BARREL ENGINEERING & FOUNDERS (PVT) LTD v BITUMEN CONSTRUCTION SERVICES (PVT) LTD

HIGH COURT, HARARE

[Special Plea HH 715-16]

November 17, 2016

MANGOTA J

Contract – Performance – Time for – Position when time for performance not agreed between the parties – Need for defaulting party to be placed in mora by demand being made specifying time for performance.

Prescription – Interruption of – Acknowledgement of debt – Tacit acknowledgement made when seeking indulgence – Prescription thereby interrupted.

The defendant, when called upon to pay a debt owed to the plaintiff, sought and was more than once granted indulgences to pay. It did not deny liability. When the plaintiff brought the present action, the defendant claimed that the debt had prescribed. The plaintiff had also alleged that the defendant was liable on demand for payment being made, the contract not having been specific in this regard.

Held, that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform. This form of mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default. The demand, or interpellatio, may be made either judicially, by means of a summons, or extra-judicially, by means of a letter of demand, or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance.

Held, further, that the defendant’s tacit acknowledgement of liability interrupted the period of prescription. The request for indulgences and the granting of the same interrupted the prescriptive period. The interruption caused the period of prescription to commence to run afresh.

Cases cited:

Asharia v Patel & Ors 1991 (2) ZLR 276 (S), followed

Nyandoro & Anor v Nyandoro & Ors 2008 (2) ZLR 219 (H), referred to

Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd [2016] ZASCA 135 (unreported) (South Africa), referred to

Legislation considered:

Prescription Act [Chapter 8:11], ss 15, 15 (d), 16, 18

Books cited:

Lubbe GF and Murray CM Farlam & Hathaway Contract: Cases, Materials and Commentary (3rd edn, Juta & Co Ltd, Cape Town, 1998) pp 752-753

Maja I The Law of Contract in Zimbabwe (Maja Foundation, Harare, 2015) p 147

B Mufadza, for the plaintiff

E Drury, for the defendant

MANGOTA J:

On 22 March 2016, the plaintiff issued summons against the defendant. It claimed payment of US$ 11 947.27, interest at the prescribed rate and costs of suit. The claim, according to it, arose from the goods – screw housings, brushes and bearings – which it manufactured and sold to the defendant in June 2012. The goods, it said, were manufactured and sold to the defendant at the latter’s special instance and request. It referred the court to the letter of demand which it addressed to the defendant on 3 February 2016. It stated that the letter placed the defendant in mora. It insisted that prescription commenced to run from the date of the letter.

The defendant raised a special plea to the plaintiff’s claim. It stated that the claim had prescribed. It denied that the debt arose in February 2016 when the plaintiff wrote demanding the sum of US$ 11 947.27 from it. It said it ought to have paid for the goods in 2012 when it received the plaintiff’s invoices. It insisted that the debt fell due in 2012. It said summons should have been served upon it in 2015. It moved the court to dismiss the plaintiff’s claim with costs.

The issue which fell for determination was whether or not a claim which was allegedly incurred in 2012 with a final demand being made in 2016 was prescribed. The Prescription Act [Chapter 8:11] (“the Act”) was relevant to the resolution of the issue. Sections 15 and 16 of the Act were more pertinent to the matter than otherwise.

Section 15 refers to the period of prescription of debts. Section 16 deals with the date on which prescription begins to run.

Section 15 (d) of the Act reads as follows:

“Periods of prescription of debts

The period of prescription of a debt shall be—

(a)-(c)…

(d) except where any other enactment provides otherwise, three years, in the case of any other debt.”

Section 16 of the Act reads as follows:

“16 When prescription begins to run

(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.

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