Court name
Supreme Court of Zimbabwe
Case number
SC 12 of 2006
Civil Appeal 221 of 2005

Kawondera v Mandebvu (21/05) (SC 12 of 2006, Civil Appeal 221 of 2005) [2006] ZWSC 12 (05 February 2006);

Law report citations
Media neutral citation
[2006] ZWSC 12
















REPORTABLE
ZLR (12)



Judgment No. SC 12/06


Civil
Appeal No. 221/05









ESTER KAWONDERA v
DICKSON MANDEBVU









SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
FEBRUARY 6, 2006








P
Machaya
, for the
appellant





O
Mushuma
, for the
respondent






ZIYAMBI
JA: The appellant in this matter is a member of Zvakatanga
Sekuseka Housing Co-operative (‘the Co-operative’) which
is the
registered owner of stand 1195 (‘the stand’), Hatcliffe,
Borrowdale, Harare.







It appears that on 29 September
1999, the stand was allocated to the appellant. Sometime in 2001,
the respondent brought proceedings
in the High Court, (Case Number HC
7800/01), against the Co-operative challenging the manner in which
the stand had been allocated.
The exact circumstances are unclear
on the record but on 15 July 2002, BLACKIE J issued an order by
consent in the following terms:







“It is ordered by consent that:







1. Mr Kuwandira be and is hereby
joined as a party to these proceedings.







2. The applicant be and is hereby
ordered to serve Mr Kuwandira with a copy of the Court Application.







3. Mr Kuwandira be and is hereby
ordered to file his Notice of Opposition within ten days after the
date on which the Court Application
is served upon him.”







In response to that order, the
appellant filed an ‘opposing affidavit’, in paragraph 9 of which
she alleged as follows:






“9. It
was not necessary to cite me as a party. It is clear that whatever
decision that the Court grant (
sic)
against the Co-operative will automatically bind me. I do not own
the stand. It is for the Co-operative to decide what to do with
this
stand.”







In due course, the matter came
before MAKARAU J for hearing and the Co-operative was ordered to
transfer the stand to the respondent,
the learned judge having found
the allocation of the stand to the appellant to have been irregular.
No appeal was lodged against
the order of MAKARAU J.







On 18 November 2004 the appellant
filed a court application in the High Court averring that the stand
was lawfully hers and seeking
a declaration to that effect as well as
an order for the eviction of the respondent from the stand. HUNGWE
J, who heard the application,
dismissed it on the grounds that the
matter was
res
judicata
. It is
against this order that the appellant now appeals.







The issue which I must now
determine is whether or not the finding by HUNGWE J that the
application before him was
res
judicata
is correct in
law.







The requisites for a successful
plea of
res
judicata
based on a judgment
in
personam
are
threefold, namely, that the prior action:








  • must have been between the same
    parties or their privies;





  • must have concerned the same
    subject matter; and





  • must have been founded on the
    same cause of action.








See Beck’s
Theory and Principles of Pleading in Civil

Actions
5 ed at p 165;
Towers v
Chitapa
1996 (2) ZLR
261 (H) at 271A.







The parties are agreed that the
issue can be narrowed to whether or not the appellant was a party or
a privy to one of the parties
to the earlier proceedings between the
respondent and the Co-operative, it being common cause that the
remaining two requirements
are satisfied.







In this regard it was submitted
that the judgment, being one
in
personam
, was binding
only on the respondent, the Co-operative, and any others who were
privy to it and, accordingly, a plea of
res
judicata
could only
succeed if the appellant was a privy of the Co-operative. See
Registrar–General v
Chirwa
1993 (1) ZLR 291(S);
Spencer-Bower
and Turner
Res
Judicata
at p 126.
Thus, since the appellant was not cited as a party to the earlier
proceedings before MAKARAU J, and since she was not
a privy to any of
the parties, the court
a
quo
was wrong in
concluding that she was a party to the proceedings and therefore
bound by the judgment of MAKARAU J. For this proposition
the
appellant relied on the following passage taken from the book
The
Doctrine of Res Judicata
by
Spencer-Bower and Turner at p 126 para 197:







“For
the purposes of
estoppel
per rem judicatam,
a ‘party’ means not only a person named as such, but also one who
intervenes and takes part in the proceedings, after lawful
citation,
in whatever character he is cited to appear, or who, though not
nominatim
a party, insists on being made so, and obtains leave of the court for
that purpose…”.






The appellant,
it was claimed, did not fit into any of the categories mentioned in
that passage.







However, what counsel did not
advise the Court is that the passage quoted is incomplete and that if
the full passage were to be quoted
the appellant’s case would be
defeated. The passage continues:







“or who, being cognizant of the
proceedings, and of the fact that a party thereto is professing to
act in his interests, allows his
battle to be fought by that party,
intending to take the benefit of his championship in the event of
success.”







There is no doubt that the
appellant was cognizant of the proceedings in case number HC 7800/01
and allowed her battle to be fought
by the Co-operative. She
intervened in the litigation between the respondent and the
Co-operative by filing an affidavit in which
she not only stated that
the stand did not belong to her but agreed to be bound by whatever
decision the court would make “against
the Co-operative”. In
so doing, she made herself a privy to the Co-operative in that
litigation and is therefore bound by the
decision in that suit. She
cannot now be heard to say, as she did in her founding affidavit,
that the proceedings went on “without
my knowledge or participation
... . The Co-operative was acting in its own capacity and was not
representing myself.”







It was for the above reasons
that, after hearing Mr
Machaya,
we dismissed the appeal with costs, being of the view that it was
unnecessary to hear Mr
Mushuma.







Before concluding this judgment
it seems to me to that some comment on the conduct of the appeal by
the legal practitioners is necessary.
As I mentioned above, counsel
for the appellant failed to bring to the Court’s attention the part
of the quoted passage which
tended to defeat his client’s case.
The ethics of the profession demand that if there is an authority
which is against his client,
counsel is obliged to disclose it to the
court. Not to do so but to attempt to hoodwink the court is
improper conduct.






The
conduct of the respondent’s legal practitioner is also worthy of
censure. The passage referred to by counsel for the appellant
was
contained in the appellant’s heads of argument which were filed
twelve days before the respondent’s heads of argument were
filed.
Yet the omission to quote the passage in full or the fact that the
rest of the passage tended to support the respondent’s
case was not
mentioned in the respondent’s heads of argument, which is an
indication that it was not detected by respondent’s
counsel. This
is indicative of a lack of the high degree of diligence which is
expected of a legal practitioner in the exercise
of his duty to his
client. Every reference made by the opposing party must be checked
for its accuracy and for the purpose of
ascertaining whether that
authority truly supports the opposition’s case and, if it does not,
to so advise the court with the appropriate
submissions. It is
certainly not in the interests of one’s client, and indeed could
amount to a disservice, to accept quotations
and case references at
face value without checking their accuracy and whether there is,
arising from that quotation, an argument
in favour of one’s client.







I need only remind the legal
profession that ethics is one of the pillars on which the profession
stands. The court relies on the
assistance given to it by counsel
in order to arrive at a correct decision. In this respect legal
practitioners are considered
to be officers of the court and they are
expected to display honesty and a high degree of diligence and
integrity when appearing
before the courts.









CHIDYAUSIKU CJ: I agree.










MALABA JA: I agree.










Mtombeni,
Mukwesha
,
Muzawazi & Associates
,
appellant's legal practitioners


Mavhunga
& Associates
,
respondent's legal practitioners