Online Reporter
Fidelis Munyoro
Chief Court Reporter
R.M. Auctions (Private) Limited scored a crucial victory in its long-running battle with Yaruka Investments (Private) Limited over a Harare property after the High Court refused to throw out its claim on prescription grounds.
In a recent judgment, Justice Siyabona Paul Musithu ruled that Yaruka had failed, at this stage, to establish when RM Auctions’ cause of action actually arose, saying the dispute could not properly be decided merely from the pleadings and affidavits.
The judge instead referred the special plea of prescription to trial, where the disputed facts can be tested through oral evidence.
The dispute centres on Stand 386, Willowvale Township, Harare, which RM Auctions says it agreed to buy from Yaruka in February 2006.
Yaruka had asked the court to dismiss the claim, arguing that the matter had prescribed after almost two decades.
It relied heavily on earlier proceedings instituted by RM Auctions in 2006, contending that those proceedings demonstrated that the company’s cause of action had already arisen at that time.
But Justice Musithu found that the mere filing of proceedings in 2006 did not establish when prescription began to run.
“The institution of proceedings may, in my view, constitute evidence that the plaintiff believed it had a cause of action, but it is not, without more, proof that the debt had become due for purposes of Section 16 of the Prescription Act,” the judge said.
The court noted that the critical question was not simply when the alleged verbal agreement was concluded, but when RM Auctions obtained a complete and enforceable cause of action.
According to the judgment, R.M. Auctions entered into an agreement on February 7, 2006, with Yaruka, represented by its director, Mr Goredema, to purchase the property for ZW$1,8 billion.
The company claimed it subsequently paid the purchase price in full, but Yaruka allegedly refused to honour the agreement and later sold the property to Lynatech Marketing (Private) Limited.
RM Auctions then launched proceedings in 2006 seeking, among other relief, an order confirming the existence of the agreement and compelling transfer of the property.
Those proceedings remained unresolved for years before they were dismissed for want of prosecution in June this year.
Yaruka subsequently argued that the dismissal meant the earlier proceedings had failed to interrupt prescription and that RM Auctions’ fresh claim, filed in September 2025, had come far too late.
The auction company disputed this, maintaining that prescription had been interrupted by the 2006 proceedings and that the dismissal did not amount to a determination of the dispute on its merits.
Justice Musithu, however, found that the court first had to determine when prescription actually commenced.
The judge said Yaruka’s affidavit had simply asserted that the cause of action arose in February 2006 because that was when RM Auctions instituted the earlier proceedings.
“It did not establish the date upon which the plaintiff’s cause of action arose,” Justice Musithu said.
“It merely stated that the cause of action arose in February 2006 because proceedings under case number HC 1135/06 were instituted during that month.”
The court found that important questions remained unanswered, including when performance under the alleged agreement became due, when any breach occurred and when all the material facts necessary to sustain the claim had crystallised.
“These issues, in my view, go to the heart of the special plea of prescription and cannot be resolved by reference to pleadings or affidavit of evidence alone,” the judge ruled.
Justice Musithu said the dispute raised a genuine and material factual question requiring the court to hear witnesses and assess their evidence through examination and cross-examination.
“In my view, the court must be placed in a position where credibility findings may be made after viva voce evidence has been led,” he said.
The judge consequently declined to uphold Yaruka’s special plea at this stage.
Instead, the court ordered that the special plea of prescription be referred to trial for determination on the facts and merits, with costs in the cause.
The ruling does not finally determine whether RM Auctions’ substantive claim to the property will succeed. It means that the prescription issue remains alive and must now be tested through evidence before the court.
The case also leaves open the parties’ competing arguments concerning the legal effect of the 2006 proceedings and their eventual dismissal for want of prosecution.
