SPECIAL
PLEA
KUDYA
J:
The
plaintiff has apart from the fourth and fifth defendants, been
involved in legal combat with all the other parties in HC2765/05.
In
HC4096/96 he brought an application for his reinstatement as a
director in sixth defendant against 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, as she then was, in Mwanyisa
v
Jumbo & Ors HH
3-2010 at p 1 cited with approval by MAWADZE J in Morris
v
Morris & Anor
HH 71-2011at p 2 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.
Mr
Mpofu,
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. Mr Deme,
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) at 341G-342E. 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) at 263-264 MALABA J, as he then was, 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.
Mr
Mpofu
further submitted that the issue of the plaintiff's shareholding
was again determined by a CHIWESHE J, as he then was, a competent
court on 27 September 2001 in HC12625/2000. Mr Deme
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 Mr Deme
that
the issue of the plaintiff's shareholding is not res
judicata.
Rather it is lis
pendens.
The
defendants also relied on prescription to non-suit the plaintiff.
It
was common cause that the plaintiff was dismissed as a director on 24
September 1996. He became aware of his dismissal by 7 May 1997 when
he filed HC4151/97.
The
Prescription Act [Cap
8:11]
bears a wide definition of debt that includes the vindication of an
obligation or right arising from statute, contract, delict or
otherwise. In Evins
v
Shield Insurance Co Ltd
1979 (3) SA 1136 (W) at 1141F KING J stated that:
“The
word 'debt' in the Prescription Act must be given a wide and
general meaning denoting not only debt sounding in money which is
due, but also, for example, a debt for the vindication of property.”
Section
10(1) of the South African Prescription Act 68 of 1969 was worded in
similar terms as section 14(1) of our Prescription Act.
In
Standard
General Insurance Co Ltd v
Veroun Estates (Pty)
Ltd 1990
(2) SA 693 (A) at 699B-C GOLDSTONE AJA stated that:
“The
Prescription Act, if one has regard to section 10(1), thereof,
appears to have introduced throughout the concept of 'strong'
prescription. It is expressly stated that after the lapse of the
period which in terms of the relevant law applies in regard to the
prescription of a debt, such debt 'shall
be extinguished'.
As was pointed out by CORBETT JA (as he then was) in Evins
v
Shield Insurance Co Ltd
1980 (2) SA 814 (A) at 842F, the lapse of the period of prescription
'extinguished' the debt and therefore also the right of action
vested in the creditor.”
See
also Lipschitz
v
Dechamps Textiles GmbH & Anor 1978
(4) SA 427 (C) at 430E-F.
In
Zimbabwe, CHIDYAUSIKU J, as he then was, in Coutts
& Co v
Ford & Anor 1997
(1) ZLR 440 (H)
at
443B stated of section 14 of our Act that:
“Thus
the clear intention of the legislature as expressed in the above
provision is to make prescription a matter of substantive law as
opposed to procedural law. The above provision clearly extinguishes
the debt as opposed to merely barring the remedy. The wording of the
exception to the provisions, namely subs (3), puts the above
interpretation beyond doubt.”
The
right of the plaintiff to claim directorship was extinguished three
years after he became aware of his dismissal from the directorship of
the sixth defendant. The actual date was not pleaded but as the
pleadings in HC4151/97 show, by 6 May 2000, his claim was
extinguished by prescription.
Once
extinguished it could not be revived by the filing of an erroneous
CR14 form with the ninth defendant by officials of the sixth
defendant on 30 June 2007.
The
only claim of the plaintiff that is still alive is that based on his
shareholding. It has not been extinguished by prescription. Section 7
of the Prescription Act shows that it is saved by the interruption of
the pending appeal.
I,
however, cannot determine that claim for two reasons. Firstly, an
appeal is pending in HC12625/2000. Secondly, the plaintiff did not
claim his ownership of shares in the sixth defendant in the present
matter.
The
purported amendment filed of record was not moved and runs foul of
the sentiments expressed in ZFC
Ltd v
Taylor 1999
(1) ZLR 308 (H) at 310C-D where GILLESPIE J stated:
“There
is a practice prevalent, born of indolence and ignorance of the
rules, whereby parties purport to effect an amendment of process and
pleadings by the unilateral issue of a so-called 'notice of
amendment'. One frequently finds in applications for default
judgments that such notices have been issued after the default or
bar, as the case may be, and are not even served upon the defendant.
This is entirely unprocedural. There are only two possible methods of
procuring an amendment to process or pleadings after the issue of
summons. One is by consent of the parties and the other is by order
of court.”
I,
accordingly, uphold the special pleas of res
judicata
and prescription raised by the first to sixth defendants.
I
have been asked to issue a decree of perpetual silence against the
plaintiff.
It
does not appear to me proper to emasculate him from approaching our
courts seeing that there is still the pending issue of his
shareholding in the sixth defendant that might very well require
judicial determination.
The
defendants sought punitive costs against the plaintiff for abusing
the court process by flogging a dead horse and putting the defendants
to unnecessary expense.
It
seems to me that the plaintiff was not motivated by any desire to
achieve justice on the question of directorship. Rather he was driven
by malice and malevolence.
Section
18 of the Legal Aid Act [Cap
7:16],
reads:
“Notwithstanding
any other law, a court shall not award costs against an aided
person.”
Were
it not for the provisions of section 18 of the Legal Aid Act, supra,
I would have expressed my displeasure of the plaintiff's conduct by
mulcting him with cost on the scale of legal practitioner and client.
Accordingly,
it is ordered that:
1.
The special pleas raised by the first to sixth defendants be and are
hereby upheld.
2.
The plaintiff's claims be and are hereby dismissed.
3.
There shall be no order as to costs for both the application and the
present action.
The
Legal Aid Directorate,
plaintiff's legal practitioners
Mushonga
& Associates,
the first to the sixth defendants' legal practitioners
