Dharb Investments v Pesket Trading (Pvt) Ltd and Zimbabwe National Road Administration

The plaintiff claimed payment of US$19,462 plus interest and costs on the attorney-client scale against two defendants for alleged damage to its motor vehicle during the course of it being towed because it was not registered in accordance with the law. The second defendant (Zimbabwe National Road Administration) raised a special plea of res judicata, arguing that the same claim had been previously dismissed in Case No. HC 7801/17 when the court upheld a special plea (which should have been an exception) that the plaintiff had no cause of action against the second defendant.

• Whether the special plea of res judicata was properly raised
• Whether the same cause of action existed between the current matter and the previous case HC 7801/17
• Whether the requirements for exceptio rei judicata were satisfied
• Whether attorney-client costs were warranted against the plaintiff

The special plea of res judicata was upheld and the plaintiff's claim against the second defendant was dismissed. The plaintiff was ordered to pay the second defendant's costs on the attorney-client scale.

Where a court has previously determined that there is no cause of action based on certain facts, the doctrine of res judicata prevents the re-institution of the same claim founded upon the same facts against the same party. The three requirements for exceptio rei judicata must all be satisfied: (a) the proceedings must be between the same parties or their privies, (b) the same question must arise for determination, and (c) the cause of action must be the same in both matters. Where these requirements are met, the special plea must be upheld and the claim dismissed.

The court expressed concern about the lack of supervision of junior legal practitioners by their principals. Zhou J observed that it would have been clear from reading the pleadings in both matters that the claim against the second defendant was manifestly doomed to failure and amounted to an unacceptable abuse of court procedures. The court indicated that it would have been inclined to grant costs de bonis propriis against the legal practitioner, but declined to do so only because it was his first appearance before the High Court. The court nevertheless awarded attorney-client costs against the plaintiff to mark its disapproval of the re-institution of a hopeless claim.

This case reinforces the application of the doctrine of res judicata in Zimbabwean law and demonstrates the court's willingness to impose punitive costs (attorney-client scale) where the same claim is re-instituted after previous dismissal. It also highlights the court's concern about proper supervision of junior legal practitioners and the potential for costs de bonis propriis where there is manifest abuse of court processes.