Rosemary Bastin v Shakespear Karuwa and Karuwa & Associates and Kufa John Madzima

In 2005, the plaintiff purchased and obtained transfer of Stand 3437 Highfield Township, Harare, through the agency of the first and second defendants, purportedly from the third defendant. The third defendant disputed authorizing the sale and obtained judgment in his favour in HC 2120/07 on 25 May 2012, setting aside the sale on grounds that he never authorized it, never signed any agreement of sale or transfer documents, and never received the purchase price. The court found the sale and transfer was fraudulently executed by the first and second defendants. The plaintiff appealed the judgment in SC 283/12 on 11 September 2012, but the appeal lapsed and was not prosecuted to finality. First and second defendants also appealed in SC 281/12, but the appeal was struck off the roll on 21 September 2017. On 26 March 2018, the plaintiff issued summons claiming US$55,000 (market value of the property), interest, and costs jointly and severally from all defendants. The third defendant raised a special plea of prescription and excepted to the summons and declaration as being bad in law, vague, embarrassing, and disclosing no cause of action.

• Whether the plaintiff's claim against the third defendant had prescribed
• Whether prescription was interrupted by appeals filed by other parties
• Whether the plaintiff's summons and declaration complied with Order 3 r 11(c) of the High Court Rules
• Whether the summons and declaration disclosed a cause of action against the third defendant
• Whether the plaintiff's intended amendment could cure the defects in the pleadings
• Whether the filing of a notice to amend prevents a defendant from raising an exception or special plea

The special plea and exception were upheld with costs in favour of the third defendant.

The binding legal principles established are: (1) Prescription begins to run from the date a party is or ought to have become aware of their cause of action. Judicial interruption of prescription only occurs when a party serves process and successfully prosecutes the claim to final judgment. Where an appeal lapses due to failure to prosecute it, prescription is not interrupted. (2) Prescription in respect of one party is not interrupted by the actions of a third party. (3) A summons must comply with the peremptory provisions of Order 3 r 11(c) and contain a true and concise statement of the nature, extent, and grounds of the cause of action. (4) Filing a notice of intention to amend does not create a right to amendment or prevent the other party from raising an exception or special plea. A party must apply to court for an order of amendment where the other party has not consented. (5) Allowing an amendment is an exercise of judicial discretion in the interests of justice, not a matter of right. (6) Pleadings that seek to contradict findings in extant judgments that have not been impugned cannot be allowed, and such pleadings are not capable of amendment.

The court observed that: (1) To allow an amendment is an acknowledgement that a litigant has acted without due diligence in the preparation of their case, and granting an amendment is an exercise intended to condone such lack of diligence. (2) The law is there to help the vigilant, not the sluggard. (3) Each case regarding amendment must be looked at according to its own circumstances. (4) An exception does not normally result in the defeat of a claim but gives the offending party an opportunity to amend pleadings, except where pleadings are fatally defective. The court also noted the importance of proper procedure in deceased estates, referring to the finding in HC 2120/07 that the proper sequence of transfer was never followed as transfer was made directly from the deceased's name into the plaintiff's name.

This case clarifies important principles in Zimbabwean civil procedure regarding: (1) prescription of claims and the requirement for successful prosecution of appeals to interrupt prescription; (2) the principle that prescription for one party is not interrupted by the actions of third parties; (3) the requirements for proper pleadings under Order 3 r 11(c); (4) the distinction between filing a notice of intention to amend and actually obtaining consent or a court order for amendment; (5) the principle that there is no automatic right to amendment and that courts retain discretion; and (6) the impermissibility of amending pleadings to contradict findings in extant judgments that have not been set aside. The case also emphasizes that the law assists the vigilant, not the sluggard, and that courts should not help parties who fail to act when they should.