Mirriam Kanyenze v Kuziwa Peter Kanyenze

### Preamble
1
HCMTJ 49/24
HCMT 139/23
3
HCMTJ 49/24
HCMT 139/23
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MIRRIAM KANYENZE

versus

KUZIWA PETER KANYENZE

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE, 17 OCTOBER 2024

CIVIL ACTION

Mr W. Kamusasa, for the plaintiff

Mr C. Chibaya, for the defendant

SIZIBA J: When the parties appeared before me in this matter on 2 October 2024 for a pre-trial conference, it was apparent that there were two related points of law which needed to be settled before the trial could proceed as they had the potential of disposing of the matter without the need of considering the merits. Both parties in their pre-trial conference memorandums had identified the issue of whether the plaintiff’s claim was res judicata or not but the defendant had gone further to raise the issue of whether or not there was a valid cause of action by the plaintiff against the defendant.  The other issues that the parties had raised related to whether the defendant was liable to pay the sums of money which were subject of the plaintiff’s claims. By consent of both parties, I directed that the parties file written submissions to address me on the above issues of law so that in the event that the two points of law are upheld, the matter would be disposed thus but if, on the other hand, the points of law do not succeed, the matter would then be referred to trial for the determination of the rest of the issues.

BACKGROUND OF THE MATTER

The current claim by the plaintiff was filed on 11 April 2023 and her prayer is for payment by the defendant in the total sum of US$99 600 being the total amount allegedly owed by the defendant as her fifty percent (50%) share of the proceeds from joint ventures and rentals collected from jointly owned premises. The claims by the plaintiff relate to or are confined to the period from 1 January 2021 to 31 December 2022. It is common cause that the plaintiff and defendant are former wife and husband respectively who were married to each other in terms of the Marriage Act [Chapter 5:11] which is now [Chapter 5: 17] on 25 April 1998. On 21 June 2021, the plaintiff filed summons for divorce against the defendant which culminated in a divorce order that was granted by consent of both parties on 15 February 2023. This was case number HC114/21 (which shall hereinafter be referred to as the previous claim). When this court granted the said divorce, it also shared the assets of the parties in terms of the law and specifically this relates to the movable and immovable assets. The court also ordered that the half shares for the jointly owned properties be transferred so that each spouse would have full ownership and control of what he or she would have been awarded.

SUBMISSIONS BY THE PARTIES

In his submissions, the defendant argued that the plaintiff’s claim is res judicata. His submission was that the plaintiff is the same both in the previous action and in the current one. The defendant is also the same in the previous claim and also in the current claim. The subject matter and the cause of action are the same. He cited the case of Stone and Another v Central Africa Building Society and Others CC 05/24.  The defendant contended that when the court distributed the assets among the parties, the businesses which were being carried out on each of those affected premises automatically vested to such party who was awarded such property. He submitted that the plaintiff was aware of the businesses which were being carried out at such properties and hence she should have made all her claims at once. Furthermore, the defendant submitted that the plaintiff had no proper cause of action in this matter. He submitted that there was no joint venture at all. What only existed between the parties had been a marriage which upon dissolution the court distributed the assets of the parties in terms of s 7 of the Matrimonial Causes Act [Chapter 5:13]. The plaintiff was estopped from re-opening the matter through the back door. It was submitted by the defendant that the court was now functus officio.

On the other hand, the plaintiff submitted that the non-remittal of the plaintiff’s shares and rentals from the joint business ventures were not pleaded or decided by the court in the previous claim. It was submitted that the fact that the plaintiff says that these issues needed to have been included in the previous claim testifies that the issues are different from the ones which were previously decided and as such they cannot be res judicata. The plaintiff cited the case of Flowerdale Investments (Pvt) Ltd and Another v Bernard Construction (Pvt) Ltd and Others SC 05/09 which case spells out the usual requirements of res judicata. She also cited the case of Democratic Alliance v Brummer (2022) ZASCA 151 for the submission that in deciding whether the plea of res judicata should succeed, the court must inquire whether the same issues of fact and law which are before it were decided previously or not. The plaintiff submitted that res judicata cannot succeed in the absence of a determination of the same issue by the court in the previous matter. The plaintiff’s submission was that even if the parties are the same, the subject matter and the cause of action are now different. Plaintiff submitted that she was not asking the court to revisit the divorce order or re distribute the property. She finally submitted that she has a right to a fair trial in terms of s 69(3) of the Constitution.

THE LAW AND ITS APPLICATION TO THE CASE AT HAND

Upon granting a divorce between the parties or at any time thereafter, a court of law has a statutory privilege to share the assets of the parties between them. Section 7 (1) and (2) of the Matrimonial Causes Act [Chapter 5:13] provides as follows:

“(1) Subject to this section, in granting a decree of divorce, judicial separation or nullity of marriage, or at any time thereafter, an appropriate court may make an order with regard to—

(a) the division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;

(b) the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or of any child of the marriage.

(2) An order made in terms of subsection (1) may contain such consequential and supplementary provisions as the appropriate court thinks necessary or expedient for the purpose of giving effect to the order or for the purpose of securing that the order operates fairly as between the spouses and may in particular, but without prejudice to the generality of this subsection—

(a) order any person who holds any property which forms part of the property of one or other of the spouses to make such payment or transfer of such property as may be specified in the order;

(b) confer on any trustees of any property which is the subject of the order such powers as appear to the appropriate court to be necessary or expedient.”

The above provisions of the law are very clear. The court, in granting a divorce between the plaintiff and defendant did exercise its power to share their assets in terms of the above provision. Subsection 3 of s 7 of the Act provides for the assets that are excluded by law from being subject of distribution at divorce. Section 4 of the Act goes on to outline the factors that a court of law must consider in determining the equitable distribution of the assets of the spouses. In the case of plaintiff and defendant, they agreed how their assets were to be shared in the previous claim. The sharing of their assets was in terms of s 7 of the Matrimonial Causes Act rather than in terms of any joint venture whatsoever.  Subsection 2 of s 7 is wide enough to enable the court to grant any consequential or supplementary provision as may be expedient to cater for any rights or obligations which may arise due to the distribution of the property between the spouses.

The court having exercised the power to share the assets of the parties at divorce, what the court may now do hereafter is not to revisit the issue afresh but to vary its order which was previously made in terms of s 9 of the Matrimonial Causes Act which provides thus:

“Without prejudice to the Maintenance Act [Chapter 5:09], an appropriate court may, on good cause shown, vary, suspend or rescind an order made in terms of section seven, and subsections (2), (3) and (4) of that section shall apply, mutatis mutandis, in respect of any such variation, suspension or rescission.” (Added emphasis)

The above provision mandates a party who wants to temper with a divorce order distributing the assets of the spouses to do so openly in terms of s 9 of the Act so that the court and all affected parties will be alive of the fact that what such party requires is a variation of the divorce order distributing matrimonial assets. This is not what the plaintiff has done in the current claim. She has approached this court on a purportedly fresh cause of action which when considered in all its ramifications, it is apparent that the relief that she intends to obtain will be a variation of the divorce order which was granted by this court. The order or relief that she seeks in her current claim will either diminish or add value or benefits in the assets which this court has already distributed at divorce. There are therefore many legal principles which militate against the plaintiff’s current claim. In assessing the special plea of res judicata, a court of law is not limited to an assessment of literal words and phrases used by a party in crafting the cause of action but it looks at the substance of the claim and the effect of the relief sought as it assesses whether the result of the current action will contradict or duplicate the previous relief, order, pronouncement or judgment which was made by a competent court of law. In casu, it is apparent that the plaintiff’s claim for the share of proceeds and rentals from the assets of the spouses at the time when the parties were still married to each other will seriously impact upon the parties’ enjoyment of the value of assets which have already been shared by way of an order of this court. The order that she craves from this court is exactly the same distribution of assets that the court has already embarked upon in terms of s 7 of the Act. In attempting to deny this fact, the plaintiff struggles to make a distinction between the two claims in para 2.5 of her submissions as follows:

“It is clear that case HC114/21 dealt with, inter alia grounds for divorce and distribution of matrimonial property, it did not deal with issues of proceeds from joint businesses and rentals at law.”

In the above quoted passage, it is clear that the plaintiff is trying to distinguish the same side of one coin whose colour, inscription and appearance is the same. No court of law can deal with the current claim without upsetting the previous order of divorce. It is on this basis that the plaintiff’s cause of action is not proper. It is also true that the plaintiff’s claim is res judicata because the court has already shared the assets of the parties in terms of s 7 of the Matrimonial Causes Act. The court is also functus officio over the exercise of its discretion again in sharing whatever the parties were entitled to in relation to the assets which were shared at divorce unless a proper application for variation is made which will then cloth the court with the necessary jurisdiction to re visit its order in terms of the law.

It is correct that the plaintiff should have made all her claims against the defendant once and for all when she filed the divorce in the previous action. She is precluded from bringing her claims against the defendant in piecemeal fashion by the once for all principle which originates from claims of damages for compensation and which in my view is applicable in this context. In Kruger v Thompson (2012) ZAKZPHC 62, the plaintiff who had previously been awarded damages for patrimonial loss arising from a jet-ski accident was successfully met with a special plea of res judicata when she subsequently filed a claim for damages for personal injuries arising from the same accident. At pp 6 to 7 of the cyclostyled judgment, the court pronounced as follows concerning the once for all rule:

“This rule, derived from English law, requires that all claims generated by or from the same cause of action, be instituted in one action.

In Custom Credit Corporation v Shembe (supra), usually referred to as the locus classicus on the rule, Van Winsen AJA held.

‘The law requires a party with a single cause of action to claim in one and the same action whatever remedies the law accords him upon such cause.  This is the ratio underlying the rule that, if a cause of action has previously been finally litigated between the parties, then a subsequent attempt by the one to proceed against the other on the same cause for the same relief can be met by an exceptio rei judicatae vel litis finitae.  The reason for this rule is given by Voet 44.2.1 (Gane’s translation, volume 6, p553) as being “to prevent inextricable difficulties arising from discordant or perhaps mutually contradictory decisions due to the same suit being aired more than once in different judicial proceedings”…The rule has its origin in considerations of public policy which require that there should be a term set to litigation and that an accused or a defendant should not be twice harassed upon the same cause’”

In consideration of the above pronouncements, the plaintiff cannot be allowed to bring a claim that she could have brought when she instituted the divorce against the defendant especially if such claim will affect the order of divorce that is already extant. Such a claim which will impact upon the rights of the parties in relation to the assets already shared by this court at divorce cannot be brought afresh as if the court did not share the assets of the parties at divorce. This determination goes to the root of the plaintiff’s claim as having been ill -conceived at law. I am not persuaded to award an order of punitive costs against the plaintiff for having believed that her claim was legally competent when it was not so. It is therefore ordered as follows:

The defendant’s point of law regarding the special plea of res judicata be and is hereby upheld.

The defendant’s point of law that there is no proper cause of action by the plaintiff is also upheld.

The plaintiff’s claim is accordingly dismissed with costs.

Lunga Mazikana Attorneys, plaintiff’s legal practitioners

Chibaya & Partners, defendant’s legal practitioners