Samson Magora and 33 Others v Runde Rural District Council and 6 Others

The plaintiffs were 34 residents of Mudereri Village under Chief Masunda in the Zvishavane Communal area. They alleged that the Minister of Local Government (5th defendant) unlawfully annexed their land and incorporated it into Zvishavane Town Council's (2nd defendant) jurisdiction without prior notice. They claimed the defendants conspired to sell their land to FBC Building Society (7th defendant), which started servicing the area and pegging stands in January 2020. The plaintiffs sought to declare the sale agreement null and void and the forced removals unlawful. Previously, the plaintiffs had instituted HC 1018/20 on 11 February 2020 involving the same parties (except the 7th defendant was FBC Bank Limited instead of FBC Building Society) and seeking similar relief. On 1 July 2020, Phiri J granted a default judgment in HC 2744/20 dismissing the plaintiffs' claim in HC 1018/20 on application by FBC Bank under Order 11 Rule 75 on grounds that the action was frivolous and vexatious. On 17 August 2020, the plaintiffs instituted two new actions: HC 4348/20 and HC 4349/20, essentially splitting the relief they had sought in HC 1018/20. The defendants raised special pleas of res judicata.

• Whether the plaintiffs' claim was res judicata in light of the dismissal of HC 1018/20
• Whether a default judgment dismissing a plaintiff's claim for non-appearance constitutes a final and definitive judgment requiring rescission before fresh proceedings can be instituted
• Whether the dismissal of HC 1018/20 under Order 11 Rule 75 was a determination on the merits
• Whether the splitting of claims under HC 4348/20 and HC 4349/20 after dismissal of HC 1018/20 constituted an abuse of process

1. The plaintiffs' claims in HC 4349/20 were dismissed. 2. The plaintiffs were ordered to pay the first, second, third and seventh defendants' costs on the attorney and client scale.

A plaintiff whose claim has been dismissed by default judgment cannot simply institute fresh proceedings on the same cause of action involving the same parties without first applying for rescission of that default judgment. The proper interpretation of Rule 63 is that it applies to any party (including plaintiffs) against whom judgment has been given in default, and such party must apply to set aside the default judgment before prosecuting their claim further. Where a default judgment dismissing a plaintiff's claim exists, that matter remains live and the plaintiff cannot approach the court afresh seeking the same relief without purging their default.

The court expressed the view that while it preferred the reasoning in Marovatsanga v Chiwaridzo to the decision in Darare v Chiyangwa, it acknowledged that the latter was decided by two judges on appeal and was therefore more persuasive. However, the court declined to follow Darare based on its analysis of Rule 63. The court also observed that splitting claims involving the same parties and cause of action under different case numbers on the same day, after a previous claim was dismissed, borders on outright dishonesty and is tantamount to forum shopping. The court noted it could not conclusively determine whether Phiri J's dismissal was on the merits in the absence of written reasons for that judgment.

This case clarifies important principles of Zimbabwean civil procedure regarding default judgments and res judicata. It establishes that plaintiffs whose claims are dismissed in default must apply for rescission of that default judgment before instituting fresh proceedings on the same cause of action, contrary to the dictum in Darare v Chiyangwa. The judgment emphasizes that Rule 63 applies to any 'party' against whom default judgment is granted, not just defendants. The case also demonstrates the courts' intolerance for abuse of process, particularly attempts to circumvent default judgments by splitting claims and forum shopping. The award of costs on the attorney-client scale signals strong judicial disapproval of conduct designed to deceive the court.