Understanding Prescription in Debt Recovery in Zimbabwe

KELVIN SABAO

Introduction

In Zimbabwe, the Prescription Act [Chapter 8:11], provides the framework for the prescription of debts.

Prescription is a critical concept in debt recovery, providing a time frame within which legal claims must be made and the Prescription Act governs this process.

Understanding the intricacies of prescription periods is vital for both creditors and debtors to ensure that claims are made timely and rights are protected.

Creditors and debtors must understand the concept of prescription, as it determines the enforceability of debt over time.

This article delves into the intricacies of prescription in debt recovery in Zimbabwe, highlighting key provisions of the Prescription Act [Chapter 8:11], and elucidates the various prescription periods applicable to different types of debts.

What is a Prescription?

Prescription refers to the lapse of time within which a creditor must enforce a debt through legal proceedings.

If this period expires, the debtor can raise the defence of prescription, effectively barring the creditor from enforcing the debt.

The principle behind prescription is to promote legal certainty and finality, ensuring that claims are brought within a reasonable period.

The Prescription Act [Chapter 8:11]

The Prescription Act [Chapter 8:11] governs the laws of prescription in Zimbabwe. This statute outlines the timeframes within which different types of debts must be claimed before they prescribe. Understanding these timeframes is crucial for both creditors seeking to recover debts and debtors aiming to understand their liabilities. These periods vary depending on the nature of the debt, and failure to act within these prescribed periods can result in the claim being time-barred.

Prescription Periods

The Prescription Act specifies varying prescription periods for different types of debts.

These periods are crucial as they determine the timeframe within which a debt must be claimed. Below are the key prescription periods as outlined in the Act:

(a)  Thirty Years:

• A debt secured by a mortgage bond.
• A judgment debt.
• A debt in respect of taxation imposed or levied under any enactment.
• A debt owed to the State in respect of any tax, royalty, tribute, share of profits, or other similar charges related to the exploitation of minerals or other substances.

(b)  Fifteen Years:

A debt owed to the State arising out of an advance or loan of money or a sale or lease of land by the State to the debtor unless a longer period applies.

 

(c)  Other Debts:

Other debts not specifically mentioned in the Act generally have a prescription period of three years.

General debts, including contractual and delictual claims, are prescribed three years from the date the debt becomes due.

This means a creditor has three years from the date the debt becomes due to initiate legal proceedings.

Prescription Period for Claims Against the Police

Under the Police Act [Chapter 11:10], any civil action against the police must be brought within eight months from the date the cause of action arises.

This short prescription period underscores the need for prompt action when seeking to hold the police accountable for any wrongful acts or omissions. In addition to the short prescription period, the Police Act imposes a mandatory notice requirement.

A written notice of intention to sue must be served on the Commissioner-General of Police at least sixty days before the institution of the proceedings.

This notice must outline the particulars of the claim, providing the police with an opportunity to investigate and possibly settle the matter before formal legal proceedings are initiated.

 

 

Commencement of Prescription

Prescription begins to run from the moment the debt becomes due.

This is typically when the creditor has the right to claim performance from the debtor.

For instance, in a loan agreement, prescription starts when the loan repayment becomes due.

The Act also specifies that if the debtor acknowledges the debt, either expressly or impliedly, the prescription period is interrupted and starts afresh from the date of acknowledgment.

Interruption and Suspension of Prescription

Prescription can be interrupted or suspended under certain circumstances, extending the period within which a debt can be claimed:

(a)  Acknowledgment of Debt

If the debtor acknowledges the debt in writing or makes a payment towards the debt, the prescription period is interrupted, effectively restarting the clock.

(b)  Judicial Process

The initiation of judicial proceedings to recover the debt interrupts prescription. The prescription period is suspended while the legal action is pending.

(c)  Debtor’s Absence

If the debtor is outside Zimbabwe, the prescription period may be suspended until the debtor returns.

Practical Implications for Creditors and Debtors

Creditors should be proactive in monitoring the due dates of debts and taking timely action to recover them before they prescribe.

It is advisable to keep meticulous records of all transactions and communications with debtors.

In instances where a debt is approaching the prescription period, creditors should consider initiating legal action to interrupt prescription.

For debtors, understanding prescription periods can provide relief from old and forgotten debts.

 However, it is essential to act in good faith and communicate with creditors to avoid legal complications such as being blacklisted.

Debtors should be aware that acknowledgment of debt or partial payment can reset the prescription period.

Debtors should also be aware that if a creditor attempts to enforce a debt after the prescription period has expired, the debtor can raise the prescription as a defence, potentially nullifying the claim.

Conclusion

The Prescription Act [Chapter 8:11] establishes clear guidelines on the time limits within which debts must be enforced.

By understanding these prescription periods and the factors that can interrupt or suspend them, both creditors and debtors can navigate the debt recovery process more effectively.

Creditors must act within the prescribed periods to avoid losing their right to recover debts, while debtors can use prescription as a defence to extinguish old claims. The Prescription Act [Chapter 8:11] serves as a critical legal tool in managing debt recovery in Zimbabwe. Staying informed and proactive in managing debts can help mitigate risks and promote financial stability.

Disclaimer:

The information and opinions expressed above are for general information only. They are not intended to constitute legal or other professional advice.

Kelvin Sabao (LLB LLM in Corporate Law (Unisa)) is a duly registered Legal Practitioner practising law at Titan Law. He writes in his personal capacity. He is a co-author of a book titled ‘The Directors’ Handbook in Zimbabwe’. This publication underscores his expertise and dedication to advancing the knowledge and understanding of corporate law and corporate governance in the Zimbabwean context. For more information, you can contact Kelvin via email at: sabaokelvin@gmail.com