NDLOVU v POSTS & TELECOMMUNICATIONS CORPORATION 1998 (2) ZLR 334 (H)

Flynote

Prescription — interruption — a acknowledgement of liability — clerk in debtor's employment passing creditor's account for payment — not an acknowledgement to creditor of liability — institution of criminal proceedings against creditor at instance of debtor — prescription not thereby interrupted — waiver — when waiver of debtor's right to rely on prescription may be construed

Headnote

The plaintiff, an architect, had performed professional work for the defendant corporation in 1992 and presented a fee note in November of that year. On receipt of the fee note, an officer in the corporation's buildings and estates department recorded that the claim was "certified correct for payment" and sent it to the budget officer for payment. Payment was not made, however, because the corporation preferred criminal charges against the plaintiff, alleging that he had committed fraud against it in the performance of the work.

In January 1995, the plaintiff was tried on the charges and acquitted. On 26 February 1995, he wrote to the corporation, demanding payment. Unaware of the acquittal, the corporation replied that the matter was still with the courts and that it would communicate with him later. He took no further action until June 1997, when he issued summons. The corporation pleaded prescription.

Held, that the prescription period applicable to this debt was three years from the date the work was complete, 15 November 1992.

Held, further, that although prescription may be interrupted by an acknowledgement of debt, any such acknowledgement must be made to the creditor or his agent. The comments and instructions made on the fee note by a PTC employee, addressed to another employee, were not intended to be communicated to any other person and did not constitute an acknowledgement of liability.

Held, further, that the initiation of criminal proceedings by the corporation did not interrupt the running of prescription. Criminal proceedings are brought by the Attorney-General and the process by which he does so is not process issued and served on a debtor by a creditor. The plaintiff was not prevented from enforcing his right of action.

Held, further, that the letter written by the corporation to the plaintiff did not amount to a waiver of its right to rely on prescription. Whether waiver has occurred is a question of fact, but it is not to be lightly assumed. The letter was written before the right to rely on prescription had accrued and the corporation could not be held to have waived rights that it did not yet have. Prescription was not being considered by either party at that stage.

Special plea upheld.