Sibusisiwe Dube v Jan Henri Adeline Van Bel

The Plaintiff sued the Defendant on 11 June 2021 claiming distribution of immovable and movable property following the dissolution of an unregistered customary law union entered into in 1994. The Plaintiff claimed that the parties agreed to stay together as husband and wife and as partners for a continuous period of ten years, pooling resources together. The Plaintiff stated the union was mutually dissolved and sought a fifty percent share of the properties. In Further Particulars, the Plaintiff stated the parties agreed to stay together from 1 December 1994 until 2004, with an agreement recorded in writing at the offices of Ralph and Thomas Esquire on 9 January 1998. The union broke down in 2007 but the parties continued living together until 2009 when the Plaintiff left. The Plaintiff alleged the Defendant undertook to pay her out with a garden flat in 2009, which undertaking was not honoured. The Plaintiff also claimed the Defendant made a similar undertaking at the beginning of 2018.

• Whether the Plaintiff's claim had prescribed under the Prescription Act
• When prescription begins to run in claims arising from dissolution of unregistered customary law unions
• Whether a debt had been established for purposes of prescription
• What constitutes a cause of action in property distribution claims following dissolution of customary law unions

The special plea was dismissed. Costs were ordered to be costs in the cause.

Prescription under the Prescription Act does not commence to run in respect of claims for distribution of property following dissolution of an unregistered customary law union until a debt has been established. A debt is only established when there is an identifiable and defined share or entitlement to property, arising either from an agreement between the parties or a court order. Where no specific share has been determined, there is no debt due and therefore prescription does not begin to run. An enforceable claim in property distribution cases requires identification of the specific thing to be claimed - in this context, a defined share of properties acquired during the union.

The court noted that the Plaintiff's replication introduced an averment about an undertaking made in 2018, which appeared inconsistent with earlier particulars stating the undertaking was made in 2009. Defence counsel argued this was an afterthought to salvage the matter. However, the court did not need to resolve this inconsistency given its finding on the absence of an established debt. The court also noted the defence counsel's argument that the Plaintiff's claim arises from the union itself rather than from any alleged undertaking to pay out.

This case provides important guidance on the application of prescription principles to claims arising from the dissolution of unregistered customary law unions in Zimbabwe. It establishes that for prescription to begin running, there must first be an identifiable debt - meaning a defined entitlement or share that can be claimed. In the context of property distribution claims following dissolution of customary unions, the case clarifies that where no specific share or entitlement has been determined (either by agreement or court order), no debt arises and therefore prescription does not commence. This protects claimants in customary law union dissolutions from having their claims barred by prescription before their actual entitlements have been determined.