Safedrive Motors (Private) Limited v City of Harare and Tendai Macgerald Madziwanyika

### Preamble
1
HH 709 - 25
HCH 4213/23
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EX TEMPORE

SAFEDRIVE MOTORS (PRIVATE) LIMITED

versus

CITY OF HARARE

and

TENDAI MACGERALD MADZIWANYIKA

HIGH COURT OF ZIMBABWE

DEME J

HARARE; 6 February 2024 & 10 November 2025

Opposed Application

Ms GM Chivandire, for the applicant

Mr R Zinhema, for the 1st respondent

Mr A Masango, for the 2nd respondent

DEME J:     On 6 February 2024 I made an order in this matter to the effect that:

“On the basis of res judicata, the main application be and is hereby dismissed with costs on an attorney and client scale.

The counter application for eviction be and is hereby granted.

The applicant is hereby ordered to vacate Stand 910 Greystone Park, Harare and remove all illegal structures erected thereat within ten days from the date of this order failing which the Sheriff of High Court or his lawful Deputy is hereby authorised to evict the applicant and demolish structures erected.

Applicant shall bear costs of the counter application on an ordinary scale.”

On 6 November 2025, the applicant later requested the reasons for my determination. 	These are they.

The applicant approached this court praying for the following relief:

“The first respondent is hereby ordered to sign all such documents as are necessary to effect transfer title and rights of Stand 910 Greystone Township of Greystone A situate in the district of Salisbury, measuring in extent 3267 SQM, into the name of the applicant within five (5) days from the date of service of this order.

In the event of the first respondent refusing, neglecting and/or failing to sign such documents, in terms of paragraph 1 above, the Deputy Sheriff be and is hereby directed to sign all necessary papers to effect transfer of the property known as Stand 910 Greystone Township of Greystone A situate in the District of Salisbury.

The first respondent is hereby ordered to record this transaction of change of ownership.

The first respondent shall bear the costs of suit on the scale of legal practitioner and own-client to the extent that such costs are permitted in proviso (iii) to by-law 70(2) only if it opposes the matter.”

The first respondent mounted a counter application for eviction in terms of rule 58(8) of the High Court Rules, 2021. In terms of the counter application, the first respondent sought the following relief:

“The application for eviction be and is hereby granted.

Applicant is hereby ordered to vacate stand 910 Greystone Park, Harare and remove all illegal structures erected thereon within ten days of this order being issued failure of which the Sheriff of the High Court or his lawful deputy is hereby authorized to evict the applicant and demolish structures erected.

The applicant shall pay costs of suit on a legal practitioner and client scale.”

The main application was opposed by the first and second respondents who raised numerous points in limine. The first respondent, in its first point in limine argued that the applicant has no locus standi to sue since it has no direct and substantial interest in the matter and that the relief pursued by the applicant is incompetent. The basis for the first respondent’s belief is that the applicant and the first respondent have no valid agreement regulating their relationship in respect of the property known as Stand 910 Greystone Township of Greystone A situate in the District of Salisbury (hereinafter called “the property”).

Through its second point in limine, the first respondent argued that the applicant failed to respond to its opposing affidavit within the prescribed time lines. On this basis, the first respondent contended that the allegations in its opposing affidavit must be taken to have been admitted by the applicant.

The second respondent raised three points in limine against the present application. In his first point in limine, the second respondent argued that the matter before the court is res judicata. The second respondent claimed that the same matter was determined by the Supreme Court in case number SC 265/22. Through the second point in limine, the second respondent maintained that the matter before the court had prescribed. Lastly, the second respondent argued that the applicant approached the court with dirty hands having failed to comply with the order of this court.

In my ruling, I focused on the question of res judicata before the other points in limine. It is not disputed that the parties appeared before this court and the Supreme Court fighting for the same property. In case number 3712/20, the applicant approached this court seeking the following relief:

“The agreement entered into between the applicant and first respondent remains valid and force and effect.

The first respondent is hereby ordered to sign all such documents as are necessary to effect transfer title and rights of stand 910 Greystone Township of Greystone A, situate in the District of Salisbury, measuring in extent 3267 SQM, into the name of the applicant within five (5) days from the date of service of this order.

In the event of the first respondent refusing, neglecting and/or failing to sign such documents, in terms of paragraph 1 above, the Deputy Sheriff be and is hereby directed to sign all necessary papers to effect transfer of the property known as stand 910 Greystone Township of Greystone A situate in the District of Salisbury.

The first respondent is hereby ordered to record this transaction of change of ownership.

The first respondent shall bear the costs of suit on the scale of legal practitioner and own client to the extent that such costs are permitted in proviso (iii) to by-law 70 (2) only if it opposes the matter.”

In case number HC 3712/20, the first respondent was also the first respondent in that matter while the second respondent was the third respondent. The application in case number HC 3712/20 was dismissed with costs on an attorney and client scale. In case number 3712/20, this court per Manzunzu J observed that there was no valid agreement between the applicant and the first respondent. This court in case number 3712/20 also reached a conclusion that the same property was validly sold to the second respondent who was the third respondent in case number HC 3712/20. In judgment number HH 76/23, Manzunzu J remarked as follows:

“The applicant did not show that it accepted the offer by complying with the terms set out in the offer letter by the City of Harare.  In fact, there is an attempt to produce a record of payment way out of the period set out by the first respondent. There is no agreement of sale signed between the applicant and City of Harare. To the contrary the third respondent produced an agreement of sale with the City of Harare signed in June 2018. He has also shown proof of payment for the purchase price.  The applicant attempts to sanitise a non-existent agreement by saying it paid the purchase price in 2019 and 2020 way out of the offer period and after the property had already been sold to the third respondent.”

Aggrieved by this court’s decision in case number HC 3712/20, the applicant noted an appeal against the decision of this court. The appeal was dismissed with punitive costs. In particular, the Supreme Court ruled that:

“The appeal be and is hereby dismissed with costs on the legal practitioner and client scale.”

After losing its bid to recover the property at the apex court, the applicant lodged a fresh application seeking a declarator. The fresh application was seeking to recover the same property using the different approach. What is clear is that the same property is the common denominator in this case and the matter in case number HC 3712/20 which was confirmed on appeal in case number SC 265/22. On this basis, res judicata ought to apply subject to the satisfaction of other requirements.

In an endeavour to motivate the point in limine of res judicata, the second respondent referred the court to the cases of Wilson Nyakunyinda Banda and Ors v Zimbabwe Iron and Steel Corporation, Bertram v Wood, Mitford’s Executor v Ebden’s Executors and Ors and Christine Wangayi v Jestinah Mudukuti. In the case of Midlands State University v Matongo Muzofa J propounded the following comments:

“The essentials of a plea of res judicata are trite. In Wolfenden v Jackson 1985 (2) ZLR 313 (S) at 316 B-C Gubbay JA (as he then was) commented;

“The exceptio rei judicatae is based principally upon the public interest that there must be an end to litigation and that the authority vested in judicial decisions be given effect to, even if erroneously. See Le Roux en’n Ander v Le Roux 1967 (1) SA 446 (A) at 461 H.”

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 (or in the case of a judgment in rem, any other person) are not permitted to dispute its correctness.” see also Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] IQB at 640-1.

For a party to successfully rely on res judicata it must show that:-

the same matter/question has been decided;

the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which res judicata is raised;

the judicial decision creating res judicata was final.

In Kamupariro v Musendo & Another HH 196/17 Matanda-Moyo J cited the Canadian case of Aratim Capital Inc v Appliance Recycling Centres of America 2014 ONCA 62, which elucidated on the concept of a final and definitive judgment held that;

“… the purpose of res judicata should be balanced between public interest in finality of litigation with the public interest of ensuring a just result on the merits.”

Without doubt, the parties to the present application and in case number HC 3712/20 are the same with the exception of the Sheriff of Zimbabwe who was sued in an official capacity with no direct interest in the matter. The same question in respect of the disputed property falls for determination in this matter and in case number HC 3712/20. In case number 3712/20, the applicant sought the validation of the agreement between itself and the first respondent. This court declined to validate the agreement.

In the present application, the applicant is seeking an order that the first respondent must sign all necessary documents to effect transfer of the property into the applicant’s name. In the absence of a valid agreement, I am failing to see any reason why the applicant is seeking such a relief in the present application. After this court’s determination that there is no valid agreement, the applicant ought to be aware that the present application was only an abuse of court process. Every transfer of immovable property, with the exception of a few cases like inheritance cases, is founded upon a valid agreement. Without a valid agreement, one cannot seek transfer of the immovable property.

The relief prayed for in paragraphs 1-3 of the draft order were also placed before the court in case number HC 3712/20. Reference is made to paragraphs 2-4 of the draft order in case number 3712/20.  Thus, the prayers for the applicant in the two matters are substantially similar. Those issues which the applicant sought to recycle were considered by this court and the Supreme Court. The applicant chose to omit paragraph 1 of its draft order in case number 3712/20 and placed the same issues through the present application. By so doing, the applicant was hoping for a different result. This amounts to a character of deception, in my view. The applicant cannot ask the same court to make a determination on the same issues. Doing so can only be described as a misuse of court process.

Certainly, the dismissals by this court in judgment number HH 76/23 and the Supreme Court in case number SC 265/22 were reached after examining the merits. Hence, such decisions are final in nature. To this end, the requirements of res judicata are satisfied.

The point in limine of res judicata was raised in the second respondent’s opposing affidavit and in the second respondent’s Heads of Argument. The applicant did not file answering affidavit against second respondent’s opposing affidavit. The applicant ignored addressing the issue of res judicata in its Heads of Argument. Mr. Masango submitted that the applicant must be taken to have admitted all issues raised in the second respondent’s opposing affidavit following the applicant’s failure to respond to the second respondent’s opposing affidavit. I do agree with his submission. Reference is made to the case of Fawcett Security v Director of Customs and Excise.

On this basis, there was no special reason why I could not uphold the point in limine of res judicata. The applicant had no right to recycle the dispute that was properly resolved by two courts. Such conduct is a pure abuse of court process.

Following the applicant’s malicious conduct, I was forced to order punitive costs against the applicant. The applicant was, on two occasions, slapped with such costs in case number 3712/20 and case number SC 265/22. The present application cannot be an exception.   In justifying punitive costs, this court in case number 3712/20, through its judgment number HH 76/23, Manzunzu J postulated the following remarks:

“It is out of mischief that the applicant persisted with this application which is unmeritorious. The duty lies with the applicant on a balance of probabilities to show that there exists an agreement of sale. No such agreement was produced neither were the material terms spelt out. The applicant could not say which term of the agreement it was complying with when it purportedly said it made some payments. Litigation is not a game of chance. An application succeeds or fails on its founding affidavit. This is a proper case to order the applicant to pay costs at a higher scale.”

It is apparent that the applicant habours the habit of abusing court processes to harass the opposite parties. The present application was not motivated by good faith in my opinion. Further, the present application cannot be described as a genuine complaint against the respondents. For this reason, I had no option except to order costs on a higher scale. Such costs must be granted in exceptional circumstances. The present application is a perfect example where the court ought to, without hesitation, order the applicant to pay costs on a legal practitioner and client scale. Reference is made to the case of Mahembe v Matambo where the court held that:

“Our courts will not resort to this drastic award lightly due to the fact that a person has a right to obtain judicial decision against a genuine complaint. It is therefore essential that the courts will award such costs in situations where it is clear that the losing litigant was not genuine in the pursuance of a stand in the litigation process Rubin L in the Law of Costs in South Africa Juta & Co 1949 at p 190 classified the grounds upon which would be justified in awarding the costs as between attorney and client:

Dishonest conduct either in the transaction giving rise to the proceedings or in the proceedings

Malicious conduct

Vexatious proceedings

Reckless proceedings

Frivolous proceedings.”

By failing to disclose that the applicant once approached this court, the applicant demonstrated the characters of dishonesty and maliciousness. The present proceedings can therefore be described as vexatious, frivolous and reckless. On this basis, the court was left with no option other than to make an order for punitive costs against the applicant.

Having upheld the point in limine of res judicata, there was no need for me to venture into the merits of the other points in limine. The point in limine of res judicata was dispositive of the main application before me. Proceeding to deal with the rest of the points in limine was no longer necessary.

The first respondent filed the counter application seeking an order for the applicant’s ejectment from the property on the basis that the applicant is illegally occupying the property. The applicant opposed the counter application. The applicant insisted that the first respondent cannot seek the relief for eviction on the basis that the second respondent is now the owner of the property having purchased the same from the first respondent. On this basis, the applicant argued that the first respondent lacks locus standi to seek eviction of the applicant from the property. The applicant also denied that it is illegally occupying the property.

In response to the issue of locus standi, the first respondent insisted that the property is still registered in the name of the first respondent. Hence, the first respondent argued that it is properly before the court seeking the relief in the manner prayed for.

Following the upholding of the point in limine for res judicata, the applicant was left with limited grounds for resisting the counter application. The applicant failed to prove that the property is not registered in the name of the first respondent. That should be the end of the matter. In the absence of evidence to the contrary, the applicant’s attempt to oppose the counter application was an exercise in futility. This was another sign of abuse of the court process.

Having failed to conclude an agreement with the first respondent, the applicant no longer had any basis to remain at the disputed property. Thus, the applicant’s continued occupation of the property is no longer lawful. This motivated me to grant the first respondent’s counter application with costs on an ordinary scale. In the circumstances, I was driven by the aforementioned reasons to make the order of 6 February 2024 in the manner I did.

Deme J: ……………………………………………………………………….

Chivandire Mavhaire & Zinto Law Chambers, applicant’s legal practitioners

Gambe Law Group, first respondent’s legal practitioners

Muronda Malinga Masango Legal Practice, second respondent’s legal practitioners