MUGUZA v MONTFORD INVESTMENTS (PRIVATE) LIMITED (142 of 2025) [2025] ZWHHC 142 (4 March 2025)

1 HH142/25 HCHC 481/23 TODD MUGUZA versus MONTFORD INVESTMENTS (PRIVATE) LIMITED HIGH COURT OF ZIMBABWE COMMERCIAL DIVISION MANZUNZU & CHILIMBE JJ HARARE, 15 February 2024 & 4 March 2025 CIVIL APPEAL R Zimvumi, for the appellant T A Mandizvidza, for the respondent MANZUNZU J INTRODUCTION: This is an appeal against the whole judgment of the Magistrate’s court in which the court a quo dismissed a special plea of prescription with costs. BACKGROUND (1) The respondent sued the appellant in the court a quo for the payment US$15 365.00 being arrears rentals and other charges, together with interest, maintenance cost, collection commission and costs of suit. (2) The amount was broken down as follows: a) USD10 000 arrears rentals for the period from October 2019 to February 2020. b) USD4 000 being weekly penalties. c) USD1 365 being costs of repair and maintenance. (3) The cause of action arose from a 12 months’ lease agreement signed by the parties on 11 August 2019. (4) The monthly rental was set at USD2 000.00. (5) The lease expired on 31 August 2020. (6) Summons were issued in the court a quo on 29 May 2023. HH142/25 HCHC 481/23 (7) The appellant raised a special plea that the claim had prescribed and hence prayed for the dismissal of the respondent’s claim. DECISION OF THE COURT A QUO After hearing arguments for and against the issue of prescription, the court a quo dismissed the special plea with costs. The court a quo ruled that the COVID 19 pandemic interrupted prescription. It is this decision which the appellant has appealed against. GROUNDS OF APPEAL Three grounds of appeal were raised as follows: 1.The court a quo erred and misdirected itself in not finding that the respondent’s claim for arrears rentals as well as the claim for repairs and maintenance had prescribed in terms of section 15 (d) of the Prescription Act, [Chapter 8:11] when a period of three years had passed since its cause of action had fully crystallized without interruption. 2.The court a quo erred and misdirected itself in not finding that the plaintiff’s claim for weekly penalties had prescribed in terms of section 14 (2) as read with section 15 (d) of the Prescription Act [Chapter 8:11] when the principal of arrears rentals had also prescribed. 3. The court a quo erred and misdirected itself in finding that the COVID 19 emergency had interrupted the running of prescription against the respondent’s claim when there was no law providing for the interruption of prescription by reason of the COVID 19 emergency. These grounds mean one and the same thing, that the court a quo erred in its finding that the respondent’s claim had not prescribed because the period of prescription was interrupted by COVID 19 emergency and the intervening Practice Directions by the Chief Justice. ISSUES 1. Whether the respondent’s claim prescribed. 2. Whether COVID 19 pandemic and the Practice Directions by the Chief Justice interrupted the period of prescription. HH142/25 HCHC 481/23 THE LAW The Prescription Act [Chapter 8:11] under section 15 stipulates periods of prescription of debts. It states thus: “15 Periods of prescription of debts The period of prescription of a debt shall be – (a) thirty years, in the case of – (i) a debt secured by mortgage bond; (ii) a judgment debt; (iii) a debt in respect of taxation imposed or levied by or under any enactment; (iv) a debt owed to the state in respect of any tax, royalty, tribute, share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances; (b) fifteen years, in the case of a debt owed to the state and arising out of an advance or loan of money or a sale or lease of land by the state to the debtor unless a longer period applies in respect of the debt concerned in terms of paragraph (a); (c) six years, in the case of – (i) a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract; (ii) a debt owed to the state unless a longer period applies in respect of the debt concerned in terms of paragraph (a) and (b); (d) except where any enactment provides otherwise, three years, in the case of any other debt.” [ my emphasis] Section 14 (2) of the Act, reads; “14 Extinction of debts by prescription (1) … (2) A subsidiary debt which arose from a principal debt or a debt which is dependent upon a principal debt shall be extinguished by the prescription of the principal debt. (3) …” SUBMISSIONS It is not in dispute that the cause of action in this matter arose on 1 March 2020. Three years from that date takes us to 28 February 2023. Summons were issued on 29 May 2023. This period is outside the 3 year period set under the Prescription Act. It is on this basis that the appellant said the claim had prescribed. The appellant argued the court a quo erred and misdirected itself in finding that the COVID 19 pandemic had interrupted the running of prescription against the respondent’s claim when there was no law providing for the interruption of prescription by reason of the COVID 19 emergency. He referred to sections 18 and 19 of the Act which define situations when HH142/25 HCHC 481/23 prescription is interrupted. It is common cause, it is further argued, COVID 19 is not such instance covered. The appellant turned to the cardinal rule of interpretation that words of a statute should be given a meaning which expresses the intention of the legislature. See – Volunteer Farms [PVT] LTD v Fatty Mpofu & 5 Others HB 96/ 2003; S v Nottingham Estates P/L 1995 (1) ZLR 253 at 256D-E It is further argued that the duty of the court is to give effect to the meaning of the language in a statute if the language is clear and unambiguous and that judicial officers are to state the law and not make it ( judices est jus dicere non facere). See Union Government ( Minister of Mines) v Thompson 1919 AD 404 at 405. The final submission by the appellant is that had the legislature intended to have pandemics interrupt the running of prescription it would have specifically said so. To this end, the fact that there was no mention of that in the relevant statute clearly shows that it was not the intention of the legislature. The court a quo ought to have given effect to the meaning of the language in a statute because the language in the Prescription Act is clear and unambiguous, the appellant concluded. The respondent argued that while the court is inclined to interpret the plain meaning of statutory provisions, it ought to do so unless such an approach leads to absurdity or repugnance with the intention of the legislature. See Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S). The respondent urged the court to take judicial notice of the effects of COVID 19 on the operations of the courts which prevented the respondent from instituting proceedings because of the complete or partial closure of the courts between March 2020 to May 2023. During the pandemic, there were statutes which imposed limitations which militated against respondent instituting proceedings. Various statutory instruments were referred to which introduced lockdown. In addition, respondent referred to a number of Practice Directions by the Chief Justice which limited litigants from approaching the courts. HH142/25 HCHC 481/23 It was argued, the Prescription Act was affected by force majeure. The court was urged to take judicial notice of the COVID 19 pandemic and its effects. ANALYSIS I do take judicial notice of the pandemic and its effects upon the courts administration operations which were occasionally closed or curtailed. The court a quo took a similar position. It cannot be faulted for that. Judicial notice is a legal rule that allows a court to accept a fact as true without requiring evidence. It's used when a fact is so well-known or generally accepted that it is not disputed like the existence of COVID 19 and its devastating effects. In other words the doctrine of judicial notice provides that a court may take cognisance of facts which are generally known, without requiring them to be proved. Appellant’s argument is that because pandemics are not specified in the Act as causing interruptions it was never the intention of the legislature to include them. The court having taken judicial notice of the pandemic, stated in its judgment ; “It is the court’s finding that at some point during that period court operations were suspended and if we are to add those days, it cannot add up to three years as argued by the defendant. It is common cause that at some point the courts indeed were suspended and as such prescription was interrupted.” The respondent’s pleadings in the lower court, prima facie show that the claim was filed after three years. The onus shifted to the respondent to prove that prescription was interrupted. The court agreed with the respondent that prescription was interrupted by the lockdown which affected the running of the courts. The court did not go further to explain why it ruled that the pandemic interrupted prescription in the face of clear provisions of the Prescription Act and why this is said to be the intention of the legislature. This is something which can only be derived from the interpretation of the Act. This the trial court did not attempt to do in order to justify its conclusions. The court fell into error. Even if we were wrong in our analysis, which we do not believe we are, the court nevertheless fell into error to conclude that, “if we are to add those days, it cannot add up to three years” without any computation of any days. How was the court to know how a deduction of unspecified number of days would still leave the claim within the prescriptive period. HH142/25 HCHC 481/23 Sections 18 and 19 lay out situations which interrupt the running of prescription. Pandemics is not one of them. To read pandemic in the list of such situations would be amending the Act thereby the courts would be usurping the role of the legislature. The best the courts can do is to alert the legislature of the need to amend the Prescription Act to cater for the eventualities like COVID 19 pandemics. We find that the appeal has merit and must succeed. However the appellant failed to motivate in the court a quo why costs should be at a higher scale. DISPOSITION 1. The appeal succeeds with costs. 2. The decision of the court a quo is set aside and in its place be substituted with the following; “The plaintiff’s claim be and is hereby dismissed with costs.” CHILIMBE J ……………………………… agrees Ruth Zimvuni Kwgak Pactice, appellant’s legal practitioners Masiye-Sheshe and Asssociates, respondent’s legal practitioners