Court name
Supreme Court of Zimbabwe
Case number
SC 20 of 2005
Civil Appeal 28 of 2004

Muzika v Kamhunga and Another (28/04) (SC 20 of 2005, Civil Appeal 28 of 2004) [2005] ZWSC 20 (29 June 2005);

Law report citations
Media neutral citation
[2005] ZWSC 20
















REPORTABLE
ZLR (20)


Judgment
No. SC 20/05


Civil
Appeal No. 28/04








HILDA
MUZIKA v (1) PHOEBE KAMHUNGA (2) REGISTRAR OF
DEEDS








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
ZIYAMBI JA & GWAUNZA JA


HARARE,
MARCH 21 & JUNE 30, 2005









G Mandizha,
for the appellant






P Mukwengi,
for the first respondent





No
appearance for the second respondent












GWAUNZA JA: This is the second
time that this dispute, which is between the same parties, over the
same subject matter and concerning
the same cause of complaint, has
come before this Court. The present appellant was also the
appellant in the first appeal, (
SC
112/02
) heard before
this Court in November, 2002. In these circumstances, the respondent
contends, in part, that the matter is
res
judicata
. I will
revert to this argument later.





The
background to the dispute is as follows:





In
July 2001 the appellant and the first respondent concluded an
agreement of sale in terms of which the former sold to the latter,
certain property in Harare known as Stand No. 851 Mabelreign
Township. The purchase price of the property was $2 520 000 of
which
a deposit of $1 520 000 was paid, leaving a balance of $1 000
000. This amount was to be paid in two equal instalments, the first
on or before 31 August 2001 and the last on or before 31 September
2001. When the first respondent failed to pay the first instalment
on the due date, the appellant wrote a letter to the first
respondent, asking her to consent to the cancellation of the
agreement.
The first respondent refused to do so, and proceeded to
file an application for a provisional order interdicting the
appellant
from disposing of the property or transferring it to
another person. Although the appellant opposed the application, the
High Court
granted the application with costs. The court found that
the appellant had failed to prove her allegation that the first
respondent
had agreed to cancel the agreement in question. In
addition to that, it was found the appellant had not followed the
agreed procedure
for cancelling the agreement, as outlined in its
clause 7.





The
appellant appealed against the High Court judgment, to this Court.
CHEDA JA, with the concurrence of SANDURA JA and ZIYAMBI
JA, found
there was no merit in the appeal, and dismissed it. The Court
dismissed, in particular, the appellant’s alternative
ground of
appeal, which was to the effect that the contract was not capable of
performance because of a supervening “illegality”,
arising out of
Statutory Instrument 255 B of 2000, as amended by Statutory
Instrument 261 A of 2001, which provided that in fixing
prices of
goods and services in Zimbabwe dollars it was unlawful to apply an
exchange rate higher than the official exchange rate.





CHEDA
JA noted as follows in his judgment:





“The
appellant’s attempt to rely on this law is difficult to appreciate
because the agreement did not provide for payment of the
purchase
price in foreign currency. She says she and the first respondent
agreed to payment in foreign currency. There is no
such agreement …
The four thousand five hundred and forty-six pounds was inserted
(into the agreement) as an alternative in the
event that the
purchaser chose to pay in pounds. There is nothing to suggest that
the balance was to be paid in pounds. Even
if part of the balance
was paid in pounds by consent of the appellant and the first
respondent, there is nothing which binds the
purchaser to pay the
balance in pounds. The choice is available to her to pay in either
currency”.








The first
respondent thereafter paid the balance of the purchase price in
Zimbabwe dollars.


The
words cited above in the judgment of the Supreme Court allegedly
jogged the memory of the appellant, leading to her recalling
that the
parties had signed a handwritten agreement which stated that the
balance of the purchase price (Z$1 000 000) was to be paid
in pound
sterling. This agreement had not been produced in the High Court,
nor on appeal to the Supreme Court. It was noted by
KARWI J, who
heard the matter and made the order now being appealed against, that
the parties’ agreement was initially recorded
in long hand but was
later typed. The parties had then signed the typed agreement and
relied on it in both the first application
and the first appeal to
this Court.





Even
though the full purchase price had now been paid to her, the
appellant was convinced that, if produced in the High Court, the
handwritten agreement would result in a ruling in her favour. She
therefore filed an application in the High Court, seeking an
order
compelling the appellant to pay her the balance of the purchase price
of Z$1 000 000 in foreign currency, being the sum of
four thousand
five hundred and forty six pounds. She also sought an order
stopping the second respondent from transferring the
property to the
first respondent pending the payment of four thousand five hundred
and forty six pounds to her.


By
this action, the appellant sought to:



(i) go back on her earlier
averment that the agreement of sale could not be enforced due to
supervening illegality;


(ii) reverse
the order of the Supreme Court, to the effect that she should accept
the balance of the purchase price from the first
respondent and then
sign all documents necessary to pass transfer of the property to her.






The learned judge a
quo
correctly
dismissed the application.






The first respondent, in my view
properly raised the issue of
res
judicata
. According
to Herbstein and Van Winsen, “The Civil Practice of the Supreme
Court of South Africa” – 4
th
Ed at p 249, the requisites of
res
judicata
are; that the
two actions must have been between the same parties, concerning the
same subject matter and founded upon the same cause
of complaint (
Le
Roux v Le Roux
1967
(1) SA 446 (A).





The
matter now before this Court involves the same parties, the same
subject matter (the property) and is founded on the same cause
of
complaint (i.e. the agreement of sale). The appellant in both
applications in the High Court, on appeal in respect of the first
application and in the present appeal, also, and essentially, seeks
the same relief. This is that she be allowed to keep the property
in question while at the same time, the first respondent is denied
possession and enjoyment of a property for which she paid over
half
of the purchase price some four years ago, and the balance two years
ago, a property which, in addition, the highest Court of
the land has
ordered must be transferred to her (first respondent). The
appellant currently holds both the purchase price, and
the property
in question. Her attempt, which is hardly ingenious, to resuscitate
the matter which has been finally determined is
clearly an abuse of
court process and cannot succeed. The principle of finality in
litigation must, in this case, be upheld.






Apart from the matter being res
judicata
, Counsel for
the first respondent, Mr
Mukwengi,
is correct that this Court is
functus
officio
. As a
principle of law, this Court, having made a final order on this
matter in SC 112/02, has no authority to correct, alter,
or
supplement it. (
Firestone
South Africa
(Pty)
Limited v Genticuro A.G.
1977
(4) SA 298 at 306 F).






Counsel for the first respondent
cited a number of other authorities in support of this argument.
Given that this Court has already
pronounced a final judgment on this
matter, this appeal, in effect, is an attempt to persuade the Court
to revisit its own earlier
judgment. In
Harare
Sports Club & Anor v United Bottlers Limited

2000(1) ZLR 264 at 267 F GILLESPIE J set out the circumstances under
which this might be done, as follows:







“… the
common law recognises the power of the court to rescind, vary or
correct its judgment. This power has traditionally been stated
in
extremely circumscribed terms. Hence, a party might claim
restitutio
in integrum
, on the
grounds of fraud or
iustus
error (
Childerley
Estates Stones v Standard Bank of South Africa Limited

1924 OPD 163, 165-6). In addition, certain other categories were
acknowledged where a judgment could be set aside on discovery
of new
documents after judgment”.









As none of the circumstances
outlined in this
dictum
have been alleged, the appellant has, accordingly, failed to prove a
case for the rescission, variation or correction of the judgment
already passed by this Court, i.e. Judgment No. SC 112/02.





In
all the circumstances therefore, there is merit in the respondent’s
submission that this appeal is devoid of any merit, is
misconceived
and lacks legal validity. I have already noted that the appeal also
amounts to an abuse of the court process. The
respondent has urged
this Court, in the light of this, to order costs on the higher scale
against the appellant, as a mark of its
displeasure. I am satisfied
this is a proper case for such an order.





It
is in the result ordered as follows:





1. The
appeal is dismissed.







2. The appellant shall pay the
costs on a legal practitioner and client scale.








SANDURA  JA: I
agree.









ZIYAMBI
JA: I agree.






C Mpame & Associates,
appellant's legal practitioners


Ziweni
& Company
, first
respondent’s legal practitioners