Klacid Investments (Private) Limited Versus Livre Investments (Private) Limited

### Preamble
1
HH 228-24
HC 1290/22
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KLACID INVESTMENTS (PRIVATE) LIMITED

versus

LIVRE INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE; 6 June 2024

Opposed Application-judgment on point in limine

T Chagudumba, for the applicant

A Masango, for the respondent

CHITAPI J:   As at the hearing of this application, some 16 years and 2 months had lapsed since the parties as cited in this application litigated in case No HC 3630/05.  Their litigation in that case culminated in this court issuing an order in favour of the plaintiff in default of the respondent (per Kamocha J- hopefully in happy retirement now) on 17 May 2006. The content of the order was as follows:

“WHEREUPON after reading documents filed of record and hearing counsel:

IT IS ORDERED THAT:

The purported cancellation of the agreement between the applicant and the respondent in respect of the sale of stand 3437; 3439 and 3443 all being subdivisions of the remaining extent of Heary Farm be and is hereby set aside.

The respondent shall transfer the said properties to the applicant upon tender by the applicant of the balance of the purchase price.

Respondent shall pay the costs of this application.”

In this application the applicant comes to court seeking an order to compel the respondent to effect transfer of the stands as ordered in case No HC 3630/05.  The applicant further seeks an order that upon failure by the respondent to comply with the order that compels the respondent to effect transfer should the court grant it, the Sheriff be ordered to take such steps and execute such documents as are necessary to ensure that the stands are transferred by registration into the applicants’ name.  The applicant averred that he complied with the order of Kamocha J and paid the balance of the purchase price in or about 4 September 2006.

The respondent opposed the application.  He raised a point in limine to the effect that there arose serious disputes of fact which were not capable of resolution on the papers without calling viva voce evidence.  The respondent averred that the applicant must have been aware of the irreconcilable disputes of fact as far back as 2018 when the same point was raised in proceedings between the parties in case No HC 7332/20.  Case No HC 7332/20 was an application brought by the applicant against the respondent and two others for contempt of the court order of Kamocha J supra.  The application was however removed from the roll on 22 October 2021.  I do not deal with this point in limine because the matter herein took a different turn.

Upon the calling of the matter, the respondents’ counsel sought to apply to the court to allow the respondents to raise a fresh point of law which was not raised in the opposing affidavit.  Counsel submitted that the point in limine would dispose of the application.  The point of law sought to be introduced was that the court could not deal with the application to enforce an order which had superannuated before such order was revived.  Counsel for the respondent indicated that the application was opposed.  It appeared to me that the point of law was a significant one in mapping the direction of the hearing.  If this point in limine succeeds it meant that there will be no valid case to determine until the judgment has been revived if it is found to be superannuated.  I directed that the point in limine be formally introduced by notice to the respondent and not by submissions over the bar.

By consent of the parties, the hearing was postponed to 21 July 2022.  I set time lines for the filing of the notice to raise the point of law on the alleged superannuated of the order of Kamocha J, as well as the time line for the filing of the notice of opposition, any reply and heads of argument by both counsels.  Indeed, counsel obliged.  The raising of the point in limine at this stage was allowed and argument submitted on the merits.

The respondents’ counsel submitted that the order of Kamocha J which the applicant wanted to enforce had superannuated as it was 16 years old without the applicant have taken any steps to enforce it.  He submitted that the order had superannuated upon the lapse of 3 years from the date that the order was delivered. Counsel further submitted that superannuation was a common law principle which provides that a judgement “cannot be carried into effect after three years unless the judgement is revived.”

Applicants counsel submitted that the respondent had waived its right to plead superannuation because it pleaded as its defence to the application, the fact that the applicant had not paid the balance of the purchase price and that in consequences thereof, the respondent had accepted that the court order was still binding upon it. Counsel submitted that the respondent could not approbate and reprobate at the same time and had to take a position. The respondent would, so argued counsel for the applicant, have to either accept that the applicant paid the purchase price in full and then plead superannuation or take the position that there had been no compliance by the applicant of the provisions of the court order to pay balance, hence recognising that the judgement was still alive superannuated having been waived. I do not agree. A party may raise a point in limine and also plead to the merits of the claim. This position is in fact desirable because if a point in limine is separately argued and dismissed, the court ends up having to give separate judgements.  The point in limine in any event does not address the merits of the matter but the procedural issues and points of law.

It is in my view in the interest of justice that the respondent who raises a point in limine should advisedly also plead to the merits because even if the parties deal with the point in limine first and ask for determination before the arguments on the merits, should the point be dismissed the court then proceeds to hear the merits without having to postpone the matter for the respondent to then file a response on the merits with the court having to reconvene on another date after allowing for filing of the response on the merits. The multiplicity of set downs presents a waste of valuable court time and will be costly to the parties involved. In my judgement the respondent had it raised superannuation in the initial opposing affidavits and also pleaded to the merits would not have waived its right to raise the point solely for the reason that it then proceeded to plead to the applicants claim on the merits. In casu the respondents position amounts to raising a defence in the alternative. What the respondent has done is to say that upon considerations of the law the judgement being relied upon by the applicant is superannuated and the court should consider it as stale unless revived. If, however the point is not ruled in the respondents’ favour, then the respondents’ response on the merits is pleaded. Wavier cannot apply in such a circumstance and the applicant cannot lawfully take the objection that the respondent must make an election to either abandon the in limine objection of superannuation if it must plead to the merits and vice- versa.

Turning to the law of superannuation, counsel have agreed that superannuation, of judgement as a Roman Dutch common law principle is part of our law. Applicants’ counsel submitted that the principle applied to only those judgements and orders which could be enforced by way of issue of a writ of execution. The respondents’ counsel submitted that the nature of the order or judgment did not matter. If it gave rights and obligations, be they monetary or the performance or refraining from conduct stated in the order, the court only had to be guided by the date of agreement, enquire whether or not it was acted upon and if it was not acted upon for a period in excess of 3 years from the date of its making, it superannuates. The applicant counsel submitted that the applicant’s argument was an ingenious one. Counsel sought to distinguish between the provisions of rule 69(1) of the High Court Rules 2021 which provide for execution of judgement of this court and the order which the applicant seeks in this application. Rule 69(1) provides as follows

“The process of execution of any judgement for the payment of money, for the delivery of money, for the delivery of goods or premises, or for ejectment shall be by way of writ of execution signed by the registrar and addressed to the sheriff, in accordance with one or other of Forms numbers 32 to 39.”

Counsel argued that the order sought in this application was an order to compel the respondent to transfer the stands to the applicant. If granted the order would then be capable of enforcement through execution and issuing of a writ of execution. He submitted that in such a scenario the writ of execution would arise from the order of enforcement of the compelling order and not from the order of Kamocha in case No HC 3630/05

The argument raised cannot find favour with the court and is an attempt at wriggling out of difficult situation for the applicant. A consideration of the applicants’ founding affidavit shows clearly that the applicants’ claim for relief is premised upon the order KAMOCHA J aforesaid.  The applicant discussed the purport of the order in the founding affidavit.  The applicant stated in paragraph 19 of the founding affidavit as follows:

“19- It is my respectful submission that the respondent is not only acting in blatant contempt of the order in case No HC3630/05, but is deliberately and without any justifiable reason, continuing to deprive the applicant of the full rights and benefits of the stands in question.”

There can be little doubt that the application is premised upon the order in case number HC 3630 /05. The applicant seeks to enforce that order.

The applicants counsel submitted another angle to the ingenious argument.  He submitted that superannuation only applied to enforcement of a judgment enforceable by writ of execution as could be referred from a reading of sale 69(3) of the High Court Rules 2021 which provides as follows:

“(69)(3) No writ of execution shall be issued after the judgement has become superannuated, unless the said judgement has first been revived, but a writ of execution once issued shall remain in force until such time as the judgement has been satisfied.”

Counsel submitted that the import of the rule was that superannuation only applied to enforcement of judgement through a writ of execution. The reasoning here was that unless a judgement or order was one in regard to which enforcement is by way of a writ of execution, then such judgement does not superannuate.

The applicants counsel also referred to the Supreme Court judgement in the case Guoxing Gong v Maupos logistics (Pvt)Ltd SC 02/17wherein the learned judge Bhunu JA stated:

“Counsel for the appellant Mr Urire raised the point that the above default judgement was unenforceable because it has superannuated at common law through the effluxion of time as it was raised more than 3 years ago. He however abandoned the objection conceding that superannuation was not an issue as the first respondent was not seeking execution. In view of that concession, it shall be unnecessary to determine that issue.”

Counsel argued upon the strength of the quoted statement of Bhunu JA that likewise because the applicant was not seeking the enforcement of the order in case number HC 3630/05, through issue of a writ of execution, superannuation did not arise since it arises only where the applicant seeks to execute the court order through a writ of execution.

Applicants’ counsels’ submission in the above regard has no merit. In the first instance, rule 69(3) does not provide that a judgement does not superannuate after 3 years from the date of its making. The rule simply restates the obvious being that a superannuated judgement cannot give rise to the issuance of a writ of execution unless such judgement has first been received. In the quoted extract from the Supreme Court judgement, Bhunu JA as clearly is shown, did not make any findings of law or facts. The learned judge simply noted that counsel had abandoned the objection of superannuation after conceding that superannuation was not in issue since the first respondent was not seeking execution. The learned judge did not define the nature of the execution. In a sense the learned judge by using the word execution and not “writ of execution,” cannot be said to have been referring to writs of execution. In short Bhunu JA did not lay a rule that superannuation applies only to judgements and court orders which are enforceable by issue of a writ execution.

Counsel for the respondent submitted upon reliance on the judgement of Mafusire J in the case of Nzara v Kashumba HH 157/16 that an order for transfer of property if not acted upon within three years superannuates. Counsel for the applicant submitted that the Supreme Court overturned the judgement aforesaid in the case number SC 18/18. I have gone through the appeal judgments that judgement SC 18/2018.  Superannuation of judgement was not a ground of appeal raised by the parties and consequently, the Supreme Court did not deal with that aspect of the law nor was the court called upon to do so.

The issue that arises is for answer is whether superannuation of judgement applies to every judgement or only to judgements which may be enforced through the issue of a writ of execution. In the Nzara case (supra) Mafusire J I reasoned that it was not every judgement to which superannuation applied. The learned judge gave the example of an order annulling a marriage or a decree of divorce whose effect would result in the parties being in the positions they were before their marriage. In such a case superannuation does not arise obviously as no execution comes into play. The learned judge however found that superannuation applied to a judgement for transfer of immovable property which involves the delivery or transmission of real rights from one person to another. This is the situation in this application. The applicant to all intents and purposes prays for transfer of the stands in issue.   The applicants requires that the respondent should sign transfer documents, failing which the Sheriff signs in place of the respondent and passes transfer of the stands to the applicant.

In case of Sharewood Mining (Pvt)Ltd and Zenit Group Limited v Ontage Resources (Pvt) Ltd HH 272/22 Zhou J dealt with an application for the renewal of an order granted by consent. The consent order has been granted in December 2012. The respondent opposed the application on the grounds inter-alia that rule 448 of the High Court rules, 1971 which provided that a judgement of the High Court would be superannuated after six years from the date that it was granted had been repealed. The rule was repealed by S I 80/2000. Respondents’ counsel therefore submitted that superannuation was no longer provided for under the law. Zhou J held that the issue of superannuation of judgements had been resolved by Mafusire J in the Nzara case (supra) where the learned judge stated that the repeal of rule 448 simply meant that the common law relating to superannuation of judgements now applied. The common law position was stated to be that a judgement superannuates after 3 years from the date of its making or handing down.

Zhou J accepted the argument by counsel for the respondent, Miss Sanhanga that superannuation of judgements applied only to those  judgments which are enforceable through a writ of execution. The learned judge stated as follows at p 2 of the cyclostyled judgement:

“Put differently the submission was that since the judgement which is being sought to be revived is not one that is enforceable by writ of execution, such a judgement is not covered by r 69(3) of the High Court Rules 2021, which was r 324 of the now repealed rule of court. It is common cause that the judgement in casu is not sounding in money, hence it is not enforceable by writ of execution. The issue of the ambit of the rule relating to the renewal of superannuated judgements was dealt with by this court in Nzara and others (supra) at p 21 in which after an examination of the rule in question Mafusire J said, in my view the superannuation rule may not apply to all judgement’s carte blanche” This reasoning applies to the present case because the judgment in question is not one which is enforceable by writ of execution. On this ground, I would dismiss the application.”

It is unfortunately impossible to comment on the nature of the order which Zhou J was called upon to revive because the judgement only referred to the judgement having consisted in an order that incorporated the terms of the deed of settlement without further details being given. Therefore, apart from stating that the judgement was not sounding in money, it remains conjecture as to the what the details of the order were.

A consideration of the Nzara case leads me to agree with Mafusire J as also accepted by Zhou J that superannuation of judgements is still part of our law and that the common law is now the authority to be followed. If the repeal of r 448 was intended to do away with superannuation, then the repeal did not achieve that result because r 324 which has been carried into the current High Court Rules, 2021 as r 69(3) provides that no writ of execution shall be issued upon a superannuated judgment unless it is revived. Therefore the question remains; “what is a superannuated judgment?.” Judgements therefore superannuate. The interrogation of r 69(3) shows that it deals with a prohibition upon the issue of a writ of execution on the backdrop of a superannuated judgement to be one sounding in money. The rule simply prohibits the issue of writ of execution if the judgement sought to be enforced by the writ of execution is superannuated. A consideration of the High Court rules shows that the words “writ of execution” is not defined specifically. However, r 69(1) provides as follows:

“ PART X 1

EXECUTION OF JUGEMENTS

Writ of execution -general

69(1) The process for the execution of any judgement for the payment of money, for the delivery of money, for the delivery of goods or premises or for ejectment shall be by writ of execution signed by the registrar and addressed to the sheriff, in accordance with one or more or other forms No s 32-39.”

In a manner of speaking therefore the writs of execution whose issuance is prohibited if the judgement on which they are founded is superannuated unless revised are the writs of execution provided for in the stated forms. For  the avoidance of doubt, the forms are as follows:

Form No 32 (r 69(1))- is a writ of execution for general attachment and execution of movable goods of the defendant.

Form No 33 r 69(1) is a writ of execution against movable and immovable property.

Form No 34 r 69(1) is a writ of execution against immovable property.

Form No35 r 69(1) is a writ of execution against movables (provisional sentence)

Form No 36 r 69(1) is a writ of execution against immovable property (provision sentence).

Form No37- r 69(1) is a wrist of delivery (1) return.

Form 38 r 69(1) writ of delivery (2) return of movables damanges and costs of movables alone.

Form 39 r 69(1) wrist of ejectment

The above forms are provided for in the rules. Forms 32 to 36 can be said to refer to execution of judgements sounding in money. Form 37 is a writ of delivery of movable goods where the court must have ordered the defendant to deliver movable goods to the plaintiff. Upon a proper interpretation of rule 69(3) therefore it is only the listed writs which are prohibited from being issued upon a superannuated judgement unless it is first revived.

The rules are silent about the execution or enforcement of judgements and/ or orders which do not fall within the ambit of the writs listed in rule 69(1) of the High Court Rules 2021. In my view the expression expressio unius est exclusio alterius applies in this application when interpreting r 69(1) as read with rule 69(3). The latin term means that the expression of one thing is the exclusion of the other. The inclusion of writs of execution stated on forms 32 – 37 as methods of enforcement of a judgement must be construed to mean that other methods of enforcement of a judgement are excluded from the operation of rule 69(3). The rule is exhaustive of the types of writs of execution postulated therein.

In consequence of my reasoning as above, my view is that superannuation of a judgement is now governed by the common law. The superannuation is only applicable in respect to the issuance of wrist of execution envisaged in r 69(1) as read with r 69(3).  It must be noted that prior to the repeal of r 448, all judgements of this court would superannuate after six years. The repeal was not accompanied by a replacement. The rule maker however saw it fit to list methods of enforcement of a judgement which would be subject to superannuation. Those not falling on the list are excluded from the operation of r 69(3).

The next issue to consider is that of the meaning and import of superannuation of a judgment. Superannuation connotes the non-executability of a judgment debt after the lapse of a certain period post the date of the grant of the judgment debt by a court unless first revived. The issue is nor as simple as it sounds because there is confusion on the subject. It appears to have been taken for granted that the period of superannuation is three (years). The three years position it would appear was stated to be such by Mafusire J in the Nzara case (supra) with zhou J in the Slashwood case (supra) adopting the position set out by Mafusire J.

The learned judge noted that under the Pescription Act, [Chapter 8:11] a judgement debt superannuated after 30 years. He stated that albeit superannuation and prescription may not be cognates they were in the context of court judgments, different concepts because whilst prescription extinguished a cause of action, superannuation prohibited the execution of a judgment debt already granted by the court upon the lapse of a certain period unless the judgment debt is first received I wholly agree.  The learned judge further noted that s 448 of the High Court Rules 1971 had provided that a judgment of the High Court superannuated often six (6) years. The rule was repealed in 2000 by statutory instrument 80/00. The rule was not replaced. Superannuation therefore remained as a common law principal and a part of Zimbabwean law post the repeal. The issue which needs interrogation is the period of superannuation of a judgment debt under Roman Dutch Law. In the Nzara judgment Mafusire J relied on the South African judgement in the case segal & Another v Segil 1992 (3) SA 136 (CPD) which discussed superannuation. The learned judge noted that superannuation on a judgment was by virtue of the South African Rules of Court, three years and that the three years was a restatement of the Roman Dutch common law I pause the question whether or not the period of three (3) years is in fact consonant with the Roman Dutch Common Law on superannuation of judgment debts.

As I understand the position three (3) years as a superannuation period for a judgment was in South Africa a court rule fixed period. It was provided for in r 66 of the Uniform Rules of court just like in Zimbabwe rule 448 of the High Court Rules provided for six(year) as the superannuation period. The court in the Segal case (supra) questioned the justification for the existence of r 66.

The evolution of the South African Law on superannuation of a judgement was discussed by Molitsoane AJ sitting in the High Court Free State Division in the case Joseph Francois Botha & 14 Ors v The Member of the Executive Council Local Government and Housing Free State Province and 6 Ors. Ref application No 3424/20016. The brief facts of that matter were that the applicants had brought an application against the respondents for a declaratur upon a review of the decision of the local township board in which the board had granted authority to a developer to develop a part of Bloeinfontein. They lost the review with costs.  The respondents did not however tax the costs or execute to recover them and only did so after the expiry of 3 years post the date of judgement. The applicants brought an application seeking a declaration that the presentation of a bill of taxation and the taxation thereof had superannuated or in the alternative prescribed. The leaned judge stated as follows at p 6 of the cyclostyled judgment.

“[11] The question of superannuation was previously governed by the unform Rule 66 of this court which was couched differently from the present rule bearing the same number. In terms of the said rule before it was amended, the executability of a judgement debt lapsed after a certain period with the result that once a judgment debt was superannuated execution thereon could not be carried out unless the judgement was first revived.

[12]    In Segal and Another v Segil 1992 (3) SA 136 (CPD) HOWIE J on rationale explaining the rationale for superannuation said.

The ratio for the superannuation rule was explained thus by Van Zyl: The Judicial Practice of South Africa. Second Ed (1902) at 308:

The object in requiring a revival of the sentence is to prevent a judgment debtor being taken by surprise by the plaintiff suddenly enforcing execution.  The rule was thus introduced for the benefit of the debtor, who however, may either directly or by his conduct waive it ………….”

[13] The full bench in the case of Segal and Another v Segil  (Supra) questioned the  reason for the existence of Rule 66 as it then was and Rules Board has since see it fit to amend it. Rule 66 has since been substituted by Notice R 214 of 28 March, 2014 and it currently provides thus:

Duration of Writs of Execution

Writs of execution of a judgment once issued remain in force and, may subject to the provisions of subparagraph (ii) of paragraph (a) of s 11 of the Pescription Act 1969 at any time be executed without being renewed until judgment has been satisfied in full.”

[14] Rule 66 as it currently stands has done away with the aspect of superannuation. On the other hand, s 11 (a) (ii) of the Prescription Act 68 of 1969 provides that the period of prescription of any judgement debt shall be 30 years. Further s 12 (1) of Act, provides that “subject to the provisions of subsections (2) and (3) prescription shall commence to run as soon as the debt is due.”

[15] The court in the Master v IL Back & Co Ltd & Others 1983 (1) 986 at 1004 said the following when it commented on the words “debts is due” in s 12 (1) of the Act.

The word `debt is due `in the section must be given their ordinary meaning. It seems clear that this means that there must be a liquidated money obligation presently claimable by the creditor for which an action could presently be brought against the debtor. Stated another way  the debt must be one in respect of which  the debtor is under an obligation to pay

Immediately.”

[16] ………………….

[17]  …………………..

[18] In terms of s11 (a) (ii) of the Act, where judgement has been granted for costs, a claim for such costs would only prescribe after thirty years. See Jordaan & Co Ltd v Bulsara 1992 (4) SA 457 (E) at 460. It should be noted that when the rule dealing with superannuation was still in existence its effect was only to force the creditor to revive the judgment after every three years when he wanted to execute on it until the thirty-year period envisaged in s 11 (a) (ii) of the Act, had expired.  It was never intended to extinguish the debt by way of extinctive prescription. It could therefore not have been the intention that where judgment costs have been granted, which order prescribed in thirty years, the right to have them taxed should prescribe while an order for such costs had not prescribed.

In my view the first respondent does not enjoy an unlimited right to enforce his claim for costs in so far as he can only quantify his costs and present a bill for taxation as long as the judgment from which his right derives has not prescribed.”

The Zimbabwe situation is that rule 448 which provided for superannuation was repealed.  Unlike in South Africa where a similar rule was replaced by Notice R 24 dated 23 March, 2014, r 448 was not replaced.   It is strongly but respectfully submitted that the rule maker may be persuaded to consider whether or not to replace r 448 which they left open.  By not specifically providing for superannuation after repealing rule 448, it meant that the rules had done away with superannuation as a rule issue. If superannuation of a judgment still remained after repeal, it did so based upon a different legal premise which it is agreed is the common law.

With respect to the current High Court Rules, 2021 they do not provide for the period of superannuation of a judgment. The reference to superannuation appears in rule 69(3) (supra). The rule does not answer the vexing question of the life of a judgment before it superannuates. The period of superannuation is not defined nor referred to.

By contrast, the Commercial Court Rules S.I 123/20 provide for the period of superannuation.  Rule 42 provides as follows:

“Execution of judgments (Bold)

Subject to these rules and subrule (3), order 40 of the High Court Rules shall apply mutalis mutandis  to the execution of any judgment of the court.

A judgment shall become annuated after three (3) years from the date on which it is granted but may be revived by the court on application on notice to the judgment debtor for the purpose and in such case no new proof of the debt shall be required.

Notwithstanding sub rule (1) subrule (2) where the judgement debtor performs in terms of a  judgment that has superannuation in terms of this rule such performance shall be deemed valid but shall not by itself revive the judgement.”

Thus, the Commercial Division summons of the High Court Rules provides for the period of superannuation of judgment whilst the High Court Rules 2021 do not do so. It is not clear as to why the rule maker decided to legislate for the period of superannuation in the Commercial Court and not similarly in the High Court Rules and left the issue open after repeal of r 448 in the High Court Rules 1971 and also in the current rules.  As it is, whilst the Commercial Court can import the High Court Rules to cover matters which may arise in proceedings and are not specifically provided for, the reverse does not apply. Rule 42 of the Commercial Court rules can therefore not be imported to close the gap in the High Court Rules of not providing for the period of superannuation of a High Court judgment.

The question to address is the period of superannuation of judgment under the Roman Dutch Common Law. In the arguments of counsel, the period was submitted to be three (3) years. It is the correctives or otherwise of the submission which I deal with.  In the Nzara case (supra) mafusire J stated obiter dictum that the period of superannuation was three (3) years. The issue of the period of superannuation was not the issue to be determined nor was the ratio decidendi of the judgment the pronouncement or declaration of the period of superannuation of judgment of this court. Zhou J in the Slashwood case held that the issue of superannuation had been settled in the Nzara case by Mafusire J.  Zhou J however decided the case of Slashwood on the basis that as the consent judgment sought to be revised was not one which was enforceable by writ of execution superannuation did not apply. The application was dismissed on that basis. Zhou J in relation to the period of superannuation did not decree that such period was three (3) years.  Zhou J made a funding that the issue which had been resolved in the Nzara case was that consequent upon the repeal of r 448 of the High Court Rules 1971 and its non-replacement, superannuation of judgments was thenceforth for the governed by the common law. If it is held that the learned judges authoritatively declared that the period of superannuation of the judgements which are susceptible to superannuation is three (3) years under Roman Dutch law I must with the greatest respect take a contrary position and disagree.  There is not much readily available literature or other usual authorities like case law which despite putting my best endeavours which I could find on the subject of superannuation of judgments under Roman Dutch.  I was however, able to access the link; books.goole.com.zw/books/about/notes-on Civil Practice under the Romaan htm/? Id =46 dkg DW35MOC…..and redir-esc=y and there is a book titled: Notes on Civil Practice under the Roman Dutch Law (to which is Added a Chapter on Real Actions) by Charles Ambrose Lorenz, Published by Examiner Press 1860 published 19 December 2019.  At 41 it is stated as follows:

“A judgment remains in force for the space of thirty years from the date of its delivery.  Merula, Manv Roc 1b iv tit. 93.c.8. p 363.”

I was not able to find any contrary literature nor did counsel for either of the parties make a contrary submission. The position of the Roman -Dutch Law in relation to superannuation of a court judgment is that the judgment super-annuates after 30 years from the date of its delivery.  It is noted that apart from the Commercial Court Rules which provides for superannuation the Magistrates Court Act [Chapter 7.10] contains a provision on superannuation. Section 20(4) and (5) provides as follows:

“(4) No writ of execution shall be issued after the lapse of two years calculated from the day on which judgment is pronounced unless the said judgment has first been revived, but writs of execution once issued shall remain in force until such time that the judgment has been satisfied.

(j) A judgment may be revived either in the court on which it was pronounced or in any other having jurisdiction in respect of the judgment debtor.”

From my consideration of the High Court Act, [Chapter 7.06], there is no provision in the Act which deals with superannuation of judgments.  The position therefore is that neither the principal Act nor the High Court rules 2021 provide for the period of superannuation of judgment.  The Commercial Court rules do so as does the Magistrates Court Act.  The lacuna or void left upon the repeal of r 448 of the High Court Rules 1971 and the non-reference to a statutory limit period for superannuation necessarily implies that the Roman Dutch law in regard thereto obtains in this jurisdiction and the period of superannuation is thirty years.

In my judgement, the point in limine to the effect that the judgment or order of kamocha J cannot be enforced until revived must fail.  The judgment is hardly thirty years old.

Consequently, the point in limine is hereby dismissed with costs in the cause.

Atherstone & Cook, for the applicant’s legal practitioner

Muronda Malinga legal practice, respondent’s legal practitioner