Tadios Mutsengi v Rural Electrification Agency

### Preamble
1
HMA 13-21
HC 551-18
TADIOS MUTSENGI
versus
RURAL ELECTRIFICATION AGENCY
HIGH COURT OF ZIMBABWE
WAMAMBO J
MASVINGO, 4 October 2020 and 22 February, 2021
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The second ground is that the finding that the appellants were fairly dismissed was a gross misdirection and error on the facts and so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind (to the facts) would have arrived at it.”

The Labour Court at the end of the day dismissed the appeal. The prerequisites of res judicata have been explored in many a case.

CHIWESHE J.P. in ZAMBEZI Power (Private) Ltd (in liquidation) vs Zimbabwe Revenue Authority & 2 Others HH 670/17 at page 3 summarised the requirements of the special plea of res judicata as follows:-

“the requirements for it to be upheld have been laid down in a number of cases. Suffice it to say for that plea to succeed, it must be shown that the action in which judgment was given was between the same parties, with respect to the same subject matter and based on the same ground or complaint as the action under consideration. See Banda and Ors v ZISCO 1990 (1) ZLR 340 (S)”

To apply the principles as enunciated above, the following becomes clear.

Applicant and respondent were both parties in LC/MS/14/17. The same subject matter namely the contract of employment as it related to its termination, were under examination in both matters.

One has to note that the second ground of appeal in LC/MS/14/17 attacked the finding that appellants in that matter were fairly dismissed.

In this case applicant seeks to reverse this finding. The ultimate request in this case as per the draft order is for reinstatement of applicant and a declaratory that the termination never took place.

Effectively I am attracted to respondent’s argument that instead of applicant following the correct appeal procedure on LC/MS/14/17 he chose to approach this court through the back door.

I am, satisfied that in the circumstances the judgment in LC/MS/14/17 was on the subject matter based on the same ground as the matter before me. Notably although raised as a second ground of appeal the said ground

was not developed according to the findings of the Labour Court.

In the circumstances although other points in limine have been raised, I will not deal with them as I find that the special plea of res judicata holds water.

I order as follows:-

That the special plea of res judicata is upheld

That the applicant’s claim is dismissed with costs.

Gill, Godlonton & Gerrans, respondent’s legal practitioners