MILRITE FARMING (PRIVATE) LIMITED APPLICANT
ENOCK PORUSINGAZI 1STRESPONDENT
S ZUZE 2NDRESPONDENT
THE MINISTER OF LANDS AND RURAL
THE OFFICER COMMANDING ZRP
CHIPINGE (DISPOL) 4THRESPONDENT
THE OFFICER COMMANDING ZRP
THE ATTORNEY GENERAL OF ZIMBABWE 6THRESPONDENT
HIGH COURT OF ZIMBABWE
HARARE, 19 MARCH & 13 MAY 2010
Advocate L Uriri, for the applicant
Mr. I Ndudzo, for the 1strespondent
Mr. Chimombe, for 2nd– 6threspondents
HLATSHWAYO J: The background to this matter is spelt out in the judgment of MUSAKWAJ in Chiriga Estates and 2 others v Minister of Lands and Rural Resettlement & 9 Others HH 34/10 (HC 665/10), hereinafter refereed 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 the present 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 despoiled 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) concerningthe same subject matter and (3)founded upon same cause of complaint as to the action in which the defence is raised. I shall examine these requirements seriatim below:
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 GILLEPSIE J 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 by 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 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. Ndaima…”
I am persuaded by the submission that the present case is analogous to the Towers v Chitapa 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.
SAME SUBJECT MATTER
Both HC 665/10 and HC 985/10 relate to spoliation alleged to have occurred around 27, 28 and 29 January 2010 at Stilfontein Estates. The relief being sought in HC 985/10 is exactly the same as the relief sought in HC 665/10.
SAME CAUSE OF ACTION
That both HC 665/10 and HC 985/10 relate to the same cause of action admits of no dispute. However, Advocate Uriri, for the applicant submitted firstly that for the res judicata plea to succeed, the previous judgment or order must be final and definitive. Secondly, he submitted that new facts had arisen since the dismissal of the first application, which entitled the court to entertain the second application.
Regarding the second submission, the alleged new facts are attached in the founding affidavit of the second application as “reports” by various witnesses. Only in the answering affidavit, after the objection of the first respondent, are these “reports” now filed as affidavits. The basic rule pertaining to application procedures is that the applicant’s case stands or falls on averments made in the founding affidavit and not upon subsequent pleadings. The rational for the rule is quite clear. It is to avoid the undesirable effect of litigation assuming a snowballing character, with fresh allegations being made at every turn of pleadings. Thus, the fresh allegation contained in the answering affidavit must be ignored, leaving the same cause of action and substantially the same facts in both the first and second applications.
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 the identity of the perpetrators. Such evidence, if any, is based on generalizations and heresay.” At p.3 of cyclostyle judgment.
All in all, therefore, the requirements for a successful plea of res judicata are present, and the first respondent is entitled to judgment with costs, nothing having been submitted to sway the court to depart from the ordinary rule that costs follow the outcome. The second to the sixth respondents, inclusive, did not oppose the present application, opting to abide the decision of this court, and are thus not affected by the order of costs.
Accordingly, this application is dismissed with costs.
Gallop & Blank, Applicant’s legal practitioners.
Mutamangira & Associates, first respondent’s legal practitioners
Civil Division, Attorney-General’s Office, 2nd- 6threspondents’ legal practitioners.