Donald Charles Fernoughty v Nathan Chataika and Max Management (Private) Limited and Milton Gardens Association

On 1 August 2006, Plaintiff entered into an agreement of sale with Second Defendant to purchase stand number 905 of Newark of Hilton of Subdivision A, Waterfalls, Harare. Plaintiff paid the purchase price in full and a deed of cession was executed in his favor. In September 2010, Plaintiff discovered that First Defendant had occupied the property. Third Defendant wrote to First Defendant demanding he vacate, affirming Plaintiff's rights. First Defendant refused and instituted court proceedings (HC 6275/13) seeking a declarator that he was the lawful owner, which was dismissed for want of prosecution. In January 2021, Plaintiff discovered that First Defendant had once more taken occupation and erected structures, including a perimeter wall and culverts. Plaintiff then instituted eviction proceedings and claimed damages of USD 2,500 for demolition costs. First Defendant filed a Special Plea asserting that the claim had prescribed.

• Whether the Plaintiff's claim had prescribed under the Prescription Act
• When the cause of action arose for purposes of prescription
• Whether there was judicial interruption of prescription by First Defendant's prior court application
• Whether First Defendant waived the right to rely on prescription
• Whether the factual dispute regarding when the cause of action arose could be determined on a special plea without viva voce evidence

The special plea was dismissed with costs.

When a special plea of prescription is raised and there is a factual dispute as to when the cause of action arose, such dispute cannot be determined without resort to viva voce evidence. A defendant raising a special plea must take the plaintiff's declaration as pleaded. A factual dispute regarding when prescription began to run must be decided through evidence rather than summarily on the pleadings.

The Court observed that parties seeking costs on a higher scale must provide justification for such an order, and that in the absence of such justification, ordinary costs will meet the justice of the case. The Court also implicitly observed that the nature of prescription pleas inherently involves factual determinations that may require evidential inquiry, particularly regarding when all elements necessary for a cause of action crystallized.

This case is significant in Zimbabwean civil procedure for establishing that where there is a factual dispute as to when a cause of action arose for purposes of a prescription special plea, the court should not determine the issue on the pleadings alone but should require viva voce evidence. It reinforces the principle that a defendant raising a special plea must take the plaintiff's declaration as pleaded, and that where material factual disputes exist, these cannot be resolved summarily. The case also provides guidance on the requirement for justification when parties seek costs on a higher scale.