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the applicants should, upon this realization, have withdrawn the application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
All in all, therefore, the requirements for a
successful plea of res judicata are present. Accordingly, this application is
dismissed with costs.
