TAGU
J:
This
is an application for rescission of judgment in terms of Order 49
rule 449 subrule 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 propiss
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
HC 1292/12.
The
brief history of the matter is that the respondent issued summons
against the applicants claiming US$677,366.00 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 HC 2719/12. 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,
5th
ed, Vol 1 at p 598.
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) at 934 B-C; POSB
v Chimanikire
2005 (1) ZLR 285 at 288 E-G; Munemo
v Muswera
1987 (1) ZLR 20; Maparura
v Maparura
1988 (1) ZLR 234 (HC) and Stephen
Pasipanodya N.O
v Tracy
Ruwizhi & Another HH
82, 2009.
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 at 564.
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.
I
will now turn to deal with the issue of costs. The respondents
submitted that the present application amounts to a gross abuse of
legal process and ought to be sanctioned with an order of costs de
bonis propiss
against Tawanda Law Practice. They asked that the copy of the order
made by this honourable court be served on the Secretary of the Law
Society of Zimbabwe and that the Law Society should take such steps
as they may be required or directed by this Honourable Court in
accordance with the Law Society of Zimbabwe regulations and
guidelines.
See
Matamisa
v
Mutare
City Council
(AG Intervening) 1998 (2) ZLR 439.
Given
the number of blunders made by the applicants' counsels in this
matter, and if regard is heard to the judgment by MATHONSI J, I am
persuaded that this case deserves to be referred to the attention of
the Law Society of Zimbabwe, and that since it was clear from the
onset that the application is doomed to fail, and that the respondent
has been put to unnecessary cost of opposing this application and
filing heads of argument with no prospects of recovery of the costs
from the applicants, the applicants' lawyers be visited with costs
de
bonis propiss.
In
the result it is ordered as follows-
1.
The application for rescission of default judgment granted in case HC
1292/12 be and is hereby dismissed.
2.
Applicants' legal practitioners to pay costs de
bonis propiss.
3.
The copy of this order be and is hereby referred to the Secretary,
Law Society of Zimbabwe who will take such steps as they may be
required in accordance with the Law Society of Zimbabwe regulations.
C
Nhemwa and Associates,
applicants' legal practitioners
Kantor
and Immerman,
respondent's legal practitioners
