On 15 January 2011, the third defendant, while working for the first defendant and driving a Scania motor vehicle (registration ABG 0506) along the Harare-Mutare road, knocked down the plaintiff, her two children (Annatoria and Takudzwa Jimu), and Angeline Kanyimo who were walking off the road near the 90 kilometre peg. The accident claimed the life of Takudzwa and caused serious injuries to the plaintiff, her daughter Annatoria, and Angeline Kanyimo. The plaintiff was admitted to Parirenyatwa Hospital in an unconscious state from the date of admission until 2012. Although discharged in 2012, she continued receiving treatment from 2013 to 2015. On 17 July 2018, the plaintiff sued the defendants claiming $35,000 in special damages, $40,000 in general damages, interest, and costs. The defendants pleaded prescription as a special plea in bar, arguing the claim was instituted seven years after the cause of action arose and had prescribed on 15 January 2014.
The defendants' special plea of prescription was dismissed with costs.
The binding legal principles established are: (1) Under section 16 of the Prescription Act, a debt is only due when the creditor becomes aware of the existence of the debt, the identity of the debtor, and the facts from which the debt arises - in cases of serious injury requiring prolonged treatment, this awareness may only crystallize upon recovery. (2) Under section 18(1) of the Prescription Act, an express or tacit acknowledgment of liability by the debtor interrupts the running of prescription. (3) The acknowledgment of liability need not be made directly to the creditor or their agent if it is subsequently communicated to them - the statutory provision does not impose such a requirement. (4) Correspondence acknowledging the existence of a debt and expressing an intention to compensate victims constitutes an express acknowledgment of liability sufficient to interrupt prescription.
The court observed that the dictum of MALABA J (as he then was) in Ndlovu v Posts & Telecommunications Corporation 1998 (2) ZLR 334 (H) at 337, requiring that admission of liability must be made to the creditor or their agent, should not be read into the Act where the statutory provision does not expressly contain such a requirement. The court also noted, without deciding the point definitively, that no reasonable explanation existed for the defendants to have furnished the correspondence to the plaintiff, which suggested communication of acceptance of liability. The court further observed that the circumstances under which the correspondence came into the plaintiff's hands remained unclear, but the defendants did not dispute its authenticity or challenge its admissibility.
This case is significant in Zimbabwean prescription law as it clarifies the application of sections 16 and 18 of the Prescription Act in personal injury cases. It establishes that where a plaintiff suffers serious injuries requiring prolonged treatment, prescription may only commence running when the plaintiff becomes fully aware of the extent of the debt and is capable of pursuing the claim. More importantly, the case provides guidance on what constitutes an acknowledgment of liability sufficient to interrupt prescription under section 18(1), holding that an express acknowledgment need not be made directly to the creditor if it is subsequently communicated to them. The judgment also emphasizes a literal interpretation of the statutory provisions over expansive judicial dicta where the statute does not contain such requirements.