Pomelo Mining (Private) Limited v Tonnie Mutunja

On 12 May 2014, the parties entered into a joint venture agreement for mining operations under a company known as Mutemwa 3. The defendant was to avail 11 mining claims and the plaintiff was to contribute US$600,000.00. The plaintiff failed to meet its financial obligations under the agreement. After serving the plaintiff with a ninety-day notice of intention to terminate, and the plaintiff remaining in mora, the defendant cancelled the agreement on 23 March 2015. The plaintiff sought restitutio in integrum in the sum of US$742,364.00 and issued summons on 4 July 2018, more than three years after the cancellation. The plaintiff had previously challenged the cancellation in HC 5479/15 (judgment on 7 September 2016 confirming cancellation) and filed a counter-application in HC 1030/17 (declared a nullity).

• Whether the plaintiff's claim for restitution had prescribed under section 15(d) of the Prescription Act Chapter 8:11
• Whether prescription was properly raised as a point in limine rather than as a special plea
• Whether the running of prescription was interrupted by judicial proceedings (HC 5479/15 and HC 1030/17)
• Whether acknowledgment of indebtedness at a pre-trial conference could interrupt prescription
• When prescription commences to run in cases of debt arising from cancelled contracts

1. The plaintiff's claim has prescribed. 2. The plaintiff's claim be and is hereby dismissed with costs.

1. Under sections 15(d) and 16(1) of the Prescription Act Chapter 8:11, prescription of a debt commences to run as soon as the debt is due and expires after three years. 2. Where an agreement is cancelled, the cause of action for restitution arises on the date of cancellation and prescription begins to run from that date. 3. Under section 20(2) of the Prescription Act, prescription may be raised at any stage of proceedings provided it is raised in the relevant documents filed of record; it need not be raised only as a special plea. 4. For judicial interruption of prescription under section 19(2), the process served must claim payment of the debt; a challenge to the validity of cancellation of an agreement does not constitute a claim for payment of debt and therefore does not interrupt prescription. 5. Proceedings declared a nullity have no legal effect and cannot interrupt the running of prescription. 6. Events occurring after the issuance of summons, such as acknowledgment at pre-trial conference, cannot retrospectively interrupt prescription for the period between when the debt became due and when summons were issued.

The court observed that while it would have been ideal for prescription to be raised as a special plea, the manner in which it was raised by formal notice was appropriate. The court also noted the principle that "you cannot put anything on nothing and expect it to stand" in relation to the nullified counter-application, suggesting that counsel involved in that case should have been aware of this basic legal principle.

This case clarifies important principles regarding prescription in Zimbabwean law, particularly: (1) the strict application of the three-year prescription period under section 15(d) of the Prescription Act; (2) that prescription can be raised by notice at any stage of proceedings under section 20(2), not only as a special plea; (3) that only claims for payment of debt under section 19(2) can interrupt prescription, not collateral challenges to the validity of agreements; (4) that nullified proceedings cannot interrupt prescription; and (5) the proper computation of prescription periods from the date when the debt becomes due. It serves as a warning to litigants to institute claims timeously and demonstrates the courts' strict approach to prescription as an absolute defense.