Seacrest Investments (Private) Limited v Inchdale Investments (Private) Limited and Standard Chartered Bank of Zimbabwe Limited

In October 1999, the plaintiff purchased undeveloped land (Number 1 Rosedeane Gardens, Ashdown Park Harare) from the first defendant. Before the plaintiff obtained title, the second defendant obtained judgment against the first defendant and had the property sold in execution to Jotwell Matshazi, who obtained title. The plaintiff became aware of the sale in execution in January 2003 and issued a court application (HC 366/03) seeking cancellation of the sheriff's sale. This application failed in both the High Court and Supreme Court. The plaintiff did not raise alternative claims for damages for breach of contract or delictual damages at that stage. On 19 April 2007, the plaintiff issued summons claiming cancellation of the agreement of sale and damages for breach of contract in the sum of $3,500,000,000.00. The summons was served on the second defendant on 24 April 2007. The first defendant did not appear, while the second defendant raised a special plea of prescription, an exception that the declaration disclosed no cause of action, and a defence of lis alibi pendens.

• Whether the plaintiff's claim for damages had been extinguished by prescription under the Prescription Act
• Whether the issuing of court process in HC 366/03 (seeking cancellation of the sheriff's sale) interrupted the running of prescription for the subsequent damages claim
• Whether prescription begins to run from the date of knowledge of the debt and facts giving rise to it
• Whether an amendment to a declaration claiming delictual damages (instead of contractual damages) could save a prescribed claim
• Whether the exception based on no cause of action was valid

The plaintiff's claim against the second defendant was dismissed with costs.

The binding legal principles established are: (1) Prescription begins to run from the date the creditor has knowledge of the debt and of the facts giving rise to the debt (applying Maravanyika v Hove); (2) Where alternative claims arise from the same set of facts, and the creditor has knowledge of both potential claims, prescription runs for all such claims from the date of knowledge, regardless of which claim is actually pursued; (3) The issuing of court process only interrupts prescription for the specific debt claimed in that process, not for materially different alternative claims based on the same facts; (4) Under section 19(3)(a) of the Prescription Act, interruption of prescription lapses if the creditor does not successfully prosecute the claim to final judgment; (5) A litigant cannot avoid prescription by electing not to claim damages at an early stage and then, after an unsuccessful related claim, raising the damages claim as a fresh cause of action - this would constitute having 'a second bite at the cherry'.

The court made observations on the exception raised by the second defendant, noting that the plaintiff initially claimed damages for breach of contract where no contract existed between the parties, and then amended to claim delictual damages 'like a chameleon changing its colours'. The court observed that this amendment did not assist the plaintiff as it was based on a prescribed cause of action. The court also noted that it was unnecessary to determine the validity of the lis alibi pendens defence given the finding on prescription. The court's comment about not allowing 'a second bite at the cherry' reflects a broader policy concern about preventing abuse of process and ensuring finality in litigation.

This case is significant in Zimbabwean jurisprudence (applicable to South African law given similar prescription principles) for clarifying important principles regarding prescription and the interruption thereof. It establishes that where a plaintiff has knowledge of alternative claims arising from the same set of facts, the prescription period runs for all such claims from the date of knowledge, regardless of which claim is initially pursued. The case emphasizes that litigants cannot circumvent prescription by pursuing one claim and then, upon its failure, raising an alternative claim based on the same facts as a 'fresh' cause of action. It also reinforces that unsuccessful prosecution of a claim means that any interruption of prescription lapses under section 19(3)(a) of the Prescription Act, and that interruption only applies to the specific debt claimed in the process issued, not to materially different alternative claims.