Lovemore Makunun'unu v Workville Enterprises (Pvt) Limited

On 23 October 2014, the appellant (plaintiff in the court a quo) issued summons claiming US$11,000.00 being restitution of funds he paid for the purchase of an International Haulage Truck (Horse), Registration No. AA56104, plus interest at 10% per annum and costs. On 5 December 2014, the respondent (defendant) filed a plea raising prescription as a point in limine and then pleaded to the merits. The parties agreed that the point in limine of prescription would be dealt with first before proceeding to the merits. On 10 June 2016, the learned magistrate upheld the defendant's point in limine of prescription. The appellant appealed this decision on 21 June 2016, arguing that the court erred in upholding the prescription point and that the respondent had perpetually acknowledged its liability, thereby interrupting the running of prescription.

• Whether the court a quo erred in upholding the point in limine of prescription
• Whether the respondent had acknowledged its liability to the appellant thereby interrupting the running of prescription
• Whether the court a quo erred in applying section 7(3) of the Prescription Act instead of section 19
• Whether civil debts must be successfully prosecuted to final judgment to interrupt prescription

The appeal was dismissed with costs on the ordinary scale.

The binding legal principles established are: (1) To successfully claim that prescription has been interrupted by acknowledgment of debt, a party must provide concrete evidence (whether express or tacit) of such acknowledgment - bald assertions without supporting evidence are insufficient; (2) Civil debts must be acted upon within the prescribed period (three years), and issuing summons alone does not interrupt prescription unless the claim is successfully prosecuted to final judgment; (3) Sections 7(3) and 19 of the Prescription Act [Chapter 8:11] have the same legal effect - both require that prescription is only interrupted if the creditor successfully prosecutes the claim to final judgment, unless the debtor acknowledges liability; (4) The party alleging facts that would interrupt prescription bears the burden of proving those facts.

The court noted that if indeed the appellant had proof of the acknowledgment of debt he referred to, he was to blame for not availing it to the court a quo. This observation suggests that parties have a responsibility to ensure all relevant evidence is placed before the trial court, and failure to do so may be fatal to their case. The court also observed during oral submissions that the appellant sought to amend the relief sought to have the matter remitted for a hearing de novo based on the argument that the wrong section of the Prescription Act was applied, but the court indicated that such remittal would serve no purpose given that the relevant sections have the same effect.

This case reinforces important principles of prescription law in Zimbabwe (which shares similar legal principles with South African law). It confirms that: (1) a party alleging acknowledgment of debt to interrupt prescription must provide concrete evidence of such acknowledgment; (2) mere issuing of summons is insufficient to interrupt prescription unless the claim is successfully prosecuted to final judgment; (3) sections 7(3) and 19 of the Prescription Act have the same practical effect regarding interruption of prescription; and (4) the burden is on the party alleging facts that would interrupt prescription to prove those facts. The case emphasizes the importance of producing evidence to support claims, particularly in respect of acknowledgment of debt that would interrupt prescription.