inherent jurisdiction or acting under the specific powers granted it under section 14 of the High Court Act [Chapter 7.06]”. (See Nolan v Povall and Others1953 (2) SA 202 (SR); Barron v Greendale Town Managemnt Board 1957 (2) SA 521 (SR); Musara v Zinatha 1992 (1) ZLR 9 (H) Lupu v Lupu 2000 (1) ZLR 120 (SC)). 2 See, the dicta inOff –Beat Holiday Club and Another v Sanbonani Spa Shareblock limited and Another v Sanbonani Spa Shareblock Limited and Others 2017 SA 9(CC) 3 However, before an analysis can be undertaken as to whether the applicant’s claim constitutes a debt for purposes of the Prescription Act.,must be established first what the correct characterisation of the claim is. Because a given claim can be characterised in different ways, it can constitute a debt on one characterisation but not another. The applicants argue that their claim is in no way a debt because it is a claim for declaratory relief, which is not a debt in the ordinary sense of the term according to Escom. However, the respondents argue that the claim is a debt, because an alteration of the articles would lead in effect to a new contract. Thus, there is a need for there to be an objective characterisation of the claim independent of the averments of the parties that can be easily identified by a court and that advances rather than diminishes the purposes of the Prescription Act. In my view, the correct characterisation of a claim for purposes of the Prescription Act is the characterisation arising from the relevant legal provisions on which the claim is based. Here, the claim is based on section 252 of the Companies Act, the plain text of which discusses an entitlement to an equitable judicial determination. Thus, according to section 252, the applicants’ claim is for declaratory relief, not an alteration of the terms of a contract or a money award. The respondents’ alternate proposal that attention should be given instead to the ultimate effects or aims of the relief sought is less desirable because it requires that a court perform a complicated causal or psychological inquiry that is certain to yield disparate results for what is essentially the same type of claim across cases. This would undermine the purposes of the Prescription Act which assumes that claims can be readily classified as one kind or another. 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. HCC 68/24 HCC 185/23 “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. HCC 68/24 HCC 185/23 The authority cited by the 6th 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 4 The honourable CHIGUMBA J remarked that” Prescription applies as much to a declaratur as to an interdict, which are common law remedies. See Syfin v Pickering1981 ZLR 344(H), “ 5“A cause of action is defined by Lord Esher in Reed v Brown (188) 22 QB 131 as every fact which it would be necessary for the plaintiff to prove if transversed in order to support his right to judgment of the court. In the same case, Lord Fry at 132-133 said the phrase meant everything which if not proved gives the defendant an immediate right to judgment. In Letang v Cooper [1965] 1 QB 232 at 242-3 Diplock LJ (as he then was) said a cause of action is simply a factual situation the existence of which entitled one person to obtain from the court a remedy against another person.” HCC 68/24 HCC 185/23 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 See Andrew Chigovera v Minister of Energy & Power Development Zimbabwe Electricity Board SC115/21. 6 The Honourable now Chief Justice highlighted that, “The onus is on Dairiboard, which raised the defence of prescription, to show that Mr. Peebles had knowledge, or should be deemed to have first had knowledge, of such facts on any date more than three years prior to the date on which summons was served on it, that is to say, a date between 9 May and 30 September 1994; Gericke v Sack 1978 B (1) SA 821 (A); Brand v Williams HCC 68/24 HCC 185/23 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 24th 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. 1988 (3) SA 908 (C) at 910B…The he rule applied is the discovery or knowledge rule. In the application of the rule, contained in section 16(3) of the Act, to decide whether Dairiboard has shown, on a balance of probabilities that Mr. Peebles acquired, during the relevant period, the requisite knowledge of the facts from which the cause of the action arose, it is not necessary to seek knowledge of meticulous particulars of the cause of action. The court must look at all the circumstances of the case and decide whether Mr. Peebles had, or should be deemed to have had, knowledge of the broad or material facts establishing the essential elements of the cause of action” Mushonga, Mutsvairo & Associates, plaintiff ‘s legal practitioners Mutuso, Taruvinga & Mhiribidi Attorneys, 3rd defendant’s legal practitioners Chimuka Mafunga Commercial Attorneys, 6th defendant’s legal practitioners HCC 68/24 HCC 185/23