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 Guards (seventh defendant), Ministry of Home Affairs (eighth defendant), and, Registrar of Companies (ninth defendant).

In HC4096/96 he brought an application for his reinstatement as a director in the sixth defendant against the sixth defendant. He was reinstated. The sixth defendant got its act together and dismissed him as a director on 24 September 1996. He brought another application seeking reinstatement in HC4157/97. It was contested. BARTLETT J dismissed that application with costs on 17 September 1997.

The founding affidavit that launched the present matter is a carbon copy of the application he filed in HC2765/05 that he withdrew in June 2006.

The present matter was set down on the opposed roll for hearing on 25 January 2011 where PATEL J directed as follows:

1. There are disputes of fact which cannot be resolved on the papers.

2. Accordingly, it is ordered that the matter be referred to trial for determination on the basis of viva voce evidence as follows:

(a) The founding papers shall stand as summons commencing action and the opposing papers as notice of appearance to defend by first to sixth defendants;

(b) The applicant/plaintiff is directed to file his declaration on or before 8 February 2011 and the matter shall proceed thereafter in accordance with the Rules of Court.

(c) The costs of this application to date shall be costs in the cause.

The plaintiff merely turned the founding affidavit into a declaration and substituted all reference to the applicant and respondent by the plaintiff and defendant.

The plaintiff's declaration aptly fits into the description made by MAKARAU JP…, in Mwanyisa v Jumbo & Ors HH03-10…, cited with approval by MAWADZE J in Morris v Morris & Anor HH71-11…, as “a dog's breakfast.”

The six defendants' requested for further particulars; some of which were supplied.

On 1 April 2011, the defendants raised special pleas of res judicata and prescription and pleaded over the merits. The matter was referred to trial at the pre-trial conference held on 14 June 2011. The six issues referred to trial were:

1. Whether or not the plaintiff's claim is prescribed;

2. Whether or not the plaintiff's claim was determined by a competent court and is therefore res judicata;

3. If the matter is res judicata, whether the plaintiff is entitled to the relief sought;

4. Whether the second to fifth defendants are legitimate directors of the sixth defendant;

5. Whether the plaintiff is entitled to shares in the sixth defendant, and, if so, how many shares or what fraction or proportion of shares?;

6. Whether CR14 forms filed with the ninth defendant, dated 7 January 2003 and 14 September 2007, signed by the second defendant and fifth defendant respectively, should be nullified.

Only the first three issues arise for determination from the special pleas raised. I deal with the special pleas in the manner that they were argued.

Counsel for the defendants submitted that the question of the plaintiff's directorship in the sixth defendant was finally and definitively determined in HC4151/97 where the plaintiff's application for reinstatement as a director was dismissed. Counsel for the plaintiff counter-submitted that the dismissal was with respect to the plaintiff's executive and not the non-executive directorship.

It is clear from HC4151/97 that the plaintiff's prayer for reinstatement as a director was dismissed with costs. His dismissal was in accordance with article 17 of the Articles of Association of the sixth defendant. He was appointed director in terms of the Articles of Association and was dismissed from that position in terms of the self same articles. The appellation of executive or non-executive was irrelevant to his dismissal.

That the plaintiff was aware that he had been dismissed was clear from paragraph two of his declaration in which he stated that:

“The plaintiff is now a shareholder and a member of the sixth defendant through the first defendant's acts of fraud (sic).”

In paragraph thirteen of the declaration he contradicts this averment by declaring that he was still a director of the sixth defendant in July 2004.

An authoritative discussion on the requirements of res judicata is set out by SANDURA JA in Banda & Ors v Zisco 1999 (1) ZLR 340 (S)…,. They are that a final and definitive judgment by a competent court has been issued between the same parties or their privies, concerning the same subject matter, and founded upon the same cause of complainant as the action in which the defence is raised.

In City of Mutare v Mawoyo 1995 (1) ZLR 258 (H)…, MALABA J…, stated that one of the exceptions recognised at common law is when a judgment or order has been obtained through fraudulent misrepresentation.

In the present matter, the plaintiff did not allege that the judgment was obtained through fraudulent misrepresentation. Rather, he pleaded that the first defendant removed him from directorship fraudulently. The facts upon which he based the averment were the same facts he pleaded in HC4151/97, though he used such words as “defective notice of meeting,” “no compliance” with sections of the Companies Act, and “legal nullity”.

I am satisfied that the issue of directorship between the parties was resolved by a competent court and was founded upon the same complaint in HC4151/97.

Counsel for the defendants further submitted that the issue of the plaintiff's shareholding was again determined by CHIWESHE J…, a competent court, on 27 September 2001, in HC12625/2000. Counsel for the plaintiff disputed the averment that the issue of shareholding was resolved in the High Court and submitted that an appeal was still pending in that matter.

The record of proceedings shows that the full reasons for the judgment only became available on 7 May 2007 because the Registrar did not place the request for reasons timeously before CHIWESHE J.

In that matter, the plaintiff sought access to certain documents in the possession of the sixth defendant on the basis that he was a shareholder. It was held that he had failed to establish his shareholding on the papers. He, however, noted an appeal to the Supreme Court on 11 October 2001 in SC288/01, which appeal is still pending. The record shows that a certificate certifying that the record was complete and ready for set down was signed by the appellant on 3 July 2008 and has not yet been signed by the other parties.

I agree with counsel for the plaintiff that the issue of the plaintiff's shareholding is not res judicata. Rather it is lis pendens.

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.

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 on one issue, namely, whether the Sheriff adjudicated upon and determined a matter that had already been finalised by this Court and the High Court. In other words, the issue is whether the defence raised by the first respondent of res judicata should prevail in this matter.

The learned Judge in the court a quo accepted Bernard Construction's contention that the dispute between the parties was res judicata.

I respectfully disagree with this conclusion., I accept that both applications concern the same parties and the same subject-matter. Accordingly, two of the three requirements for res judicata have been met. The third requirement has not been met because the two actions are based upon two different causes of action. The first application had as its cause of action the averment that the auction sale price was unreasonably low. The second application has as its cause of action the averments., that the auction sale was incomplete or imperfecta.,.

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 proceedings..., the matter was already res judicata. A judgment had already been given by a court of competent jurisdiction declaring the status of Stand Number 2689, Cowdray Park, Bulawayo, ruling that the first respondent was entitled to transfer.

That judgment still stands. That judgment is final. That judgment is binding on the applicant in the current case, and on the world in general. The judgment given by this court under HC 1783/02 is a judgment in rem, and, therefore, binds even parties who were not cited in the original proceedings. Registrar-General v Chirwa 1993 (1) ZLR 291.

A judgment in rem has been defined, inter alia, as one that:-

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 the main action the applicant became non-suited and the issue of her rights in the property became res judicata.

I am further aware that the first respondent has sought to argue that by failing to be joined to the main matter; the applicant became non-suited in the application before me as the issue of her rights in the property became res judicata.

With respect, the issue of the applicant's rights in the property was never adjudicated upon in the main matter as she was not cited as a party in that matter.

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 was brought before me, the first respondent raised the issue of res judicata as a preliminary point. The plea was upheld on 19 March with reasons to follow. It is the reasons for upholding this preliminary point that this judgment addresses.

The first application was for a spoliation, and was launched by a number of applicants – including the applicant in the present proceedings. The first spoliation application was dismissed by MUSAKWA J. At the time of the launch of the first application, the applicant laboured under the incorrect impression that the first respondent in these proceedings, Mr.Enock Porusingazi, was the holder of an offer letter in regard to a portion of Stilfontein Farm. However, the first respondent's son, Mr. Enos Porusingazi, and not the first respondent, turned out to be the holder of the offer letter. The son contended that he had not deposiled the applicants and was waiting for due process to take its course before he moved onto the portion of land allocated to him. The father, who was not properly cited, did not file any affidavit in the first application.

In Banda & Ors v Zisco 1999 (1) ZLR 340 (SC), the Supreme Court restated the requirements of res judicata as being that -

(1) The action must be between the same parties or their privies;

(2) Concerning the same subject matter; and

(3) Founded upon the same cause of complaint as to the action in which the defence is raised.

I shall examine these requirements seriatim below:-

1. Same Parties or their Privies

As already noted above, in the first application the applicants were under the impression that they were seeking relief from the father (the first respondent in the current application) when, in fact, they had cited his son. In my view, the applicants should, upon this realization, have withdrawn the application and cited the proper party. Instead, notwithstanding the clear anomaly of an improper citation, the applicants actually sought relief to be granted against the father, which request, the learned judge a quo properly dismissed.

Does this improper citation therefore defeat the plea of res judicata?

In this regard, GILLESPIEJ, in Towers v Chitapa 1996 (2) ZLR 261 (H), observed as follows -

“There must be an identity of the parties to the litigation, of the thing, or relief claimed, and of the cause of action advanced. As to the first of these elements, patently, the defendant herself was not a party to the default judgment. This, however, would not disqualify a plea of res judicata; provided that the judgment in question were one either in rem, or, if related solely in personam, the rights asserted in the later case were derivative through the party in the previous matter. This is what is meant by a person being privy to a party in the previous litigation. The judgment of the learned Judge President has as a premise the ownership by the plaintiff of the property in question, but was, not in rem, related solely to the rights of occupation of the premises as the plaintiff and defendant in that case. That the present defendant was privy to the defendant in that case admits of no doubt, however, as can be seen from a perusal of the very terms of the order. These included eviction from the premises of the plaintiff of all persons claiming occupation through the late Mrs. Ndaina...,.”

I am persuaded by the submission that the present case is analogous to the Towers v Chitapa 1996 (2) ZLR 261 (H) case, particularly regarding the occupation aspect, which is the primary goal of spoliation; the only distinction being that in the latter case occupation was claimed on the basis of ownership, whereas in the present case the basis is spoliation. It is clear that the present first respondent is a party, or one of the parties, intended to be affected by the order sought in the first application, and, thus, constitutes a privy qualified to plead res judicata in the second application.

Again, in Madondo v Fyfe & Ors 1988 (1) ZLR 138 REYNOLDS J accepted that res judicata had been established although the parties raising the special plea were not parties to the previous judgment. It was sufficient that the parties qualified as privies.

2. Same Subject Matter

Both HC665/10 and HC985/10 relate to spoliation alleged to have occurred around 27, 28 and 29 January 2010 at Stilfontein Estates. The relief being sought in HC985/10 is exactly the same as the relief sought in HC665/10.

3. Same Cause of Action

That both HC665/10 and HC985/10 relate to the same cause of action admits of no dispute. However, counsel for the applicant submitted, firstly, that for the res judicata plea to succeed, the previous judgment, or order, must be final and definitive. Secondly, that new facts had arisen since the dismissal of the first application which entitled the court to entertain the second application.

Regarding the first submission, it cannot be doubted that the judgment in the first application was final and definitive. In dismissing the first application, MUSAKWA J observed thus -

“It is quite clear that an element of spoliation has not been met. Although it is stated that unlawful deprivation of possession has occurred, there is no proof of identity of the perpetrators. Such evidence, if any, is based on generalizations and hearsay.” ...,.

Conclusion

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 the applicant's appeal was dismissed on the merits and that the applicant thus has no basis to seek to appeal to the same court which will certainly not change its view about contingent rights not being the proper basis for the granting of relief in the form of an interdict.

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 Stand Number 43 being the remaining extent of Stand Number 20 Carrick Creagh Township 2 of Carrick Creagh of section 4 Borrowdale Estate, Harare measuring 5,347 square metres.

The plaintiffs' claim found no favour with the High Court which dismissed their claim on 28 September 2005. Aggrieved by that decision they appealed to the Supreme Court, which, in turn, dismissed the appeal on 19 June 2006.

In their initial claim, the plaintiffs did not claim damages as an alternative to specific performance. It was only after they had lost their case on appeal that the plaintiffs, almost as an after thought, decided to sue the defendants for damages in lieu of specific performance. The defendants were then met, among other things, with the special plea of prescription and res judicata....,.

Res judicata

Having already decided that the plaintiffs' claim against the respondents has already prescribed, it is really not necessary to determine this issue. I however proceed to determine it just in case I might be wrong on the issue of prescription.

The plaintiffs' cause of action arises from the alleged breach of contract of sale of a certain piece of land known as Stand Number 43 being the remaining extent of Stand Number 20 Carrick Creagh Township 2 of Carrick Creagh of section 4 Borrowdale Estate, Harare measuring 5,347 square metres. They allege that they bought the Stand from the first defendant.

On 9 September 2004, the plaintiffs issued summons against the first respondent and one Charles Masimba Chihumbiri and the Registrar of Deeds seeking relief for breach of contract under case number HC10863/04. The second defendant was not party to those proceedings.

In his ruling KAMOCHA J had this to say:

“I also find that the purchasers withdrew the purchase price they had paid in United States dollars in breach of the verbal contract which the seller had the right to cancel pursuant to that breach.

In the result I would dismiss the application with costs.”

In short, this court has already determined:

1. That it is the plaintiffs who breached the contract of sale and not the first defendant;

2. That the first defendant lawfully terminated the contract of sale for breach of contract; and

3. That the plaintiffs claimed and were refunded the purchase price.

The above determination has been upheld and confirmed by the Supreme Court. That Court, being the Court of last resort, that determination has become firm and binding for all time.

The requirements for the plea of res judicata were restated by SANDURA JA in the case of Banda & Ors v ZISCO 1999 (1) ZLR 34. In that case it was held that:

“1. The action must be between the same parties.

2. Concerning the same subject matter.

3. Founded on the same cause of complaint as the action in which the defence is raised.”

As already stated, this court and the Supreme Court have already determined that both plaintiffs were in breach of the contract upon which they intend to sue the defendants. Both courts have also determined that the first defendant lawfully terminated the contract of sale and refunded the purchase price.

Thus, the cause of action relating to the sale of the property between the plaintiffs and the first defendant has been settled by the courts. The matter is now res judicata between the parties in relation to the abortive sale of the property in dispute. There can be no further action between them on the same issue.

It does not seem, however, to matter much that the second defendant was not a party to the initial proceedings because it appears to me that the second defendant's liability was dependent upon the validity of the contract in question. The courts, having already determined that the contract was invalid, it can hardly be said that anyone was at fault in influencing the abortion of an invalid contract. Thus, the plea of res judicata, as pleaded by the first defendant, has a direct bearing on the outcome of the plaintiff's claim against the second defendant though that defence is not available to him by virtue of not having been a party to the initial proceedings.

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, after having gone through the record of proceedings in the Magistrates' Court, he was now of the view that the matter before me was not res judicata.

In my view, the concession made is proper.

The requisites for a successful plea of res judicata have been set out in a number of judgments from this court and the Supreme Court. The plea of res judicata is a form of estoppel to bring finality to litigation which has been determined by a court of competent jurisdiction. The court must be satisfied that-

(i) The previous matter was between the same parties or their privies;

(ii) Must have been on the same subject matter;

(iii) Founded on the same cause of action; and

(iv) The earlier court must have given a final and definitive judgment on the matter.

(See Kawondera v Mandebvu SC12-06; 'O' Shea v Chiunda 1999 (1) ZLR 333; and Le Roux v Le Roux 1967 (1) SA 446).

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 applicant contends that the new section 9 of the Prescribed Rate of Interest Act can only apply to judgment debts from 8 January when the Prescribed Rate of Interest Act was promulgated and that it does not have retroactive effect.

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 is res judicata, that would dispose of it.  My mandate to deal with the matter would have come to an end. That is so because I am not sitting as an appeal court.  A lot of issues were raised in this matter but if I came to the conclusion that the matter is indeed res judicata, then all the other issues raised would automatically fall away.

In response to the issue of res judicata, the applicants, in their heads of argument, correctly state that-

“The basic requisites for establishing res judicata are that:

(i) A matter between the same parties;

(ii) In respect of the same issues as are now sought to be brought before the court;

(iii) Was brought before a court of competent jurisdiction;

(iv) Which court made its determination on that issue.”

My reading of the papers before me leads me to the conclusion that the above-stated requisites regarding the principle of res judicata are all present in this matter.

It is true that initially the cancellation of the contract bearing a price of $320 million is what was placed before GOWORA J.  However, in determining the validity of that contract the turpious nature of the whole transaction surfaced before the judge. That certainly brought into focus the other two contracts which were part of the turpious transaction. A holistic reading, as opposed to a selective reading of the judgment of GOWORA J, clearly confirms that there was a single turpious transaction meant to be executed through three separate contracts signed on the same day for the purchase of the property. The use of three contracts was meant to enable the first respondent to illegally evade payment of the correct Capital Gains Tax. Hence in her judgment GOWORA J, observed as follows-

“In my view, the applicant did not take the court into his confidence and state the true state of affairs from the outset. Had the respondents not produced the other two agreements the applicant would have carried on insisting that there had been breach on the part of the purchasers and seeking cancellation of the agreement on the basis of such alleged breach. Fortune has smiled on the applicant in the guise of the respondents who decided to come clean and reveal that there was more than one agreement signed by the parties and that the purpose for the multiple agreements was to enable the applicant to pay reduced Capital Gains Tax. It is accepted by both parties that the structuring of the sale into three agreements was meant to evade the payment of proper dues to Zimra in respect of Capital Gains Tax. In addition, upon transfer, the property is subject to stamp duty which is levied based on the value of the property which is the consideration for which the property has changed hands. The three agreements signed by the parties would also have resulted in less duty being paid on the property as a result of the fictitious price being quoted as the consideration paid for the sale of the property. It is this agreement by the parties that has caused their agreement to fall foul of the law. The Stamp Duties Act [Chapter 23:09] provides in section 44 thereof:

'Every contract, agreement or undertaking made for the purpose of evading, defeating or frustrating the requirements of this Act as to the stamping of instruments, or with a view to precluding objection or enquiry relative to the due stamping of any instrument shall be void.'

The contention that the contract is void is made by the applicant. Having introduced the existence of two other agreements, it is difficult for the respondents to argue that the contract is not illegal and made for purposes of avoiding the proper stamping of the transfer of the property. I say this for the following reason. Section 23 of the Stamp Duties Act provides that the value on which duty shall be payable shall be the amount of consideration payable by the person who has acquired the property, or, if no consideration is payable, the declared value of the property. It is not in dispute that the actual amount payable by the purchasers was $570 million. Regrettably, that was not the amount on which stamp duty was calculated. The lesser amount of $420 million was found to be convenient by the parties. Clearly, the agreement for the lesser amount was calculated to avoid the due payment of stamp duties due under the sale.  For that reason the agreement is void as provided for in the Act. It is therefore not capable of enforcement and the application that it be cancelled is not therefore well-founded for one cancel something that does not exist. It will therefore be in order to issue a declaratur in terms of the amendment sought by counsel to the draft at the hearing the matter.”…,.

Notwithstanding the precise declaration that the contract with the lowest amount was void and that the actual amount payable by the purchasers was $572 million, the multiple agreements were meant to illegally avoid the payment of the correct Capital Gains Tax. This, as the judge observed, was a single transaction for the purchase of the first respondent's property. Given the judgment in HC4673/05, which I have deliberately quoted at length herein, I do not see how the applicants could ever be allowed to benefit from one part of an illegal transaction. I am satisfied that the status of the entire transaction was determined in HC4673/05.

Accordingly, my finding is that the matter is res judicata. The applicants are therefore estopped from being heard on the same issues by this court.

In Amler's Precedents of Pleadings…, (5^th edition 1999) it is stated…,-

“A party to previous litigation is not only prevented from disputing the correctness of a judgment in the sense that he may not again rely upon  the same cause of action, but he is also prevented from disputing an issue decided by the previous court. The rule is that where the decision set up as res judicata necessarily involved a judicial determination of some question of law or issue of fact, in the sense that the decision could not have been legitimately or rationally pronounced by the tribunal without at the same time determining that question or issue in a particular way, such determination, though not declared on the face of the recorded decision, is deemed to constitute an integral part of it as effectively as if it had been made so in express terms.”

On the basis of the foregoing, this application cannot succeed. I therefore order as follows -

The application be and in hereby dismissed with costs.

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 Companies Act [Chapter 24:03]. It is the applicants' contention that in light of the provisions of section 183(1)(b) of the Companies Act [Chapter 24:03] and section 183(2) of the Companies Act [Chapter 24:03] there ought to have been a general  meeting of Potential investments shareholders to empower and authorize the Director, Mr Louw (who granted R. Chitrin the right of first refusal), in specific terms. It is alleged that there was never such a general meeting of Potential Investments shareholders to authorize the disposal of Jameson Buildings via the sale of the entire issued shares and loan account of Potential Investments. In the circumstances, it is averred that the resultant right of first refusal agreed upon by one of the Directors of Potential Investments and R. Chitrin is null and void for non-compliance with section 183(1)(b) of the Companies Act [Chapter 24:03] and section 183(2) of the Companies Act [Chapter 24:03]. Authority for this averment is submitted to be Mason v Timore Trading Services (Pvt) Ltd 2004 (2) ZLR 347 (H) and Ngatibataneyi (Pvt) Ltd v Moyo & Anor SC13-07.

Counsel for the applicants concedes that the proceedings are between more or less the same parties and concern more or less the same subject matter i.e. R. Chitrin and Company's right of first refusal. As alluded to in the first application…, this High Court and the Supreme Court ruled that R. Chitrin and Company has such right of first refusal. Counsel for the applicants, however, submits that the two matters are not founded on the same cause of action.

It is beyond dispute that the question of Mr. Louw's authority to dispose of Jameson Buildings was a contested issue at the High Court and Supreme Court in the previous proceedings. Admittedly, no specific reference was made to section 183 of the Companies Act [Chapter 24:03]. But the issue was indeed determined by the High Court and Supreme Court. In his cyclostyled judgment, under HB30-05, CHEDA J…, stated -

“The truth of the matter is that Mr. Louw had the mandate and authority to deal with both Mr Chitrin for and on behalf of applicant and 7^th respondent. There, therefore, existed a special relationship between the two in the form of principal and agent and as such 1^st respondent [Rebecca Elizabeth Humpage] can no doubt escape the conduct of Mr. Louw. The question is whether or not the applicant had a right of first refusal on this property. Mr. Louw negotiated the lease agreement. He remembers that Mr. Chitrin kept on referring to the right of first refusal…,.” …,.

What can be discerned from this passage is that Mr. Louw's mandate to grant the right of refusal to R. Chitrin was a crucial issue determined by the High Court in the previous proceedings. The applicant does not at all proffer an explanation why he did not raise the additional issue of assailing the right of refusal on the basis of section 183 of the Companies Act [Chapter 24:03]…,.  Why is it challenging this right of refusal in a piecemeal fashion?  Nerger Properties was, in any event, represented by a legal practitioner.  Be that as it may, the Supreme Court, under SC476-06 in the former proceedings, also dealt with Mr. Louw's authority or mandate to grant the right of first refusal to R. Chitrin. At page 6-7 of the cyclostyled judgment this is what appears -

“Mrs Zurnamer's contention that Louw did not have authority to grant it [right of first refusal] does not assist. Potential had long authorized Louw to deal with the property on its behalf. Indeed, when Louw granted this right to the respondent he genuinely believed he was entitled to do so and similarly Chitrin was entitled to believe that a right granted by Louw was proper as he always dealt with matter regarding the property. It does not assist Potential to attempt to place any limitations on Louw's mandate at this state. Louw was, at all material times, an agent of Potential concerning the property…,.” …,.

The respondent's case in this matter is that the applicant is merely trying to obtain the same relief that it failed to establish in the previous proceedings and relies on a wholly inappropriate section of the Companies Act [Chapter 24:03] to do so.

It is clear from the foregoing that this special plea of res judicata raised by the respondent is a declaratory plea which seeks to quash the matter altogether. It seeks to destroy to operation of the cause of action – Brown v Vlok 1925 AD 56….,.; Sibeko and Anor v Minister of Police & Ors 1985 (1) 151 (W) and Chimpondah & Anor v Muvami HH81-07. In the latter judgment, MAKARAU JP…., had this to say at page 4 of her cyclostyled judgment -

“The requirements for the plea of res judicata are settled. Our law recognizes that once a dispute between some parties has been exhausted by a competent court, it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigants to plough over the same ground hoping for a different result will have the effect of introducing uncertainty into court decisions and will bring the administration of justice into disrepute.

For the plea [of res judicata] to be upheld, the matter must have been finally and definitely dealt with in the prior proceedings. In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties by making a finding of in law and/or in fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or defend the proceedings. The cause of action as between the parties must have been extinguished by the judgment.”

The requisites of res judicata, put differently, are that-

(a) The two proceedings must have been between the same parties or their successors in title;

(b) Concerning the same subject matter; and

(c) Founded upon the same cause of action or cause or complaint.

Mitford's Executor v Ebden's Executor & Ors 1917 AD 682; Le Roux v Le Roux 1967 (1) SA 446 (A); The Civil Practice of the Supreme Court of South Africa (4^th Edition) HERBSTEIN and VAN WINSEN…, and Wolfenden v Jackson 1985 (2) ZLR 313 (SC).

For a plea of res judicata to succeed, however, it is not necessary that the cause of action, in the narrow sense, in which the term is sometimes used, should be the same in the latter case as in the earlier case.  If the earlier necessarily involved a judicial determination of some question of law or fact in the sense that the decision could not have been legitimately or rationally pronounced without at the same time determining that question or issue, then that determination, though not declared on the face of the recorded decision, is deemed to constitute an integral part of it, and will be res judicata in any subsequent action between the same properties in respect of the same subject matter – Williams v Shub 1976 (4) SA 567 (C ); Boshoff v Union Government 1932 TPD 345; Cook & Ors v Muller 1973 (2) SA 240 (N); Owen Smith v Owen Smith 1981 ZLR 514 (S); Munemo v Muswerwa 1987(1) ZLR 20 (SC); Mvaami (Pvt) Ltd v Standard Finance Ltd 1977 (1) SA 861 (R); and Wolfenden v Jackson 1985 (2) ZLR 313 (SC).

In this case, the issue of Mr. Louw's authority to grant the right of first refusal was hotly contested in the previous proceedings. As alluded to above, the High Court and Supreme Court made a determination that Mr. Louw had authority to represent Potential Investments in its dealings with R. Chitrin. The applicant seeks to plough the same ground of challenging Mr. Louw's authority based on section 183 of the Companies Act [Chapter 24:03]. With the benefit of experienced counsel in the previous proceedings, the applicant does not proffer any explanation why the challenge of Mr. Louw's authority was not based on section 183 of the Companies Act [Chapter 24:03] ab initio.

To allow this kind of application will result in uncertainty in court decisions and will bring the administration of justice into disrepute.

The issue of res judicata is fatal to the applicant's claim.

This court has inherent jurisdiction to prevent abuse of its process in certain circumstances. This power has to be exercised sparingly and only in exceptional cases and in clear cases – Hudson v Hudson & Anor 1927 AD…, and Fisheries Development Corp of SA Ltd v Jorgensen & Anor; Fisheries Development Corp of SA Ltd v AWJ Investments (Pty) Ltd & Ors 1979 (3) SA 1331 (W)..,. This is one such case where the proceedings are vexatious and frivolous. The applicant had ample forum and opportunity to challenge Mr. Louw's authority. The applicant did so in the High Court and in the Supreme Court - unsuccessfully.  Thereafter, the applicant went back and studied the law once more and discovered section 183 of the Companies Act [Chapter 24:03] and decided to use it to assail Mr. Louw's authority.

This is an urgent chamber application in which the applicants seek a Provisional Order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That 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 shall not interfere in any manner whatsoever with applicants' possession of Glencairn Mine or the assets thereat.

INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicants are granted the following relief:-

2. That first, second, and fourth respondents be and are hereby ordered to remove all the locks on the 3 gold concentrators, carbon room, 4 fuel pumps, workshop, and gates leading to the mining areas at Glencairn Mine.

3. That the first, second, and fourth respondents restore possession of the Nissan NP 300 (registration no. ABP 0456) and Nissan Hardbody 2.5 (registration no. ABG 4956) to the applicants.”

At the onset of proceedings, counsel for the first, second, and third respondents raised four preliminary points for determination by the court before the matter could be heard on the merits:

(i)...,.

(ii) The second point raised is that the matter is res judicata as there have been no less than four urgent chamber applications involving more or less similar parties as the fourth respondent herein has not been a party to all matters. Counsel for the first, second, and third respondents submitted that in one of the four urgent chamber applications the Order that was sought is very similar to the Order sought herein. The application in that particular matter was however dismissed by the court.

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 litigation. The doctrine prevents a party to civil proceedings, except in certain circumstances, from raising a contention of fact or of legal consequences of facts, where he raised the contention as an essential element of his case in previous civil proceedings between the same parties or their predecessors in title, and the contention was found by the Court, in a final judgment in those proceedings, to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion, and could not, by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.  See Willowvale Mazda Motor Industry (Pvt) Ltd v Sunshine Rent-a-Car (Pvt) Ltd 1996 (1) ZLR 415 (SC); Galante v Galante (2) 2002 (1) ZLR 144 (HC).

English Law recognizes that the same issue should not be open to successive determinations: nemo debit bis vexari pro una et eadem causa and interest rei publicae ut finis litium sit (“no one should be disturbed twice in the same matter” and “it is in the public interest that lawsuits should have an end”). These maxims underpin the doctrine of res judicata, which has two main applications, “cause of action estoppel” and “issue estoppel”. The House of Lords in Arnold v National Westminister Bank p.l.c. (1991) 2 W.L.R. 1177 was concerned only with the latter species of estoppel, but LORD KEITH took the trouble to define both in the following passages…., -

“Cause of action estoppel arises when the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter…,. (The) bar is absolute in relation to all points decided unless fraud or collusion is alleged…,. Issue estoppel may arise when a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.”

Cause of action estoppel binds more tightly than issue estoppel since the latter is relaxed where special circumstances require (which are not confined to fraud and collusion). The House of Lords, faced with the question whether a change in case law might justify a departure from issue estoppel, decided to endorse a new exception.

There are two forms of the doctrine of res judicata: cause of action estoppel and issue estoppel. Both operate where the court has adjudicated the cause of action between two or more parties and one of them seeks to re-litigate on the same facts. Where the cause of action is the same, cause of action estoppel operates to prevent any litigation of any matter that was raised or should have been raised in the prior proceeding. Where the cause of action in the two proceedings is different, issue estoppel operates to prevent any litigation of any issue determined in the prior proceedings.

LORD GUEST in Carl-Zeiss Stifting v Rayner and Keeler Ltd [1966] 2 AllE.R.536…, stated the requirements of issue estoppel as -

“…,. (1) That the same question has been decided; (2) That the judicial decision which is said to create the estoppel was final; and, (3) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies…,.”

In R v Hagan [1974] 2 All ER 142 JUSTICE HOGAN offered a definition of issue estoppel thus -

“Issue estoppel can be said to exist when there is a judicial establishment of a proposition of law or facts between parties to earlier litigation and when the same question arises in later litigation between the same parties. In the later litigation, the established proposition is treated as conclusive between those parties.”

It is clear that issue estoppel is related to, but differs from, res judicata. A plea of res judicata asserts that the cause of action is the same in both the prior and the current proceeding, so that the current proceeding should not continue, whereas issue estoppel may be raised where the causes of action in the two proceedings are different but the same particular factual issue has arisen in both.

In criminal proceedings, the principles of res judicata are given effect through the pleas of autrefois acq'uit and autrefois convict. Where those pleas are not available, issue estoppel arises where the accused has been finally acquitted of a criminal offence arising out of certain conduct, is charged with a different offence, and for some reason the facts surrounding the earlier charge become relevant. Issue estoppel "prevents the Crown from calling into question issues determined in the accused's favour in an earlier proceeding." See MARTIN L. FRIEDLAND, Double Jeopardy (Oxford: Claredon Press, 1969)….,.

It seems settled now in English Law that an accused can invoke the principle of “issue estoppel” against the prosecution. This is the view expressed by LORD MORRIS, LORD HUDSON and LORD PEARCE in Connolly v Director of Public Prosecutions [1964] 2 All ER 40: 1964 A.C. 1254. The position in Zimbabwe seems to be that the plea of issue estoppel in criminal law may only be raised by the State against the accused in a criminal trial. However, that common law position has been severely curtailed by statutory limitations placed on that right by such provisions as section 290 of the Criminal Procedure and Evidence Act [Chapter 9:07] and section 324 of the Criminal Procedure and Evidence Act [Chapter 9:07]. S v Gabriel 1971 (1) SA 646 (RAD); R v Kriel 1939 CPD 221.

In light of the foregoing, I respectfully find myself in disagreement with the contention that the doctrine of issue estoppel is of application in appeal matters as contented by counsel for the appellant.

I hold this view on the basis that the pleas of autrefois acq'uit and autrefois convict sufficiently deal with the situations for which, at common law, the doctrine of res judicata would have been applicable in civil matters. In any event, there is ample authority for the proposition that statutory provisions in procedural law have filled the gap which is dealt with by the common law doctrine of issue estoppel in England.

Further, applying the civil cases requirements of issue estoppel viz;

(i) That the same question has been decided;

(ii) That the judicial decision which is said to create the estoppel was final; and

(iii) That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

The second and third elements are unproblematic - if the accused was previously acquitted and either the acquittal was upheld on appeal or the State's appeal rights expired, the acquittal is final.

In casu, the parties - the State and the particular accused person (now the appellant) – are the same. But the first requirement, whether the factual issue is the same, and, indeed, whether it has been decided, is often difficult to determine. I observe, however, that counsel for the appellant attached the State submissions in the bail application hearing rather than that court's determination. No statutory rule of court nor (was) any rule of evidence was relied upon to attach the submissions by State counsel in the bail application. The filing of the submissions is irregular in the extreme as they fall foul of the rules of court. In any event, as I have respectfully demonstrated, no issue relevant to the present appeal came up for decision in the application for bail nor was any such issue finally determined. The determination was not on the same issue for which this appeal was lodged but on a different issue, that is, whether the appellant is a suitable candidate for bail.

It was contented by counsel for the appellant, that, because the respondent had taken a considered view on the guilt of the appellant, which he expressed before a judicial forum, therefore the respondent, in the present matter, the Attorney-General, cannot now put forward a different view of the same facts.

With respect, I disagree with this contention.

Assuming for a moment that the doctrine exists in criminal law under the guise of autrefois acquit and autrefois convict my respectful view is that the issue for determination, in casu, is different from the issue for determination before the application for bail. As pointed out in the article by MARTIN L. FRIEDLAND, Double Jeopardy (Oxford: Claredon Press, 1969), the doctrine applies in order to prevent the State from calling into question issues determined in the accused's favour in an earlier proceeding. The doctrine operates as a shield, during trial, rather than a sword, so to speak. It would, as such, be of limited application in an appeal. The reason for the limited application of the doctrine in appeals ought to be understood in the context that an appeal is confined to the findings of the trial court rather than some other post-trial opinions expressed by different officers under different proceedings. As the question of bail was not before the trial court, the trial court, therefore, made no determination regarding bail.

The issue before the bail application was whether the appellant was entitled to bail pending appeal. Whatever submissions the respondent made in the bail application, the issues before that forum were far removed from issues which are now squarely placed before this court as set out in the grounds of appeal. Presently, the issue before this court is whether appellant was properly convicted and sentenced. The argument by counsel for the appellant is, if I may put it rather crudely, that where the Attorney-General (through his representative) took the view that there are prospects of success on appeal, for one reason or another, then he cannot be heard to argue in favour of a finding that the appellant was properly convicted in the appeal hearing. The stronger argument against the appellant under this head is that no determination of his guilt or innocence was ever made by the court in the bail application hearing.

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 contract I have just said it in passing (sic) but not making a determination. Having said all this, the application is hereby dismissed for want of jurisdiction.”

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 as they had appealed against the magistrate's decision and the appeal was still pending.

The principle of the res judicata has been expressed in the case of Wolfenden v Jackson1985 (2) ZLR 313 as follows:

"The origin of the doctrine is to be found in the civil authorities, which laid down two requirements for its successful invocation, namely, that the proceedings relied upon must be between the same parties or their privies, and that the same question, eademquestio, must arise. (See Bertram G v Wood (1893) 10 SC 177 at 180) In Roman-Dutch law the requisites were divided into three. Voet 44.2.3 says that there must also be the same cause of action."

The approach has also been adopted in our court. In the case of Towers v Chitapa 1996 (2) ZLR 261 GILLESPIE J stated as follows -

"This approach has been approved by the Supreme Court in Zimbabwe; although subsequent to that approval further doubt appeared to be cast on the issue by the same court. Any doubt must now, however, be regarded as having been dispelled by the decision in Kommissaris van BinnelandseInkomste v Absa Bank Bpk. In this case the elements of the defence of res judicata were explained as consisting of an identity of the plaintiff, the defendant, thing in contest and cause of action. It was held that the latter two requirements, in particular, ought, in the appropriate case, to be interpreted expansively so as to permit the possibility of a defence of res judicata being invoked in respect of an issue determined as part of the ratio decidendi of the earlier decision, a defence that may conveniently be termed issue estoppel, despite the fact strictly speaking, a different cause of action and different relief may be sued for in both cases. The defence ought only to be allowed, however, with caution, and only where the underlying requirement that the same question should arise in both cases is satisfied."

In this case, there can be no doubt that the parties in the matter determined by the Magistrates Court were the same. The issue before the court is the same in so far as the first respondent based his claim for an interdict on the interpretation of section 41 of the Administration of Estates Act [Chapter 6:01]. In the claim for an interdict the respondent was seeking to establish that he had a clear right to the property as it had been sold to him in circumstances provided for by the Administration of Estates Act [Chapter 6:01]. In this case the respondent is again seeking to assert his rights through the use of the same provision in order to challenge the applicant's right to evict him.  In my view, therefore, the cause of action is the same and the point in limine raised by the applicant should be upheld.

Accordingly, the first respondents Notice of Opposition and counter–claim are hereby dismissed. In the premises, there is no basis to deny the applicant the relief sought.

I therefore make the following order:

(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 in HC9293/10. HUNGWE J's judgment was delivered on 20 January 2011 and this urgent chamber application was filed on 24 January 2011. However, during the course of the hearing of this application, and on 1 February 2011, counsel for the applicant filed an appeal with the Supreme Court against the judgment by HUNGWE J in HC9293/10, Appeal No. 23/11. The effect of such an appeal, albeit, noted during the hearing of this matter, and most probably for purposes of countering the point in limine (res judicata) raised by the respondents remains self-evident in that it suspends the operation of the judgment HC9293/10.

My view is that even if no such an appeal had been noted the plea of res judicata would not be available to the respondents.

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. Put differently, the basis for the principle is that where a final and definitive judgment has been delivered by a competent court the parties to that judgment cannot dispute its correctness. The position was aptly put by MAKARAU JP..., in Chipondah & Anor v Muvami HH81-07 as follows -

“The requirements for the plea of res judicata are settled. Our law recognises that once a dispute between the same parties has been exhausted by a competent court, it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigants to plough over the same ground hoping for a different result will have the effect of into disrepute.” See also Towers v Chitapa 1996 (2) ZLR 261 (H) per GILLESPIE J; Wolfenden v Jaclison 1985 (2) ZLR 313 (S)...,.

In casu, it is common cause that the dispute between the parties relating to the validity of the 2005 will have been adjudicated upon, in case no. HC1057/09, by this court.

Like all general rules or principles there are exceptions to the principle of res judicata. MALABA J..., in City of Mutare v Mawoyo 1995 (1) ZLR 258 (H)..., summed up the exceptions in this manner -

“The question whether or not this court has jurisdiction to alter its final judgments or orders has been previously answered in previous decisions of courts in jurisdictions that follow common law tradition. The general rule is that once a final judgment or order has been given the judge who gave it or any other judge of parallel jurisdiction has no power to alter, rescind, vary or set it aside except in few instances recognised at common law or by the Rules of the High Court.

One of the exceptions recognised at common law is when a judgment or order has been obtained through fraudulent misrepresentation. The statutory exception would, in our case include Order 49 Rule 449(1) and Order 9 Rule 63(1) of the Rules of the High Court of Zimbabwe 1971.”

See also African Consolidated Resources Plc and Ors v The Minister of Mines and Mining Development & Ors HH205-10.

The question which falls for determination in this matter is whether this case falls within the exception already alluded to. Put differently, is the preparation of a forensic report after judgment has been pronounced a proper basis to revisit the same issue that was in dispute, that is, the validity of the 2005 will.

The learned authors HERBSTEIN and VAN WINSEN - The Civil Practice of the Superior Courts in South Africa 3^rd Edition..., said -

“A final judgment, being res judicata, is not easily set aside but court will do so on various grounds, such as fraud, discovery of new documents, error and irregularities in procedure.” ....,.

The learned authors, at page 471, stated as follows:-

“A further ground for seeking to have a judgment set aside is that since the giving of the judgment new documents have come to light which, had they been available at trial, would have entitled the applicant for relief to judgment in his favour....,. It has been held that the person applying to set aside the judgment must not only show that he was ignorant of the existence of the subsequently discovered documents but there must be a justa causa for the ignorance. Proof “of the clearest possible description” must be presented that it was not the applicant's fault that the document was not discovered before judgment.”

On pages 471-72 the learned authors gave useful examples, that is -

(a) In testamentary suits, where a judgment has been given on a will and subsequently a latter will or codicil is discovered; or

(b) Where, as a consequence of fraud on the part of one of the parties, the crucial document was not found or produced at trial; or

(c) Where the failure to produce the document at trial cannot be attributed to the applicant or his counsel; or

(d) Where the judgment in issue was founded on a presumption of law or expert evidence.

In casu, the documents in issue, the 1981 will and 2005 will, have always been in existence. No document (new or otherwise) has been discovered which was in existence at the time CHITAKUNYE J granted the order in case no. HC1057/09. To my mind, for the exception to the principle of res judicata to be applicable at common law, the document should have been in existence at the time the judgment is made. It would therefore be improper for the applicant, subsequent to the decision by CHITAKUNYE J in case no. HC1057/09, to get a new document in the form of a forensic report and on that basis requests this court to revisit the order granted in case no. HC1057/09. The question which comes to mind is; when will this end? There would be no finality in the matter as the other party can also gather such evidence even after my order.

I am therefore satisfied that there is absolutely no merit in this application. In the result, I make the following order:-

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 queried. It is alleged that the deponent to the founding affidavit is acting on a frolic of his own and for that reason the application must fall….,.

The deponent scoffs at suggestions that he is on a frolic of his own acting without or outside the authority of the applicant….,.

The respondents raised a number of preliminary points to do with urgency, jurisdiction and others. 

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 dispute that on 14 August 2008 the applicant approached Kadoma Magistrates' Court seeking an order to be given three months notice to vacate the premises in dispute. The applicant alleged, in an affidavit, that the first respondent was now his “new landlord”. It was only after the Kadoma Magistrate ruled against him that the applicant approached this court on 23 September 2008. The Kadoma Magistrates' Court judgment, under case number 147/08, was not appealed by the applicant as evinced by papers in this application. Further, when the applicant approached this court he was at the same time defending an eviction suit at Kadoma Magistrates Court under case number 167/2008 as shown by papers filed in this application. His own opposing papers were signed on 22 September 2008 i.e a day before he filed this application. The incidents complained of allegedly occurred on 8 August 2008. In this application, the applicant failed to disclose to the court that the issue of the right of first refusal was a matter before the Kadoma Magistrates' Court under case number 167/2008. From the papers before me, it is clear that one of the issues for determination under Kadoma Magistrates' Court case number 167/2008 is whether or not the applicant had a right of first refusal to purchase the disputed property and therefore that the sale to the first and second respondents was null and void. This was made an issue by the applicant in his papers in the Kadoma Magistrates' Court. The judgment of that court is confirmed by the applicant himself in his viva voce testimony in this court. The applicant did not appeal the judgment and that judgment, whether wrong or right, remains in force. There exists a system of appeals and reviews to set aside the decisions of the lower courts. As it is, the lower court, in case number 167/08, made a ruling rejecting the existence of the right of first refusal and ordered the ejectment of the applicant. If the applicant was not satisfied with the Magistrates' Court's rejection of his right of first refusal he should have appealed the judgment and not instituted an urgent application. 

The matter is res judicata.

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 that is getting increasingly apparent in this court. The same sentiments apply with equal force in casu.

Steelnet (Zimbabwe) (Pvt) Ltd, as the applicant in HC1940/12, filed an urgent chamber application seeking to have the intended sale of BMA Fasteners (Pvt) Ltd's attached property declared unlawful. The basis of that application was that the property belonged to Steelnet (Zimbabwe) (Pvt) Ltd which was under judicial management. The urgent chamber application was dismissed – see Steelnet (Zimbabwe) Pvt Ltd v Minister of Higher and Tertiary Education and Others HB171-12. It is clear that a judgment was, on the merits, given by a competent court in a matter between the same parties concerning the same subject matter which Steelnet (Zimbabwe)(Pvt) Ltd is again seeking in casu by way of interpleader. 

The matter is clearly res judicata – see Boshoff v Union Government 1932 TPD 345. 

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 which was allocated to the deceased in his personal capacity under the Land Resettlement Programme….,.

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 have a right of occupation.

The appellant had challenged the vindicatory action instituted by the respondent on the basis that she had a right of occupation derived from an agreement of sale of the property entered into between her and a company called Champion Constructors (Pvt) Ltd, duly represented by one of its directors and a shareholder, Ms Elizabeth Chidavaenzi.

After hearing argument from counsel for both parties, the appeal was dismissed. It was indicated then that reasons for the decision would follow in due course.

It was not in dispute that the respondent was the registered owner of Stand number 3182 of subdivision A of 159 of Prospect, Harare. The issue before the court a quo was whether there was a binding agreement of sale which gave the appellant the right of occupation.

The court a quo found against the appellant.

The question before this Court is whether the decision of the court a quo is correct on the evidence placed before it by the parties.

The facts of this case are as follows.

The respondent issued summons for the ejectment of the appellant from Stand number 3182 of Subdivision A of Stand 159 Prospect in Harare on 9 June 2008. In her plea, the appellant sought the dismissal of the claim on the basis that she was a legitimate possessor and occupier of the property. The contention was that the right, title and interest in the property was lawfully transferred to her by a declaratory order issued by the High Court in case No. HC7594A/06.

The appellant contended that she was in occupation of the property pursuant to an agreement of sale entered into between herself and a company called Champion Constructors (Pvt) Ltd. The appellant contended that, alternatively, the respondent was estopped from denying that Champion Constructors (Pvt) Ltd was the holder of rights, title and interest in the property and was entitled to dispose of the property as it did.

The respondent, through its managing director, Mrs Elizabeth Chidavaenzi, tendered various documentary exhibits in support of its position. She denied that Champion Constructors (Pvt) Ltd had ever been authorised to dispose of the property in the manner alleged or at all.

The appellant relied on her own testimony and on the evidence of two former workers of Fingold Real Estate, which had allegedly been mandated by Champion Constructors (Pvt) Ltd to dispose of the property to her.

The court a quo accepted that the respondent was the registered owner of the property in question on the basis of irrefutable evidence - the title deeds to the property. The court also accepted that Mrs Elizabeth Chidavaenzi was the managing director and controlling shareholder of the respondent. The evidence placed before the court a quo pertaining to the relationship between the respondent and Champion Constructors (Pvt) Ltd was that the respondent company had contracted Champion Constructors (Pvt) Ltd to service the land and develop residential houses on the subdivisions. The agreement between the parties was that Champion Constructors (Pvt) Ltd would be paid in kind for its services or in the form of completed houses which it would, in turn, sell to prospective home-owners in order to recoup its expenses.

Mrs Elizabeth Chidavaenzi told the court a quo that, in the past, the respondent had mandated Fingold Real Estate to sell two of its properties but it did not sanction the sale of the property in issue. She testified, further, that this is the reason why the agreement of sale was not signed by the seller. Her testimony was to the effect that the appellant was involved in a fraudulent sale which had been masterminded by John Chagaresango of Finhold Real Estate, a close relative of the appellant.

Ms Chidavaenzi said that the first time she became aware of the purported agreement of sale of 26 September 2006, between the appellant and Champion Constructors (Pvt) Ltd, was in November 2006 when lawyers for the appellant began pestering her with demands that she sign the document. She also told the court a quo that on the two occasions that she had mandated Fingold Real Estate to sell properties on the respondent's behalf, she had given them instructions in writing, which she denied doing in this case.

The appellant admitted before the court a quo that John Chagaresango of Fingold Real Estate was a close relation of hers, her elder sister's son. She testified that she signed the agreement of sale before John Chagaresango, Mr Phiri and Faith Muzungu on 26 September 2006. Thereafter, she paid Z$32,500,000= on 28 September 2006, 9 October 2006 and 3 November 2006. The appellant's evidence before the court a quo was that the terms of the agreement of sale were not fully explained to her. She admitted that Ms Chidavaenzi had never authorised her to make improvements to the property.

The court a quo found that, despite being a major shareholder in both the respondent and Champion Constructors (Pvt) Ltd, Ms Chidavaenzi was a “focused, confident and convincing” witness whose “evidence proclaimed loudly and boldly that there was no contract to talk about between Champion Constructors and the appellant.”

The court found, further, that, Fingold Real Estate could not possibly have been mandated to sell the property in question to the appellant by Champion Constructors (Pvt) Ltd or anyone else. The estate agent failed to produce proof of its mandate to sell that particular property.

On the effect of the High Court order relied upon by the appellant as bestowing or confirming that the appellant had acquired the rights, title and interest in the property, the court a quo found that the order was made in default and was against Champion Constructors (Pvt) Ltd and Elizabeth Chidavaenzi. The court's view was that the order was not binding on Drawing Services (Pvt) Ltd or enforceable against it, because, despite being the registered owner of the property, it had also not been cited as a party to the proceedings.

According to the appellant's testimony before the court a quo, John Chagaresango, who worked for Fingold Real Estate, advised her that the property in question was for sale. Accompanied by John Chagaresango, she went to view the property. The property was in the care of Champion Constructors (Pvt) Ltd, which, together with Drawing Services (Pvt) Ltd, the respondent, were under the directorship and shareholding of Elizabeth Chidavaenzi and Keroni Tevera (according to form CR14 produced before the court a quo).

Elizabeth Chidavaenzi testified that Keroni Tevera was a passive participant in the management of the affairs of Champion Constructors (Pvt) Ltd. According to the evidence before the court a quo, after the visit to the Stand, John Chagaresango contacted Elizabeth Chidavaenzi and advised her that the appellant wished to purchase the Stand. It would appear that, upon instruction, Fingold Real Estate drew up a draft agreement, in terms of which the seller, Champion Constructors (Pvt) Ltd, held itself out as being the holder of the rights, title and interest in the property, and as agreeing to sell to the purchaser, the appellant, its right, title and interest on some of the following conditions:

1. The purchase price of the property of Z$32,000,000= (thirty two million Zimbabwe dollars) plus 15% value added tax be paid.

2. A deposit of Z$21,000,000= (twenty one million Zimbabwe dollars) to be paid in full within 48 hours of signing the agreement of sale, failing which the seller shall be entitled to cancel the agreement without further notice.

3. A cash deposit was to be paid by Bank cash transfer to Champion Constructors (Pvt) Ltd.

Clause 8 of the document of sale provided that there would be no variation of the conditions of the agreement unless the variation was in writing and signed by the parties.

In Clause 14, the parties acknowledged that the written agreement between them would be the only agreement and that no other conditions, stipulations, warranties or guarantees would be valid unless included in the agreement.

The appellant signed the proposed agreement on 26 September 2006 before two witnesses. The respondent did not sign. Champion Constructors (Pvt) Ltd did not sign. Elizabeth Chidavaenzi alleges that the estate agents drafted the document without her knowledge and consent. The appellant paid the deposit before the respondent signed the agreement of sale.

Her first instalment was paid on 28 September 2006. It took her up to 3 November to pay the deposit in full, contrary to the provisions of clause 1 of the alleged agreement of sale which stipulated that the deposit must be paid in full within 48 hours of the date of the signature of the agreement. If the appellant signed the alleged agreement on 26 September, and assumed that the seller had done the same, the deposit ought to have been fully paid by 28 September 2006.

It is not in dispute that the appellant subsequently paid the purchase price in full to Champion Constructors (Pvt) Ltd. When she sought to take occupation she was prevented from doing so by the respondent. The appellant applied to the High Court seeking an order declaring that the document she signed on 26 September 2006 constituted a valid and binding agreement of sale between herself and Champion Constructors (Pvt) Ltd. On 19 September 2007, the High Court issued an order on the following terms:

1. The provisional order in case number HC7594A/06 be and is hereby confirmed on the following terms:

(a) That the agreement of sale between the applicant and the first respondent, signed on 26 September 2006, in respect of Stand 3182 of Subdivision A of 159 Prospect be and is hereby declared to be legally binding and enforceable against the first respondent.

Armed with the order, the appellant took occupation of the property against protestation by Elizabeth Chidavaenzi. On 9 June 2008 the respondent issued summons out of the High Court claiming, by vindicatory action, ejectment of the appellant from Stand 3182 of Subdivision A of Stand 159 of Prospect Harare. It alleged that it was the owner of the property in terms of Deed of Transfer DT5668/72.

The respondent alleged that the appellant had no right to occupy the property as she had not entered into an agreement of sale with the registered owner of the property. The respondent alleged that there was no privity of contract between the appellant and the respondent.

In resisting the action, the appellant raised three points:

1. She denied that the respondent was the owner of the property and argued that the right, title, and interest in the property had been lawfully transferred to her by virtue of the declaratory order issued in her favour by the High Court order of 19 September 2007.

2. The appellant alleged that she had a right of occupation to the property by virtue of the agreement of sale with Champion Constructors (Pvt) Ltd.

3. The appellant denied that there was no privity of contract between the respondent and Champion Constructors (Pvt) Ltd as they were both under the directorship of Ms Chidavaenzi, who, according to the appellant, knew about the agreement of sale.

After hearing the evidence of the parties relating to the issues, the court a quo found that the appellant was not a credible witness. The court was not assisted by the evidence of the witnesses called by the appellant to bolster her case. It found Evis Monica Mutodi to have given “a hopelessly confusing piece of evidence”, which, under cross examination, was not consistent with that of the appellant even on the purchase price.

The court found that the appellant said that the purchase price was pegged at $32,000,000= while Evis Monica Mutodi said the purchase price was $32,000,500=. While Evis Monica Mutodi told the court that she had discussed the clauses of the alleged agreement of sale with her, the alleged appellant denied this and testified that she only discussed the agreement of sale with John Chagaresango.

On the veracity of the evidence of John Chagaresango, the court found that he testified to being given a mandate by Elizabeth Chidavaenzi to sell certain of her properties, including what he constantly referred to as Stand 1382, which, in reality, was Stand 3182. The court found his evidence at variance with that of Evis Monica Mutodi when he said that Ms Chidavaenzi had visited the site prior to the appellant doing so. The court also found that when directed to clauses that the appellant had not complied with, all John Chagaresango could say was that the agreement was not based on what the appellant and the witnesses had signed, but other verbal assurances by Ms Chidavaenzi.

In contrast, the court found the evidence of Ms Chidavaenzi to be precise and to the point. It found that the evidence was consistent with her plea and summary of evidence; and, in her evidence-in-chief, and under cross-examination, she maintained the denial that she gave Fingold Real Estate, or anyone, a mandate to dispose of the property.

Having dismissed the defence by the appellant, the court granted the eviction order. It is against the order that the appeal was instituted on the following grounds:

1. The court misdirected itself in concluding that Elizabeth Chidavaenzi was a credible witness, yet her demeanour and the inconsistencies and improbabilities in her evidence justified a finding that she lacked credibility.

2. The Judge misdirected himself by relying on what he considered as not having been put to the plaintiff's witness in cross-examination, yet, those matters related to areas where the evidence of the witnesses was mutually destructive.

3. The court misdirected itself by failing to determine that Elizabeth Chidavaenzi represented both the plaintiff and Champion Constructors (Pvt) Ltd when she sold the property in dispute to the defendant.

4. The Judge misdirected himself in his conclusion that Evis Monica Mutodi's evidence was “hopelessly confusing.”

5. The court misdirected itself in accepting, without criticism, the evidence of Elizabeth Chidavaenzi to the effect that she did not mandate Fingold Real Estate to sell the property in dispute.

6. The court misdirected itself by coming to a contrary conclusion in respect of a fact which was issue estoppel.

7. The court misdirected itself by relying on principles applicable to a lessee to conclude that the defendant, a bona fide possessor, had no right of retention pending compensation for improvements.

8. The Judge misdirected himself by failing to consider that the right of retention arises by operation of law upon the defendant showing that she is a bona fide possessor, and not upon the defendant instituting proceedings to enforce the agreement of sale.

The question whether the respondent, Drawing Services (Private) Limited, was a party to the proposed agreement of sale with the appellant must be answered in the negative. This means that there was simply no privity of contract between the appellant and the respondent. The appellant purported to contract with Champion Constructors (Pvt) Limited - a separate legal entity from the respondent.

The appellant's submission that the matter before the court a quo was res judicata must be rejected for the same reason. The respondent was not a party to the proceedings in which the High Court issued a declaratory order that the appellant could enforce her agreement of sale with Champion Constructors (Pvt) Limited.

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) 326.

Counsel for the first respondent supported the court a quo's decision that the magistrate's decision was “founded purely on adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter.”

I do not agree.

The tag of incompetence placed on the first respondent by the magistrate is definitive and final until set aside by a competent court. The High Court had no authority to set it aside as it was not sitting as a review or an appellate court. In Nyaguwa v Gwinyayi 1981 ZLR 25 PITMAN J…, said:

“I was of the opinion that in this country, each court is a creature of statute, and its powers are created and defined by statute. The function of every civil court is to recognize what it believes to be the rights of the parties before it. Once a civil court has given such recognition, that recognition must be accepted by each of the other courts, whatever its relative position in the hierarchy of courts may be, unless authority to overrule such recognition has been conferred upon it by statute. If one court were to claim that it has some inherent power to over-rule another court, instead of a power specifically created by statute, in effect it will be claiming the power to nullify the body of statute law which specifically relates to the establishment and powers of each of the civil courts in the country. As no power to overrule the decisions of Magistrate's Courts has been vested in the General Division of the High Court, I considered that this court could not grant the order sought by the petitioner.”

The High Court, sitting as a court of first instance, does not have authority to disregard or overrule extant decisions of the Magistrate's Court. The court a quo should therefore have declined to determine the already determined issue of the first respondent's locus standi to evict the appellant, while the decision of the magistrate remained extant.

The court a quo failed to appreciate that the first respondent's application was aimed at seeking a re-determination of the first respondent's locus standi to evict the appellant or the avoidance of the magistrate's determination of that issue. The failure to appreciate the nature of the application led to its failure to realise that it had no authority to over-rule the magistrate's definitive finding that the first respondent had no locus standi to evict the appellant. In the case of Chimponda & Anor v Muvami 2007 ZLR (2) 326, MAKARAU JP…, said:

“The requirements for the plea of res judicata are settled. Our law recognizes that once a dispute between the same parties has been exhausted by a competent court it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigants to plough over the same ground hoping for a different result will have the effect of introducing uncertainty into court decisions and will bring the administration of justice into disrepute.

For the plea to be upheld, the matter must have been finally and definitively dealt with in the prior proceedings. In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties, by making a finding in law and/or in fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or to defend the proceedings. The cause of action as between the parties must have been extinguished by the judgment.

A judgment founded purely in adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter does not, in my view, constitute a final and definitive judgment in the matter. It appears to me that such a judgment is merely a simple interlocutory judgment directing the parties on how to approach the court if they wish to have their dispute resolved.”…,.

A determination by the magistrate on the competence of the first respondent to institute eviction proceedings against the appellant is not a finding in adjectival law regulating the manner in which the court is to be approached for the determination of the merits of the matter. It is a final and definitive determination barring the first respondent from instituting proceedings on the same cause of action against the appellant. Such a finding finally and definitively determines the capacity of a litigant to institute or defend the same cause of action before the courts.

The court a quo failed to distinguish between the magistrate's dismissal of the application for summary judgment, which could be interlocutory, from the reason for the dismissal which is definitive and finally closes the door to the first respondent due to legal incompetence to litigate over the appellant's eviction.

The magistrate's judgment remains extant.

The defendants submitted that the plaintiff's claim has already been determined by the High Court and it cannot be instituted again….,.

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 single dwelling merely +/- 224 square metres in extent. The lease agreement did not just say “…, homestead…, measuring +/- 224 square metres…,” and stop there. It also said “…, approximately situated in the district of Mwenezi as depicted on the map attached hereto…,.”…,..

That was not all.

It also said “…, the site with the said buildings [not just building] and improvements….,” would be “…, the leased premises…,.”

So the lease agreement itself, the bedrock of the eviction proceedings, recognised that the homestead was more than just one dwelling.

Then the magistrate concluded that there was evidence that the homestead was the one on the map. That map was also produced in the proceedings before me. It referred to a rectangle with a cluster of buildings. It was not in dispute that those were the structures mentioned in the applicant's founding affidavit.

Above all, and at any rate, the dictionary meaning of 'homestead' is a farmhouse and the adjacent buildings. Wikipedia, the free encyclopaedia, says:

“A homestead is a dwelling, especially a farmhouse, and adjacent outbuildings, typically on a large agricultural holding such as a ranch or station.”

Having won an order of eviction in the main proceedings, and having been granted leave to execute pending appeal, the first respondent was entitled to enjoy the fruits of his success. The second respondent was not straying outside the boundaries of the Court Order. The manager's house would not be included in the ejectment. The object of the urgent chamber application was manifestly to frustrate a legitimate process. It was designed to throw the parties back to the position that they had been in before litigation had started.

That was wrong.

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 dismissed for want of proper citation of the parties. It was not heard on the merits. It is therefore not res judicata. The withdrawal of the summons, in Case No. 24504/12, did not dispose of the matter on the merits.

The principle of res judicata only applies where the case has been determined on the merits between the same parties.

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 Zimbabwe Mining Development Corporation (which falls under the Ministry of Mines and Mining Development) and the Zimbabwe Consolidated Diamond Company (an outcome and vehicle of the consolidation policy) were not parties before the High Court but are parties in casu.

In the urgent application, the applicant sought interim relief setting aside the first respondent's directive and having the parties return to the status quo ante 22 February 2016….,.

The principle of res judicata precludes the court from re-opening a case that has been litigated to finality. The principle was aptly defined in the case of Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)…,. The South African Appellate Division had this to say:

“If a cause of action has been finally litigated between the parties, then a subsequent attempt by one to proceed against the other on the same cause for the same relief can be met by an exceptio rei judicatae vel litis finitae.”

The immediate question then is whether the same cause, for the same relief, between the same parties or their privies has been pursued by the applicant…, after the matter has been finally determined?

To be successful, where res judicata is raised, all the requisites for the plea must exist. These requisites were didactically stated in the case of African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A)…, as follows:

“There is nevertheless no room for this exception (of res judicata) unless a suit which had been brought to an end is set in motion afresh between the same persons, about the same matter, and on the same cause for claiming so that the exception falls away if one of these three things is lacking.”…,.

Although the basis of the application has changed with the introduction of the Constitutional question, the effect of the relief sought remains the same.

Whether this disjuncture between the bases upon which relief is sought while the effect remains the same negates the plea of res judicata at all or only in specific circumstances I will leave open….,.

Similarly, although the parties in the High Court are not identical to current ones, they are similar…, and, in my view, may be taken as privies of those now before this Court.

At the initial hearing of the appeal, the first respondent moved a preliminary point, advanced in its heads of argument, to the effect that the appeal was not properly before us on the grounds that the judgment in the court a quo was interlocutory. To that end it had been argued that the appellants should have sought and obtained leave of the High Court before noting the appeal.

In a judgment by PATEL JA (with which HLATSHWAYO JA and I concurred), SC36-17, the preliminary point was dismissed with costs and the court ordered that the appeal proceed on the merits.

This is an application for rescission of judgment in terms of Order 49 Rule 449(1)(b) of the High Court Rules, 1971 for the rescission of the judgment obtained by the respondent under case No. HC1292/12.

The basis of the application being that the judgment under case No. HC1292/12 is erroneous as it was granted against the wrong parties who never contracted with the respondent.

The application is opposed by the respondent.

At the hearing of the matter, the respondent took a point in limine and prayed that the application be dismissed with costs de bonis propriis and that the conduct of the applicants' legal practitioners be reported to the Law Society of Zimbabwe since the application is a gross abuse of legal process wherein the applicants are seeking a third bite of the cherry. The point in limine taken by the respondent is that an application for rescission of judgment before this Honourable Court was previously made by the applicants and dismissed. In short, the respondent submitted that the court is now functus and raised the defence of res judicata. In support of its point in limine the respondent attached the judgment of Honourable MATHONSI J under HC1292/12.

The brief history of the matter is that the respondent issued summons against the applicants claiming US$677,366= in respect of diesel fuel they had allegedly appropriated. The summons was served on the applicants on 6 February 2012. The applicants did not enter appearance to defend until the dies inducae expired. They tried to enter a defective appearance on 21 February 2012 when the bar was now operational against them. A default judgment was entered against them on 1 May 2012 followed by writ of execution dated 11 June 2012. They instituted a defective application for rescission of the default judgment under case HC1292/12 in terms of Rule 63(2) of the High Court Rules. They further instituted a defective application for stay of execution which was dismissed by the High Court on the return day under case HC2719/12. The application for rescission was dismissed by MATHONSI J in a written judgment in HC1292/12 where a scathing of the conduct of the applicants and their legal practitioners was made.

Still undeterred by the scathing attack by MATHONSI J, the applicants mounted this current application for rescission of the same judgment - now in terms of Order 49 Rule 449. This prompted the respondent to raise the point in limine that the matter is now res judicata and the court is functus.

The issue this court is seized with now is whether or not the point in limine has been properly taken or not.

Res judicata is a special plea that can be raised by a defendant seeking to quash the action by pleading that the same cause has already been tried and decided upon by some other court of competent jurisdiction. See HERBSTEIN & VAN WINSEN – The Civil Practice of High Courts of South Africa, 5^th ed, Vol 1…,.

At law, therefore, a defendant may plead res judicata as a defence to a claim that raises an issue disposed of by a judgment delivered in a prior action between the same parties, concerning the same subject-matter, and founded on the same cause of action. See Lowrey v Steedman 1914 AD 532; Narshi Ranchod NO 1984 (3) SA 926 (C)…,.; POSB v Chimanikire 2005 (1) ZLR 285…,.; Munemo v Muswera 1987 (1) ZLR 20; Maparura v Maparura 1988 (1) ZLR 234 (HC); and Stephen Pasipanodya N.O. v Tracy Ruwizhi & Another HH82-09.

The same principle was expressed by FRIEDMAN JP in Bafokeng Tribe v Impala Platinum Ltd 1999 (3) SA 517 (B) following Kommissaris van Binnelade Inkomste v Absa Bank Bpk 1995 (1) SA 653 (SCA) where it was said -

“…, the essentials of the exception res judicata are threefold, namely, that the previous judgment was given in an action or application by a competent court;

(1) Between the same parties.

(2) Based on the same cause of action (ex eadem petendi causa).

(3) With respect to the same subject-matter, or thing (de eadem re).”

In casu, there is a judgment in HC1292/12 by MATHONSI J previously given between the same parties involving the same subject matter. The slightest difference is that in HC1292/12 the application for rescission was made in terms of Rule 63 while the application in the present matter is in terms of Rule 449. In my view, what is sought in both applications is to rescind judgment given in case HC1292/12. At the end of the day, to allow the application will amount to allowing the applicants a third bite of the cherry as explained by the defendant. The decision by MATHONSI J is still extant. It has not been overturned nor appealed against. The applicants are alleging that the judgment in HC1292/12 was granted in error. When res judicata is raised, the enquiry is not whether the judgment is right or wrong, but simply whether there is a judgment.

See African Farms & Townships v Cape Town Municipality 1963 (2) SA 555 A…,.

Hence, a default judgment granted in error and which should have been set aside or rescinded, stands and constitutes res judicata until set aside. See Jacobson v Havinga t/a Havingas 2001 (1) SA 177 (T).

In the present case, the applicants applied for rescission in case HC1292/12 and lost. That decision cannot be revisited. The only option open to the applicants, if they were not satisfied by that decision, was to appeal. At the very least, if the applicants felt that the judgment was issued in error, should have made the application in terms of Rule 449 at the very beginning. In the circumstances, the preliminary point taken by the respondent is meritable and capable of disposing this matter.

The point in limine is therefore upheld….,.

In the result, it is ordered as follows -

1. The application for rescission of default judgment granted in case HC1292/12 be and is hereby dismissed.

On res judicata, counsel for the respondents submitted that the relief being pursued by the applicant was effectively disposed of by the Supreme Court when it held that the relief of rei vindicatio overrides a plea for mercy. Counsel for the respondents was emphatic that once a case of rei vindicatio was upheld in favour of the respondents, any occupier of the premises must vacate them.

On the other hand, counsel for the applicant submitted that the defendants' defence in the pending case is not known. The main concern is that the applicant will be rendered homeless if eviction is carried out. In addition to that, if the applicant is not protected from eviction the pending case would be rendered brutum fulmen. Counsel for the applicant further submitted that even if the applicant's late husband acted illegally the applicant is still entitled to sue for the improvements done to the property. As authority in support of this proposition counsel for the applicant cited the cases of Fantasie Farms (Pvt) Ltd and Others v (A) F.T. Manyeruke and Others (B) (1) Hippo Valley Estates Limited (2) Triangle Limited (Additional Respondents) SC65-07 and Quarry Enterprises (Pvt) Ltd v John Viol (Pvt) Ltd and Others 1985 (1) ZLR 77 (HC).

Even if the applicant is entitled to claim compensation for improvements, this is not a matter for determination before me. Whether or not the applicant has a valid claim is irrelevant. This is because the Supreme Court ordered her eviction from the premises. That puts paid to the applicant's claim of retention of the property pending determination of the claim for compensation for improvements.

On the issue of res judicata, counsel for the respondents submitted that the applicant has already secured judgment against the company, which is the first respondent in this matter. For that reason, the present suit involves the same parties, and, as such, it is res judicata.

In my view, that proposition cannot possibly be seriously made because clearly the requisites for that defence do not exist.

Those requisites were succinctly set out by CHIDYAUSIKU CJ in Flowerdale Investments (Pvt) Ltd and Another v Bernard Construction (Pvt) Ltd and Others 2009 (1) ZLR 110 (S)…, where the learned Chief Justice said;

“The essential elements of res judicata are –

(a) The two actions must be between the same parties;

(b) The two actions must concern the same subject matter; and

(c) The two actions must be founded upon the same cause of action.

See Hiddingh v Dennysen (1885) 3 Menz 424 at 450; Bertram v Wood (1893) 10 SC 180; Pretorius v Barkly East Divisional Council 1914 AD 407 at 409; Mitford's Executors v Elden's Executors and Others 1917 AD 682; Le Roux v Le Roux 1967 (1) 446 (A), Voet 44.2.3.”

While it is true that the company has been cited in this application as the first respondent when it was the sole defendant in the main cause, two other respondents have been added to this application, being the directors of the company.

The company itself has been cited in a different context.

It cannot be said that the two matters concern the same subject matter as the first action concerned the question of the liability of the company for the fuel while the gravamen of this application is to hold the directors personally liable for the debt owed by the company on the basis of their conduct.

The two matters are certainly not founded on the same cause of action.

The applicant went on to state, in paragraph 17 of the founding affidavit, that;

“In any case, the whole transaction smacks of fraud in that there is no way a sale could have been concluded on 22^nd February 20915 (sic) and transfer taken on 24^th February 2015. The price at which the property was sold was ridiculously too low. The property was sold for a paltry $101,5000 (sic) when it was valued at no less than $200,000= at the time. The purchase price of $101,5000 (sic) was less than the cost of land alone without the structure.”

She also alleged that some alleged buyers had come to view the property and that the second respondent had instituted eviction proceedings against her. She also stated that she was going to report to the police to conduct an investigation of the alleged fraudulent sale of the property by the first respondent to the second respondent.

The applicant made the same averments of fraud against the first and second respondents in HC4339/15 which case, as stated already, was dismissed and the order remains extant.

A mere assertion that the applicant has reported or intends to report the matter to the police does not take away the fact that the implications of the dismissal of her case remain that the Agreement of Sale between the first and second respondents remains valid; the title deeds, now in the name of the second respondent, remain valid and the second respondent remains vested with the real rights in the property.

In the same vein, the applicant's assertion that the first respondent sent persons to view the property does not have any value since the first respondent no longer has any real rights in the property and would not be able to pass transfer of rights that he no longer has.

This puts the matter firmly within the res judicata principle as the sale and ownership of the property has been confirmed by this court.

The next point in limine by the respondents was that the matter was now res judicata in that the same application had been dismissed by the Labour Court.

During the hearing, I was advised that the applicant had conceded, at the Labour Court, that it had gone to the wrong forum. The Labour Court had dismissed the application for lack of jurisdiction. It had not decided it on the merits. Under such circumstances the matter could not be said to have become res judicata.

The applicants' second point in limine was that whether or not I had granted the order in question in error was now issue estoppel or res judicata. It was argued that even though the written judgment by TSANGA J did not touch on the point, she necessarily must have considered it for her to have determined that the matter before her was not urgent.

In my view, the applicants' second point in limine lacks merit.

The Honourable TSANGA J clearly articulated her reason why she felt the matter had not been urgent. It was this. In February 2014, Mabwe Minerals had successfully obtained, from this Court, an order of spoliation against the applicants. The applicants had appealed to the Supreme Court. The appeal had been dismissed. But when TSANGA J had determined the urgent chamber application the reasons for the dismissal of that appeal had been unavailable. The learned judge then said in the absence of those reasons, and in the absence of the reasons for my order, she could not find that urgency had been established.

In the circumstances, it is inappropriate for me, in this matter, to find that TSANGA J had considered, and determined, the question of whether or not my order had been granted in error. Issue estoppel does not apply.

Furthermore, and at any rate, before TSANGA J, the respondents in this matter were not parties. The parties were Mabwe Minerals as the applicant, and the present applicants as the respondents. The applicants' second point in limine is also dismissed.

The first point in limine was that the matter was not urgent because a similar application had been made in 2011 and that it had been dismissed.

The second point in limine was that the matter had become res judicata by virtue of that previous application…,.

I dismissed both points. It was conceded that the application in 2011 had been in respect of a different farm altogether even though their circumstances seemed the same.

In Munemo v Muswera 1987 (1) ZLR 20 (SC)…, McNALLY JA put the matter this way;

“…,. The judgment relied upon was not the judgment for the plaintiff, nor was it a judgment for the defendant…,. However, the judgment in 1979 was a judgment which read:

'The plaintiff's claim for ejectment is dismissed with costs.'

It is well established that such a judgment is in effect one of absolution from the instance. See Hassan v Billiat SC132-86 (not reported); Bulford v Bob White Service Station (Pvt) Ltd 1972 (2) RLR 224 (AD); Makayiseni v Musarurgwa 1947 SR 160 at 162.

The matter is succinctly put by Hoffman & Zeffertt op cit at p263 in the following words;

'The decree of absolution from the instance (or an order dismissing the plaintiff's claim) is specifically intended to the man the plaintiff to bring another action if he can find a better evidence to support his claim. Absolution can never found a cause for action estoppels.”

Should our courts be courts of law or courts of justice?

One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; one is nothing without the other. Yet, those who practice the law, will know that, often times than not, the rigid application of the law may lead to a palpable injustice. That is why the law is fluid, meaning that its application depends on the circumstances before the court.

The law must be applied to avoid perpetrating an injustice, especially where the extent of the injustice would be the non-suiting of a litigant, leaving the litigant with nowhere else to turn as it were. That is not to say that non-deserving litigants should be shielded from the inevitable consequences that flow from a correct application of the law. On the contrary, it is my view that our courts should be courts of law that derive their authority and legitimacy from a fair and impartial application of the law in the pursuit of justice and fairness.

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

(c) BP1,800,000 for loss of income.

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”

It is common cause that the respondent has paid in full for the component of the 2008 judgment which provides for payment in Botswana Pula, in terms of the order of the Supreme Court dated 28 February 2012. It is common cause that payment of the Zimbabwe dollar component of the 2008 judgment remains outstanding - although the respondent has tendered this payment to the applicant. It is common cause that the applicant did not attempt to execute in respect of the Zimbabwe dollar component at the date of the judgment in 2008, and that, in 2009, Zimbabwe adopted a multi-currency regime. It is also common cause that after the accident the applicant was disabled.

The applicant has come before this court and avers that he requires urgent medical attention.

He has attached a quotation from a medical specialist, Mr. Bijay B. Garach, dated 23 March 2012, to show that he requires an estimated USD$279,400= for surgery in Durban South Africa. The purpose of the surgery is to correct a condition of stiffness in the right knee which is possibly related to a fracture and muscle tightness and to an associated knee joint injury. Mr. B.A.V. Ncube, a specialist orthopedic surgeon, certified that the applicant is in pain and gross discomfort in his right foot, on 4 June 2012, and that he needs further surgery to remove the implants and to fuse his mid-foot and correct his mal-aligned toes.

The applicant is currently unemployed and has urgent need for funds in order to access the medical assistance he requires.

On 24 October 2012, the applicant's legal practitioners addressed a letter to the respondent to which they attached the judgment of 23 January 2008. In the letter, the respondent was reminded that the Zimbabwe dollar component of the judgment remained unpaid in a total of ZWD$4,937,217=09. It is common cause that the Zimbabwean dollar has fallen into disuse. The respondent was advised that the applicant had approached the Reserve Bank of Zimbabwe which had confirmed that as at 23 January 2008 one United States dollar was equivalent to ZWD$30,000=. Converting ZWD$3,937,212=10 to USD translates into USD$164,573=90. Interest at the prescribed sum translates to USD$41,143=47. The total demanded from the respondent is USD$205,717=38.

In a letter dated 8 November 2012, the respondent, through its legal practitioners, tendered the ZWD$ to the applicant on the basis that the Zimbabwean dollar was still valid currency, and that, it being the currency of the judgment which the applicant was seeking to enforce, that is the currency in which the applicant should be paid. The computation of the interest was brought into question.

In a letter dated 19 November 2012, the applicant's legal practitioners explained that interest had been calculated at the prescribed rate of interest from February 2008. In paragraph 12.1-14 of the founding affidavit the applicant avers that:

“I need to execute against the respondent. I need to have the judgment in my favor sounding in Zimbabwe dollars amended to reflect United States dollars so that I am paid in a currency that I will be able to use. I submit that the Zimbabwe Dollar is now moribund and has fallen into disuse. It is no longer the currency in use at the moment. There is no point in giving me, as respondent contends, the Zimbabwe dollars as I will not be able to use them to access the medical attention that I so badly and urgently require. I submit that I am entitled to effective remedies and giving me Zimbabwean dollars is hardly such effective remedies.”…,.

The notice of opposition was filed of record on 30 May 2013. Mr. Charles Stewart Gardiner deposed to the opposing affidavit on behalf of the respondent. He is a son of the Managing Director of the respondent, and himself a director of the respondent company. He averred that the applicant should apply to the court which granted the judgment in question for the judgment to be corrected in accordance with the rules of this court.

Mr. Gardiner denied that the applicant had a right to correct the judgment in terms of the rules of this court. He denied that the applicant was permanently disabled, although he accepted that the applicant was injured in the accident. He emphatically declared that the applicant was dishonest and that he had fraudulently exaggerated his injuries and allegations of disability. He denied that the applicant is in urgent need of medical attention. He reiterated that the applicant has already received a sum of USD$90,332=24 from the respondent and averred that this amount ought to have been more than sufficient to fund whatever medical attention the applicant allegedly requires.

It was admitted that the respondent is bound by the terms of the Supreme Court order.

The respondent expressed certainty that the applicant's awards which emanated from this court were based on fraud, fraudulent documents and perjured evidence, and referred the court to its application for leave to adduce further evidence which it filed before the Supreme Court simultaneously with its appeal under case number SC19-2008.

Mr. Gardiner averred that the court should have regard to the independent expert evidence that was filed before the Supreme Court to prove the allegations of fraud against the applicant. He re-iterated that the respondent believed that it was obliged to effect payment in the amount claimed by the applicant and awarded to him by the court. It was denied, on behalf of the respondent, that it was to blame for the applicant's hardship because the basis of the liability of the respondent arises entirely from a finding of vicarious liability for the negligence of its former employee.

Three issues fall for determination by this court;

(a) The first one is whether this court has jurisdiction to entertain this matter.

(b) The second issue for determination is whether it is competent for this court to award payment in United States dollars in respect of a judgment sounding in Zimbabwean dollars.

(c) Finally, we must determine whether it is competent to determine the rate of exchange by which the conversion may be made.

(a) Jurisdiction

It was submitted, on behalf of the applicants, that the High Court has jurisdiction to deal with any matter that is placed before it and that there is nothing amiss in this court dealing with a matter arising out of a judgment of this court. The court was referred to the case of Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors SC21-14 as authority for this proposition.

The court perused the judgment of the court a quo HH108-11/ HC5710-09.

The issue for determination, as it was understood by that court, was that the applicants had approached that court since it was the only court with inherent jurisdiction seeking a declaratur that the principle of currency nominalism has no place in Labour Law (i.e. a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. The applicants sought a further declaratur that to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is, in an amount, currency, and quantity that achieves fairness as required by the Labour Act. A further order compelling the respondent to pay damages in USD was sought. The principle relied on by the applicants was that a successful appellant ought to have the discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him for the loss as well as fulfill the objectives of the Labour Act.

The respondent had opposed the relief sought by the applicants before the High Court on the basis that the matters raised had been canvassed and dismissed by the Labour Court and were therefore res judicata; that this matter was purely a labour issue by virtue of section 89(6) of the Labour Act [Chapter 28;01]; that the court was being asked to usurp the role of Parliament by repealing the common law principle of currency nominalism and that the court was being asked to 'overrule” those decisions of the Supreme Court which had already made the point that in quantifying damages in labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension.

The High Court took the view that it was the only court with power to issue declaratory orders. On the issue of usurping the role of Parliament, the High Court took the view that 'it is not impermissible for the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap especially where not to do so will leave many an unlawfully dismissed employee languishing in an asylum of financial misery'.

On page 5 of the judgment, the High Court postulated the question of whether, in the circumstances of the case before it, it ought to declare that 'in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.'…,.

Clearly, the High Court limited the application and scope of its judgment to the realm of employment relations and to the period during which there was lack of economic normalcy. It applied the principles of equity and enjoined itself to 'tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.'

The High Court ordered the respondent to pay damages in USD using the official exchange rate obtaining as at 5 July 2007.

The respondent appealed.

The appeal and cross appeal came before a five member bench of the Supreme Court on 11 September 2013. The judgment of the Supreme Court was to allow the appeal to the extent of setting aside the judgment of the High Court for lack of jurisdiction. It was held, with the consent of both parties, that the matter should have been determined by the Labour Court.

It is this court's view that it would not be proper to rely on principles which were enunciated in the context of labour disputes, which differ materially from the matter under consideration, and in respect of which certain principles underline their conduct, which are not applicable here, such as social justice and equity. The court is bolstered in its view by the recent judgment of the Supreme Court, Madhatter Mining Company v Marvelous Tapfuma SC51-14, where the court stated that Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors HH108-11 had been overturned on appeal and could no longer be cited as authority or as a basis on which a court can convert damages awarded in Zimbabwe dollars to United States dollars.

The vexing question of whether the USD amount would give true value to the damages that the respondent would be entitled to was posed by the court.

True value was defined as a value that would 'neither over-compensate the respondent nor inadequately do so'. Other pertinent considerations for a court faced with the question of converting Zimbabwe currency to US$ were the issue the two main Zimbabwe dollar to USD$ exchange rates which obtained prior to 2009, i.e. the official and the unofficial rates….,. Finally, the Supreme Court emphasized that it is the Labour Court - and not the Supreme Court - which in endowed with jurisdiction to apply principles of equity in its determination of labour disputes based on the provisions of section 2A of the Labour Act [Chapter 28:01].

See Horace Nzuma & 2 Ors v Hunyani Paper & Packaging SC137-11.

I accepted the submission made on behalf of the respondent that this court has no similar jurisdiction to that of the Labour Court, to determine disputes on the basis of social justice or principles of equity.

The Labour Court, in Madhatter Mining Company v Marvelous Tapfuma SC51-14, was then given guidance by the Supreme Court and the matter was remitted back to it for the determination of the following issues:

(a) What is the effect of the change of currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe Dollar currency which, though not demonetized, is no longer in use?

(c) Has the principle of currency nominalism any application to the circumstances of this case?

(d) The method of calculating the quantum of the debt in current realizable currency if the conclusion of the above issues is in favor of payment in United States dollars.

These questions given for the guidance of the Labour Court are regurgitated here in the realization that these are the same questions that this court may have to determine if the question of jurisdiction in this matter before it is resolved in favor of the applicant.

In defence of this claim, the respondent raised the main point of the absence of jurisdictional basis on which the court can 'change' or 'convert' a judgment that was given by it in January 2008.

I am grateful to counsel for the respondent for the extensive heads of argument filed of record, which appeared to have been tailored to respond to the questions for guidance which were issued by the Supreme Court, as listed above, for the guidance of the Labour Court.

It was submitted, on behalf of the respondent, that if there is such a jurisdiction, there is a dispute as to whether it can be exercised five years after the original judgment and one year after the judgment of the Supreme Court in which the matter was not raised; whether the conversion is to take place on the date of the judgment or on the date on which payment is made; what the proper rate of exchange would be; whether the conversion can be made in respect of those heads of damages which were incurred and paid for in Zimbabwe dollar currency and awarded as special damages at trial; and, finally, the bona fides of the applicant.

The respondent submitted that medical expenses and towing charges are special damages which were incurred in Zimbabwe dollars not United States dollars. The loss was incurred 15 years ago in Zimbabwe dollars, the damages were alleged and proved seven years ago in Zimbabwe dollars. The respondent disputed the applicant's entitled to interest at the prescribed rate, or at any rate, on the basis that the prescribed rate of interest sought to be relied on was only introduced on 23 October 2009 by S.I.164 of 2009 and backdated to 23 October 2008.

Finally, the respondent submitted that, in respect of the three heads of general damages that the applicant now seeks payment for in foreign currency, which was not available to him, and which he did not seek, at the time of the trial, those damages are not due to him in any other currency other than the currency that he claimed them in.

It is trite that the cause of action for the relief being sought must be found in the founding affidavit. See Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D); Director of Hospital Services v Mistry 1979 (1) SA 626 (A)…,.; Dajen (Pvt) Ltd v Durco (Pvt) Ltd 1998 (2) ZLR 235 (SC)…,.; Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (SC)…,.

It was submitted, on behalf of the respondent, that the founding affidavit does not disclose the cause of action to support the relief sought. It was submitted, correctly in my view, that the applicant's need for urgent medical attention is not a jurisdictional basis for the relief sought. It was contended that the fact that the Zimbabwe dollar is now moribund and has fallen into disuse, and that, there is no point making payment in it, again affords the applicant no jurisdictional basis for the relief sought. Finally, it was submitted that to plead ad misericordiam that he is entitled to an effective remedy does not assist the applicant at all.

It is common cause that upon the introduction of the multi-currency basket in January 2009, Parliament did not see fit to introduce any legislation to enable this court to look at judgments given before January 2009.

It was contended that, in the absence of legislative authority that enables this court to look at judgments given in Zimbabwe dollars before dollarization in January 2009, we must be guided by the usual common law Rules. I find myself in full agreement with these statements of the law as it currently stands.

However, in case I am wrong in my view that there is no jurisdictional basis on which this court may grant the relief sought by the applicant, I will proceed to deal with the merits of the matter.

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.

See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 @ p176, 178,186-7 and 192; Estate Garlick v Commissioner of Inland Revenue 1934 AD 499 @ p502…,. There are, however, a few exceptions to the rule which are mentioned in the old authorities and have been authoritatively accepted by this court…, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example costs or interest on the judgment debt which the court overlooked or inadvertently omitted to grant…,.

(ii) The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous, or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter 'the sense and substance' of the judgment or order…,.

(iii) The court may correct a clerical, arithmetical or other error in its judgment in order to give effect to its true intention…,.

(iv) Where counsel has argued the merits and not the costs of a case…, but the court makes an order granting costs…, it may thereafter correct, supplement or alter the order…,.”

The submission that none of these exceptions apply to the applicant was accepted by the court, as well as reference that the principle of finality in litigation (interest reipublicae ut sit finis litium) is a part of our law.

See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (SC)…,; Maheya v Independent Africa Church 2007 (2) ZLR 319 (SC)…,.

This court also accepted as correct, the submission made on behalf of the respondent, that the present application is not intended to supplement, clarify, or correct the judgment of January 2008 - but to alter its substance. The alterations are not incidental or consequential corrections - but go to the very heart of the orders made.

In respect of towing charges and medical expenses already incurred, the purpose of the application is to change the very basis of the currency in which those special damages were incurred. In respect of the three headings of general damages, the application intends to change the basis on which those damages were sought, when those damages were suffered in Zimbabwe, in the currency of payment then prevailing.

It is common cause that there was a considerable delay by the applicant in bringing this application, the original judgment having been handed down in January 2008 and the use of the United States dollar having been authorized by January 2009. The appeal was heard in October 2010 and the Supreme Court judgment handed down in February 2012. Nearly 15 years have passed since the accident in question and four and half years since dollarization. No explanation was given by the applicant for the inordinate delay in making this application. Any application to correct or supplement an order, whether in terms of the common law or under Rule 449 of the High Court Rules 1971, must be brought as soon as possible, or at the very least within a reasonable period. See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173…,.

The leading cases on currency nominalism in this court merit discussion.

In Shava v Bergus Investments (Pvt) Ltd 2011 (2) ZLR 340 (HC), a full bench of this Court, through my brother MUTEMA J and CHIWESHE JP concurring, held that a party cannot revalue a judgment debt for purposes of execution. Citing Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08…, the court held it to be trite that the principle of currency nominalism was part of the law of Zimbabwe. The court held that, to allow a party to change the currency of the judgment was 'not only incompetent for arbitrariness but offended against the time honored principle of currency nominalism'. The court said the following…,:

“That principle holds that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of the currency.”

The court also said…,:

“It is beyond argument that the first respondent's debt sounded in money and the judgment was given in March 2008 with the specific directive that the values of whatever was damaged by the appellant were to be as at the time of judgment. The values were in Zimbabwe dollars and not in US dollars. The principle of currency nominalism was therefore still applicable. It was accordingly idle for the first respondent to revalorize its claim on execution. It ought to have made a court application for the conversion of the currency.”….,.

Counsel for the respondent…, submitted that, before this court came to above underlined conclusion, it ought to have examined, in greater detail, the impact of the 'once and for all rule' and of the submission that the court cannot 'convert' the currency on application because it will be functus officio.

I found this view persuasive.

It was submitted, further, that reliance on Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08 should not have led the court to the conclusion that it came to, because, in that case, the court was emphatic in its view that:

“…, the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.”

In conclusion, this court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this court cannot revalue an order for the purpose of execution, let alone completely re-write an order granted nearly seven years ago. Any such power would have to be the consequence of legislation - which currently does not exist in Zimbabwe.

Under the common law, and as a protection against loss of value of a judgment, where a litigant has suffered a loss that can properly be expressed in foreign currency the court can enter judgment in foreign currency, but payment must be made in local currency converted as at the date of payment. See Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC)…, where the court said that:

“Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of devaluation in the value of the currency between the date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A)…, where it was stated that;

“…, the damages to be awarded in this case should be expressed in US dollars. It is implicit in any order to this effect that the judgment debt may be satisfied in South Africa by payment in the foreign currency or by payment of its equivalent in Rand when paid.”

This court is persuaded by the contention, which is supported by various decisions by the Supreme Court and the High Court, that, had the judgment in this matter been sought and made after January 2009, even in respect of an accident that occurred before that date, judgment could be granted in foreign currency as being the effective currency to redress the loss.

As further authority for this proposition, see Kwindima v Mvundura 2009 (1) ZLR 168 (H).

However, in this case, judgment was sought prior to January 2009, specifically in Zimbabwe dollars, and quite clearly Zimbabwe dollars is the currency in which the losses were sustained.

Section 41 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] reads:

“41 Legal tender of banknotes

(1) A tender of a banknote which has been issued by the Bank and which has not been demonetised in terms of subsection (2) shall be legal tender in payment within Zimbabwe of the amount expressed in the note.

(2) The President may, by statutory instrument, call in and demonetize any banknotes issued by the Bank, and shall likewise determine the manner in which and the period within which payment for such banknotes shall be made to the holders thereof.”

It is common cause that the President has not demonetized the Zimbabwe currency in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations 2009, as confirmed by the Finance Act 2009, and that, he had not done so at the time that this application was filed, on 8 May 2013.

Section 44 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides that:

“44A Legal tender of foreign currencies

The Minister may, in regulations made under section 64, prescribe that, subject to such conditions as may be specified in the regulations, a tender of payment in any currency other than Zimbabwean currency shall be legal tender in all transactions or in such transactions as may be specified in the regulations.”

It is submitted, on behalf of the respondent, quite correctly in my view, that this provision does not render the Zimbabwe currency to be moribund, but that it allows foreign currencies to be treated as legal tender in addition to the Zimbabwe currency. It was correctly submitted, in my view, that there is no statute or other legal instrument that has abolished or suspended the existence of the Zimbabwe currency. Accordingly, as a matter of law, if not practice, the Zimbabwe currency still exists. See Stuart v National Railways of Zimbabwe (unreported)…,.

If any conversion is to take place for the purposes of allowing the enforcement of a judgment granted before February 2009, in Zimbabwe currency, it must be done at the rate prevailing on the date of payment, not the date of judgment….,.

The Legislature, in its wisdom, only enacted section 44A of the Reserve Bank Act, and did not see fit to provide a further framework to guide us on how to dispose of these matters. If the applicant's judgment has been rendered incapable of being satisfied through lack of a legislative framework that regulates its execution, then the applicant's remedies must lie with the Legislature.

The applicant seeks to use the date of judgment as the date on which conversion into US dollars is to be made, and seeks to use the rate of exchange allegedly applicable on that date. However, it is pertinent to note that, at the date of the judgment, January 2008, the use of United States dollars in Zimbabwe was not permitted, and any judgment given in United States dollars as being the currency in which the loss was sustained could only be satisfied by the payment of Zimbabwe currency as at that date.

This court lacks that jurisdictional basis to make any conversion as at the date of judgment because such conversion would, at that time, have been contrary to exchange control legislation. Any attempt to do a conversion as at the date of the judgment would in effect be to render a completely new judgment, in breach of the once and for all rule.

The 'once and for all rule' is a common law rule that stipulates that a plaintiff must claim, in a single action, compensation for the damage he has already suffered and the prospective loss which he reasonably expects to suffer in future. See Oslo Land Co Ltd v Union Government 1938 AD 584…,.; and Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)…,.

In his book The Law of Delict, PROFESSOR BOBERG sums up the common law position as follows:

“A single wrongful act gives rise to a cause of action for all damage, past and future, that it causes. This means that a plaintiff cannot claim compensation piecemeal for his various losses as they occur: he must sue 'once and for all' for the whole of his damage, seeking redress not only for the harm he has already suffered (actual or accrued loss) but also for the harm he expects to suffer in the future (prospective loss). And if he succeeds he will generally be awarded damages in a lump sum, payable immediately, in respect of both past and future losses.”

See also Elvins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)…, where the court said:

“The 'once and for all' rule applies especially to common law actions for damages in delict, though it has also been applied to claims for damages for breach of contract….,. Expressed in relation to delictual claims, the rule is to the effect that in general a plaintiff must claim, in one action, all damages…,. This rule appears to have been introduced into our practice from English Law. Its introduction and the manner of its application by our courts have been subject to criticism…, but it is a well entrenched rule. Its purpose is to prevent a multiplicity of actions based upon a single cause of action to ensure that there is an end to litigation.”

In Dube v Banana 1998 (2) ZLR 92 (HC)…, the law in Zimbabwe was stated in the following terms:

“Our law recognizes the 'once and for all rule' which states that a plaintiff, when suing for damages, must sue for all his damages in a single action, both for loss suffered and for prospective loss…,. In my opinion, the once and for all rule should be modified. I consider this can best be done by an Act of Parliament rather than by 'judge-made law', which is, by its very nature, haphazard and piecemeal. The Law Development Commission of Zimbabwe issued a report entitled Report No. 43: 'Once and for all rule in claims for damages', in which, as the title suggests, it examined the rule and in which it made recommendations for its reform.”

Parliament has not intervened to change the law.

This court accepts as a correct application of the law to the circumstances of this case that the applicant has had his once and for all right to claim damages for the injuries which he sustained in the accident. He elected to litigate for those damages in 2008. He claimed those damages partly in Zimbabwe currency and partly in Botswana Pula. He received the awards he sought. He had a further opportunity to recast his case before the Supreme Court, in October 2010, when the appeal was heard, which was after dollarization. He chose not to do so, or to seek the leave of the Supreme Court to have the Zimbabwe dollar component of the judgment 'converted' to a currency that he could use. The Supreme Court, on application for its leave, would have had an opportunity for 'judge made law' to decide whether to remit the matter back to this court for evidence to be adduced on the question of the 'conversion' of the Zimbabwe dollar component of the judgment to a currency of the applicant's choice.

The applicant cannot now come back to this court seeking to change the judgment given to him. The applicant has already had his day in court he cannot now come for a second judgment arising out of the same circumstances as the first.

Res judicata is a rule that matters which have already been adjudicated upon between the same parties cannot be adjudicated again. It is a consequence of the 'once and for all rule'.

In Union Wine Ltd v Snell and Co Ltd 1990 (2) SA 189 (C)…, the Judge said:

“Although it is not clear from the cases whether the 'once and for all' rule is just a manifestation of the exceptio rei judicatae or whether it has a wider range than the latter, it is settled practice in South Africa that where a cause of action gives rise to more than one remedy a plaintiff who pursues one of those remedies and has obtained a judgment thereupon can be met with a plea of res judicata if he should institute a second action to pursue one of the other remedies.”

It is common cause that the parties before this court are the same as those before the court in 2008. It is common cause that the cause of action is the same and that damages are being sought pursuant to that cause of action. In the January 2008 judgment this court decided that the applicant had suffered damages which required to be redressed by the payment of Zimbabwe currency. This court accepts that all those issues are now res judicata and cannot be re-opened.

In the result, this court finds that it has no jurisdiction to grant the relief sought by the applicant, and that, no factual basis has been laid in the founding affidavit to justify granting the relief sought. The court is functus officio, the damages which the applicant seeks to be 'converted' to another currency now, were assessed and awarded in 2008. Any attempt to re-assess the award made in 2008 now, even if such assessment involves the calculation of the value of the damages in a different currency, would amount to changing the nature of the judgment given in 2008, a power which is only available to a superior court on appeal.

The matter cannot properly be determined by the improper use of this court's inherent jurisdiction.

This court's inherent jurisdiction does not cloak it with power to re-determine issues between the same parties which have already been conclusively determined. It may only do so on limited grounds where it is directed to do so by a higher court, the Supreme Court, and on very specific directions. There being no such direction from the Supreme Court, to this court, it is trite that the issues between the parties are res judicata.

This court has no jurisdiction to exercise the same principles of social justice and equity as the Labour Court, and any attempt to rely on labour matters, as the basis for inviting this court to exercise powers that are specific to and pertinent to the Labour Court will find no truck with this court.

In the circumstances of this case, where 'accident damages' were assessed and awarded as special damages and general damages, under the law of delict, it is my view that, there is no factual or legal basis in the papers filed of record, on which this court can 'convert' a 2008 judgment made in Zimbabwe currency to United States dollars.

Despite this finding, this court respectfully declines to exercise its discretion and grant punitive costs against the applicant as advocated for by counsel for the respondent.

Accordingly, the application is dismissed with costs on an ordinary scale.

This matter has trudged a long and tortuous journey.

The applicants are former employees of the respondent who were charged with misconduct and dismissed in 2005 following disciplinary processes. The applicants challenged their dismissal right up to the Labour Court in case number LC/H15/06. The Labour Court found for the applicants on 5 July 2007 and ordered their reinstatement, alternatively, payment of damages in lieu of reinstatement. The respondent opted to pay damages, caused their quantification on 10 December 2008 equivalent to 5 years salary using the cut off date of 5 July 2007 and tendered them to the applicants.

The tender, dated 11 February 2009 from the respondent's legal practitioners addressed to the applicants' erstwhile legal practitioners, Mwonzora & Associates, reads:

“RE: L MAWERE AND OTHERS v FLEXMAIL: QUANTIFICATION OF DAMAGES

In line with the judgment of the Labour Court handed down on 10 December 2008, please find herewith our client's cheque in the sum of $12,594=77 (revalued) in full settlement of the amounts due to your clients. A copy of the schedule as to how the various figures were arrived at is attached hereto.

You will note from the computation that the amounts have been revalued and inflation adjusted to February 2009.

The matter is accordingly closed…,.”

The applicants, through their then legal practitioners mentioned above rejected the tender and returned the cheque in question. The attempt at payment was tendered after breakdown of quantification negotiations. The primary reason for rejecting the tender was that the respondent attempted to pay the damages in Zimbabwe dollars in February 2009 when the currency had become moribund.

In their amended draft order the applicants are seeking a declaratory order in the following terms:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States Dollars using the initial United States Dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.

2. That the respondent pay the costs of suit.”

The main thrust of the applicants' argument, as gleaned from the founding affidavit and heads of argument, is as follows:

The applicants have approached this court, since it is the only court with inherent jurisdiction, seeking a declaratur that the principle of currency nominalism has no place in Labour Law (a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. Further, they seek a declaration to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is in an amount, currency, and quantity that achieves fairness as required by the Labour Act. The applicants further seek an order compelling the respondent to pay damages in United States dollars using the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency i.e. in February 2009. A successful appellant, so the argument went, should have a discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him/her/ it for the loss as well as fulfil the objectives of the Labour Act.

Interpreting the order of the Labour Court to mean payment in Zimbabwe dollars would amount to making the order a brutum fulmen because the Zimbabwe dollar, by the time of the tender, had became de facto valueless and useless, this would amount to non-payment thereby reducing court orders into empty judgments which is both unfair and against public policy.

The respondent's opposition was premised on the following main planks:

1. The matter is res judicata in that the Labour Court handed down judgment in case number LC/H/15/06 ordering the respondent to either reinstate the applicants or pay damages in lieu thereof. Following quantification of such damages, the amount due and payable was duly remitted to the applicants. In the event, this application disguised as an “application for a declaratory order” is merely meant to deal with the same issues which were concluded by the Labour Court.

2. The issue brought before this court is an employment/labour issue and by virtue of section 89(6) of the Labour Act [Chapter 28:01], the jurisdiction of this court is ousted.

3. What the applicants are asking this court to do is to:

3.1 Ignore the salaries payable to the applicants as at 5 July 2007 when an order of reinstatement was made by the Labour Court.

3.2 Depart from the current position of law and order payment of damages based on a date after the order of reinstatement was made.

3.3 Ignore the lawful currency that governed the contractual relationship between the parties as at 5 July 2007 (which required payment of salaries in Zimbabwe dollars) and set aside that trite position to enable the applicants to be paid afresh damages in lieu of reinstatement in US dollars. This is despite the fact that, as at 5 July 2007, the applicants' employment contracts entitled them to remuneration in Zimbabwe dollars and not in US dollars sought by the applicants.

4. The issues raised by the applicants have been dealt with by the courts on many occasions and are not unique to the applicants.

I am mindful of the fact that what the applicants are inviting this court to do, as submitted by counsel for the respondent, boils down to two pertinent issues, viz:

1. To do that which Parliament should, i.e. to make law by repealing the common law principle of currency nominalism; and

2. To “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension. See Redstar Wholesalers v E Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi 2000 (1) ZLR 325 (S).

Points 3 and 4 of the respondent's opposition cited above are interwoven with point 2 cited immediately above so I shall deal with them pari passu…,. First, let me deal with points one and two of that opposition quoted above. They allude to the issue of res judicata and ousting of this court's jurisdiction by virtue of section 89(6) of the Labour Act.

As regards the issue of res judicata, I have not been persuaded that it is applicable in the instant case.

In order to successfully ground such a defence, the litigant raising it must show that the dispute has been conclusively settled on the merits by a court of competent jurisdiction and that the two actions are between the same parties, concerning the same subject matter founded on the same cause of complaint. See Gwaze v National Railways of Zimbabwe 2002 (1) ZLR 679.

The original dispute before the Labour Court was concerned with the lawfulness or otherwise of the applicants' dismissal and the quantum of damages payable in lieu of reinstatement. That court did not deal with the issue of the form of currency of payment - which is the gravamen of the present application.

That issue only arose following the introduction of the multi-currency regime in January/February 2009 – well after the Labour Court had already handed down its judgment which was silent on the currency to be used thereby providing the basis of discretion being asserted by the applicants. The present application seeks not to reverse, amend or modify the order that the applicants be paid five years salary as damages for the unlawful dismissal, but simply seeks a declaratory order that in view of the introduction of the multicurrency and the judicial and State recognition of the de facto redundancy of the Zimbabwe dollar, a successful litigant may choose to be paid in any applicable foreign currency in the country and that payment in a moribund currency is not an effective fulfilment of the court's order.

The Labour Court, not being endowed with inherent jurisdiction to make such a declaration, it cannot be said that the dispute was dealt with on the merits let alone conclusively settled.

The applicant's application is for rescission of a default judgment which was granted by MANGOTA J on 4 February 2015 in chambers. The application is being made in terms of Rule 449 although on the face of the application the applicant indicated that the application was being made in terms of Rule 249. Rule 249 deals with applications involving minors and persons under disability.

In case number HC9133/14 the applicant filed an application against the three respondents in this court. After the respondents had filed their opposing papers the applicant did not take any action. This prompted the first respondent to make a chamber application, under case number HC271/15, for the dismissal of the application for want of prosecution. On 4 February 2015, MANGOTA J granted the chamber application. MANGOTA J granted the judgment in default because although the applicant had opposed the first respondent's application for dismissal of his application for want of prosecution the opposing papers had not found their way into the file.

When it later came to the attention of the applicant that a default judgment had been granted against him dismissing his application for want of prosecution his legal practitioner then wrote a letter to Judge MANGOTA on 18 February 2015 asking for the rescission of the default judgment. Attached to the letter was the applicant's Notice of Opposition in issue. The legal practitioner wanted the judgment rescinded in terms of Rule 449 stating that they had filed opposing papers on 28 January 2015 before the default judgment was granted on 4 February 2015. It was averred that the default judgment had been issued erroneously.

In response to the letter, MANGOTA J wrote a judgment under judgment number HH199-15 which judgment was delivered on 24 February 2015. He stated that instead of asking for rescission of judgment in terms of Rule 449 by way of a letter, the applicant ought to have made a proper application on notice to the other affected parties.

It is this judgment by MANGOTA J which prompted the making of the present court application by the applicant.

It is only the first and the fourth respondents who opposed this application. The second and third respondents did not file any opposing papers.

The first and the fourth respondents raised two (2) preliminary points to the application;

(a) The first one is that the application is bad at law because it is being made in terms of Rule 249 yet Rule 249 deals with applications involving persons with disability and minors.

Counsel for the applicant explained that he had made an error by stating that the application was being made in terms of Rule 249 instead of Rule 449. It is clear that this was just an error which was made on the top cover of the application otherwise the application itself makes it clear that the application is being made in terms of Rule 449. The error is not fatally defective.

(b) The second preliminary point is that the order that is being sought by the applicant was dismissed by this court, by MANGOTA J, in judgment no. HH199-15 which was handed down on 24 February 2015.

These two (2) respondents argued that, as a result, the matter is now res judicata and this court is now functus officio. They argued that the proper procedure for the respondent to follow is to appeal against the judgment of MANGOTA J.

The applicant's legal practitioner argued that MANGOTA J did not make a decision on the merits of the request to rescind the judgment in terms of Rule 449 having stated that a proper court application done on notice to all the other interested parties ought to have been made. He argued that MANGOTA J did not deal with the merits of the request because he stated that the matter had been placed before him improperly. He further argued that, as a result, this matter was not res judicata.

Looking at the judgment of MANGOTA J of 24 February 2015 I am inclined to agree with the first and fourth respondents that MANGOTA J made a determination on the applicant's request for the default judgment to be rescinded in terms of Rule 449. Although MANGOTA J indicated in his judgment that the applicant ought to have made a proper court application, on notice to the respondents, he went on to make a determination on the merits of the request. I arrive at this conclusion because from page 3 in paragraph 4 up to the end of the judgment he said;

“In his opposing papers, the first respondent admitted paragraphs A, B1, B2 and B4 of the applicant's affidavit. He also admitted that he filed his answering affidavit out of time after which he proceeded to chronicle his reasons for the delay. He apologised for the late filing of his answering affidavit and he, quite correctly, stated that he remained liable for the payment of the applicant's costs.

For some unknown and unexplained reasons, the first respondent did not file any answering affidavit. He, instead, filed his Heads of Argument under case number HC9113/14. He filed those on 14 February 2014. As at the time of this judgment, no answering affidavit of the first respondent was filed of record.

The court has considered the merits and demerits of the matter which the first respondent placed before it through the letter. It is satisfied that the first respondent's case is devoid of any merits. The request which he made in the letter is not sustainable.

In the resultant, it is ordered that the order which the court granted to the applicant on 4 February 2015, under case number HC271/15, be and is hereby not corrected, rescinded, varied or set aside.”

These cited paragraphs speak for themselves that MANGOTA J made a determination on the request to rescind the default judgment. If he had not made a determination these paragraphs would not have appeared in his judgment. He would not have made a pronouncement that the order he granted on 4 February 2015 was not corrected, rescinded, varied or set aside. In my view, he would have simply ended by stating that he was declining to determine the request for rescission on the basis that it had been improperly made as it had been made in the form of a letter instead of a court application and that it had been done without notice to the affected parties.

MANGOTA J, by saying, in his judgment, that, “the request which the applicant made in the letter is not sustainable,” means that he considered the contents of the letter and the opposing affidavit that had been attached to the letter and decided that they were devoid of any merit. If he had not made a determination he would not even have considered the contents of the letter and the opposing affidavit. He would not have commented on them at all.

It is for these reasons that I agree with the first and fourth respondents that MANGOTA J made a determination on the merits of the matter and refused to rescind the default judgment he granted on 4 February 2015. This renders the matter res judicata and makes this court functus officio.

As correctly argued by the first and fourth respondents, it matters not whether or not the determination by MANGOTA J was wrong. The correct procedure for the applicant to take is to make an appeal if he is not happy with the decision. If I make a determination on the current application I will be reviewing MANGOTA J's judgment. I have no such powers as this court cannot review its own work.

I will not award costs on a legal practitioner-client scale against the applicant for I see no justification for doing so.

In the result it is ordered that:

1. The applicant's application be and is hereby dismissed.

2. The applicant be and is hereby ordered to pay costs to the first and fourth respondents on the ordinary scale.

While our legal system allows unrepresented litigants to approach the High Court in civil matters, this case brings into focus the need, in some cases which involve intricate issues of law, for such litigants to be legally represented.

My spirited attempts to advise the applicant to seek legal representation, even through the Registrar, were spurned by the applicant who insisted that he had the experience, knowledge, and confidence to argue his case.

My misgivings arose after I had, with the patience of the biblical Job, ploughed through the applicant's founding affidavit, answering affidavit, and heads of argument but still was unable to appreciate the applicant's case.

The relief sought by the applicant is couched in the following terms:

“IT IS ORDERED THAT;

1. The Resolutions signed on the 1^st of December 2011 by the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Respondents are null and void and have no effect at all.

2. The Resolution signed on 22^nd April 2012 by the 1^st and 8^th Respondents is null and void and has no effect at all.

3. The Constitution used to sit for the meeting of 2^nd November 2011 and 22 April 2012 is null and void and has no effect at all.

4. The 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents pay the costs of the proceedings.”

The application is opposed by all the respondents except the seventh respondent who apparently was not served.

The manner in which the relief sought is couched is so vague that one has to plough through numerous documents filed in order to find out what these Resolutions relate to. To compound the problem, the applicant does not state in what capacities all the nine respondents are being cited.

TOC H Zimbabwe, from the reading of the papers filed, is a non-governmental welfare organization. The applicant, as per his founding affidavit, is a member of TOC H Zimbabwe since 1994 although his membership is currently being disputed by the respondents (respondents hereinafter refer to all but the seventh respondent).

The respondents are members of TOC H Zimbabwe although the positions they hold in that organization are not specified by the applicant.

It is extremely difficult to summarise the facts giving rise to this application. This is so because the founding affidavit does not seek to identify each and every respondent and in what capacity each respondent is joined in this matter. Further, the founding affidavit is vague and embarrassing as it is long, winding, but still not clear in what the applicant's grievances are and what the applicant wants this court to do for him.

Put simply, the cause of action is unclear.

Let me briefly illustrate the point made above by referring to the founding affidavit. The founding affidavit comprises of 8 pages (page 4–11) or 30 paragraphs. Attached to the founding affidavit are Annexures A to V (page 13–55). The answering affidavit covers 10 pages (page 62–72) and further Annexures A to N (page 72–90) are attached. This is clearly improper for the applicant to attach new annexures to the answering affidavit.

In his founding affidavit, the applicant said he was co-opted as a member of TOC H Zimbabwe Executive Committee in July 2010 until he was barred on 2 November 2011 as per the minutes of the meeting held on that date. At this meeting it was resolved that the TOC H Zimbabwe motor vehicle which was registered in the applicant's name, after being purchased in South Africa, should, with immediate effect, be transferred to TOC H Zimbabwe and that the applicant should hand over the said motor vehicle. At the same meeting, it was also resolved that all extension work of TOC H Zimbabwe be suspended with immediate effect and that the applicant and others involved in this outreach and extension voluntary work should be advised accordingly.

As per Annexures C and D, the applicant, on 12 February 2011, attended, as a member, a meeting for TOC H Zimbabwe Management Committee, and, on 24 September 2011, as a member of the National Executive Committee. The applicant then refers to a meeting he said he was not invited on 25 September 2011 by the National Executive Committee but paragraphs 7 and 8 of the founding affidavit are difficult to comprehend just like paragraph 9. The applicant said he took issue with the cancellation of the Management Committee meeting scheduled for 29 October 2011 and that this was the genesis of his problems.

The applicant does not explain the nature of these problems, but, instead, refers to Annexure H in which TOC H Zimbabwe National Chairman, the seventh respondent, Rodreck Phiri, resigned due to personal commitments. On 16 November 2011, the applicant said he received a letter written by the second respondent terminating the applicant's and others' services as extension workers and for the applicant to surrender the motor vehicle registered in his name but belonging to TOC H Zimbabwe.

According to the applicant, this directive violated Article 5E(viii) (see Annexure E page 21 being a copy of TOC H Zimbabwe Constitution). The applicant does not explain how that provision infringes the Constitution or the applicant's rights.

As per Annexures L and M, the applicant protested as regards the directive in the letter dated 16 November 2011. According to the applicant this invited further harassment and psychological abuse. The applicant does not explain who harassed him and in what way. In May 2012 the applicant said he was arraigned before a Harare Magistrate on charges he did not specify but insists they were trumped up charges. Nonetheless, the applicant was convicted and he alleges he has appealed to this court.

The applicant said on 14 July 2012 the second respondent, in HC6417/12, filed an urgent chamber application seeking an order to compel the applicant to surrender the said motor vehicle to TOC H Zimbabwe. The applicant alleges the second respondent used forged documents in support of this application, being annexure A and the National Council Resolution (Annexure N). Apparently this matter was decided by my sister DUBE J against the applicant who was ordered to surrender the motor vehicle to TOC H Zimbabwe.

The applicant said he decided not to appeal against the order granted by DUBE J but to challenge it through this application.

I do not understand how he intends to do that.

As per the founding affidavit, the applicant refers to another TOC H Zimbabwe Constitution, Annexure U…,. It is not clear what issue the applicant raises in relation to this Constitution except to allege that TOC H Zimbabwe is a Private Voluntary Organisation and that it is a juristic person. The applicant further alleges that the first respondent is in contempt of the Constitution as he had breached section 21(i)(a) to (k) of the Private Voluntary Organisations Act [Chapter 17:05]. This provision however deals with the suspension of Executive Committee members by the Minister responsible for administering that Act.

The applicant alleges that the first respondent's term of office expired on 21 November 2011.

In the concluding paragraphs of the founding affidavit the applicant alleges, in a general way, that his rights have been violated (see paragraph 29). It is not clear in what specific manner his rights have been trampled upon. Instead, the applicant said this is the case because the respondents have used forged documents to persecute him and that they are not ascribing to the aims and objects of TOC H Zimbabwe.

As already explained, it is extremely difficult to appreciate the cause of action in this matter. The story narrated in the founding affidavit, while full of sound and fury, clearly signifies nothing which is legally discernable to found a cause of action. It is not therefore surprising that counsel for the respondents has taken a number of points in limine which she believed, if upheld, disposes of this matter.

I now turn to the points in limine raised. The respondents have raised the following points in limine;

(a) That there are material dispute of facts in the application.

(b) The non joinder of TOC H Zimbabwe in these proceedings.

(c) The applicant's locus standi in the matter.

(d) The incompetence of the relief sought in paragraph 2 of the draft order....,.

The Incompetence of the Relief Sought in Paragraph 2 of the draft order

The National Council Resolution passed on 22 April 2012 (Annexure R…,.) authorizes Ponds Phiri, the Acting National Chair of TOC H Zimbabwe, to represent TOC H Zimbabwe in any litigation and to sign any documents on behalf of TOC H Zimbabwe relating to litigation issues or matters.

This is the resolution the applicant seeks, in paragraph 2 of the draft order, to be declared null and void and to be of no effect of law.

This relief sought is incompetent.

The applicant concedes that the said resolution was recognized by this court in a matter dealt with by DUBE J in HC7180/12 wherein the second respondent successfully represented TOC H Zimbabwe in an application against the applicant for transfer of a motor vehicle. The plea of res judicata is available to the respondents. See Wolfenden v Jackson 1985 (2) ZLR 313…,. It is therefore futile for the applicant to seek to challenge the same resolution in these proceedings when the applicant did not appeal against the judgment by my sister DUBE J.

The relief sought by the applicant, in paragraph 2 of the draft order, is incompetent.