Court throws out application over delayed action

Nyashadzashe Ndoro

ZIM NOW REPORTER

High Court Judge, Justice Gladys Mhuri ruled that an application brought by Gerald Jaji, seeking a declaratur regarding a Deed of Settlement between himself and Claudius Nhemwa was dismissed due to prescription.

Jaji had sought a court order to declare a Deed of Settlement entered into on October 2, 2018, the only binding agreement between the two parties. He further requested the court to invalidate a separate Deed of Settlement allegedly entered into on August 18, 2020.

Nhemwa, through his legal representative Advocate R Mabwe, opposed the application on three preliminary points. Firstly, that Jaji's answering affidavit was defective and should be expunged from the record. Secondly, the application sought a declaratur on factual issues, which the court could not entertain. Finally, the matter had prescribed, and there were material disputes of fact that could not be resolved on paper.

In a judgment handed down on April 14, 2024, Judge Mhuri focused on the issue of prescription, stating, "I will deal first with the issue of prescription as I am of the view that if found to have been well taken and the matter is found to have prescribed, that is the end of the matter."

Section 20 of the Prescription Act (Chapter 8:11) of Zimbabwean law mandates that prescription must be pleaded in the relevant court documents. While Nhemwa's legal team did not raise the issue in the pleadings, they argued that trial proceedings differed from applications, and prescription could be raised at any time in the latter.

Jaji, represented by Advocate Madzoka, argued against the prescription claim. He contended that the three-year window outlined in the Prescription Act did not apply as he only became aware of the August 2020 Deed in May 2023.

Justice Mhuri, however, sided with Nhemwa's legal team, acknowledging their discretion to raise the issue at any stage of the proceedings.

“The Deed in issue is that of 2 October 2018. Applicant filed this application on 23 May 2023. This was way beyond the three-year period provided in the Prescription Act,” the judge noted.

Jaji's application was subsequently struck off the court roll with costs awarded to Nhemwa. The remaining points raised by Nhemwa were deemed unnecessary to address due to the court's ruling on prescription.