1
HH 503-15
HC 2507/14

JOHN CONRAD TRUST

versus

THE FEDERATION OF KUSHANDA

PRE-SCHOOLS TRUST

and

MUNICIPALITY OF MARONDERA

and

UNITED METHODIST CHURCH MARONDERA

and

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 2 June 15 and 10 June 2015

Special Plea

G.T. Mharapara, for the plaintiff

Ms C. Pasipamire with Ms N. Masunda, for the 3^rd defendant

            MATHONSI J: Claiming to be a trust duly registered in terms of the laws of Zimbabwe, the plaintiff instituted summons action against the 4 defendants seeking to be declared the rightful owner of stand 1894 Marondera Township (the stand) currently held by The Federation of Kushanda Pre-Schools by Deed of Transfer number 2910/2006 and the cancellation of that title deed, the registration of the 1,7640 hectare stand in its name and the eviction of the third defendant and all those claiming occupation through it from the stand.

            In its declaration the plaintiff averred that in 1997 its beneficiaries, being its employees, won some prize money which they invested in the purchase of the stand from the second defendant. However management of the first defendant misrepresented to the second defendant that the purchase was made by the first defendant resulting in the stand being registered in the name of the first defendant. On 27 April 2006 the stand was registered in the name of the first defendant by Deed of Transfer No. 2910/2006.

            The plaintiff averred further that in September 2007, the first respondent sold the stand to the third defendant without a board resolution resulting in the latter taking occupation. As the registration of title was irregular the plaintiff prayed for judgment aforesaid.

            The third defendant entered appearance and filed a special plea in the following:

            “The 3^rd defendant pleads as follows to the plaintiff’s claim:

1. According to the plaintiff’s own papers the wrong alleged was committed sometime in 2007. Summons claiming the property was issued by other parties in 2007 but the matter was withdrawn. This is confirmed by paragraph 8 and 11 of the plaintiff’s further particulars. The claim is now being reinstituted by another party being the plaintiff in 2014 well in excess of the prescriptive three year period. The plaintiff’s cause of action is consequently prescribed and the indebtedness has been extinguished by operation of law. On this ground alone the plaintiff’s claim must fail.

1. As a result of the aforementioned special plea the 3^rd defendant is not obliged to plead over on the merits”.

Ms Pasipamire who appeared with Ms Masunda for the third defendant submitted

that the plaintiff’s claim is prescribed in terms of s 15(d) of the Prescription Act [Chapter 8:11] because the cause of action arose in September 2007 when the third defendant purchased the stand from the first defendant and took occupation. The plaintiff became aware of the identity of the third defendant as well as its right to sue then but did not take steps to prosecute the claim until March 2014 when it issued summons which was subsequently served. The running of prescription started then and was not interrupted until the prescriptive period of 3years expired. The special plea should therefore be upheld.

            Mr Mharapara for the plaintiff conceded that the running of prescription commenced in September 2007 when the third defendant purchased the stand and took occupation. He conceded that the prescriptive period of 3 years has run its course. He submitted however that the plaintiff relies on the argument that prescription as a remedy is not available to the third defendant and therefore cannot be sustained. This is because the third defendant’s claim to the property is derived from that of the first defendant who allegedly sold the stand to it. As the first defendant has consented to judgment, the third defendant cannot have a derivative claim to the stand and cannot raise prescription as a defence to ward off an attack.

            Mr Mharapara submitted that while a third party can raise prescription it can only do so on the basis of either a real right or a real interest. The third defendant does not have a real right in the stand but only a real interest. The latter is only available where the third defendant can prove that it was an innocent purchaser who bought the property in good faith and in the absence of any contestation to the title. In light of the fact that the first defendant has filed a consent to judgment and it maintains that it did not sell the stand to the third defendant the latter cannot raise prescription.

            In my view this is a very awkward argument. To the knowledge of the plaintiff, the first defendant held the property from 1997 and had it transferred to its name in 2006. Again to the knowledge of both the plaintiff and the first defendant, someone purporting to represent the first defendant sold the stand to the third defendant which immediately took occupation and has remained in possession for an uninterrupted period of almost 8 years. It is therefore not possible for the first defendant to only emerge now consenting to a judgment in respect of a claim that is clearly prescribed, where it long alienated its rights over the stand and then argue that it did not sell the stand to the third defendant merely because a resolution of its board authorising the sale cannot be located.

            The point is made by Marais AJ in Cape Town Municipality v Allie N.O 1981(2) SA 1 at p 5 that:

“….it cannot be denied that society is intolerant to stale claims. The consequence is that a creditor is required to be vigilant in enforcing his rights. If he fails to enforce them timeously he may not enforce them at all”.

            The same point was made by Wessels in The Law of Contract in South Africa, Vol II para 2766 that:    

“Creditors should not be allowed to permit claims to grow stale because thereby they embarrass the debtor in his proof of payment and because it is upsetting to the social order that the financial relations of the debtor towards third parties should suddenly be disturbed by the demanding from him payment of forgotten claims”.

            In fact there should be legal certainty and finality in the relationship of parties after the lapse of a certain period of time. It would be against public policy for one who has a complete cause of action to sit on it and not litigate upon it ad infinitum: Maravanyika v Hove 1997(2) ZLR 88 (H) 95C.

            The provisions of the Prescription Act [Chapter 8:11] make prescription a matter of substantive law as opposed to procedural law.  They extinguish the claim as opposed to merely barring the remedy: Coutts & Co v Ford & Anor 1997(1) ZLR 440 (H) 443B. In light of the prescriptive period which Mr Mharapara conceded has lapsed, it’s the end of the road for the plaintiff.

            Even if I am wrong in that finding, the plaintiff’s claim will still suffer the consequences of suing as a trust. The plaintiff being a trust, is not a corporate body and therefore cannot appear as a party. In WLSA & Ors v Mandaza & Ors 2003 (1) ZLR 500 (H) 505 E-H Smith J quoted with approval the pronouncement of Steyn CJ in Commissioner of Inland Revenue v MacNeillie’s Estate  1961(3) SA 833 (A) 840 F-H that:  

“Like a deceased estate, a trust, if it is to be clothed with juristic personality, would be a persona or legal entity consisting of an aggregate of assets and liabilities. Neither our authorities nor our courts have recognised it as such a persona or entity”.  

See also Crundall Bros (Pvt) Ltd v Lazarus N.O & Anor 1990(1) ZLR 290(H) 298 E;

Gold Mining & Minerals Development Trust v Zimbabwe Minerals Federation 2006(1) ZLR 174(H) 177F.

            The plaintiff is simply non –suited. So is the first defendant.

            In the result, it is ordered that:

1. The 3^rd defendant’s special plea is hereby upheld.
2. The plaintiff shall bear the 3^rd defendant’s costs.

Mtombeni, Mukwesha, Muzawazi & Associates, plaintiff’s legal practitioners

Scanlen & Holderness, defendant’s legal practitioners