Georgina Gombera v Chitungwiza Municipality

The plaintiff, an 89-year-old senior resident, purchased commercial stand number 19697, Unit N, Seke, Chitungwiza from the defendant municipality in 1993. Some years later, the defendant wrongfully and unlawfully repossessed the stand from her. After the plaintiff successfully challenged the repossession, the defendant conceded its error and on 20 January 2015 allocated stand number 4921 Nyatsime, Chitungwiza (measuring approximately 1,000 square metres) as a replacement. Despite paying site visit fees and making several follow-ups, the defendant's officials kept evading the plaintiff's requests for a physical site inspection, assuring her the stand existed. Eventually, in July 2020, a joint site visit was conducted with the defendant's representatives, revealing that stand number 4921 Nyatsime did not exist. The plaintiff issued summons on 2 September 2021 seeking either a replacement stand with costs or USD $50,000 in compensation.

• Whether the plaintiff's claim had prescribed in terms of the Prescription Act [Chapter 8:11]
• When the plaintiff's cause of action arose - in 2015 when the phantom stand was allocated, or in 2020 when its non-existence was discovered
• Whether the plaintiff had exercised reasonable care in becoming aware of the facts giving rise to the debt
• Whether prescription can run from the date of allocation of a non-existent stand

The special plea of prescription raised by the defendant was dismissed with costs.

A cause of action does not arise until the occurrence of the last fact necessary to make the claim enforceable. In cases involving allocation of property, where the allocated property is later discovered to be non-existent, prescription begins to run from the date of discovery of the non-existence, not from the date of purported allocation. Under s 16(3) of the Prescription Act, a debt is not deemed due until the creditor becomes aware of the identity of the debtor and all facts from which the debt arises. The Prescription Act is not intended to mask or protect fraudulent activities by debtors. A defendant cannot rely on prescription running from an allocation that was a nullity (a non-existent stand). Where facts are common cause in a special plea of prescription and only their legal interpretation is in dispute, the strict requirement of viva voce or affidavit evidence may be dispensed with.

The court observed that any ordinary woman in the plaintiff's circumstances (89 years old, wheelchair-bound, in ill-health) could have done less than what the plaintiff did in attempting to verify the existence of the allocated stand. The court noted that the plaintiff had actually done more than was reasonable to acquire knowledge of the existence of the stand. The court also remarked that it would be understandable for an old woman to be excited about being given a mere 1,000 square metres out of vast tracts of land owned by the defendant municipality, and she would have no reason to disbelieve officials in authority who assured her the stand existed.

This case is significant in Zimbabwean jurisprudence as it clarifies when a cause of action arises for prescription purposes in cases involving fraudulent or non-existent property allocations by municipalities. It establishes that prescription cannot run from the date of allocation of a non-existent property, but only from when the creditor discovers the fraud or non-existence. The case also reinforces that the Prescription Act is not intended to protect fraudulent conduct by debtors, and confirms that special pleas of prescription may be determined without viva voce or affidavit evidence where the facts are common cause and only their legal interpretation is disputed. It further provides guidance on what constitutes 'reasonable care' under s 16(3) of the Prescription Act, particularly for vulnerable litigants such as elderly and disabled persons.