STUDENT NAME: TERRANCE MAWONDE

STUDENT NUMBER: H190230Y

COURSE NAME: LITIGATION AND DISPUTE SERVICES
DEPARTMENT: FORENSCIC ACCOUNTING AND AUDITING
COURSE CODE: BFA 425
With aid of decided cases, discuss how prescription affects litigation
According to the Prescription Act (Chapter 8:11), in this Act, debt, without limiting the
meaning of the term, includes anything which may be sued or claimed by reason of an
obligation arising from statue, contract, delict or otherwise. Section 3 of the Act, the Act shall
bind the State. In so far as any right or obligation of any person in relation to any other person
is governed by customary law this Act shall not apply. Section 4 of the Act states that
Acquisition of things by Prescription. Subject to this Part and Part V, a person shall
prescription become the owner of a thing which he has possessed openly and as if he were the
owner thereof for an uninterrupted period of thirty years or a period which, together with any
periods for which such thing was so possessed by his predecessors in title, constitutes an
uninterrupted period of thirty years.
According to section 19 of the Prescription Act (Chapter 8:11), Judicial interruption of
prescription. In this section process includes a petition, a notice of motion, a rule nisi, a
pleading in reconvention, and a third party notice referred to in any rule of court and any
document whereby legal proceedings are commenced. Subsection (2) of section 19, 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 debt. 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
does not successfully prosecute his claim under the process in question to final judgement or
successfully prosecutes his claim under the process in question to final judgement, but
abandons the judgment or the judgement is set aside (Subsection 3). Subsection (4) of section
19 states that if the running of prescription is interrupted in terms of subsection (2) and the
debtor acknowledges liability and the creditor does not prosecute his claim to final judgment,
prescription shall commence to run afresh from the date on which the debtor acknowledges
liability or if at the time when the debtor acknowledges liability or at any time thereafter the
parties postpone the due date of the debt, from the date upon which the date become due.
Subsection (5) of Section 19 of Prescription Act (Chapter 8:11), if the running of subscription
is interrupted in terms of subsection (2) and the creditor successfully prosecutes his claim
under the process in question to full judgement and interruption does not lapse in terms of
subsection (3), prescription shall commence to run afresh on the date on which judgement of
the court become executable. In terms of Subsection(6), if any person is joined as defendant
on his own application, the process whereby the creditor claims payment of debt shall be
deemed to have served on such person on the date of such joinder.
Under section 6 of the State Liabilities (Chapter 8:14), 60 days’ notice must be given of an
intention to claim money from the State. The notice must out the grounds of the claim and
where appropriate and possible, give details of officials involved and have copies of
documents relating to the claim attached to it. The court will have the power to condone
failure to give the required notice where there has been substantial compliance with section or
where there has been no undue prejudice to the State or to the Officer being sued.
There are special provisions in the Police Act (Chapter 11:10) dealing with the period of
prescription for claims arising out of delicts committed by policemen. Section 70 states that
any civil litigation instituted against the State or member in respect of anything done or
omitted to be done under this Act shall be commenced within eight months after the cause of
action has risen, and notice in writing of any civil action and the grounds thereof shall be
given in terms of the State Liabilities Act (Chapter 8:14) before commencement of such
action.
In Nyika & Anor v Minister of Home Affairs & Ors HH-181-16, the court held that there was
no reason why the general year prescription period for ordinary debts as contained in section
15(d) of the prescription should not govern claims against police. It found that the provisions
providing for shorter period of prescription for actions against the police violated section
69(2) (on the right to a fair hearing) and section (56) (1) (on the right to equality before the
law and equal protection of the law). It referred the matter to the Constitutional Court in
terms of section 175 (1) of the Constitution for its confirmation or otherwise constitutional
ruling.
According to Marume and Furidzo Legal Practitioners, Prescription in Zimbabwe is governed
by the Prescription Act (Chapter 8:11). The Act refers to two forms of prescription,
acquisitive and extinctive prescription. Prescription extinguishes a debt after the lapse period
stated in the Act as applicable. The effect is that the debt cannot be revived. However an
agreement by the debtor to pay the debt after it has been extinguished is enforceable and
payment by the debtor after the debt has been prescribed is deemed to be payment of the debt.
In general the period within which the debt expires is three years and the other periods stated
in the Act can be looked as exceptions. For example a debt owed to the state prescribes after
six years whereas a debt secured by mortgage bond and a judgment debt prescribes after
thirty years. Further where there is an enactment that provides otherwise, the prescription
period provided in that enactment applies. For example, the Labour Act provide that labour
disputes prescribe after two years.
The rationale behind the law on prescription is that there should be finality to litigation and
that the law should not assist the tardy litigant. If a person has claim against another they
should simply enforce their rights on time. As the general rule prescription starts to run as
soon as the debt become due and in a case where the plea of prescription is raised it is of
significance to determine when the debt was due. The completion of prescription may be
delayed by a number of factors for example, where the creditor is under mental disability.
The court cannot on its own raise the issue of prescription. It is up to the party who wishes to
rely on the prescription to raise it properly in the pleadings. The Act states that prescription
can be raised at any stage of the proceedings.(Marume & Furidzo Legal Practitioners, 2019).
Trust Bank Corporation Limited (In liquidation) v Kevin Tafirenyika and Edward Solomon
Makoni (June 2016-june 2018). This is a matter in which the plaintiff issued summons
against the defendants jointly and severally with one paying the other to be absolved for
a) Payment in sum of US$109535-72 together with interest thereon at the rate of 38,66%
per annum calculated from 1st August to date full payment
Defendants expected to the plaintiffs claim on the basis that
1) The summons and declarations were fatally defective in that they do not cite the
correct party as liquidator.
2) The summons were vague and embarrassing in that the plaintiff does not specify the
date from which the interest commences to run
The first and second respondents made a special plea of prescription on the basis that the
amount allegedly owed was due and payable in March, 2012 but summons were issued on
November, 2015. In the premises the defendants averred that the claim of the plaintiff has
prescribed in terms of section 15 (d) of the Prescription Act (Chapter 8:11). The court
accepted the arguments made by the defendants that the first defendant was obliged to make
monthly repayments of US$2 239-58 in March 2012. In terms of the agreement between the
parties the whole amount of the facility then outstanding together with interest or any other
amount or charges payable or outstanding became immediately due for payment and
recoverable for payment. It was accepted that prescription began to operate against the
plaintiff. In terms of section 15(d) of the Prescription Act states that the period for
prescription shall be three years. In the final analysis of the case the court upheld the special
plea and exception taken by the defendants and accordingly dismissed the claim of the
plaintiff with costs.
In the case Mukahlera v Clerk of Parliament & Ors 2005 (2) ZRL 365 (S) it was held that
“The word debt in this context encompasses anything which may be sued for or claimed by
reason of any obligation arising from statute or virtue, contract or otherwise”. By virtue
section 16(3), a debt is not deemed to be due until the creditor becomes aware of the identity
of the debtor and of the facts from which the debt arises.
In the case of Chirinda v Van de Merwe & Anor HH 51\13 it was stated that “It is therefore
trite that prescription runs from the date that a debt become due.” A debt becomes due when
the creditor identifies the identity of the debtor and the facts giving rise to the cause of action.
The cause of action in any action or claim is the entire set of facts which give rise to an
enforceable claim and includes every act which is material to be proved to entitle a plaintiff
to succeed his claim.

REFERENCES
Marume & Furidzo Legal Practitioners, 2019, marumeandfuridzo.com)
Trust Bank Corporation Limited (In liquidation) v Kevin Tafirenyika and Edward Solomon
Makoni (June 2016-june 2018.