DUBE v BANANA 1998 (2) ZLR 92 (H)

Flynote

Prescription — date on which debt arose — mental stress resulting from unlawful sexual acts committed several years previously — claim that plaintiff only became aware during prescription period that stress caused thereby — patrimonial loss alleged to have been caused at time sexual acts committed — "once and for all" rule — when loss may be said to have been sustained — where separate causes of action may arise out of same act

Headnote

The plaintiff sued the defendant, the former President of Zimbabwe, for damages arising out of sodomy and other sexual acts he alleged had been performed on him, against his will, by the defendant. The acts were alleged to have been committed during the period 1983 to 1986 when he was aide-de-camp to the defendant. The plaintiff claimed that as a result of the unwanted sexual acts performed on him, he became addicted to alcohol and drugs and his work performance deteriorated. In September 1995, he shot and killed a police officer, after having taken alcohol in excess. In February 1997, he was convicted of murder, but with diminished responsibility. The medical evidence led at his criminal trial showed that he was suffering from post-traumatic stress disorder, caused by the acts committed by the defendant. The medical evidence also showed that this disorder contributed to the plaintiff's addiction to drugs and alcohol.

Apart from denying the allegations, the defendant filed a special plea in bar, on the grounds that the plaintiff's claims were founded on wrongful conduct which occurred more than 3 years before the date of issue of summons. The plaintiff then amended his claim to one for damages for mental stress and disorder, suffering and loss of amenities of life.

It was argued for the plaintiff that he only became aware of the facts on which his claim was based in 1996, when he was made aware that the cause of his mental stress was the sexual acts performed on him by the defendant. The defendant argued that the acts complained of were wrongful in themselves and the sole issue was when the plaintiff became aware of the element of causation.

Held, that the only matter for determination was when the plaintiff became aware of the facts from which the claim arose or his "cause of action". The cause of action means the combination of facts that are material for the plaintiff to prove in order to succeed in his action. The facts must enable the court to reach a conclusion regarding unlawfulness and fault, as well as damage. The occurrence of either patrimonial loss or emotional harm completes the delictual cause of action.

Held, further, that it is well established in our law that only one action may be instituted for all the harm, actual and prospective, that results from a single cause of action. This rule is known as the "once and for all" rule, and its purpose is to prevent a multiplicity of actions based on a single cause of action and to ensure that there is an end to litigation. The essential question is whether a single cause of action arises for the purposes of extinctive prescription when an act unlawfully causes actual loss and, at the same time, creates the possibility of additional future loss. The approach of the courts has not been uniform. Different kinds of patrimonial loss can arise from the same act and may require proof of different facts. For example, the same act could cause bodily injury and loss of support, the facta probanda for one being quite distinct from those for the other.

Held, further, that in this case the claim was based on patrimonial loss allegedly suffered at the hands of the defendant. To allow that loss to give rise to different causes of action would be to open a Pandora's box. It would permit actions arising out of events which occurred possibly 20 or 30 years earlier. The plaintiff's cause of action arose when he was allegedly being assaulted by the defendant and thus was prescribed.