City of Harare v Aqua-Jets (Pvt) Ltd and The Registrar of Deeds N.O.

In 1992, the City of Harare (applicant) sold Stand 14773 Harare Township measuring 1.4221 hectares to Aqua-Jets (Pvt) Ltd (first respondent). Under clause 7 of the agreement, the first respondent was required to commence construction within six months of infrastructure servicing and complete within twelve months. After the stand was serviced, the first respondent breached the agreement by failing to construct buildings as required. Despite written notice of breach and several extensions of time granted by the applicant, the first respondent failed to develop the property. On 25 August 2000, the applicant placed the first respondent in mora. Summons were eventually issued on 17 August 2020 (over 20 years later), seeking cancellation of the agreement and re-transfer of the property. The first respondent filed a plea in bar, arguing that the applicant's claim had prescribed under section 15(d) of the Prescription Act, as the three-year prescription period had expired by September 2001.

• Whether the applicant's claim for cancellation of the agreement and re-transfer of property had prescribed under the Prescription Act
• Whether the running of prescription was interrupted by the first respondent's acknowledgment of liability through multiple requests for extensions of time
• Whether such requests for extensions constituted express or tacit acknowledgment of liability under section 18(1) of the Prescription Act

The first respondent's plea in bar was dismissed with costs.

The binding legal principle established is that under section 18(1) of the Prescription Act, multiple requests by a debtor for extensions of time to perform contractual obligations constitute tacit acknowledgment of liability which interrupts the running of prescription. Where such requests are made continuously and extensions granted, prescription is repeatedly interrupted, thereby keeping the cause of action alive and preventing the claim from prescribing. The determination of whether conduct constitutes acknowledgment of liability requires an objective assessment of what the debtor's conduct conveyed, regardless of subjective intention. Such inquiry is always factual and depends on the circumstances of each case.

The court noted that while the parties appreciated that viva voce evidence was required (as properly held in Jennifer Nan Brooker v Richard Mudhanda & The Registrar of Deeds and Adrienne Staley Pierce v Richard Mudhanda & The Registrar of Deeds SC 5/18), they opted to proceed with the matter without such evidence. The court observed that acknowledgment of liability is not cast in stone but depends on the facts and circumstances of each case, and can either be express or tacit and therefore implied on a party.

This case is significant in Zimbabwean law (and relevant to South African jurisprudence given the similar legislative framework) as it clarifies the operation of prescription interruption under section 18(1) of the Prescription Act. It establishes that repeated requests for extensions of time to perform contractual obligations constitute tacit acknowledgment of liability that interrupts prescription. The case demonstrates that where parties engage in ongoing negotiations and grant multiple extensions, prescription does not run during this period, thus preserving the creditor's right to claim. It emphasizes the importance of examining the debtor's conduct objectively to determine whether liability has been acknowledged, and confirms that continuous acknowledgments through requests for extensions keep restarting the prescription period.