Muteswa Wholesalers (Private) Limited & 2 Others v Delta Zimbabwe Limited T/A Delta Beverages

The respondent (Delta Zimbabwe Limited) instituted action against the appellants claiming payment of US$249,169.00 for goods sold and delivered to the first appellant (Muteswa Wholesalers). The second and third appellants were liable as co-principal debtors under deeds of suretyship. The main claim was resolved on 9 February 2017 in favour of the respondent by Dube J. The first appellant filed a counterclaim alleging it had concluded an agreement in May 2011 with the respondent for supply of beverages with a 5% discount on purchase price. The first appellant alleged the respondent breached the agreement by unilaterally reducing the discount from 5% to 2.6%, reducing payment terms from 30 days to 7 days, and later demanding payment upon delivery. The first appellant claimed this caused financial loss of US$705,982.17. The respondent defended, stating the agreement was for one year (26 March 2011 to 26 March 2012) and it had no obligation to continue on the same terms after expiration. The respondent raised a special plea of prescription. At trial, the first appellant's witness (Gerald Mazwi, operations manager) testified that the loss suffered was unknown to him. At the close of the first appellant's case, the respondent applied for absolution from the instance, which was granted by the High Court on 31 May 2017.

• Whether the issue of prescription was properly before the court
• Whether the appellants' counterclaim had prescribed under section 15(d) of the Prescription Act [Chapter 8:11]
• When prescription begins to run in relation to a debt arising from breach of contract
• Whether absolution from the instance should be granted at the close of the plaintiff's case where there is insufficient evidence to establish essential elements of the claim
• Whether the appellants had proved their alleged damages

The appeal was dismissed with costs. The High Court's order granting absolution from the instance was upheld.

1. A debt for purposes of the Prescription Act [Chapter 8:11] includes claims for damages arising from breach of contract. 2. Prescription begins to run under section 16 when the creditor becomes aware of the identity of the debtor and the facts from which the debt arises - in the case of unilateral variation of contract terms, this occurs when notice of variation is communicated. 3. A party cannot rely on arbitration proceedings to interrupt prescription when they were not a party to those proceedings. 4. Continued trading and silence over an extended period (four years) after variation of contractual terms, without objection, constitutes acquiescence and acceptance by conduct under the doctrine of quasi-mutual assent. 5. For absolution from the instance to be refused at the close of plaintiff's case, there must be evidence upon which a court, directing its mind reasonably to such evidence, could or might find for the plaintiff. 6. A plaintiff claiming damages must adduce evidence to prove both liability and quantum; failure to prove quantum of damages is fatal to the claim.

The Court noted it was extremely chary of granting absolution at the close of plaintiff's case and that the court should assume, absent very special considerations such as inherent unacceptability of evidence, that the evidence is true. The Court also observed that while the issue of prescription would dispose of the appeal, it addressed the absolution issue for completeness since it was one of the grounds upon which absolution was granted in the court a quo. The Court commented that there was no basis for awarding costs on a legal practitioner and client scale as requested by the respondent.

This case is significant in Zimbabwean law for clarifying: (1) the application of the Prescription Act [Chapter 8:11] to contractual claims for damages, particularly when prescription begins to run (when the creditor becomes aware of the facts giving rise to the debt); (2) the doctrine of quasi-mutual assent and acquiescence - that continued trading and silence for an extended period after variation of contract terms may constitute acceptance by conduct; (3) the test for absolution from the instance at the close of plaintiff's case - plaintiff must adduce evidence upon which a court might reasonably find in their favour; (4) that a party cannot interrupt prescription by relying on arbitration proceedings to which they were not a party; (5) the importance of proving quantum of damages with proper evidence - mere assertions without supporting documentation are insufficient. The case reinforces that prescription starts running when the creditor becomes aware of the identity of the debtor and the facts from which the debt arises, not necessarily when damage is quantified or felt.