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Res Judicata, Cause of Action Estoppel, Issue Estoppel or Subject Matter Estoppel re: Approach

HH13-12 : YVONNE CHISESE vs ALLUVIAL EXPLORATION SERVICES (PRIVATE) LIMITED
Ruled By: MAVANGIRA J

The application before this court is for an order of ejectment of the respondent from the property known as 46 Van Praagh Avenue, Milton Park, Harare. The application is based on an alleged breach by the respondent of a lease agreement in terms of which it is a lessee of Stand 4343 Salisbury Township of ...
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HH87-12 : MARVELLOUS TARUONA vs MISHECK ZVAREVADZA and OTHERS
Ruled By: KUDYA J

The plaintiff has, apart from the fourth (Emmanuel Zvarevadza) and fifth (Darikai Butsa) defendants, been involved in legal combat with all the other parties in HC2765/05, Misheck Zvarevadza (first defendant), Dadirai Moses (second defendant), Shadreck Zvarevadza (third defendant), Cobra Security (Pvt) Ltd (sixth defendant), Controller of Private Investigations and Security ...
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SC05-09 : FLOWERDALE INVESTMENTS (PRIVATE) LIMITED AND ANOTHER vs BERNARD CONSTRUCTION (PRIVATE) LIMITED AND TWO OTHERS
Ruled By: CHIDYAUSIKU CJ, SANDURA JA and GWAUNZA JA

The essential elements of res judicata are: (i) The action/(s) must be between the same parties. (ii) The action/(s) must concern the same subject-matter. (iii) The action/(s) must be founded upon the same cause of action.
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SC05-09 : FLOWERDALE INVESTMENTS (PRIVATE) LIMITED AND ANOTHER vs BERNARD CONSTRUCTION (PRIVATE) LIMITED AND TWO OTHERS
Ruled By: CHIDYAUSIKU CJ, SANDURA JA and GWAUNZA JA

The first ground of appeal is that the learned Judge erred and misdirected himself in making a ruling that the dispute placed before the Sheriff of Zimbabwe was the same dispute with proceedings in case numbers., and hence the defence of res judicata was successfully raised by the first respondent. This matter turns ...
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HH02-12 : SWANDALE PROPERTIES (PRIVATE) LIMITED vs VENENCIA MADAKE AND MUNICIPALITY OF HARARE
Ruled By: MUTEMA J

Regarding the same principle, the case of..., is also apposite. In that case it was held that in order for the matter to be encompassed under the defence of res judicata, the proceedings relied upon must have been between the same parties or their privies and the same issue must arise in the subsequent proceedings ...
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HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

The respondent, that is to say the Reserve Bank of Zimbabwe is a body corporate established in terms of the Reserve Bank Act [Chapter 22:15]. Its function, among others, include acting as the Exchange Control Authority in terms of the Exchange Control Act [Chapter 22:05] as read with the Exchange ...
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HB43-09 : THULANI NDLOVU vs SHEPERD MUKURUVA and GRACE MUGWAGWA and REGISTRAR OF DEEDS
Ruled By: NDOU J

If I am wrong on this ground, still the application should fail on the other ground raised by the first respondent, that the issue of Stand Number 2689, Cowdray Park, Bulawayo, is res judicata. The judgment, or order, given by this court under HC 1783/02 rendered it so. Even at the time the applicant instituted the ...
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HH03-10 : ESTHER MWANYISA vs ENETI JUMBO and ISABEL SAMURIWO and MTIKUMBURA MOFFAT and THE CITY OF HARARE and THE MASTER OF THE HIGH COURT and ANOTHER
Ruled By: MAKARAU JP

In opposing the application, the first respondent argued that the relief sought by the applicant in this application is the same relief as that she failed to obtain on the merits in HC1131/03, the application for joinder. In the same vein, the first respondent submitted that once she had failed to be joined to ...
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HH82-10 : MILRITE FARMING (PRIVATE) LIMITED vs ENOCK PORUSINGAZI and S ZUZE and THE MINISTER OF LANDS AND RURAL RESETTELEMENT and THREE OTHERS
Ruled By: HLATSHWAYO J

The background to this matter is spelt out in the judgment of MUSAKWA J in Chiriga Estates 2 Others v Minister of Lands and Rural Resettlement 9 Others HH34-10..., hereinafter referred to as “the first application.” The current application shall be referred to as “the second application.” When the second application ...
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HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

The next preliminary point raised was that the matter before the court is res judicata because it is predicated on an issue which has already been determined by the Supreme Court in the judgment of 3 May 2010 in SC09-10 in which the applicant's appeal was dismissed. It was submitted that the dismissal of ...
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HH154-10 : M CHANDAVENGERWA and T CHANDAVENGERWA vs W.M. MUTYANDA and MESSRS. ROBINSON & MAKONYERE
Ruled By: BHUNU J

The first and second plaintiffs are husband and wife. The first defendant is a businessman whereas the second defendant is a firm of lawyers duly registered in terms of the laws of this country. On 9 September 2004, the plaintiffs applied to the High Court for an order compelling the first defendant to pass transfer of ...
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HH223-10 : LOVEMORE GOREDEMA (In his capacity as the Executor of the Estate Late Robert Tendayi Magwenzi) vs PATRICIA MAGWENZI and CHARITY MAGWENZI and LUCKSON MAGWENZI and MASTER OF HIGH COURT
Ruled By: GUVAVA J

The respondents also stated, in their opposing affidavit, that the matter before the court was res judicata as it had already been determined by the Magistrates' Court. At the commencement of the proceedings counsel for the respondents submitted that he was abandoning the second issue that he had raised as a point in limine. He stated that, ...
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HH252-10 : MUNYUKI ROBERT ARMITAGE CHIKWAVIRA vs PRODUTRADE (PRIVATE) LIMITED and REGISTRAR OF DEEDS, HARARE
Ruled By: GOWORA J

An earlier application wherein the respondent sought payment of interest against the applicant was decided in favour of the respondent. The applicant contends that the in duplum rule on interest is no longer applicable to judgment debts in this country following the promulgation of the Prescribed Rate of Interest Act which was promulgated in 2007. The ...
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HH274-10 : FARAI CHITSINDE and NYASHA CHITSINDE vs STANNY MUSA and THE REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

The first respondent on his part raises a point in limine.He submits that the matter is res judicata i.e a final and definitive judgment has already been made on the merits by a competent court. That is in reference to the judgment of GOWORA J.Indeed, if one were to make a finding that the matter ...
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HB136-10 : POTENTIAL INVESTMENTS and RALEMA INVESTMENTS and NERGER PROPERTIES vs JOSEPH TAYALI and TAYALI AND SONS and NERGER PROPERTIES and POTENTIAL INVESTMENTS and RALEMA INVESTMENTS
Ruled By: NDOU J

Second Application – HC2747/07 This is a claim by Nerger Properties for an order that the right of first refusal granted to R. Chitrin and Company be declared void for non-compliance with section 183 of the Companies Act [Chapter 24:03]….,. Nerger Properties' claim in this second application is based on the alleged non-compliance with section 183 of the ...
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HH19-11 : JAMESON RUSHWAYA and ANNIE RUSHWAYA vs PATTERSON TIMBA and SWIMMING POOL & UNDER WATER REPAIRS PL and TOLROSE INVESTMENTS PL and MESSENGER OF COURT, KADOMA
Ruled By: MAVANGIRA J

This is an urgent chamber application in which the applicants seek a Provisional Order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:-1. That first, second, and fourth respondents and/or their agents ...
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HHH34-13 : THOMAS MADEYI vs THE STATE
Ruled By: HUNGWE J and MAVANGIRA J

I deal first with the additional grounds of appeal advanced at the hearing of the appeal as these present an interesting submission from counsel. The doctrine of issue estoppel has been embraced by the Supreme Court as part of the law of Zimbabwe under the general rule of public policy that there should be finality in ...
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HH44-11 : CHRISETTA CHIDZIVA (NEE CHINGOSHO) vs JULIET MUSARIRI and INNOCENT MUSARIRI and THE MUNICIPALITY OF MARONDERA
Ruled By: CHITAKUNYE J

The respondents' contention that the matter was res judicata was also ill-conceived. The judgment from the Magistrates' Court is clear that the presiding magistrate's reason for dismissal was that he ruled that the value of the property exceeded his monetary jurisdiction. This is what he said: “What I have stated above as regards the status of the ...
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HH46-13 : S. MAKONYERE vs ALFRED MUCHINI and THE SHERIFF and THE MASTER OF THE HIGH COURT
Ruled By: GUVAVA J

The applicant also raised a point in limine. It was argued that the first respondent's defence and counter-claim must be dismissed as it was res judicata as it was based on a point that had been raised before the Magistrate's Court and dismissed. The respondents opposed the point raised and submitted that there was no final judgment ...
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HH51-11 : MARYLOU PALALPAC MORTEN (NEE DACANAY) vs MARLENE DENISE KEMI MORTEN and TONY YOUNG and DANDARO HOME OWNERS ASSOCIATION
Ruled By: MAWADZE J

(b) The principle of res judicata:- that the same issues raised by the applicant in this urgent application were dealt with and pronounced upon by HUNGWE J in HC9293/10 hence this court cannot be asked to revisit the same issues as it were. Res judicata As already explained, this relates to the judgment by HUNGWE J ...
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HH59-13 : MARGARET SUMBURERU vs PRISCA CHINAMORA and THE MASTER OF THE HIGH COURT and WILBERT NYAMUPFUKUDZA N.O.
Ruled By: GUVAVA J

In my view, the first issue raised should not have been raised as an issue at all as it was determined by the Supreme Court in case Number 55/02 wherein CHEDA JA held that the law to be applied is the African Wills Act [Cap 240].
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HH71-11 : NIGEL DAMIAN MORRIS vs CHIQUITA MORRIS and MASTER OF HIGH COURT
Ruled By: MAWADZE J

It is common cause that the judgment by CHITAKUNYE J, in case No. HC1057/09, was of a definitive nature - res judicata. The requirements for the plea of res judicata have been pronounced upon in many authorities by our courts. The concept is based upon the public interest that there must be an end to litigation. ...
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HH110-13 : THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE vs ABEDINICO BHEBHE and NJABULISO MGUNI and NORMAN MPOFU
Ruled By: CHIWESHE JP

The respondents further argue that the application lacks urgency and should, on that basis, be dismissed without further ado…..,. The applicant also argued that the matter under consideration is of national importance and for that reason deserves urgent attention. The authority of P.A. Chinamasa to depose to the founding affidavit on behalf of the applicant is also ...
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HB17-13 : SHADRECK MANDAZA vs JAMES NYAMAREBVU and NYASHA NYAMAREBVU and THE BRENDER TRUST and THE REGISTRAR OF DEEDS
Ruled By: NDOU J

One of the issues raised by the first to third respondents is whether or not the matter before the court is res judicata in the sense that the issue of right of first refusal by the applicant and his right of occupation has already been dealt with by another court i.e. Kadoma Magistrates' Court. It is beyond ...
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HB63-11 : TAFARA CHATORA and FRANCO MUNETSI KATSANDE and MELUSI NDLOVU and ENOS NDLOVU vs THE CHAIRPERSON, WESTERN REGION RENT BOARD and P D S INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

I have already made a pronouncement on submissions made by counsel for the applicants that the eviction order made by the Magistrates' Court was a nullity. See Ndlovu v PDS Investments (Pvt) Ltd and Another HB02-11….,.
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HB84-13 : REGINA GUMBO vs STEELNET (ZIMBABWE) (PVT) LTD and MINISTER OF HIGHER AND TERTIARY EDUCATION
Ruled By: MUTEMA J

Ad Merits of the claim In Ellingbarn Trading (Pvt) Ltd v Assistant Master of the High Court and People's Own Savings Bank HB82-13 and Zimbabwe International Trade Fair Company v Viking Plastics (Pvt) Ltd and Another HB83-13; two cases which I also heard on the same day – I bemoaned the rampant abuse of court process ...
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HH40-14 : JERIPHANOS MUGAVIRI vs AUSTIN MURANGWANA ZVOMA
Ruled By: TAKUVA J and MUSAKWA J

As regards res judicata, it is clear that the appellant does not understand what it means in that when a matter is referred to the court a quo for proceedings to commence de novo, the issue of res judicata does not arise and cannot be available to a party as a defence in ...
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HH288-14 : CHRISTINE GOREMUSANDU and GODFREY MAHENGA vs EUNICE CHITAMBARA and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MWAYERA J

The parties addressed, further, that the matter is res judicata since this court disposed of the same matter based on the same facts on HC4755/12. The second applicant was ruled to have no legal basis to claim Stand 525 Mabelreign Township, Harare and that he had no right to Plot 5 Subdivision of Hippo Valley Estates, Chiredzi ...
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SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

This is an appeal from a judgment of the High Court in which it granted an application for an eviction order against the appellant on the basis that the respondent was the owner of the property known as Stand number 3182 of Subdivision A of 159 of Prospect, Harare. The appellant was found not to ...
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SC15-17 : LIFORT TORO vs VODGE INVESTMENTS (PRIVATE) LIMITED and MANYAME RURAL DISTRICT COUNCIL and MINISTER OF LANDS AND RURAL RESETLEMENT
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

RES JUDICATA Counsel for the appellant submitted that the magistrate's decision, that the first respondent did not have locus standi to evict the appellant, extinguished the first respondent's claim to evict the appellant. She relied on the cases of Nyaguwa v Gwinyayi 1981 ZLR 25 and Chimponda Anor v Muvami 2007 ZLR (2) ...
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HH674-15 : CHRISTOPHER GWIRIRI vs STAR AFRICA CORPORATION LIMITED and THE GENERAL MANAGER OF THE NATIONAL SOCIAL SECURITY AUTHORITY
Ruled By: DUBE J

The defendants submitted that the plaintiff's claim has already been determined by the High Court and it cannot be instituted again….,. On the point related to the plea of res judicata, the plaintiff submitted that because the previous claim was not dealt with on the merits by the Supreme Court, the current proceedings are ...
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HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

The other point lost to the applicant – and this was the second reason for the dismissal of the application – was that, in effect, what 'homestead' meant had already been determined by the court a quo. It was disingenuous for the applicant to try and push through the argument that 'homestead' was a ...
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HH20-15 : MUSIMWA & ASSOCIATES LEGAL PRACTITIONERS and KELVIN MUSIMWA vs PHOEBE ZILINDA and ANGELA MADYAMBUDZI
Ruled By: UCHENA J and MWAYERA J

Res Judicata The appellants alleged that this case was res judicata because Case No 27732/12 between the same parties, and on the same facts, was dismissed by the court a quo on 30 January 2013 and that summons issued under Case No 24504/12 were withdrawn. It is common cause that Case No 27732/12 was ...
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CC06-18 : ANJIN INVESTMENTS (PVT) LTD vs MINISTER OF MINES AND MINING DEVELOPMENT and COMMISSIONER-GENERAL OF POLICE and ZIMBABWE MINING DEVELOPMENT CORPORATION and CONSOLIDATED DIAMOND COMPANY
Ruled By: MALABA CJ, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC and ZIYAMBI AJCC

It must be noted that the parties before the High Court in the urgent application, although not identical, are substantially similar to the ones before this court. Before the High Court were three respondents, namely, the Minister of Mines Mining Development, the Minister of Home Affairs and the Commissioner-General of the Zimbabwe Republic Police. The ...