Joyline Munduna v Albertina Benjamin Ferreira and Others

On 21 October 2015, the plaintiff issued summons claiming an order compelling the first and second defendants to sign documents to transfer property known as 21 St Patrick's Road, Hatfield, Harare. The plaintiff alleged that on 7 July 2005, she entered into an agreement of sale with the first and second defendants for the property, paid the full purchase price of ZW$280,000, and attended at the conveyancer's office for transfer. However, the first defendant defaulted on the next appointment and left for Mozambique, returning only in 2012/2013. The second defendant was a minor (born 10 July 1995) at the time of the alleged sale, and no curator ad litem was appointed. No transfer was ever effected to the plaintiff. In 2015, the first and second defendants sold the property to the third defendant, and transfer was effected on 16 March 2015. The defendants raised a special plea of prescription, arguing that more than ten years had elapsed since the cause of action arose in 2005.

• Whether the plaintiff's claim for transfer of property had prescribed under the Prescription Act, Chapter 8:11
• When prescription begins to run in claims for transfer of property
• Whether the first defendant's absence from Zimbabwe delayed the running of prescription under section 17(1)(c) of the Prescription Act
• Whether the second defendant being a minor delayed the running of prescription under section 17(1)(a) of the Prescription Act
• Whether prescription only begins to run once a debtor is put in mora
• Whether a special plea of prescription requires admission of the existence of the underlying agreement

1. The defendants' special plea of prescription is upheld. 2. The plaintiff shall pay the first, second and third defendants' costs of suit.

Prescription in claims for transfer of immovable property begins to run from the date the agreement of sale is complete and the plaintiff becomes aware of their entitlement to transfer, not from when the debtor is subsequently put in mora. The absence of a debtor from the jurisdiction does not automatically delay prescription under section 17(1)(c) of the Prescription Act where alternative remedies are available to the creditor, including application under the Titles Registration and Derelict Lands Act, edictal citation, substituted service, or registration of a caveat. Section 17(1)(a) of the Prescription Act, which delays prescription where a creditor is a minor, does not apply where the minor is the debtor. A special plea of prescription can be determined based solely on the facts alleged in the plaintiff's declaration without proceeding to the merits or requiring admission of the underlying agreement's validity. The law assists the vigilant, not those who sleep on their rights.

The court made observations about the invalidity of contracts entered into with minors without a curator ad litem, noting the plaintiff's failure to address this fundamental issue despite relying on section 17(1)(a). The court also commented on the proper procedure for special pleas, noting that while rules do not specifically require it, plaintiffs should file opposing affidavits to special pleas to adduce evidence of interruption or delay of prescription. CHAREWA J noted that heads of argument are not the appropriate vehicle to adduce evidence. The court reiterated the principle that prescription serves the administration of justice by promoting certainty and finality, and persons with complete causes of action must not unreasonably delay in claiming their rights.

This case reinforces important principles regarding prescription in Zimbabwean law, particularly in property transfer disputes. It clarifies that prescription begins to run from the date a party becomes aware of their cause of action (i.e., when a sale agreement is complete and transfer is due), not from when a debtor is put in mora. The case emphasizes that litigants must act vigilantly to protect their rights and cannot rely on a debtor's absence from the jurisdiction or minority status to indefinitely delay prescription when alternative remedies are available. The judgment also clarifies procedural aspects of special pleas, confirming that prescription can be determined without proceeding to the merits and that a special plea does not require admission of the underlying agreement's validity.