SADOMBA v FARAI UZUMBA (PVT) LTD 1982 (2) ZLR 142 (H)

Flynote

Practice and procedure — prescription — Prescription Act, No 31 of 1975 — s section 18 (2) (a) — service of summons — effect of — interrupts extinctive prescription if claim is prosecuted to a successful conclusion — "successful" — meaning of — summons issued in October, 1978 and not acted on until December 1981 — whether and when a summons becomes stale — no rule of law Court's discretion — factors to consider.

Headnote

In August, 1976 the plaintiff was involved in a collision between his vehicle and a bus owned and operated by the defendant company. In October, 1978 he issued a summons claiming damages, but did nothing further in pursuit of his claim until December, 1981, when he applied for judgment by default against the defendant. One possible reason for the delay was that he also brought an action against the defendant's insurer but the insurer successfully pleaded that the claim against it had been prescribed, in terms of the Road Traffic Act, by virtue of it having been brought more than two years after the accident.

The application in December 1981 was, in effect, refused, but the then Judge President advised the plaintiff to serve a fresh summons. This he did on the 25th January, 1982; and on the 26th February the defendant finally entered an appearance to defend.

The defendant pleaded prescription to the claim so resuscitated. He did so on two bases. The first was that by operation of section 18 (2) (a) of the Prescription Act, No. 31 of 1975, the running of extinctive prescription from the date of the accident was not interrupted by the service of the first summons in October 1978. The alternative argument was that the summons had, by virtue of the passage of time, become stale and had lapsed.

Held, that there is a clear difference between a right that is enforceable by action at law and the process of enforcing it. The Prescription Act is concerned with the existence or non - existence of rights or claims, not with question of procedural law. Extinctive prescription relates only to the rendering unenforceable of rights by the lapse of time and not to any question of the subsequent procedures of enforcement. It is interrupted - provisionally - by