Marvellous Taruona v Misheck Brine Zvarevadza and Others

The plaintiff had previously been involved in litigation against the defendants concerning his position as director in the sixth defendant company. He was initially reinstated as director in HC 4096/96, but was subsequently dismissed on 24 September 1996. His application for reinstatement in HC 4157/97 was dismissed with costs by Bartlett J on 17 September 1997. The plaintiff then launched the present matter, which was essentially a carbon copy of an earlier application (HC 2765/05) that he had withdrawn in June 2006. Patel J directed that the matter proceed to trial. The defendants raised special pleas of res judicata and prescription. The plaintiff claimed directorship and shareholding in the sixth defendant company, alleging fraudulent removal by the first defendant.

• Whether the plaintiff's claim for directorship was res judicata based on the earlier determination in HC 4151/97
• Whether the plaintiff's claim for directorship was prescribed under the Prescription Act
• Whether the plaintiff's claim for shareholding was res judicata or lis pendens
• Whether the court should grant a decree of perpetual silence against the plaintiff
• Whether punitive costs should be awarded against the plaintiff for abuse of court process

The special pleas raised by the first to sixth defendants were upheld. The plaintiff's claims were dismissed. No order as to costs was made for both the application and the action.

A claim for directorship that has been finally determined by a competent court in earlier proceedings between the same parties, concerning the same subject matter and based on the same cause of action, is res judicata and cannot be re-litigated. Under section 14(1) of the Prescription Act, prescription extinguishes the debt/right itself after the lapse of the prescribed period (three years for claims based on directorship rights), not merely the remedy. Once a right is extinguished by prescription, it cannot be revived by subsequent erroneous administrative acts. A matter that is subject to a pending appeal is lis pendens, not res judicata, and the pending appeal interrupts prescription under section 7 of the Prescription Act.

The court observed that the plaintiff's declaration was "a dog's breakfast" - a poorly drafted pleading. Kudya J expressed the view that the plaintiff appeared motivated by malice and malevolence rather than a genuine desire to achieve justice, and that but for section 18 of the Legal Aid Act, punitive costs on the legal practitioner and client scale would have been appropriate. The court also noted that it would not be proper to grant a decree of perpetual silence against the plaintiff given the still-pending issue of his shareholding that might require judicial determination. The court commented on the improper practice of issuing unilateral "notices of amendment" without either consent of parties or court order, citing ZFC Ltd v Taylor with approval.

This Zimbabwean High Court case illustrates important principles regarding res judicata and prescription in company law disputes. It demonstrates the finality principle in litigation - that parties cannot repeatedly litigate the same issue once it has been determined by a competent court. The case also confirms the application of "strong prescription" under Zimbabwean law (following South African jurisprudence), which extinguishes the debt/right itself rather than merely barring the remedy. The judgment emphasizes the court's intolerance of vexatious litigation and abuse of process, while also showing the protective effect of legal aid legislation in preventing cost orders against impecunious litigants. The case serves as authority for distinguishing between res judicata (matter already decided) and lis pendens (matter still pending on appeal).