Stephen Pasipanodya (In his capacity as the executor in the estate of the late Edna Pasipanodya) v Tracy Ruwizhi (In her capacity as the executrix in the estate of the late John Ruwizhi) and The Director of Housing Municipality of Chitungwiza

The late Edna Pasipanodya and the late John Ruwizhi were engaged in litigation over the occupation and sale of immovable property at 11192 Rusununguko, Zengeza 4 Chitungwiza. The late Edna Pasipanodya sued the late John Ruwizhi in the Harare Magistrates Court (case number 8113/086) regarding whether they had entered into a lease or sale agreement. The plaintiff's case was dismissed in default of appearance. Thereafter, the plaintiff instituted an ex parte application at Chitungwiza Magistrates Court on 18 November 2003 (case number 291/99) seeking eviction. The defendant raised the special plea of res judicata, which was upheld by the magistrate on 10 September 1999. On 13 November 2003, the plaintiff issued summons against Betty Ruwizhi (later Tracy Ruwizhi) as executrix in the estate seeking cession of rights and title in the disputed property. During the trial in the High Court, the defendant applied to amend its plea to incorporate the special plea of res judicata.

• Whether a default judgment in the Magistrates Court gives rise to the special plea of res judicata in subsequent proceedings
• Whether the defendant should be allowed to amend its plea to incorporate the special plea of res judicata at a late stage of trial
• The effect of Order 33 Rules 4 and 5 of the Magistrates Court Rules on the availability of the res judicata defence
• Whether a matter dismissed in default of appearance constitutes a determination on the merits sufficient to found res judicata

The application for amendment of plea to incorporate the defence of res judicata was dismissed with costs being costs in the cause.

Default judgments in the Magistrates Court do not give rise to the special plea of res judicata in subsequent proceedings. Order 33 Rule 5 of the Magistrates Court Rules provides in peremptory terms that the withdrawal or dismissal of an action or a decree of absolution from the instance shall not be a defence to any subsequent action. This is consistent with the common law principle that the defence of res judicata is unavailable where a matter has not been previously determined on the merits. A judgment issued in default of appearance, on account of a party's failure to appear at a hearing, does not constitute a determination on the merits and therefore cannot found res judicata. Similarly, where a court declines jurisdiction without determining the substantive cause of action, such a decision does not determine the matter on the merits and cannot support a res judicata defence.

The court observed that the defendant's application to amend the plea was a time-wasting gimmick, noting the plaintiff's complaint that the defendant continued to occupy the premises without paying rentals and that prolonging proceedings suited the defendant to the plaintiff's loss and prejudice. The court commented that allowing an amendment to incorporate an incurably bad defence at law would amount to a sheer waste of time prejudicial to the plaintiff. While accepting the general principle that a point of law can be raised at any time, the court emphasized that this does not mean amendments will be allowed where the proposed plea has no reasonable prospects of success.

This case clarifies an important principle of Zimbabwean civil procedure regarding the limited effect of default judgments in the Magistrates Court. It confirms that default judgments do not constitute determinations on the merits and therefore cannot found the special plea of res judicata in subsequent proceedings. The case emphasizes the statutory protection provided by Order 33 Rules 4 and 5 of the Magistrates Court Rules, which preserve a party's right to re-litigate matters dismissed in their absence. This promotes fairness in the administration of justice by ensuring parties are not permanently barred from pursuing claims simply because they failed to appear at a hearing. The judgment also demonstrates judicial reluctance to allow amendments that incorporate legally incompetent defences, particularly at late stages of proceedings.