MUTEMA J: In the instant case the applicant seeks the
following order as per the draft order:
"It is ordered
that:
1. The
cancellation with effect from 20 August 2010 of the lease agreement entered
into between the applicant and the first respondent be and is hereby confirmed.
2. Within
10 (ten) days of the service of the order on her, the first respondent and all
those claiming through her shall vacate with their belongings stand 1089 Tynwald,
Harare.
3. Within
the same 10 days of the service of the order on her the first respondent shall
at her expense demolish any structures and remove the rubble thereof of those
structures which she may have erected on the property and did so without the
approval of the second respondent.
4. Failing
compliance the leave be and is hereby granted to the applicant to demolish the
said structures and remove the rubble the cost of which the applicant shall
recover from the first respondent.
5. The
first respondent shall bear the costs of this application".
This application was filed on 29
April, 2011.
Apparently,
prior to the current application being lodged, on 8 July, 2010 in the
magistrates' court under case number 6599/10, the applicant and other
co-respondents had lost an application for an interdict by the first respondent
against them. The applicant and the other co-respondents had subsequently
appealed to this court against the magistrates' court judgment under case
number CA 484/10. When this application first came before me on 29 September,
2011 I queried the propriety of it being heard when the appeal was still
pending since this had the potential of achieving two conflicting outcomes. Mr Katsande had the good sense of
withdrawing that appeal.
On 10 November,
2011 Mr Simango raised a pertinent point
in limine viz, that of lis alibi pendens. His contention was
that the same matter is pending before this court under case number HC 4826/10.
Apparently what the applicant had done was that apart from lodging the appeal
alluded to supra, it had also
instituted contempt of court proceedings against the first respondent in case
number HC 4826/10 premised on the first respondent's continuance of
construction activities of the stand in question without leave to execute
pending the appeal against the magistrate's judgment alluded to above.
The draft order
in HC 4826/10 is couched as follows:
"It is ordered
that:
(a) The
respondent be and is hereby found to be in contempt of court in that having
been served with the Notice of Appeal in CA 484/10 dated 9 July 2010 against
the judgment of the learned magistrate in case 6599/10 dated 8 July 2010,
without sanction of the court she seized and took occupation of the disputed
property wilfully and intentionally defying the suspension of the magistrates'
court judgment by virtue of the appeal to the High Court.
(b) The
respondent be and is hereby ordered to be committed to prison for a period of
30 days.
(c) The
warrant of committal to prison will be suspended on condition that within 24
(twenty four) hours of the service of the order on her, she and all those
claiming through her shall vacate with their belongings stand 1089 Tynwald,
Harare.
(d) The
respondent shall pay the costs of his (sic) application."
Opposing the
point in limine Mr Katsande advised that HC 4826/10 was
heard by CHIWESHE JP and the judgment therein was (is) still pending. He argued
that the pre-requisites for lis alibi
pendens are similar to those for res
judicata, namely that proceedings in the other court must be between the
same parties, that the same question must arise and that there must be the same
cause. He further argued that the appeal has since been withdrawn and that the
cause in case HC 4826/10 was contempt of court and the relief sought was
committal to prison for 30 days suspended on condition the first respondent
desisted from occupying the property pending appeal. In casu, so the argument went, the relief sought is different, viz
cancellation of the lease and her eviction. Eviction and contempt are not
synonymous. For this peroration, he relied on the case of Wolfenden v Jackson 1985
(2) ZLR 313 (SC) at 316 C.
Herbstein and
van Winsen in The Civil Practice of the
Superior Courts in South Africa 3rd ed at pp 269-270 the learned
authors say about the defence of lis
alibi pendens:
"If
an action is already pending between the parties and the plaintiff therein
brings another action against the same defendant on the same cause of action
and in respect of the same subject matter, whether in the same or a different
court, it is open to such defendant to take the objection of lis pendens, i.e. another action
respecting the identical subject matter has already been instituted, whereupon
the court, in its discretion, may stay the second action pending the decision
in the first action."
The discretion
is exercised for the sake of equity and convenience: Mhungu v Mtindi 1986 (2)
ZLR 171 (SC).
Regarding the
same principle, the case of Towers v Chitapa 1996 (2) ZLR 261 (HC) is also apposite.
In that case it was held that in order for the matter to be encompassed under
the defence of res judicata, the
proceedings relied upon must have been between the same parties or their
privies and the same issue must arise in the subsequent proceedings that were
decided upon in the previous proceedings. This latter requirement was now
interpreted expansively so as to permit the possibility of the defence being
successfully invoked in respect of an issue determined as part of the ratio decidendi. Although the defendant
was not a party to the previous litigation, she was asserting a right derived
through the party who was the defendant in the previous litigation. Although
the same cause of action was not relied on in the previous proceedings, relief of
the same type was nevertheless sought in both cases. Additionally, despite the
differences in the cause of action in the two cases, there was still an
identity of question arising. The doctrine of res judicata therefore applied in the present case.
Applying the
foregoing legal principles to the present case it goes without quarrel that in
both suits, viz HC 4826/10 and HC 2877/11 the parties are the same - both the
present applicant and the first respondent do feature as the main actors. The
facts in the Wolfenden case supra are distinguishable from the
present litigation. Therein the maintenance court had found that the respondent
was not the father of the minor child hence was not liable to maintain it.
While a subsequent suit was fatal to the appellant's claim for out of pocket
expenses in consequence of the seduction (since the respondent was not
responsible for her pregnancy) it was still open to her to claim general
damages for seduction since the issue of whether or not the respondent had had
sexual intercourse with her and whether or not she was a virgin at the time was
not decided by the maintenance court.
Although there
may be differences between contempt of court and cancellation of a lease in the
two litigations relief of the same type is nevertheless being sought in both
cases and it is the main thrust of what the applicant desires, viz vacation of
stand 1089 Tynwald, Harare by the first respondent and all those claiming
occupation through her. There is therefore an identity of question arising in
both suits despite the differences in causes of action and other ancillary
reliefs being sought.
It behoves me to
utter some strictures concerning the applicant's improper conduct of embarking
upon a multiplicity of suits regarding the same subject matter. There was the
appeal against the interdict against it by the magistrate's court, the
application for the contempt of court as well as the present one for
cancellation of the lease and eviction which were all current at some stage.
This is undesirable for not only does it clog the courts unnecessarily but has
the potential of yielding conflicting and confusing results to the detriment of
the smooth administration of justice.
In order to
avoid or curtail this multiplicity of actions and in the exercise of my
discretion for the sake of equity and convenience the present application is
hereby stayed pending the outcome of the decision in case HC 4826/10. In view
of the applicant's improper conduct alluded to supra it is ordered to pay the first respondent's wasted costs.
F
M Katsande & Partners, applicant's legal
practitioners
Nyikadzino, Koworera & Associates, 1st
respondent's legal practitioners
