Zimbabwe Publishing House (Pvt) Ltd v Vigne Bookshop

### Preamble
1
HH 621-18
HC 1159/17
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ZIMBABWE PUBLISHING HOUSE (PVT) LTD

versus

VIGNE BOOKSHOP

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 14 July 2017 & 9 October 2018

Opposed Matter  - Special Plea

S. Musapatika, for the plaintiff

Adv Zhuwarara, for the defendant

CHIWESHE JP:   On 8 February 2017 the plaintiff issued summons against the defendant claiming the sum of $20 133.46 arising from the sale of books by the defendant on behalf of the plaintiff, the proceeds of which the defendant failed to remit.  The plaintiff also claimed interest on that sum at the prescribed rate plus costs of suit.

The background facts as outlined by the plaintiff are these.  Sometime in 2009 the parties entered into an agreement in terms of which the defendant would receive books from the plaintiff and sell them on its behalf for a commission of 30% of the invoiced prices excluding value added tax.  The defendant undertook to pay the plaintiff 70% of the published price within 30 days from the date of invoice.  During the period February 2009 to October 2014 and on diverse occasions the plaintiff delivered books to the defendant which sold them but failed to remit part of the proceeds due to the plaintiff amounting to the sum of $20 133.46.  Annexures A1 – A8 to the declaration indicate the comprehensive entries for purchases and payments in the defendant’s account with the plaintiff.

The defendant entered appearance to defend and filed a special plea as follows.

A portion of the plaintiff’s claim, even if due and owing, would be prescribed by operation of law, the prescriptive period being three years.  As summons was served on 16 February 2017 each and every amount due and owing prior to that date is prescribed.  The amount due and owing as at that date was $16 604.19 which amount must be deemed prescribed. The defendant also entered a plea on the merits in terms of which it denies all liability as claimed.

It is however the fate of the special plea that this judgment is concerned with.  The defendant bases its special plea on the provisions of section 15 (d) of the Prescription Act   [Chapter 8 : 11] which provides that the prescription period for a debt of this nature shall be three years.  Section 19 of the Act provides that prescription is only interrupted by service of process.  Accordingly, argues the defendant, all amounts due prior to 16 February 2014 (the date on which summons was served) must be deemed prescribed.

However, the defendant seems to have chosen to rely on those provisions of the Act favourable to his case, even as the plaintiff has in its response cited the provisions of s 18 of the Act as the law that is applicable in this instance.  Further, the defendant has remained mum on the contents of the statement of account that plaintiff attached to its declaration, which shows that the defendant had a running account which was serviced from time to time by way of payments.  These payments constitute a tacit acknowledgment of liability.  Each of these payments represents an interruption of the period of prescription.  The last such payment was made on 27 September 2014,leaving a balance as at 2 October 2014 of $20 133.46, which forms the subject of the plaintiff’s claim.  Based on this last payment, the prescriptive period was extended for a further three years, that is up to 27 September 2017.  Summons was served well before that date.

Section 18 of the Prescription Act provides as follows:

“(1) The running of prescription shall be interrupted by an express or tacit

acknowledgment of liability by the debtor.

(2) If the running of prescription is interrupted in terms of subsection (1), prescription

shall commence to run afresh—

(a) from the date on which the interruption takes place……….”

The fact that the defendant was making periodic payments to liquidate the debt has not been disputed.  The defendant has not made any submissions to counter the plaintiff’s interpretation of the law as provided for under section 18 of the Act, vis a vis interruption of the prescription period by way of tacit or actual acknowledgment of debt.  The defendant has on numerous occasions made purchases and payments thereby tacitly acknowledging his indebtedness and consequently interrupting the period of prescription.  See Cape Town Municipality v Allie 1981 (2) SA 1 (C).  By extension the last payment made by the defendant in September 2014 revived prescription for another three years.  See also F.M. Zimbabwe Ltd v Fortress Industries Investments Pvt Ltd & Anor 2000 (1) ZLR 221 (S).

It is clear that the special plea cannot be sustained.  It has no merit whatsoever.  The defendant has, despite prior wise counsel from the plaintiff, persisted with this hopeless matter. For this reason, the plaintiff seeks costs on a legal practitioner and client scale.  I agree with that submission.  Further the defendant has failed to address the issue raised by the plaintiff, namely that the provisions of s 15 of the Act should be read together with the provisions of s 18.  I am satisfied that the special plea has been raised purely for purposes of delay.  For these reasons, the defendant must pay costs on the higher scale.

Accordingly, it is hereby ordered that the special plea be and is hereby dismissed with costs on a legal practitioner and client scale.

Danziger & Partners, plaintiff’s legal practitioners

Webb, Low & Barry, defendant’s legal practitioners