In 16th century Holland, a rule of practice developed whereby the executability of judgment debts lapsed after a certain period of time. This development, effectively, marked the birth of what we know today as the superannuation of judgment rule. According to the superannuation of judgment rule, after the lapsing of a certain period of time, a judgement becomes superannuated and execution can only be carried into effect if the judgment is revived. In simple terms, the superannuation of judgment can be described as when a judgment becomes too old to use and thus becomes ‘of no use’. The purpose of superannuation was somewhat plain: to prevent a judgment debtor from being taken by surprise by a Plaintiff who suddenly decides to execute, even after the lapsing of many years. The rule was thus introduced for the benefit of a debtor, who, however, could waive it.
Debate has existed as to whether the superannuation rule is still applicable in our law, in Zimbabwe. Historically, superannuation was provided for in our law in Order 49, Rule 448 of the High Court Rules, 1971, which provided that judgments became superannuated after six years. After that, such judgments would need to be revived by the Court on notice of motion to the debtor.
This Rule, however, was repealed by Statutory Instrument 80 of 2000, thus lending the question of whether superannuation remained applicable in our law. This question was aptly elucidated in the recent judgment, by Mafusire J, in Nzara & Others v Kashumba & Others. The matter in Nzara involved over sixteen years of complex and arduous legal wrangling. At the centre of the dispute, was the question of whether an agreement of sale for an immovable property, between the first applicant and the Late Dzingayi Kashumba, was ever duly cancelled. The applicants contended that it was, whilst the first respondent contended that it was not. A key point of contention, that formed the substance of the dispute, was whether the transfer of the property, on 3 May 2006, on the basis of a court order granted on 9 May 2001, was proper, especially in light of the superannuation rule. Various counter submissions were made as to both the applicability and inapplicability of the rule in our law. In coming to his decision, the learned Judge took into account two main considerations.
Firstly, the learned Judge took into consideration the fact that the superannuation rule was an expression of the Roman-Dutch common-law position , as affirmed in Segal and Another v Segil. By virtue of Section 192 of the new Zimbabwean Constitution, as read with Section 89 of the old Constitution, Roman-Dutch is also our common-law . As such, upon the repeal of Order 49, Rule 448, the common-law position revived, thus making the superannuation rule still part of our law. The period of superannuation, in line with such common-law position, was further established as being three years. In support of this position, the learned Judge, further, took into consideration the continued existence of Order 40, Rule 324 of the High Court Rules, 1971 in our law, even after the repeal of Rule 448. Rule 324 explicitly provides that that no writ of execution shall be issued after a judgment has become superannuated, unless that judgment has first been revived. The remnants, therefore, of superannuation were not completely extinguished upon the repeal of Rule 448, but remained in our law.
Of relevance is, of course, the Prescription Act [Chapter 8: 11], which dictates that judgment debts lapse after a period of thirty years. This was further considered in Nzara, wherein the learned Judge observed that prescription and superannuation are different concepts. Whilst prescription constitutes an absolute bar to claim, superannuation refers to something that may just be too old to be used, but may be used after revival. Prescription, therefore, was rightly deemed immaterial, in the context of superannuation.
Ultimately, in Nzara, it was held that the transfer of the property on 3 May 2006, on the basis of a court order granted on 9 May 2001, was incompetent as the court order of 9 May 2001 had superannuated after the lapsing of the three year period. It is, therefore, clear that the superannuation of judgment rule remains applicable in our law, on the basis of both common-law and the provisions of our Rules.
What is debatable, however, is whether the rule continues to serve any purpose. Questions have been posed as to whether a debtor who knows that judgment was given against him can really be taken by surprise; and further whether a debtor who fails to pay can really complain that the timing of the execution process has not met his financial convenience. These are undoubtedly valid questions which, thus far, remain unanswered.
Despite them, the validity and applicability of the superannuation of judgment rule in our law remains unquestionable, at least for now.
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