Res Judicata re: Judicial Officers Presiding Over the Same Parties on Continuum Issues Arising from Prior Litigation

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

The applicants were arraigned for trial before the first respondent, a Regional Magistrate sitting at Harare Magistrate's Court. The first respondent will, in this judgment, be referred to as the “magistrate”. The second respondent is the Attorney General of Zimbabwe. He is the prosecuting authority whose officer is prosecuting in the applicants' trial.

The applicants were, on 27 April 2010, arraigned before the magistrate to answer charges of contravening section 185(1)(b) of the Criminal Law (Codification and Reform Act) [Chapter 9:23]. They are alleged to have attempted to escape from Chikurubi Prison.

The case did not take off at the scheduled time. It was adjourned to 11:30am.

When it resumed, at 11:30am, counsel for the first, fourth, fifth, and sixth applicants, who had been in attendance when the case was adjourned to 11:30am, was now not in attendance. The first applicant sought a postponement because their legal practitioner was not in court.

The magistrate turned down the application, and ordered the first applicant to give his Defence Outline.

The fourth, fifth, and sixth applicants also applied for a postponement, on the grounds that their legal practitioner was not in attendance, and that they were staying in a cell without sufficient light and had not been able, for that reason, to prepare their Defence Outlines. They also alleged that prison officers had taken their court documents and only returned some of them.

Their applications for a postponement were, again, not granted. The magistrate ordered the applicants, who were all now not represented, to give their Defence Outlines.

Counsel representing the first, fourth, fifth, and sixth applicants, arrived when the first applicant was giving his Defence Outline.

He applied for the recusal of the magistrate because he had presided in the cases of S v Donald Tapera Gwekwerere and S v Assan Chikwanda, who were participants in the applicants' alleged attempted escape from prison. They pleaded guilty and were convicted by the magistrate who sentenced them to terms of imprisonment.

He submitted, that, the applicants reasonably believe that the magistrate's knowledge of their case, gained from his presiding over the Gwekwerere and Chikwanda cases, will make it impossible for him to impartially assess their evidence in view of the fact that Gwekwerere and Chikwanda will testify for the State in the applicants' trial.

The magistrate dismissed the applicants' application for recusal and ordered that the trial should proceed.

The applicants then filed this urgent application, seeking an order staying the proceedings before the magistrate pending their review by this court....,.

Appearance of bias due to the Magistrate's prior exposure to information on the applicants' case

The applicants' stronger ground for believing that they may not have a fair trial before the magistrate is based on his having presided over and convicted their alleged accomplices in the attempted escape from prison.

Counsel for the applicants' submitted, that, the magistrate presided over the applicants' accomplices' trial. Those accomplices were convicted on their own pleas for their participation in the applicants' alleged attempt to escape from prison. They were sentenced, and are now going to be called as State wittiness's against the applicants.

He submitted that this creates a reasonable appearance of bias as the magistrate is most likely to believe the accomplices when they testify that an attempt to escape from prison occurred, than to believe the applicants' if they were to say it did not.

Counsel for the second respondent submitted that the magistrate is a trained judicial officer who cannot be influenced by his being exposed to the facts of this case by his having previously handled the applicants' accomplices' trials which resulted in his convicting them on their own pleas. He submitted that the magistrate will be guided by rules of evidence.

It is common cause that the magistrate presided over the cases of S v Donald Tapera Gwekwerere and S v Assan Chikwanda, It is also common cause that the evidence of these convicted accomplices will be led at the applicants' trial. The magistrate convicted them after believing that their pleas of guilty confirmed their participation in the attempted escape from prison.

The case of the applicants will depend on whether or not the magistrate will believe the convicted accomplices when they say they were acting in common purpose with the applicants' when they executed their part in the attempted escape for which he has already convicted them.

The applicants perceive, that, the fact of the alleged attempted escape is established in the magistrate's mind by the information he obtained from presiding over Gwekwerere and Chikwanda's trials. They are apprehensive, that, he is unlikely to disbelieve Gwekwere and Chikwanda if they, in their testimonies, say there was an attempted escape, as he has already convicted them for their participation in it. That, if their apprehension is reasonable, will restrict them to denying having participated in the attempt to escape from prison.

This, in my view, demonstrates how the information on their case the magistrate already has will prejudice them if their trial is to be before the same magistrate.

The applicant's situation is different from the one which was in Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC where VAN DER WALT J…, held that:

“Accordingly, where a judge, during liquidation proceedings, finds that the respondent has committed breach of contract, and the question arises, in separate proceedings, between the same parties and in respect of the same facts, whether that breach was such that it constituted a repudiation of the contract in question, the determination of the judge in connection with the breach of contract per se is res judicata, and he is not obliged, by reason of possible bias, to recuse himself from the later proceedings, in which the only further question that arises is whether the breach amounted to repudiation.”

In Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC it was held that the fact that a judicial officer previously “made a decision about substantially the same dispute between the same parties and that he must therefore be biased when he presides over the same parties' dispute for the determination of a further issue arising from the one already decided is answered by the principle of res judicata putting that judicial officer in the same position as any other judicial officer.

In such a case, there would be no reason for the judicial officer to recuse himself, because once a matter is res judicata it cannot be decided again on the same issue. The decision made will stand whether or not the same judicial officer presides to determine an issue arising from its off shoot Therefore, the same judicial officer, or any other judicial officer of competent jurisdiction, can preside.

In Dancarl Diamonds (Pty) Ltd v Williams NO (Vize Toetredend) 2001 (4) SA 1123 NC the dispute which had been decided was between the same parties as those who were in the dispute to be decided. In this case, the dispute decided by the magistrate is between S v Gwekwerere and S v Chikwanda, while the one to be decided in the trial before the magistrate is the one between the State and the applicants. The two disputes are therefore not between the same parties.

The applicants' apprehension of bias cannot, therefore, be defeated by the principle of res judicata.

In this case, the issue of there having been an attempt to escape from prison is not res judicata between the applicants and the State. It has never been decided between them but will be one of the issues to be proved either way for the applicants' conviction or acquittal.

It is, however, a decided issue between the accomplice witnesses, the State, and the magistrate.

That is why it is inconceivable how the magistrate can be expected to properly assess Gwekwerere and Chikwanda's evidence in the applicants' trial when their participation in the attempted escape from prison has already been decided in their own trial.

The fear that he will be biased towards believing them is therefore real and must lead to his recusal.

There is no doubt in my mind that justice will not be seen to be done when a magistrate who has convicted the accomplice has to determine whether that accomplice is telling the truth when he comes before him as a witness to tell the same story - but now for the purpose of securing the unconvicted accomplices' conviction.

It is accepted that the magistrate is a trained judicial officer, and that there is a presumption of judicial impartiality in his favour. The presumption arises from his judicial oath of office that he will deliver justice without fear or favour. That cannot, however, convince the applicants to believe that he will dispassionately assess the evidence of witnesses he previously believed and convicted having accepted that they correctly confessed their part in the crime the applicants are facing.

In the case of Silwana & Anor v Magistrate, District of Piketberg & Anor 2003 (5) SA 597 (C), a magistrate who issued a search warrant for the accused, and, thereby, got prior information on the commission of the offence, could not be allowed to preside over the accused's trial. FOXCROFT J, commenting on the undesirability of a magistrate who issued the search warrant to preside over the same accused's trial…, said:

“An accused person in the position of the applicants would certainly have reason to fear that a magistrate might well remember what was said in the affidavit when the witness who testified in advance of the search warrant does not testify at the trial.

Dealing with the practical difficulties raised by the magistrate, it is, in my view, necessary for a magistrate in a different town to sign search warrants in situations like the present one. Alternatively, if a local magistrate has signed a search warrant, after seeing an affidavit of this kind, he or she should not sit in a case, and a magistrate should be brought from a neighbouring jurisdiction. In my view, there is merit in the review brought to this court and there will be an order in terms of para 1 of the notice of motion.”

What is of paramount importance, in this case, is the applicants' apprehension of bias based on their knowledge that the magistrate presided over the facts of the case they are facing with the only difference being that he presided over their alleged accomplices' case.

Can the applicants' apprehension be said to be unreasonable?

I do not think so, especially when consideration is given to the convicted accomplices' coming to testify before the magistrate who convicted them in their own trials.

The river of justice must be allowed to flow clear and clean. It should not be turned muddy by reasonable perceptions of bias emanating from a judicial officer's insistence to preside over cases where his or her presiding does not help in ensuring that justice is seen to be done.

The appearance of justice must not be blurred by appearances of what may, to the applicants and the general public, reasonably seem to be an unfair trial. This should be avoided especially at a court where other judicial officers can preside over the case without raising perceptions of bias.

The words of advice quoted by HARMS JA…, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) must constantly remind us that:

“It must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

As already said, the test is on the reasonable litigant's reasonable fear that he will not have a fair trial.

In this case, the applicants are, at their trial, going to face their alleged convicted accomplices. They are to do so before the magistrate to whom the accomplices have already confessed their participation in the alleged attempted escape. The magistrate has already convicted the accomplices on their confessed participation.

Can he be expected to preside with a mind open to persuasion by evidence or submissions by counsel as to whether or not there was an attempt to escape from prison when he has already convicted the accomplices for that offence?

This means all the applicants can say is that they were not involved. It will be difficult for them to say there was no attempt to escape from prison.

In their minds, they must be finding it difficult to believe that the magistrate who has already convicted Gwekwerere and Chikwanda for that offence would believe them if they were to proffer a defence that there was no attempt to escape from prison.

The applicant's further apprehension is on the magistrate not believing them, and, instead, believing those he has already convicted.

Their apprehension is therefore based on facts. It is reasonable. They must, if the record of proceedings to be reviewed supports their allegations, be given a chance to a fair trial before a magistrate who has not already dealt with the facts of the allegations they are facing.

I must conclude by echoing CAMERON AJ's words of guidance in the case of South African Commercial Catering & Allied Workers Union & Ors v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC)…, where he said:

“Courts considering recusal applications asserting a reasonable apprehension of bias must accordingly give consideration to two contending factors:

On the one hand, it is vital to the integrity of our courts and the independence of judges and magistrates that ill-founded and misdirected challenges to the composition of a Bench be discouraged. On the other, the courts' very vulnerability serves to underscore the pre-eminent value to be placed on public confidence in impartial adjudication. In striking the correct balance, it is 'as wrong to yield to a tenuous or frivolous objection' as it is 'to ignore an objection of substance'”.

I am therefore satisfied that the applicants' application for the review of the magistrate's refusal to recuse himself has prospects of success.

The applicants' application for interim relief is granted.

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

1. That, pending the hearing of this matter on review, the applicants be and are hereby granted stay of the criminal proceedings before the first respondent.

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI
Ruled By: MALABA DCJ

This is a chamber application for leave to appeal to the Constitutional Court, from a decision of the Supreme Court in terms of Rule 32(2) of the Constitutional Court Rules SI61 of 2016.

The Rule provides that “a litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter, can apply to the Constitutional Court for leave to appeal against such decision.”

In 2008, the respondent sued the applicant for damages arising out of a motor vehicle accident that occurred on 21 December 1999 between the respondent and a driver employed by the applicant. On 23 January 2008, the High Court found the applicant vicariously liable for the accident and awarded the respondent various heads of general and special damages.

The damages were expressed in Zimbabwe currency and Botswana currency.

The applicant appealed to the Supreme Court against the judgment. It was partly successful in that the quantum of damages in Botswana currency were reduced on some of the heads. The applicant abandoned the appeal against the damages expressed in Zimbabwe currency.

It subsequently paid the damages expressed in Botswana currency to the respondent. What remained unpaid were various awards of damages expressed in Zimbabwe currency.

In the intervening period, between the hearing of the appeal and the handing down of the decision by the Supreme Court, Zimbabwe adopted a basket of foreign currencies to be used in the country. The exercise was generally referred to as dollarization.

The dollarization rendered the Zimbabwe currency valueless.

The respondent was left in possession of a judgment he could not enforce to get the value of the damages. He made an application to the High Court for an order converting the Zimbabwe dollar denomination of the damages to the equivalent United States dollars.

The High Court declined to hear the application on two jurisdictional grounds:

(i) Firstly, it held that it was functus officio as it had already decided the main matter and given a final and definitive judgment.

(ii) The High Court also held that the matter was res judicata.

The respondent appealed to the Supreme Court which held, that, the matter relating to the conversion of currency in which the damages were expressed, placed before the High Court for determination, was a new question different from the main matter which related to assessment of the damages.

The Supreme Court held, that, the application had not been meant to interfere with the substance of the award as the High Court had not been asked to revisit its judgment.

The court had been asked to take judicial notice of the fact, that, the currency in which the damages had been denominated had become valueless and that foreign currency had officially been adopted in the country as the legal tender. The High Court had been asked to order the conversion of the moribund Zimbabwe currency to United States dollars.

The Supreme Court held, that, the High Court erred in the application of the principles of res judicata and functus officio to the facts of the case.

The judgment of the High Court was set aside and the matter remitted to that court for hearing and determination of the application.

It is in respect of the judgment of the Supreme Court that the applicant seeks leave to appeal to the Constitutional Court.

The requirements for leave to appeal to the Constitutional Court, from a subordinate court, are these:

(a) Firstly, there must be a constitutional matter for determination by the Constitutional Court on appeal.

The reason is that, in terms of section 167(1) of the Constitution, the Constitutional Court is the highest court in all constitutional matters and decides only constitutional matters and issues connected with decisions on constitutional matters.

Rule 32(2) of the Constitutional Court Rules makes it clear, that, only a litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only has a right to apply for leave to appeal to the Constitutional Court….,.

Rule 32(3)(c) of the Constitutional Court Rules requires that the application for leave to appeal should contain or have attached to it “a statement setting out clearly and concisely the constitutional matter raised in the decision.”

In other words, there must have been a constitutional matter raised in the subordinate court by the determination of which the dispute between the parties was resolved by that court.

If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court as a litigant cannot allege that the subordinate court misdirected itself in respect of matter it was never called upon to decide for the purposes of the resolution of the dispute between the parties: see Nyamande & Anor v Zuva Petroleum CC08-15.

Under section 332 of the Constitution, a constitutional matter is one in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.

Absence of an issue raised in the proceedings in the subordinate court requiring the interpretation, protection, or enforcement of a provision of the Constitution in its hearing and determination would invariably be sufficient evidence of the fact that no constitutional matter arose in the subordinate court.

(b) Secondly, the applicant must show the existence of prospects of success for leave to be granted.

In Nehawu v University of Cape Town 2003 (2) BCLR 154 (CC), the Constitutional Court of South Africa held, that, the applicant must show that there are reasonable prospects that the Constitutional Court “will reverse or materially alter the judgment if permission to bring the appeal is given.”

In S v Basson [2004] ZACC 13, the Constitutional Court of South Africa held, at paragraph 17 of the judgment, that:

“…, in considering an application for leave to appeal against a decision of the Supreme Court of Appeal…, the first question that has to be answered, therefore, is whether the application concerns a constitutional matter.”

Counsel for the appellant argued, that, the Supreme Court allowed the appeal upon a construction of section 176 of the Constitution, which gives the High Court inherent power to protect and regulate its own process, and to develop the common law taking into account the interests of justice.

The contention was that the Supreme Court based its decision on the questions for determination on the interpretation of the provisions of section 176 of the Constitution which it applied in the context of seeking to develop the common law principles of functus officio and res judicata.

The effect of the argument was that the Supreme Court misapplied the provisions of section 176 of the Constitution.

According to counsel for the appellant, it was in the public interest that the Constitutional Court pronounces on the meaning of section 176 of the Constitution to assist subordinate courts appreciate the limits to the exercise of the power of inherent jurisdiction in the development of common law.

The principles to be applied in the determination of the question whether the Supreme Court determined a constitutional matter are clear.

It is not one of those principles that the court against whose judgment leave to appeal is sought should have referred to a provision of the Constitution. There ought to have been a need for the subordinate court to interpret, protect, or enforce the Constitution in the resolution of the issue or issues raised by the parties.

The constitutional question must have been properly raised in the court below.

Thus, the issue must be presented before the court of first instance and raised again at or at least be passed upon by the Supreme Court, if one was taken.

In other words, the decision on the constitutional matter must have been so inextricably linked to the disposition of the controversy between the parties that the success or failure of the relief sought was dependent on it.

A KARGER, in his book, Powers of the New York Court of Appeals, 3Ed…, states the principle thus:

“The constitutional question must be both directly involved in the Appellate Division order and substantial. The appellant has the burden of establishing the direct involvement of the constitutional question.”

The applicant has not discharged the onus.

Whilst it is not disputed that the Supreme Court discussed, in its judgment, the import of section 176 of the Constitution, with regard the question whether the High Court could use the section to extend the common law principles of functus officio and res judicata beyond their accepted limits, the court's decision on the issues before it was not dependent on the interpretation and application of the provisions of the section.

The court had already decided the issues before it by analysing the common law principles of functus officio and res judicata and applying them to the facts.

The question before the Supreme Court was whether, in failing to identify and address the issue the respondent had asked it to determine, the High Court placed itself in a situation where it ended up declining jurisdiction on the basis of a misapplication of the common law principles of functus officio and res judicata.

The High Court had failed to appreciate the fact, that, the question it was required to determine was whether it had power to make an order of conversion of the moribund Zimbabwe currency in which the damages were expressed into United States dollars to give the damages realistic monetary value.

The determination of the question did not require the Supreme Court to interpret and apply section 176 of the Constitution.

It was not a constitutional matter.

In deciding whether the High Court had jurisdiction to hear the application, the Supreme Court observed at pp4 and 5 of the cyclostyled judgment:

“It is apparent from what the court a quo said, that, it correctly states the common law principle of res judicata but erroneously mistook the appellant's application for conversion of the damages he was awarded in 2008 as an application for a remedy he should have included in the case the High Court decided in 2008….,.

He could not, in 2008, have sought payment in American dollars for the injuries he sustained, as, at that time, the Zimbabwean dollar was the only legally usable currency in Zimbabwe….,.

The dispute arising from dollarization only arose when the appellant and the respondent disagreed on how the appellant was to be paid his Zimbabwean dollar awards. It arose when the appellant asked for the respondent to pay him in United States dollars what was awarded to him in Zimbabwean dollars.

The principle of res judicata is therefore not applicable in this case. It does not prevent the court from hearing a dispute over already granted awards. A dispute arising from an already granted award is not the same as a further claim arising from a cause of action the parties have already litigated upon.”…,.

Having decided the question whether the principle of res judicata was applicable to the facts of the case, the Court turned to the question of the applicability of the principle of functus officio, and, at p9 of the judgment, said:

“The court a quo's mistaken view, that it was being asked to re-assess the awards it had made in 2008, led to the erroneous conclusion that it could not protect its own processes or extend the functus officio common law principle. The appellant did not apply for the re-assessment of the award, but its conversion to American dollars.”

The court had examined the evidence in the record of proceedings and come to the conclusion, that, the issue that had been placed before the High Court was one of conversion of one currency to another. It held that the issue had not been before the High Court for determination to attract the application of the common law principles of functus officio and res judicata.

In other words, the Supreme Court held, that, had the High Court not misdirected itself on the issue that it was required to determine, it would not have declined jurisdiction.

It is clear that the Supreme Court definitively answered the issues that were before it. The judgment could have ended there.

The court, however, went on to comment, at p10 of the judgment, as follows:

“The above is in tandem with the provisions of section 176 of the Constitution which give superior courts inherent jurisdiction to protect and to regulate their own processes in the interests of justice. This means, that, in appropriate cases, superior courts can develop the functus officio rule beyond the currently accepted exceptions.”

The mere reference to the Constitution did not make what was said a constitutional matter.

Reference by the Supreme Court to section 176 of the Constitution was an obiter dictum. The Constitution was referred to after the ratio decidendi had been arrived at and declared by the court.

The effect of what the Court said, in relation to section 176 of the Constitution, was that its reasoning was not inconsistent with the provisions of that section. That is different from saying the decision on the issues before the court were based on the interpretation and application of section 176 of the Constitution.

It follows, that, where a subordinate court did not take a view of the case that required it to interpret and apply a constitutional provision to determine the issue raised, the matter does not pass for a constitutional matter. Application for leave to appeal will be dismissed as the subordinate court will have rested its decision on an independent non-constitutional ground.

The application is dismissed with costs.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

ISSUES FOR DETERMINATION

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

SHOULD MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE HIGH COURT RULES

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills.

The court will briefly look at the points in limine raised by the respondents.

(a) MATTER PASSED IN REM JUDICATAM

The contention by the respondents is that another court (MANGOTA J) has already made a determination on the issue and the applicants have not appealed against that determination. The applicants are effectively asking a judge of this court to review a judgment issued by a judge of parallel jurisdiction. They said this matter has passed in rem judicatam and the exercise of function by this court has already ceased.

What the respondents are failing to understand is that MANGOTA J dealt with an exception in terms of Order 21 Rule 137(1)(b) of the rules of this Honourable Court wherein the complaint was that there was no cause of action or that the particulars of claim were vague and embarrassing and needed correction.

MANGOTA J's judgment did not relate to the facts. The judgment called the respondents to plead to the merits.

In City of Harare v D & P Investments (Pvt) Ltd & Anor 1992 ZLR 254 (SC) the court said:

“An exception is plainly an 'answer to the plaintiff's claim' or, for that matter, to the defence raised. Its main purpose is to obtain a speedy decision upon a point of law apparent on the face of the pleading attacked and so settle the dispute in the most economical manner by having the faulty pleading set aside.”

An exception does not investigate the facts.

The veracity of the facts was not before MANGOTA J.

The current application is an application for summary dismissal of the claim in terms of Order 11 Rule 75(1) of the High Court Rules on the basis that the claims were frivolous and vexatious.

The application does not raise the same issues as were before MANGOTA J.

Issues before MANGOTA J were technical and preliminary legal objections without going into the merits.

In my view, the requirements of both applications are totally different though they involve the same parties.

It does not mean a decision made under either of the Rules automatically affects the other.

The law makers, in enacting the two Rules, and in their wisdom, were cognizant of the different reliefs to be granted under each Rule; for example, the respondents were being asked to put values of the prejudice in claims (5) and (6).

If the respondents had complied and responded to the letter of complaint written by the applicants in terms of Rule 140 of the High Court Rules, this matter probably could not have gone this far.

In the current application, the relief being sought is a summary dismissal of the claims.

For that reason, it cannot be said this matter has passed in rem judicatam and the exercise of function by this court has already ceased.

While the applicants may have appealed against the decision of MANGOTA J, they were not barred from invoking Rule 75(1) of the High Court Rules.

I therefore dismiss this point in limine.

(b) ESTOPPEL

Likewise, I do not agree with the respondents submission that there is something in the nature of an estoppel which precludes the applicants from seeking this kind of relief in light of the observations made by MANGOTA J in his judgment.

The basis of issue estoppel is an admission of facts or a failure to deny the facts alleged in pleadings that deals with facts such as a plea on the merits.

This was not before MANGOTA J.

Any remarks he may have made on the facts would be obiter dicta and of no binding effect. It cannot, therefore, be said that it is incompetent for this application to be brought.

I have already explained in full the differences in the plea of res judicata raised above and I need not say more because these objections are just but one thing: see Willowvale Mazda Motor Industries (Pvt) Ltd v Sunshine Rent–A-Car (Pvt) Ltd 1996 (1) ZLR 415 (SC) and Galante v Galante (1) 2002 (1) 144…,.

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Res Judicata re: Judicial Officers Presiding Over the Same Parties on Continuum Issues Arising from Prior Litigation

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI
Ruled By: MALABA DCJ

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

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HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

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Law Portal Zimbabwe

Res Judicata re: Judicial Officers Presiding Over the Same Parties on Continuum Issues Arising from Prior Litigation

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL Ruled By: UCHENA J

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI Ruled By: MALABA DCJ

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

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Law Portal
Zimbabwe

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

CC08-17 : THE COLD CHAIN (PRIVATE) LIMITED T/A SEA HARVEST vs ROBSON MAKONI
Ruled By: MALABA DCJ

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J