Cotton Company of Zimbabwe Limited v Mobil Oil Zimbabwe (Pvt) Ltd and Total Zimbabwe (Pvt) Ltd

The plaintiff (Cotton Company of Zimbabwe Limited) entered into an oral agreement with the first defendant (Mobil Oil Zimbabwe) for the supply of diesel. Between July 2000 and December 2002, the plaintiff ordered and paid for 2,398,000 litres of diesel. The plaintiff alleged that the first defendant only delivered 1,875,237 litres, resulting in a shortfall of 522,763 litres. The plaintiff conducted an audit and reconciliation exercise comparing goods received vouchers from its various depots against pro forma invoices and proof of payment. In 2006, the first defendant disinvested from Zimbabwe and sold all its assets to the second defendant (Total Zimbabwe). The plaintiff discovered this during the trial in March 2009 and applied to join the second defendant to the proceedings to enable it to obtain satisfaction of any judgment from the second defendant's assets. The second defendant filed a special plea alleging that the plaintiff's claim had prescribed.

• Whether the plaintiff's claim against the second defendant had prescribed in terms of the Prescription Act [Chapter 8:11]
• Whether a successor in title (second defendant) can raise a plea of prescription based on facts that would have sustained such a plea against the original debtor (first defendant)
• When a cause of action arises against a successor in title for purposes of prescription
• Whether the plaintiff proved that it ordered and paid for the diesel claimed
• Whether the plaintiff proved that there was a shortfall in deliveries
• The admissibility of oral evidence to prove the contents of missing documents
• The application of the best evidence rule where contemporaneous documents existed but were not produced

1. The defendant is absolved from the instance. 2. The plaintiff shall meet the defendant's costs of suit.

1. For purposes of prescription, a cause of action against a successor in title only arises when the creditor becomes aware of the successor's identity and the facts making it liable for the original debtor's obligations, not when the original cause of action arose. 2. Where a contemporaneous document was created to record a transaction, that original document constitutes the best and only admissible evidence of that transaction; oral evidence purporting to prove the contents of missing contemporaneous documents is inadmissible hearsay. 3. In claims alleging shortfalls in deliveries based on reconciliation of accounts, the claimant bears the onus of accurately proving both what was ordered and paid for (the opening entry) and what was delivered (the closing entry) to establish the alleged deficiency. 4. A general deficiency cannot be proved without first accurately proving what was due, even if what was received can be accurately proved.

The court observed that the cumulative delay of five years between filing and judgment was a record, but noted tellingly that there was no complaint from the plaintiff about this delay. The court remarked that the reconciliation issue should have been settled at pre-trial conference had all parties effectively played their role, and that the reconciliation exercise could effectively have been done by the parties' logistical officers prior to trial rather than being litigated. The court expressed its expectation that an establishment of the plaintiff's stature would keep proper and comprehensive records of transactions from order to delivery. The court also commented that the whole purpose of prescription statutes is to penalize the dilatory creditor but not a creditor who is unaware, through no fault of his own, of the cause of action at his disposal.

This Zimbabwean High Court case (while not South African, it applies similar common law principles) is significant for its treatment of prescription against successors in title and the application of evidentiary rules in commercial disputes. It clarifies that a cause of action for prescription purposes only arises when a creditor becomes aware of the debtor's identity and the facts giving rise to liability, consistent with section 16(3) of prescription legislation. The case also reinforces the importance of the best evidence rule in commercial litigation, particularly that oral evidence cannot substitute for missing contemporaneous documents that recorded transactions. It emphasizes that in reconciliation disputes involving alleged shortfalls, parties must prove their claims with comprehensive and accurate documentary evidence rather than relying on witness testimony about what documents allegedly contained. The judgment serves as a cautionary tale about the importance of proper record-keeping in commercial transactions and the risks of pursuing claims without complete documentary proof.