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Fidelis Munyoro
Chief Court Reporter
Former Harare City top executive Dr Stanley Mungofa had his case seeking to force transfer of a council property into his name collapse before it even started after the High Court ruled the lawsuit was filed too late, missing the three-year deadline allowed since he became aware of the legal problem.
Dr Mungofa was council health services director until his contract of employment was terminated through compulsory retrenchment in February 2015 but his package signed in April 2015 included an inadequately described council property with transfer impossible until it was better described.
While he knew of the deficiency by May 30 2015, he did not sue until October 12 2018, just over four months after the time set aside for any permitted legal action had ended. The legal term for the deadline is prescription, and it is designed to end all possibility of legal dispute in many civil matters, usually after three years, so everything can be finalised.
Dr Mungofa eventually took the council to court to rectify the terms of the retrenchment package by including a better description of the property mentioned than “house number situated at the corner of Rotten Row and Robert Mugabe Road, Harare”. The veteran doctor argued the agreement erroneously omitted to include the identity of the property.
But council opposed the granting of the relief sought by Dr Mungofa on the grounds that the lawsuit had been prescribed by the time it was lodged. Council argued that the three years allowed started from the date of signing of the agreement in April 2015.
In determining the issue of prescription, the court must establish when the cause of action arose and in this case the time when the need to act arose should be considered in the context of the agreement, with or without rectification. It was on that basis that Justice Paul Musithu accepted council’s special plea of prescription and upheld the point, quashing Dr Mungofa’s lawsuit.
The judge found that as early as May 30 2015, Dr Mungofa was aware of the facts and circumstances and he could have sued then, or at least within the three years from his discovery of the problem, and so the prescription period started then and he should have launched his court action by May 30 2018 at the very least.
“Proceedings were only instituted on 12 October 2018. By that time the claim had been prescribed,” said Justice Musithu.
Having made that finding, Justice Musithu found it unnecessary for the judge to traverse the remaining trial issues in the matter, that is whether Dr Mungofa had a case.
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