MUKAHLERA V CLERK OF PARLIAMENT & ORS 2005 (2) ZLR 365 (S)

MUKAHLERA v CLERK OF PARLIAMENT & ORS 2005 (2) ZLR 365 (S)

Flynote

C Practice and procedure ” parties ” citation of ” Clerk of Parliament ” ex officio member of board of Vehicle Loan Fund ” application relating to matter directly within purview of Fund's objects ” not proper to cite Clerk of Parliament ” Fund itself should be cited

Prescription ” interruption of ” by issue of process ” letter of demand D through party's lawyer ” not process

Prescription ” running of ” when begins ” cause of action ” meaning of ” when cause of action may be said to arise

Flynote

The applicant, a member of Parliament, had applied in 2001 for a motor vehicle through the Members of Parliament Vehicle Loan Scheme, the Fund for which was established in terms of the Audit and Exchequer Act [Chapter 22:03]. The Clerk of Parliament was an ex officio member of the Board of the Fund. The Fund paid the fourth respondent, a motor dealer, for the vehicle requested, but before it was delivered the applicant decided he wanted a different type of vehicle. The vehicle originally requested was allocated in 2001 to another member of Parliament. In June 2002, the applicant's contributions were refunded to him. The respondents raised several objections to the applicant's claim that the respondents pay for a motor vehicle of the type originally requested by him. The principal objections were: (1) that the claim had expired, having been instituted more than three years after the cause of action arose; and (2) that the fund itself should have been cited, rather than the respondents. The applicant argued that prescription was interrupted by the writing of a letter of demand to the first respondent's lawyer; and that prescription only began to run in June 2002, when the applicant's contributions were refunded

Held, that prescription began to run when the cause of action arose, the"cause of action" being the combination of facts material for the plaintiff to prove in order to succeed in his action. On the facts, this was in 2001, when the car was allocated to another member of Parliament. It was not necessary to prove the refund of the applicant's contributions to found his claim.

Held, further, that a letter of demand, whether issued through a lawyer or otherwise, does not constitute "process" in its ordinary sense or within the meaning of that term as defined in s 19(1) of the Prescription Act [Chapter 8:11].

Held, further, that the Constitution of the Fund made it clear that the Fund could sue and be sued in its own name. It was the Fund, through its Board, which administered the Scheme and disbursed the moneys required to purchase the vehicles acquired under the Scheme. The relief sought by the applicant pertained to matters directly within the purview of the Fund's objects and operations; and the respondents were acting as officers or agents of the Fund in its administration of the Scheme. The failure to cite the Fund was fatal.