Vambe v Blanket Mine (1983) (Pvt) Ltd and Others (HCBC 337/25) [2026] ZWBHC 101 (6 August 2026)

1 HB 116/26 HCBC 337/25 GRACIOUS VAMBE N.O (In her capacity as the executrix dative to the E/L| Andrew Clydon Phiri DRB 3629/22 and in her personal capacity as a dependant) Versus BLANKET MINE (1983) (Pvt) Ltd AND GN MAFURUTU N.O (In his official capacity as the mine manager) AND THULANI DINGANI N.O (In his official capacity as the human resources manager) AND CHATAMBUDZA MUNENZVI N.O (In his official capacity as the mechanical foreman) HIGH COURT OF ZIMBABWE MPOKISENG DUBE J BULAWAYO 10 NOVEMBER 2025 AND 6 AUGUST 2026 Summons commencing Action- Delictual damages-Special Plea. N.Dube, for the plaintiff J.Tshuma, for the defendants MPOKISENG DUBE J: This is a claim for payment in the sum of $335966.40. for loss of earnings based on the deceased’s earning capacity from the age of 35 up to the legal age of retirement. The claim is specifically made as follows: “a) An order for payment of additional compensation in terms of s9(1)(a) and (b) of the Accident Prevention Workers Compensation Scheme (S.168/1990) in the sum of Three Hundred and Thirty Five Thousand Nine Hundred and Sixty Six Dollars and Forty 2 HB 116/26 HCBC 337/25 Cents (USD335 966.40) being wages which the late Andrew Clydon Phiri, who died at the age of 35 years as a result of the Defendants’ negligence and patent defects in the conditions of the premises and machinery at his place of work, would have received at 65 years being the age of retirement. The sum is based on his net salary of USD933.24 per month and calculated from the 21st of February 2022 being date of death to the legal age of retirement. Despite lawful notification and demand, the Defendants have refused, neglected and failed to pay the sum claimed. b) An order for payment of interest on the sums claimed in a) above at the prescribed rate calculated from the 27™ of January 2025 being the date of demand to date of full and final payment.” The Defendants raised a special plea in bar of prescription as follows: “1. Plaintiff's claim has prescribed as the cause of action arose on the 21st day of February 2022 and the period of prescription completed on the 22 nd day of February 2025; in terms of section 5(d) of the Prescription Act [Chapter 8:01]. 2. Further, in terms of section 17 of the Prescription Act the period of prescription may be delayed. In casu, and according to section 17(e) of the above-mentioned Act, an executor was appointed on the 16th day of February 2024. For this reason, / impediment, the appointment of the executor on the said date meant the delay in prescription became complete a year later, and that is on the 16th day of February 2025. 3. Considering the above, the impediment provided for in section 17(e) of the Prescription Act ceased to exist a week before prescription was due to be completed, meaning Plaintiff does not have the benefit of an extra year in this matter because the running of prescription was not interrupted. 4. Moreover, conciliation proceedings as averred by Plaintiff do not interrupt prescription as they are not judicial proceedings. Additionally, in terms of section 17(d) of the Prescription Act, it clearly states that arbitration proceedings can delay prescription, however Plaintiff's matter was never subject to arbitration proceedings. 5. Therefore, 1 to 4th Defendants submit that the claim has prescribed.” 3 HB 116/26 HCBC 337/25 In replication thereto the Plaintiff avers as follows: “1. AD PARA 1-3 It is denied that the Plaintiffs claim has prescribed. The running of prescription was delayed because an executor had not yet been appointed. In terms of s17(1)(e) of the Prescription Act [Chapter 8:11], the period of prescription needs to have been completed before or on the date the impediment ceased to exist. In casu, the executor was appointed on the 16th of February 2024. The period of prescription would not have been completed on or before this date. The running of prescription would only have been completed on the 22nd of February 2025 being exactly 3 years after the death of the Plaintiff’s husband. 2. AD PARA 4 This is denied. In terms of s19(2) of the Prescription Act, service of any process whereby the creditor claims payment shall interrupt the running of prescription. Service of the statement of claim commencing conciliation proceedings in February 2024 interrupted the running of prescription because the statement of claim qualifies as ‘process’ which is defined as any document by which legal proceedings are commenced. Further, service of a notification on the employer and the general manager in terms of S10(2) of SI 68/1990 on the 27 th of January 2025 also interrupted the running of prescription. To date there has been no response from the general manager and the employer had not responded at the date of filing summons. Additionally, it is averred that the cause of action arose or was complete on the date that the Plaintiff was possessed of the entire set of facts (particulars of negligence) needed to be alleged in the declaration. Plaintiff became aware of those in February 2024 when she received the report from the Ministry of Mines that concluded that the employer’s negligence led to the death of her husband. It is from that date (February 2024) that prescription began to run. 4 HB 116/26 HCBC 337/25 3. AD PARA 5 Plaintiff disputes that the claim has prescribed and puts the Defendants to strict proof thereof.” Brief facts The Plaintiff in this case is Gracious Vambe a female adult with capacity to sue and be sued in her name. She is cited both in her official capacity as the executrix dative of the estate of her late husband and in her personal capacity as the dependant and widow of the late Andrew Clydon Phiri. The 1 st defendant is BLANKET MINE (1983) (PVT) LTD (the employer), a duly incorporated entity with capacity to sue and be sued in its own name. The 2nd defendant is only known as GN MAFURUTU who is a male adult cited herein nominee officio as the 1 st Defendant’s mine manager. The 3 rd defendant is THULANI DINGANI a male adult cited herein nominee officio as the 1st Defendant’s human resources manager. The 4 th defendant is CHATAMBUDZA MUNENZVI a male adult cited herein nominee officio as the 1st Defendant’s mechanical foreman. All of the Defendants’ address of service is Vumbachikwe Farm, Old Gwanda Road, Gwanda. Plaintiff avers that the 2nd to the 4th Defendants, by virtue of their positions, are persons entrusted by the employer with the management of, or are in charge of the employer’s business as envisaged by the Accident Prevention Workers Compensation Scheme (SI 68/1990) (the scheme). Plaintiff’s claim is for additional compensation in terms of section 9 of SI 68/ 1990 arising out the death of the plaintiff’s husband that was a result of the negligence of the Defendants and their failure to remedy patent defects. The claim is premised on the underlying facts. Andrew Clydon Phiri was employed by the 1st Defendant as a diesel plant fitter on the 1st of March 2017. His salary was USD933.24 per month. He was entitled to leave pay in the sum of USD39.98 per month. His duties, among others, included repairing and maintenance of machinery. On the 21st of February 2022, while he was off duty, he was instructed to come to work because the employer was short staffed on that particular day. On that fateful day, while 5 HB 116/26 HCBC 337/25 attempting to park a diesel powered LHDO06 machine in a 6.5m by 6m workshop bay, the engine suddenly cut off and started moving forward into a 157m decline. The employee attempted to stop the machine by applying brakes but it did not stop, leading to it crashing into the decline and his death. More than a month before his demise, the deceased and his colleagues had discovered that the LHDOG6’s brake stamp measurement was out of range and that the brakes were faulty. The discoveries were made on the 4th of January 2022, 18th of January 2022 and 15th of February 2022 and reported to the mine manager who, together with the other Defendants neglected to remedy the defects. All the Defendants were aware of the faulty brakes as demonstrated by the investigators’ report. Plaintiff avers that the death of her husband was caused by the defendants’ negligence. They were aware of the patent defects in the premises and machinery but refused and or neglected to remedy them. This is demonstrated the following. 1. After the death of the Plaintiff's husband, an investigation was carried out by the Ministry of Mines and Mining Development which came up with a comprehensive report of the circumstances surrounding and leading to the accident. 2. The following findings, among others, are notable: a) The dimensions of the travel way in both the decline 2 shaft workshop are 1.8m in breadth X 2m in height. b) The work station bay is 6m X 6.5m. c) The workshop has no standard spillage drainage facility. d) There was oil splattered across the surface in the workshop and along the travel way leading into the decline. e) There are no barricades between the workshop and decline travelling way suggesting that there were no arresting devices to stop a vehicle from travelling into the decline unhindered. f) For the LHDOG6 to park well into the bay it had to first move a section of its length into the decline before manoeuvring back into the bay. 6 HB 116/26 HCBC 337/25 g) The engine cut off while on the travel way and the deceased tried, unsuccessfully to stop it. h) The machine experienced brake failure which made it fail to stop as the deceased applied its brakes because the brake spacing was out of specification and the brakes could not make sufficient contact on the discs. 1) More than a month before his demise, the deceased and his colleagues had discovered that the LHDO06’s brake stamp measurement was out of range and that the brakes were therefore faulty. No appropriate action was taken. Having made the above findings, the investigators concluded as follows: a) The working station was unsafe due to oil spillages on the surfaces in violation of s75(e) of the Mining (Management and Safety) Regulations (SI 109/1990) which stipulates that every station used for servicing or repairing diesel powered units shall be kept free from spillage. b) There was insufficient space in the workstation to manoeuvre the LHDO6 without risking it going down into the decline and the workshop was not designed and constructed to workshop standards. This violates s75(a) of SI 109/1990 which says that a station must permit free movement of vehicles and persons. ¢) The LHDO6 was in poor mechanical condition especially the brakes that failed to stop the machine’s motion which points to failure to provide for the safety of employees in violation of s9(1) of SI 109/1990. d) The driver’s compartment had no adequate provision for the safety of the driver. e) There was a culture of not following through on servicing and maintenance issues raised. The LHDO06’s braking system had been discovered to be out of range a month before the accident but the responsible management failed to rectify the issue. The Plaintiff avers that the above conclusions point to the negligence of the Defendants and patent defects that they caused and failed to remedy. Their negligence resulted in the death of the Plaintiff’s husband. 7 HB 116/26 HCBC 337/25 At the hearing of the special plea, Plaintiff’s counsel Mr N. Dube made an application for an amendment. He applied to amend the date on which Plaintiff received a report from the Ministry of Mines and Mining Development. In its summons the date is given as “sometime in February” Counsel prayed to insert the date “20th March 2024” where ever such phrase occurs. Mr Tshuma for the defendants did not object to the said amendment. The amendment was accordingly granted. Argument for the Defendants Mr Tshuma argued that the sole issue for determination in the present matter is whether or not the Plaintiff’s claim prescribed. If so, their prayer would be for the Plaintiff’s prayer to be dismissed on that basis. He submitted that sec 15 of the Prescription Act Chapter 8:11 provides that the prescription date for a debt is 3 years. Similarly, in terms of sec 9(1) of SI 68 0f 1990, where a worker has been injured at work and wishes to claim for extra damages, he/she should do so within 3 years. For that reason, he argued, it is settled that the applicable prescription period herein is 3 years. Further that the facts that are common cause are: a) The accident resulting in the death of Plaintiff’s husband Andrew Claydon Phiri took place on the 21st February 2022. b) On the 16th February 2024 an executor was appointed in the E/L Andrew Claydon Phiri. c) On the 26th February 2024 Plaintiff filed conciliation proceedings for damages against Defendants. d) On the 19th April 2024 a certificate of no settlement was issued. e) On the 11th April 2025 the Plaintiff issued summons against Defendants and served on them on the 24th April 2025. Thereafter defendants entered an appearance to defend per Rule 42(1)(9) r/w 42(1)(b) 8 HB 116/26 HCBC 337/25 Further that the appointment of an executor does not interrupt prescription. That can only delay the running of prescription depending on its timing per sec 17 of the Prescription Act. In casu it is the interpretation of that statute that should interest the court. Ordinarily the causa having arisen on the 21 st February 2022 it means the prescription period ended on the 22nd February 2025. That is the 3 years. Section 17 provides for what happens when an executor has not been appointed but does so before the lapse of the prescription period. It is important to note that death on its own does not interrupt prescription. So if nothing happens up until the 3 year period has been completed, even if the executor has been appointed when the claim has prescribed, the prescription period would not be extended to commerce on the date when such executor has been appointed. If the executor has been appointed post 22 nd February 2025, sec 17 would not have applied. It applies where the executor has been appointed within, then from that day a year is added to extend the prescription period. Similarly, if the executor has been appointed a few months before the claim prescribed, sec 17 kicks in by extending the prescription date by a year. The third scenario is where the executor is appointed within the subsistence of the prescription period and that appointment is such that even if a year is added one is still within the prescription period the executor does not benefit from the one year as it fell within the prescription period. In casu the executor was appointed on the 16 th February 2024. If one adds 12 months, it takes us to 16 February 2025. That date is before the prescription period of 22 February 2025. So the one year allowable falls within the prescriptive time. Effectively the executor does not benefit from the extension of a year. Mr Tshuma argued further that in the present matter the Plaintiff was supposed to issue summons before the 22nd of February 2025. Instead she issued the summons after the period had already expired. In doing so she is interpreting sec 17 to say that it is added to 3 years i.e the date 9 HB 116/26 HCBC 337/25 ought to have been extended to 22 nd February 2026. The calculation is from the date of appointment of an executor then add 1 year. That is incorrect. It was further argued that it cannot be correct to hold that the prescriptive period was interrupted by conciliation proceedings. Sec 19 of the Prescription Act provides for what interrupts prescription. It is institution of a judicial process that would result in a judicial ruling e.g issuance of summons. Conciliation is not. It is an alternative dispute resolution mechanism. It is not a process that interrupts prescription. Even arbitration itself does not interrupt prescription but may delay it. Mr Tshuma concluded by submitting that the claim should fail due to prescription. Arguments for the Plaintiff Mr Dube for the plaintiffs while abiding by his heads filed of record highlighted the following: That the cause of action was incomplete as at the date of death of Plaintiff’s husband the reason being that between 21st February 2022 and 22nd February 2025 Plaintiff did not have full knowledge of the facts relevant and material to her claims to establish a cause of action. Plaintiff gained such full knowledge on the 20th March 2025 which is the date upon which she received the report from the Ministry of Mines and Mining Development. This is the report that detailed all the particulars of negligence which plaintiff needed in order to sustain a claim of additional compensation per S.I 68 of 1990. Per such S.I there are several requirements that a party must aver in its claim. These factors are also necessary in order to bring a Plaintiff’s declaration to compliance with Rule 13 which requires that a declaration should state the extant and exact nature of the claim. In casu plaintiff needed to prove viz; a) Negligence on the part of the employer. b) Negligence on the part of people entrusted with managing the employer’s business which in this case are 2nd to 4th Defendants. c) Show patent defects on the machinery used. d) That the employer had knowledge of those defects. 10 HB 116/26 HCBC 337/25 e) That defendants caused such defects. f) That defendants negligently, deliberately failed to remedy those defects. g) That those defects resulted in injury or death of an employee. Mr Dube argued therefore that before the 2oth March 2024 the causa was incomplete because the plaintiff did not have knowledge of all these particulars. He contended that in his view therefore the 3year period within which to claim started to run from the 20th March 2024. He referred to the matters of Silonda v Nkomo SC6/22 Chiwara v Mutsuris & Ors. HH 7/09 He argued that those aptly defines a cause of action as, “It is the entire set of facts upon which the relief sought stands” He argued further that there is no way the plaintiff could have pleaded the particulars of negligence without having had sight of the ministry’s report. It is in terms of that report that the Plaintiff could draw up its declaration. For that reason, he argued the causa was complete only on the 20th March 2024. That is when computation of prescription should begin. For that reason by April 2025 only 1 year had lapsed. It was argued that Plaintiff’s claim is well within time. Mr Dube also argued that prescription was interrupted by two more factors i.e a) Institution of conciliation proceedings & b) Issuance of a notice in terms of sec 10 of the S.I 68 of 1990. He argued that per section 19 of the Prescription Act, particularly at 19(1)(2) process is defined as “Any document whereby legal proceedings are commenced” He argued further that per sec 10 of S.I 68 of 1990, a worker is barred from instituting a claim without first issuing such notification. 11 HB 116/26 HCBC 337/25 Counsel further cited the matter of Kaondera v Jaboon & Ors HC3858/11 to buttress the point that appointment of an executor interrupts prescription. In casu, he contends, appointment of an executor on the 24th February 2024 delayed the running of prescription. It ought to run out a year after the appointment of such executor. He contended that when summons were issued in April 2025, the Plaintiff was still well within time, its claim had not yet prescribed. He thus prayed for the special plea of prescription to be dismissed. Replication Mr Tshuma argued that in plaintiff’s summons, her prayer is payment. Such claim can only be made within 3 years of the accident, not 3 years from the date of having the full facts. He referred to sec 9(1) of S.I 68 of 1990 as clearly spelling out what should happen and when to institute such claim. The law Both parties are in agreement on what constitutes a debt as defined in sec 2 of the Prescription Act Chapter 8:11. Both parties agree that the Plaintiff’s husband passed on, on the 21st February 2022. The parties only differ on the interpretation of section 17(1)(e ) & 19(2) of the said Act. of the said act. Sec 17(1)(e) as relied upon by Plaintiff’s counsel provides as follows: 17. When completion of prescription delayed (1) If— (a) the creditor is a minor or is insane or is a person under curatorship or is a person whose behaviour or physical or mental condition justifies his being placed under curatorship or is prevented by superior force or any enactment or order of court from interrupting the running of prescription in terms of subsection (2) of section nineteen or is a juristic person and the debtor is a member of the governing body of such juristic person; or (b) the creditor and the debtor are married to each other or are partners and the debt is a debt which arose out of the partnership relationship; or (c) the debtor is outside Zimbabwe; or 12 HB 116/26 HCBC 337/25 (d) the debt is the subject matter of a dispute submitted to arbitration, or is the subject matter of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of a debtor or against a company in liquidation or against an applicant under the Agricultural Assistance Scheme set out in the Third Schedule to the Agricultural Finance Corporation Act [Chapter 18:02]; or (e) the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed; and the period of prescription would, but for this subsection, be completed before or on, or within one year after, the date on which the relevant impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of one year which follows that date. (My own underlining for emphasis) I accept counsel Tshuma’s argument on the computation of prescription periods in a matter such as the present where the impediment was appointment of an executor. If Plaintiff’s husband met his untimely death on the 21 st February 2022 and the executor was appointed on the 16th February 2024. A year was added thereon per the provisions of sub sec 1(e) of sec17. That added year lapsed on the 16 th February 2025 such date fell before the lapse of the original prescriptive period of 3 years i.e the 21st February 2025. For that reason, I accept that the Plaintiff can not benefit for the additional year. It is of no consequence. Matters would have been different if the executor was appointed, say, on the 16th February 2025. A year added would have extended the date to the 16th February 2026. I shall now move on to the interpretation of section 19 (2) Section 19 (2) and (3) of the Act reads: “(2) The running of prescription shall, subject to subsection (3), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. (My own underlining for emphasis) 13 HB 116/26 HCBC 337/25 (3) Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (2) shall lapse and the running of prescription shall not be deemed to have been interrupted, if the creditor— (a) does not successfully prosecute his claim under the process in question to final judgment; or (b) successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside.” In casu the defendants did not execute any acknowledgement of debt. No process as envisaged by sub-sec 2 of sec 19 was issued. I do not agree with Mr Dube that commencement of conciliation proceedings fits the definition of process. In the Matter of Cathrine Chiwawa v Apostolos Mutzuris and Ors HH7/09 it was held per MAKARAU JP (as she then was) that: “In my view, the language used in the section is quite clear. It provides that the running of prescription may be interrupted by the service on the debtor of process. This is trite. It then provides that unless the debtor acknowledges liability, the interruption of prescription will lapse and the running of prescription shall not be deemed to have been interrupted if the creditor does not successfully prosecute his or her claim to final judgment. I understand this to mean that the creditor has to obtain judgment in his favour on the process issued under subsection (2).” I am however persuaded by Mr Dube’s argument that before the out come of investigations by the Ministry of Mines and Mining Development, the Plaintiff did not have the full conspectus of facts upon which to found her claim. I rely again on the matter of Chiwawa v Mutzuris supra where the learned Judge had this to say: “It may be pertinent at this stage to observe that the term “cause of action” as used by Advocate Zhou above has been the subject of many court decisions. It is now the settled position in our law, in my view, that the term refers to when the plaintiff is aware of every fact which it would be necessary for him or her to prove in order to support his or her prayer for judgment. It is the entire set of facts that the plaintiff has to allege in his or her declaration in order to disclose a cause of action but does not include the evidence that is necessary to support such a cause of action . (See Shinga v General 14 HB 116/26 HCBC 337/25 Accident Insurance Co (Zimbabwe) Ltd 1989 (2) ZLR 268 (HC) at 278 A- C).” (My own underlining for emphasis) I am convinced that prior to the 20 th March 2024, the date the accident report became available to the plaintiff, she would not have known in concise terms what caused the accident that led to the loss of her husband’s life. I thus reject defendant’s argument that computation of time should be done from the date of the accident itself under the circumstances. My reasoning is that prior to that date the Plaintiff would not have instructed her counsel with clarity on the following: a) Negligence on the part of the employer. b) Negligence on the part of people entrusted with managing the employer’s business which in this case are 2nd to 4th Defendants. c) Show patent defects on the machinery used. d) That the employer had knowledge of those defects. e) That defendants caused such defects. f) That defendants negligently, deliberately failed to remedy those defects. g) That those defects resulted in injury or death of an employee. Having issued out summons on the 11th April 2025 I am of the finding that Plaintiff’s claim had not yet prescribed. It is for that reason that I make the following disposition. Disposition 1st to 4th defendants’ special plea of prescription be and is hereby dismissed with costs. Dube,Mguni and Dube, plaintiff’s legal practitioners Webb, Low & Barry Inc Ben Baron & Partners, respondents’ legal practitioners