Sithembiso Mpofu v Evans Sydney Kapenya and Fredah Kapenya

The plaintiff issued summons on 27 June 2017 seeking payment of 79% of the market value of immovable property (subdivision A of Lot 4A, Four Winds Estate, Bulawayo) allegedly sold by the plaintiff to the defendants in terms of an agreement of sale dated 14 May 1996 and an addendum dated 14 February 1997. The agreement and addendum made reference to the purchaser obtaining a first mortgage bond from CABS. The property was transferred into the defendants' joint names on 22 February 2001. A balance of $27,000.00 remained outstanding after the defendants raised $51,000.00 towards the purchase price. The 2nd defendant died on 2 June 2011 and the administration of her estate had been concluded. The 1st defendant filed a special plea of prescription contending that there had been unreasonable delay in instituting proceedings and that the claim was barred by prescription.

• Whether the debt claimed was secured by a mortgage bond for purposes of determining the applicable prescription period
• Whether the claim had prescribed under the Prescription Act
• When the cause of action arose for purposes of computing the prescription period
• Whether the three-year or thirty-year prescription period applied to the debt

The plaintiff's claim was dismissed with costs.

For a debt to qualify for the thirty-year prescription period under section 15(a)(i) of the Prescription Act [Chapter 8:11], there must be actual evidence of a registered mortgage bond securing the debt. Mere reference to a potential mortgage bond in an agreement of sale is insufficient. Where no mortgage bond is proven to have been registered, the debt is subject to the general three-year prescription period. The cause of action for recovery of an outstanding purchase price arises when the property is transferred, and prescription begins to run from that date. The principle of unjust enrichment does not provide an escape from the operation of prescription where the underlying debt has prescribed.

The court made observations about the unreasonable delay of 17 years in bringing the litigation, describing it as demonstrating an "unmistakable lackadaisical attitude in the prosecution of this case." The court quoted with approval the remarks of Chidyausiku J in Lovemore Sando v Chairman of the Public Service Commission: "Those who sit on their litigation until cows come home have only themselves to blame if condonation is returned when they finally wake up from their year of somnambulism." While this quote was originally made in the context of condonation applications, Bere J noted that the comments apply with equal force to cases involving unreasonable delay in bringing claims. The court also noted that the 2nd defendant was not properly before the court as she had died in 2011 and her estate had been administered.

This case is significant in Zimbabwean law for clarifying the distinction between a debt that is merely referenced as potentially being secured by a mortgage bond and one that is actually secured by a registered mortgage bond for prescription purposes. It establishes that the burden lies on the party claiming the benefit of the extended thirty-year prescription period to prove that a mortgage bond was actually registered. The case also reinforces the importance of timeously prosecuting claims and the policy consideration that there must be finality to litigation. It demonstrates the court's willingness to strictly apply prescription periods and reject claims brought after unreasonable delay.