The concept of ‘res judicata’

Legal Matters with Arthur Marara

There are several issues that often arise when a matter has been placed before the court. Depending of course who is driving or defending the case, varying arguments can be raised.

One of them is that of “res judicata”. I am not going to choke you with some Latin terms, I will simplify this concept for you. You may have met it in papers prepared by your attorneys or in general reading.

The principle of res judicata has been pronounced by the courts in various cases, including the case of O’shea v Chiunda 1999 (1) ZLR 333 (S) at 334 where SANDURA JA held that, “res judicata applies where the two actions are between the same parties, or their successors in title, concerning the same subject matter and founded on the same cause of action.”

In Wolfeden v Jackson 1985 (2) ZLR 313 at 316, GUBBAY JA (as he then was) stated as follows:

“The exception reijudicatae is based principally upon the public interest that there must be an end to litigation and that the authority rested in judicial decisions be given effect to, even if erroneous. See Le Roux en’n Anderv Le Roux 1967 (1) SA 446 (A) at 461H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies —, are not permitted its correctness.”

The essence of the doctrine of “res judicata”, therefore, is that if the effect of the judgment of the court was to bring finality to the matter, the same court cannot entertain the same matter again and make findings on the merits because a ruling has been already made. The parties to the suit are enjoined to honour the judgment and abide by its terms. There is need to bring finality to litigation.

In order to successfully ground such a defence, the litigant raising it must show that the dispute has been conclusively settled on the merits by a court of competent jurisdiction and that the two actions are between the same parties, concerning the same subject matter founded on the same cause of complaint. See Gwaze v National Railways of Zimbabwe 2002 (1) ZLR 679. See also Samanyanga And Others V Flexmall (Private)Limited HH5710/09 where the late Mutema J had the opportunity to deal with this issue.

In the case of Chimponda & Anor v Muvami 2007 ZLR (2) 326 MAKARAU JP (as she then was) at pp 329G to 330 C said:

“The requirements for the plea of res judi cata are settled. Our law recognises that once a dispute between the same parties has been exhausted by a competent court it cannot be brought up for adjudication again as there is need for finality in litigation. To allow litigants to plough over the same ground hoping for a different result will have the effect of introducing uncertainty into court decisions and will bring the administration of justice into disrepute.”

For the plea to be upheld, the matter must have been finally and definitively dealt with in the prior proceedings. In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties, by making a finding in law and / or in fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or to defend the proceedings. The cause of action as between the parties must have been extinguished by the judgment.

Muzenda J dealt with the res judicata argument in the case of IDAH TAGARIROFA v NHEDZIWA HIGH SCHOOL DEVELOPMENT COMMITTEE HMT 23-20;

“The respondent submitted that the applicant is abusing the court process by bringing an application which has already been disposed of by the Labour Court. The applicant on the other hand contended vigorously that the application before this court is for a declaratur and no such application had previously been placed before a Labour Court because the latter court does not have jurisdiction to grant a declaratur. Applicant further added that what was before the Labour Court was an application relating to scope.

“I am persuaded by Mr Marara when he submitted quoting MUTEMA J1 when he ruled that a litigant raising the issue of res judicata must show that the dispute has been conclusively settled on the merits by a court of competent jurisdiction and that the two actions are between the same parties, concerning the same subject matter founded on the same cause complaint. I am satisfied that the points in limine are misplaced and they are all dismissed.”

In the Chimponda case, the court went on to highlight that, “A judgment founded purely in adjectival law, regulating the manner in which the court is to be approached for the determination of the merits of the matter does not in my view constitute a final and definitive judgment in the matter. It appears to me that such a judgment is merely a simple interlocutory judgment directing the parties on how to approach the court if they wish to have their dispute resolved.” (emphasis added)

In LIFORT TORO v VODGE INVESTMENTS And 2 Others SC15/2017 the Supreme Court was confronted with the same argument of res judicata, and went on to hold that; “A determination by the magistrate on the competence of the first respondent to institute eviction proceedings against the appellant is not a finding in adjectival law regulating the manner in which the court is to be approached for the determination of the merits of the matter.

“It is a final and definitive determination barring the first respondent from instituting proceedings on the same cause of action against the appellant. Such a finding finally and definitively determines the capacity of a litigant to institute or defend the same cause of action before the courts.

“The court a quo failed to distinguish between the magistrate’s dismissal of the application for summary judgment, which could be interlocutory, from the reason for the dismissal which is definitive and finally closes the door to the first respondent due to legal incompetence to litigate over the appellant’s eviction. The magistrate’s judgment remains extant. The first respondent could not therefore be entertained by any court on this issue except on appeal or review against the Magistrate’s decision that it had no locus standi to evict the appellant.”

It is my hope that you learnt one or two things on the concept of res judicata.

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article/post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial and family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]