Robert Bruce Moffat v Sibongile Shava and The Minister of Lands, Agriculture and Rural Resettlement N.O

The applicant sought leave to appeal against the High Court's decision dismissing his special pleas of res judicata and prescription. The applicant had raised a special plea of res judicata arguing that the issues to be determined by the High Court in HC 2725/19 had already been finally determined by the Magistrate's Court in CRB 104/16. The applicant contended that the Magistrate's Court had dealt with his rights of occupation of the property under the Gazetted Lands (Consequential Provisions) Act Chapter 20:28. On prescription, the applicant argued that the 1st respondent's claim was founded on an offer letter dated 6 June 2014, constituted a debt as defined in the Prescription Act Chapter 8:11, and had prescribed after 3 years. The 1st respondent opposed the application, arguing that section 278 of the Criminal Law Codification and Reform Act barred the res judicata plea (as an acquittal in criminal proceedings does not bar civil proceedings), and that her claim was for a declaratur concerning future and contingent rights not subject to prescription.

• Whether an acquittal in criminal proceedings bars subsequent civil proceedings under section 278 of the Criminal Law Codification and Reform Act Chapter 9:23
• Whether the special plea of res judicata should succeed where a Magistrate's Court had previously dealt with property rights in criminal proceedings
• Whether the 1st respondent's claim based on an offer letter constitutes a debt subject to prescription under the Prescription Act Chapter 8:11
• Whether a claim for a declaratur concerning future and contingent rights is subject to prescription
• Whether there are reasonable prospects of success on appeal to warrant granting leave to appeal

The application for leave to appeal was granted in terms of the draft as amended. No order as to costs was made.

Section 278 of the Criminal Law Codification and Reform Act (Chapter 9:23) is clear and unambiguous: an acquittal in criminal proceedings does not bar subsequent civil proceedings. Therefore, a special plea of res judicata based on a prior criminal acquittal will not succeed in civil proceedings. Leave to appeal should be granted where there are arguable points of law requiring clarification by a higher court, particularly where there is an absence of case law and Supreme Court pronouncements on the specific issue, and where the applicant's contentions are not entirely hopeless.

The court observed that the area of prescription law, although governed by statute (the Prescription Act Chapter 8:11), is an area that requires interpretation and findings on how a particular case relates to the aspect of prescription. The court noted that this technical point may be subject to different interpretations warranting that a higher court pronounce itself on the subject matter. The court also commented that it would not award costs against the 1st respondent for opposing the application as the opposition was not totally without merit, and that the Supreme Court needs to provide guidance on the pertinent issues raised by both sides.

This case is significant in Zimbabwean jurisprudence as it highlights the interaction between criminal and civil proceedings in relation to res judicata, confirming the application of section 278 of the Criminal Law Codification and Reform Act which prevents an acquittal in criminal proceedings from barring subsequent civil proceedings. The case also demonstrates the court's willingness to grant leave to appeal where novel or unclear questions of law arise regarding prescription, particularly in the context of land rights and declaratory relief, recognizing that Supreme Court guidance is necessary to resolve technical points of law that may be subject to different interpretations.