Meron Matewere v First Transfer Secretaries (Private) Limited

### Preamble
1
HH 384-25
HC 3794/20
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MERON MATEWERE

versus

FIRST TRANSFERS SECRETARIES (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE; 1 July 2025

Application for absolution from the instance

Plaintiff in person

W. Diarra, for the defendant

MAMBARA J: This matter comes before the High Court as an application by the defendant for absolution from the instance at the close of the plaintiff’s case. The plaintiff, Mr. Meron Matewere, sued the defendant (First Transfer Secretaries (Pvt) Ltd) by summons issued on July 20, 2020. In his claim, the plaintiff seeks delivery of 77,235 Class “A” Econet Wireless shares or payment of the equivalent value of those shares, together with costs of suit. The defendant entered appearance to defend and raised, inter alia, two special defences: prescription and res judicata, arguing that the claim is time-barred and already adjudicated, and furthermore denying any merit in the claim.

A trial ensued in which the plaintiff, a self-actor, was the sole witness on his own behalf. After the plaintiff closed his case, the defendant sought leave to apply for absolution from the instance, which was granted. The present judgment determines that application.

Factual Background

The dispute revolves around the plaintiff’s entitlement to the 77,235 Class A shares in Econet Wireless (Pvt) Ltd, which he acquired during his employment. The shares and their handling are governed by a Deed of Settlement between the plaintiff and Econet Wireless (Pvt) Ltd signed by an Innocent Magaya on behalf of the company. A crucial term of that Deed was that the shares could not be dealt with for a period of 24 months, and no alteration or variation of the Deed’s terms could be made without the plaintiff’s authority. The plaintiff produced in evidence his employment offer letter dated 28 June 2007, a reassignment letter, a certificate of service, and the Deed of Settlement, all admitted as exhibits P1 to P4  to establish his rights over the shares and to cure what he described as the defendant’s “corporate confusion” regarding the various Econet entities involved. It was emphasized that the plaintiff was employed by Econet Wireless (Pvt) Ltd and not Econet Wireless Zimbabwe Ltd and thus any share buy-back or retrenchment scheme involving Econet Wireless Zimbabwe would not apply to him. Indeed, the plaintiff insists he was never retrenched by Econet Wireless Zimbabwe, and challenged the defendant to show evidence to the contrary. None was produced.

According to the plaintiff, he never authorized the sale of his shares in Econet Wireless (Pvt) Ltd. (Issue No. 1 agreed at the Pre-Trial Conference). He contends that the defendant, as the share transfer secretaries, failed to exercise due diligence and improperly carried out a transaction to sell/transfer the shares without proper authority, under the pretext of a “buy-back” by Econet Wireless Zimbabwe – a company by whom the plaintiff was never employed (Issue No. 2). The plaintiff alleges the defendant acted contrary to the Deed of Settlement – in particular, that the defendant misrepresented to Econet Wireless (Pvt) Ltd that a valid buy-back of the shares had occurred, involving other entities, rendering the whole transaction fraudulent and illegal (Issues No. 3 and 4).

In response to the defendant’s special defences, the plaintiff’s position is as follows. On prescription (Issue No. 5), he argues that the defendant cannot rely on prescription because it was never a party to the Deed of Settlement and thus, he implies, had no privity to invoke such defence. More substantively, he avers that he only became aware of the crucial email communication regarding the share sale in 2018, and he initiated legal proceedings in 2020 shortly after discovery of that information. He maintains that in any event, under Zimbabwean law claims relating to ownership of shares are not ordinary debts and would prescribe, if at all, after 30 years rather than 3 years, and that fraud suspends the running of prescription. On res judicata (Issue No. 6), the plaintiff’s stance is that the prior proceedings concerning these shares did not involve the present defendant, and thus the strict requirements for res judicata, particularly the identity of parties, are not met. He also contends the issues now before the Court are not the same as those previously decided, especially given the allegations of fraud in the present case which were not finally resolved earlier.

The plaintiff was subjected to extensive cross-examination, which revealed significant details relevant to the special defences. Under questioning, the plaintiff acknowledged that this was not his first time in court over the shares. In 2018 he had launched proceedings in the High Court, case HC 10299/18) concerning the same Class “A” shares, and a judgment was rendered against him by Chitakunye J in HH 585/19. He appealed that High Court decision, but his appeal was dismissed by the Supreme Court, meaning the High Court judgment stands as final. The plaintiff was directed to the earlier judgment, HH 585/19, which recorded the relief he sought then, and he admitted that it concerned the very same 77,235 Class “A” shares that form the subject of the current claim. In fact, a comparison of the relief in the prior case and the present summons showed a substantial overlap.

Crucially, the plaintiff had alleged in the current case that the defendant acted on an email instruction to sell the shares which “did not emanate from him”. However, when confronted with the prior judgment’s findings at paragraphs 3 and 4 he was forced to concede that, in the earlier case, he had admitted to authoring the very email that instructed the sale of these shares. The judgment HH 585/19, portions of which were referred to in this trial, concluded unequivocally that it was the plaintiff himself who initiated the disposal of his shares and received the proceeds, and that his attempt to claim the shares back was dishonest and without cause. Indeed, Chitakunye J found that Mr. Matewere “lied that he was surprised that his shares were dealt with” when in truth he had directed their sale and had been paid in full by 23 June 2017. The court in 2019 decried the plaintiff’s conduct as “unbecoming and reprehensible,” intended to “harass” those who merely complied with his own instructions. Ultimately, that earlier application was dismissed on the merits, with punitive costs for abuse of court process. When these damning portions of the judgment were put to the plaintiff in cross-examination particularly the final finding that he initiated the sale, he refused to comment.

It is against this factual backdrop that the defendant now applies for absolution from the instance. The defendant contends that, given the plaintiff’s own evidence and admissions, his claim is barred by res judicata and prescription and otherwise so lacking in merit that no reasonable court could find for the plaintiff. The plaintiff opposes the application, asserting that as a matter of law and procedure the defendant is not entitled to absolution at this stage especially on issues where the defendant bears the onus, and that in any event the plaintiff has made out a prima facie case requiring the defendant to answer. The Court will outline the parties’ submissions on the application before turning to the applicable law and an analysis of the issues.

The test for absolution:

Both parties acknowledge the well-established test for granting absolution from the instance at the close of the plaintiff’s case. The question is whether the evidence adduced by the plaintiff, if believed and given the benefit of reasonable inferences, is such that a court might find for the plaintiff. In other words, has the plaintiff made out a prima facie case? If not, if the plaintiff’s evidence is so unsatisfactory or non-existent that no reasonable tribunal could find in his favour, then the defendant is entitled to absolution. This standard has been enunciated in many cases, often with the formulation from Mazibuko v Santam Insurance Co Ltd, 1982 (3) SA 125 that the court asks whether “applying its mind reasonably” to the plaintiff’s evidence, it “could or might find for the plaintiff.” If the answer is in the negative, absolution should be granted. If there is evidence upon which a reasonable person might (not would, but might) find for the plaintiff, then the matter should proceed.

The defendant submits that, on the evidence led, the plaintiff has failed to clear even this low threshold. The defendant’s counsel emphasizes that the plaintiff’s own admissions and the documents before the Court conclusively show that his claim is not legally sustainable. Two independent grounds are advanced: (1) res judicata (cause of action and issue estoppel), and (2) extinctive prescription. Each ground, the defendant argues, would independently justify dismissing the claim, and together they reinforce that there is no case to answer. Additionally, the defendant asserts that the claim is in any event devoid of merit on substantive grounds, given the findings of fact already made in prior proceedings which the plaintiff cannot credibly escape. The defendant seeks absolution with costs on a punitive scale, contending that the plaintiff has abused the court’s process by re-litigating a settled matter.

Res Judicata (Cause of Action Estoppel & Issue Estoppel):

The defendant’s primary argument is that the plaintiff’s action is res judicata. The law does not permit the same matter to be brought to court repeatedly once it has been decided, encapsulated in the maxims nemo debet bis vexari pro una et eadem causa (no one should be twice troubled for the same cause) and interest rei publicae ut finis litium sit (it is in the public interest that there be an end to litigation). In Zimbabwean and common law jurisprudence, the doctrine of res judicata has two related applications: cause of action estoppel and issue estoppel.

Cause of action estoppel arises when the cause of action in the later proceedings is identical to that in earlier proceedings, between the same parties or their privies, involving the same subject matter. Once a cause of action has been finally adjudicated, the matter is absolutely closed as between those parties. The prior judgment, if valid, is conclusive on all its aspects and points decided, unless perhaps obtained by fraud or collusion, which is not alleged here.

Issue estoppel sometimes called “collateral estoppel” in other jurisdictions may apply even if the cause of action is different, where a material issue of fact or law was necessarily decided in earlier litigation between the same parties or their privies. If that identical issue arises in later proceedings on a different cause of action, one party may be estopped from re-arguing it, provided it was fundamental to the prior outcome. The House of Lords in Arnold v National Westminster Bank Plc defined these concepts and our courts have embraced them. The Supreme Court has explicitly adopted the doctrine of issue estoppel as a matter of public policy to ensure finality in litigation. For example, in Willowvale Mazda Motor Industry (Pvt) Ltd v Sunshine Rent-A-Car (Pvt) Ltd, 1996 (1) ZLR 415 (SC) and Galante v Galante, (2) 2002 (1) ZLR 144 (HC) the courts endorsed that once a court of competent jurisdiction has determined an issue of fact or law as essential to its judgment, neither party can later contradict that finding in subsequent proceedings between them.

Applying these principles, the defendant contends that both strands of res judicata squarely apply in casu. First, the cause of action is essentially the same as in the 2018 case. The plaintiff is seeking to recover the very same 77,235 shares or their value based on the alleged wrongful disposal of those shares. The relief sought is virtually identical. Indeed, the plaintiff conceded under cross-examination that the relief in HC 10299/18 as recorded in Chitakunye J’s judgment corresponds to the relief now sought. The defendant argues that the prior case involved the same subject matter, those shares and effectively the same cause. This was now another attempt by Mr. Matewere to undo the consequences of the 2017 share sale that he himself initiated. Because that attempt was dismissed on the merits in a final judgment HH 585/19, the plaintiff cannot now, by merely changing the caption or nominal defendant, resurrect the same cause of action. In the defendant’s view, the parties are also effectively the same. The plaintiff is the same, and while First Transfer Secretaries (Pvt) Ltd was not named as a respondent in HC 10299/18, the plaintiff argues it wasn’t, and the record before this Court suggests the defendants in the prior case may have been Econet entities, the defendant urges that this is a distinction without a difference. The doctrine of privity for res judicata purposes does not allow a person to evade the bar on relitigation by suing a party who is a privy or agent of the original defendant in respect of the same subject. Here, First Transfer Secretaries was the share transfer agent carrying out the transaction at the behest of Econet, essentially an intermediary. The defendant suggests that any finding in the prior case as between the plaintiff and Econet, the company, on the validity of the share sale would inure to the benefit of the defendant in this case, since the defendant’s role was intertwined with that transaction.

Furthermore, at least as to issue estoppel, the defendant points out that a number of specific factual issues were decided adversely to Mr. Matewere in the prior judgment. Notably, that he gave the instruction to sell the shares, that the shares were lawfully disposed of pursuant to his request, and that he received the proceeds in 2017. These facts were essential to the dismissal of his previous claim, and they remain directly relevant to the present claim where he again alleges he did not authorize the sale and that it was done improperly. Having had a full and fair opportunity to litigate those issues in 2018-2019, and having lost, even on appeal, the defendant contends the plaintiff cannot re-open those findings under the guise of a new action.

The defendant bolsters this argument with considerations of public policy and consistency. It cites the Constitutional Court’s observation in Denhere v Denhere & Anor CCZ 9/19 that once a matter or an issue has been settled by a competent court, it should not lightly be revisited by courts of parallel jurisdiction. Re-litigating decided issues undermines certainty and the authoritative force of judgments. As Cooley’s famous dictum on stare decisis, approved in Denhere supra, and quoted by the defendant warns, even if another court might doubt the prior decision’s correctness, there are consequences of a very grave character in allowing conflicting decisions on the same facts, and the better course is to uphold earlier adjudications absent significant new factors. The defendant maintains that the plaintiff’s current case is essentially an invitation for this Court to discard the previous court’s findings and reach a contrary result in his favour. Doing so, the defendant argues, would violate these principles and encourage endless litigation.

In sum, the defendant’s position is that the material facts underpinning the plaintiff’s cause of action have already been decided conclusively against him in the High Court judgment HH 585/19, which remains extant. The plaintiff is simply trying again, hoping for a different outcome, which is precisely what res judicata forbids. The defendant thus submits that there is therefore no case for the defendant to answer on the merits of the claim, given the prior judgment and that the claim should be dismissed as frivolous and vexatious on this basis alone.

Prescription:

As a second, independent ground, the defendant argues that the plaintiff’s claim has been extinguished by prescription. The governing law is the Prescription Act [Chapter 8:11]. Section 14(1) of that Act provides that a debt is extinguished by prescription after the lapse of the period applicable under the Act. For a “generic” or ordinary debt, the default period is three years, section 15(d)). The Act defines “debt” broadly to include “anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.” Thus, the defendant submits, the plaintiff’s claim, whether one characterizes it as a claim for the delivery of shares or payment of their value is a debt in terms of the Act, arising either from contract or delict or otherwise, and carries a three-year prescription period.

In terms of Section 16(1) of the Act, prescription begins to run “as soon as a debt is due”, unless the running is effectively delayed by certain exceptions. Section 16(3) qualifies that a debt is not deemed due until the creditor is aware of the identity of the debtor and the facts giving rise to the debt provided that a creditor is deemed to have such knowledge if he could have acquired it by exercising reasonable diligence. The defendant argues that, on the plaintiff’s own evidence as corroborated by the prior judgment, the facts giving rise to this claim, namely the sale of the shares and the resultant loss of his shareholding, were within the plaintiff’s knowledge by 23 June 2017 at the latest. By that date, he not only knew the identity of the party handling his shares, the defendant, acting as transfer secretary for Econet, but he had actually received the proceeds from the sale of the shares. In other words, by June 2017 the plaintiff plainly knew that his shares had been sold and that the defendant was involved in effecting the sale. Therefore, the cause of action arose in June 2017, and the debt, be it a claim for the shares or their value was due from that time.

Given a three-year prescription period, the defendant calculates that prescription began running on 12 June 2017, when the plaintiff gave the instruction to sell and, absent interruption, expired by 12 June 2020. The summons in this case was issued on 20 July 2020, over a month after the prescription period lapsed. On that basis, the claim would be time-barred. The defendant pre-emptively addresses the fact that the plaintiff did sue earlier in 2018 in regard to these shares. It cites Section 19(3)(a) of the Prescription Act, which essentially provides that if the running of prescription is interrupted by the service of process, but that process is later set aside or the proceedings do not result in a final judgment on the merits, the interruption is deemed not to have occurred. Here, although the plaintiff brought the 2018 action, it was dismissed and did not result in him obtaining the relief. Consequently, that filing did not stop the prescription clock from ultimately expiring. By the time the present action was commenced in mid-2020, the defendant contends the underlying claim had prescribed and was extinguished by operation of law.

The defendant supports its prescription argument with case law illustrating how the courts determine the date when a cause of action arose. For instance, in Nan Brooker v Mudhanda & Anor, SC 5/2018, the Supreme Court held that in order to resolve a prescription plea one must identify when specifically the cause of action arose, and that “cause of action” means “the entire set of facts which give rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed,” quoting the classic definition in Abrahams & Sons v SA Railways and Harbours 1933 CPD 626 at 637. In this case, the defendant argues the material facts giving rise to the claim all occurred by June 2017.  At that time the plaintiff had everything he needed to sue. He had he been genuinely aggrieved by the share sale. The fact that he only initiated the present proceedings in July 2020 is, according to the defendant, fatal to the claim.

Finally, the defendant underscores that both of these defences, res judicata and prescription, present not only legal bars but also cast the plaintiff’s conduct in a negative light. The defendant characterizes the plaintiff’s repeated attempts as malicious, frivolous, and vexatious, suggesting an abuse of the court’s process that warrants censure. It is pointed out that the plaintiff’s own dishonesty was remarked upon by the previous court, and yet he has remained intransigent, belligerent and dishonest in persisting with this matter. For these reasons, the defendant not only seeks absolution but urges the Court to award costs on the punitive attorney-client scale against the plaintiff.

Plaintiff’s Response in Opposition

In his response, the plaintiff submits that the application for absolution from the instance cannot succeed both on procedural grounds and on the substantive merits.

Procedural Objection

The plaintiff’s foremost argument is that the defendant has made a fundamental procedural blunder by seeking absolution on issues where the burden of proof rests on the defendant. It is common cause that the defences of res judicata and prescription were raised by the defendant. Indeed, they were listed as issues for trial with the onus specifically allocated to the defendant on those issues as they are special defences. The plaintiff emphasizes that, under both the common law and the High Court Rules, 2021, a defendant who bears the onus on a particular issue is expected to lead evidence first on that issue. The relevant rule is Rule 56(8) and 56(9) of the High Court Rules, 2021, which mirror the long-standing practice in civil trials. Rule 56(8) provides that “when the burden of proof is on the defendant, the defendant shall first adduce his or her evidence, and the plaintiff shall thereafter adduce his or her evidence.” Where, as here, some issues are onus of plaintiff and others onus of defendant, Rule 56(9) stipulates that the plaintiff begins with evidence on the issues he must prove, then closes, and “the defendant shall then call his or her evidence on all the issues”.

This framework, the plaintiff argues, implicitly disallows a defendant from ambushing the plaintiff with an absolution application on an issue the plaintiff was never obliged to prove in the first place. In other words, if the defendant has a defence like res judicata or prescription that depends on facts outside the plaintiff’s prima facie case, the defendant must prove those facts through evidence. He cannot simply demand dismissal when the plaintiff rests. A judgment of absolution from the instance is not competent where the burden of proof is on the defendant. Indeed, our courts have recognized that a special plea, such as res judicata or prescription typically alleges new matter not apparent ex facie the plaintiff’s claim, and therefore evidence may be required to establish it. As the Supreme Court explained in Van Brooker & Anor v Mudhanda & Anor supra, a special plea “advances some fact, not disclosed in the declaration, which is otherwise admitted, and which entitles the defendant” to succeed if proven. Because it “involves the averment of a new fact, it is susceptible of evidence.”

In the present case, both res judicata and prescription required establishing facts beyond the plaintiff’s own pleadings, for example, the identity of parties and cause in the prior case, dates when the cause of action arose, etc. The plaintiff contends that by choosing not to lead evidence on these issues, especially prescription, which the defendant’s counsel in fact did not even cross-examine on at trial, the defendant forfeited the right to absolution on those grounds. He notes that the defendant limited its cross-examination to res judicata issues, and even there, only elicited what the plaintiff had to say. The defendant did not put on any evidence or witnesses of its own. In effect, the defendant is now asking the Court to determine disputed defence issues from the bar on the basis of an incomplete record. The plaintiff submits that this is procedurally improper. If the defendant wanted a decision on res judicata and prescription without presenting its case, it ought to have invoked Rule 56(8) to begin with its evidence on those issues or sought separation of those issues for a preliminary determination. Instead, the defendant allowed the trial to proceed in the normal course, plaintiff, as if the onus lay with the plaintiff on everything, and only after plaintiff’s case did it attempt to nonsuit him on the very issues it was obliged to prove. The plaintiff argues that this tactic is not sanctioned by the rules.

He points out that Rule 56(9) expressly envisions that after the plaintiff closes on the issues where he bears the onus, the defendant “shall then” adduce evidence on all issues, including those the defendant must prove before the case can be concluded. Absolution at the end of the plaintiff’s case is generally available only when the plaintiff bears the overall onus and has failed to make a prima facie case. By contrast, a defendant cannot seek absolution from the instance in a scenario where it has a burden to prove some issues, especially not on those very issues. The plaintiff thus submits that, as a matter of procedure, the Court is enjoined to hear evidence on the whole case, particularly on the outstanding defence issues and that the defendant’s application is incompetent at this juncture. In short, the defendant is disqualified from making an application for absolution from the instance at the close of the plaintiff’s case where the defendant carries the burden of proof on the decisive issues. On this basis alone, the plaintiff urges the Court to refuse the application, allow the defendant to present its evidence, and determine all issues on their merits after a full trial.

Substantive Arguments on Merits

Without prejudice to his procedural objection, the plaintiff also contends that substantively there is evidence upon which a court could find in his favour, meaning absolution would be inappropriate in any event. He disputes the defendant’s characterization of the case as hopeless or entirely covered by res judicata/prescription.

On res judicata, the plaintiff points out that strict requirements apply before a claim can be barred. Classical res judicata (cause of action estoppel) demands identity of the thing claimed, the cause of action, and the parties in the two matters. Here, the plaintiff maintains that the defendant in this case, First Transfer Secretaries, was not a party to the previous litigation. The 2018 case, he notes, was against certain Econet Wireless entities. According to him, the defendant was “never part of” that case. If that is so, the absence of eadem persona (same parties) is usually fatal to a plea of res judicata. While the law has evolved to recognize issue estoppel even between parties that are not identical, the plaintiff argues that such extension should be approached with caution. He cites Van Binnelandse Skema Bpk v Absa Bank Bpk 1995 (1) SA 653 (A), a South African authority warning that the defence of res judicata (and by extension issue estoppel) must be carefully scrutinized because of its potential to cause great unfairness. Courts have emphasized that issue estoppel should not be used mechanically if it would result in injustice, especially where the second case involves new evidence or a different context that was not considered previously.

The plaintiff avers that the present case raises new factual allegations of fraud and illegality in the share transaction that were not finally adjudicated on the merits previously. He explains that his current claim is founded on the notion that the defendant, in concert with others, orchestrated an unauthorized and fraudulent disposal of his shares by misrepresenting or concealing facts. In his view, the prior proceedings did not fully ventilate these issues. He claims that critical evidence only came to light in 2018 after the share sale, such as an email and details of the transaction that had been concealed from him. The plaintiff has consistently maintained that he only became aware of the true nature of the share disposal in 2018, when the relevant internal communications were disclosed. Prior to that, he says, he had “no knowledge of the transaction, nor of the defendant’s role in it, due to the defendant’s active concealment and failure to provide proper documentation.” This assertion is directly relevant to both res judicata and prescription. It suggests that the factual foundation of the current claim, focusing on the defendant’s own misconduct, might not have been squarely before the previous court which primarily dealt with the plaintiff’s misrepresentation to the Econet respondents. Moreover, if the defendant concealed information, the plaintiff argues it should not benefit from a technical defence to defeat a claim that is otherwise just. The Court is thus urged to be cautious in applying res judicata, especially via issue estoppel, since doing so could cause great unfairness and injustice in the circumstances.

On prescription, the plaintiff vigorously disputes that his claim is time-barred. Firstly, he contends that the nature of the right at stake, ownership of shares, is not a mere debt subject to the standard three-year prescription. Shares are incorporeal property, and claims relating to one’s proprietary rights in shares, he submits, are treated differently. He asserts that under Zimbabwean law, claims to vindicate ownership of incorporeal rights prescribe after 30 years, analogizing to real rights or to certain contractual rights secured by deed. It should be noted that the defendant disagrees and views this as an ordinary debt. I will address this legal issue later.

Secondly, and critically, even if a three-year prescription would generally apply, the plaintiff argues that prescription was delayed or interrupted in this case due to the defendant’s fraud or concealment. He invokes Section 16(3) of the Prescription Act and general principles that prescription does not run against a creditor who is unaware of the debt’s existence due to the debtor’s fraud or deliberate concealment. In support, the plaintiff cites the South African appellate case Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A), which held that prescription begins when the creditor has or ought to have knowledge of the facts giving rise to the cause of action, and crucially, “where fraud or deliberate concealment is present, prescription is suspended until such time as the creditor discovers, or could with reasonable diligence have discovered, the fraud.” This aligns with the Prescription Act’s provision that a debt is not deemed due until the creditor is aware of the identity of the debtor and the facts from which the debt arises.

According to the plaintiff, he could not reasonably have known the full facts of the wrongful share sale in 2017 because the defendant, and possibly Econet, hid the true nature of the transaction. It was only in 2018, when an internal email came to light, that he realized the shares had been dealt with in a way that he considers unauthorized and fraudulent. He promptly took action thereafter filing this suit in 2020. If one calculates prescription from the point of discovery in 2018, the claim is within three years. And if the defendant’s actions are viewed as fraudulent concealment, the law would postpone the start of prescription until discovery in 2018, making the July 2020 summons timely. The plaintiff further argues that because the defendant was not a party to the Deed of Settlement, and thus not originally in a contractual relationship with him, it cannot strictly invoke the benefit of prescription arising from that contract. But this point is more rhetorical than legal, as any party can raise prescription as a defence to a claim against it. The stronger point remains the knowledge issue, that the plaintiff did not sleep on his rights knowingly. He acted as soon as he uncovered the alleged wrongdoing, thus equity should favour hearing his claim on the merits rather than shutting it out on a technicality.

Lastly, the plaintiff disputes the defendant’s portrayal of him as dishonest or abusive in this litigation. He insists that he has been candid about the proceedings, acknowledging the prior case, but maintains that his current pursuit is based on a legitimate grievance that was not resolved by the prior case, namely, holding the transfer secretaries to account for what he views as a breach of his rights under the Deed of Settlement. He points out that the Supreme Court did not bar him from pursuing any further claims.  Indeed, he mentions that the Supreme Court “referred [the matter] back to the High Court” after his appeal although the record shows the appeal was dismissed. This could be a misunderstanding on his part. In any event, he argues that his claim should be decided on evidence and law, not summarily terminated, given that he has at least an arguable case.

In summary, the plaintiff’s position is: (a) procedurally, the absolution application is premature and improper where the defendant carries the onus on key issues; and (b) even aside from that, the plaintiff’s evidence, documents and testimony, has established a prima facie case on which a court could rule in his favour, particularly if his evidence of lack of authority, breach of the Deed, and delayed discovery of the sale is believed. He thus prays for the application to be dismissed, so that the trial may continue to the defence stage and all issues be adjudicated with full evidence.

The Threshold for Absolution

At the close of the plaintiff’s case, the governing test, as noted above, is whether a reasonable court might find for the plaintiff on the evidence presented. The court does not at this juncture undertake final credibility determinations or resolve conflicts in the evidence. Those functions are reserved for after the defence case (if any). However, the court is also not obliged to ignore glaring inherent weaknesses in the plaintiff’s evidence that make it utterly unsustainable. Generally, though, if there is evidence on record which, if believed, would support the plaintiff’s claim, the safer course is to refuse absolution so that the matter can be decided on the merits of all evidence. Especially in borderline cases, courts prefer to err on the side of allowing the case to proceed. This is because a plaintiff who has made some case should not be lightly deprived of the chance to have all evidence, including the defendant’s rebuttal, evaluated and a defendant who truly has a strong defence can still win at the end of the trial.

Effect of Onus on the Availability of Absolution

A salient feature of this case is that the issues on which the defendant seeks absolution (res judicata and prescription) are defensive issues on which the defendant bears the onus of proof. This raises a preliminary question: Can a defendant obtain absolution on an issue where the defendant carries the burden of proof? The weight of authority indicates that ordinarily, the answer is no. If the burden of proof is on the defendant, he must first adduce his evidence and an application for absolution after the plaintiff’s case in that scenario would be premature. The High Court Rules, 2021 explicitly codify this principle in Rule 56(9): where some issues are the plaintiff’s to prove and others the defendant’s, the plaintiff leads evidence on his issues and then “the defendant shall then call his or her evidence on all the issues.” Only after the defence has presented its case (or if it elects to present none) would the court consider granting judgment, whether on the merits or by absolution, as appropriate.

Our courts have recognized that a defendant cannot strategically reverse the order of proof by withholding evidence and attempting an absolution argument on a point where it bears the onus. A judgment of absolution is not competent where the defendant has the burden of proving the issue. More recently, in Muller v Snyman [2024] ZALMPTHC 24, a South African High Court reiterated that when a defendant is ordered to begin because the onus was on him for a special plea and the defendant’s case is then weak, the plaintiff may even apply for absolution at the close of the defendant’s case – but notably, not at the close of the plaintiff’s case. By parity of reasoning, a defendant should not be able to seek absolution at the close of the plaintiff’s case on an issue that was never the plaintiff’s duty to prove in the first place. (See my recent judgment in Balamanja Sepiso Made v Rainy River Investments (Pvt) Ltd, HH 375/25 for details)

In the present matter, the issues of prescription and res judicata were explicitly identified as defence issues with the onus on the defendant. The defendant nonetheless argues that the plaintiff’s own evidence suffices to establish those defences without need for the defendant to lead evidence. This is a high-risk approach for a defendant. While it is true that if a plaintiff’s evidence, viewed charitably, actually proves the defendant’s special defence, for example, if a plaintiff’s own documents show he sued out of time or admits all elements of res judicata, a court might entertain an early dismissal, the general rule remains that the onus-bearer must prove the defence.

Here, the plaintiff’s evidence did reveal substantial information about the prior case (res judicata) and dates (prescription), but not necessarily in a manner entirely free from dispute or interpretation. For instance, the plaintiff acknowledged the prior judgment and that the shares are the same, but he also introduced arguments about different parties and alleged new dimensions of fraud. Similarly, he gave dates that suggest a 2017 cause of action, but also claimed lack of knowledge until 2018. These are precisely the sorts of matters that call for clarification through the defence’s evidence or at least through a full examination of the circumstances. The defendant chose not to lead any evidence yet, not even from a representative of First Transfer or from Econet, to conclusively establish who was party to the prior case or how the transaction was conducted and communicated. There is, for example, no evidence from the defendant about whether it treated the plaintiff’s instruction as valid consent or whether any internal fraud may have occurred. Absent such evidence, to grant absolution would be to effectively find in favour of the defendant on disputed points without hearing the defendant under oath. That runs counter to the notion that the court should hear evidence on the whole case when special pleas are involved.

This Court is persuaded by the plaintiff’s procedural argument. The structure of the trial as governed by our rules does not permit the defendant to short-circuit its own obligation to prove its special defences by way of an absolution application at this stage. The correct procedure, in my view, would have been for the defendant either to: (a) request a separate determination of the special pleas before the main trial, which was not done here, or (b) to lead its evidence on these issues after the plaintiff’s case, as envisaged by Rule 56(9). By not doing so, the defendant’s application is arguably procedurally irregular. As the plaintiff put it, the defendant cannot “argue those issues from the bar through its application for absolution” when the rules do not permit making such an application in this scenario. I find considerable merit in the contention that allowing absolution here would undermine the allocated burden of proof and effectively absolve the defendant of the need to substantiate its special defences with evidence.

On this ground alone, the application ought to be refused. However, for completeness and in case I may be wrong, I will also consider whether, even if the application were competent, the defendant has met the substantive test for absolution. That entails examining whether the plaintiff has made out a prima facie case or whether the defences of res judicata and prescription so clearly defeat the claim that no reasonable court could find for him.

Res Judicata and Issue Estoppel: Does the Plaintiff have a Prima Facie Case?

The defendant’s res judicata plea presents a formidable hurdle for the plaintiff, given the undisputed overlap in subject matter with the prior case and the adverse findings in HH 585/19. Nevertheless, a few factors lead me to conclude that this issue is not so clear-cut as to justify truncating the trial at this point.

It remains somewhat uncertain whether First Transfer Secretaries (Pvt) Ltd was a party in the previous suit. The plaintiff insists it was not. If indeed the prior case was against different corporate entities (e.g., Econet Wireless Zimbabwe Ltd or Econet Wireless (Pvt) Ltd), then cause-of-action estoppel (strict res judicata) technically does not apply due to lack of identical parties. Issue estoppel could still apply, but that is an equitable doctrine and not absolute. The Court would need to be satisfied that treating the defendant as a privy to the prior parties is justified and not unfair. On the current record, I have evidence that the plaintiff dealt with Econet and its officials previously, but no direct evidence that First Transfer was litigated against. To impute the prior judgment to this defendant without allowing it to affirm its privity or role through evidence is arguably premature.

The plaintiff’s claim this time appears to place the blame squarely on the defendant’s conduct, suggesting that the defendant facilitated an improper transaction by involving an entity, Econet Zimbabwe, that had no right to buy the shares and by proceeding in violation of the Deed of Settlement. These allegations were not fully fleshed out in the excerpts of the prior judgment we have. In HH 585/19, the focus was on the plaintiff’s own lack of candour, his failure to disclose that he authorized the sale. That judgment dismissed his application, but did it determine all aspects of the transaction’s propriety? It strongly implies the transaction was above-board since it says the respondents merely complied with his instruction and did nothing wrong. However, the plaintiff now argues a nuance: that Econet Wireless Zimbabwe could not lawfully be involved because he belonged to Econet Wireless (Pvt) Ltd, and thus maybe the sale violated the terms protecting his shares. This contention was not clearly addressed before. It might ultimately fail since if he himself asked to sell, corporate technicalities might not save him, but it is a theory he is entitled to attempt to prove. There is at least a prima facie question whether the defendant, as transfer agent, breached a duty by not verifying authority or by acting on an instruction that perhaps should have come from a different channel. A court might find for him on that basis if, for instance, it accepts that the email instruction was not genuinely authorized or that the defendant knew it was circumventing the Deed’s restrictions.

There is no doubt that the prior judgment, if admitted in evidence, strongly undermines the plaintiff’s credibility and his factual assertion that he never authorized the sale. Indeed, his own admission from that case, that he wrote the email can be used to impeach him. However, applying issue estoppel to completely bar him now is discretionary. Courts consider whether the party had a full opportunity to litigate the issue and whether any new evidence has come to light. The plaintiff suggests some new evidence like the internal email he claims not to have seen until 2018 and a different legal context (suing the agent rather than the principal) as reasons not to estop him. While I harbour serious doubts about the plaintiff’s chances of ultimately prevailing, given the strength of the prior findings, I am not prepared to say no reasonable court could find for him on any aspect of his claim. It is theoretically possible that further evidence from the defendant or Econet might reveal irregularities in how the share sale was conducted that could give the plaintiff an opening, despite his prior misrepresentation. Only by completing the evidentiary picture can we be sure that res judicata applies in full force. For example, if it turned out, hypothetically, that the defendant acted without even proper authority from Econet or mishandled the transaction in a way not explored in the first case, a court might distinguish the cause.

In essence, the plaintiff’s evidence, particularly the Deed of Settlement he produced, establishes that he had an entitlement to those shares subject to certain conditions (24-month lock-in, etc.), and there is evidence that the shares were dealt with within that protected period (the sale in 2017, if the Deed was from 2016 or earlier). That alone is some evidence of a breach of the Deed’s terms. A reasonable court could, if it totally believed the plaintiff’s version that he did not knowingly authorize a buyout under improper terms, find that the defendant breached a duty in facilitating the sale. Granted, the plaintiff’s version is badly undermined by contrary evidence from 2018, but deciding that credibility contest is for later. At the absolution stage, the Court must take the evidence in the light most favourable to the plaintiff. Doing so, I conclude that res judicata is arguable but not conclusively established on the current record. There is a prima facie case that something went wrong in the handling of plaintiff’s shares and that he may have a cause of action, unless it is definitively barred by law. I therefore cannot say that his claim is absolutely foreclosed by res judicata at this juncture.

On the issue of prescription, the plaintiff’s evidence raises at least two factual contentious points that prevent a summary decision:

The plaintiff asserts he discovered the crucial facts in 2018 due to the defendant’s concealment. If this is true, then under Section 16(3) of the Prescription Act the debt would not be deemed due until 2018 when he became aware of the facts giving rise to the claim. Whether this assertion is credible is a matter to be tested. It conflicts with evidence that he was paid in 2017 which ordinarily would mean he knew of the sale then. However, he could argue he did not know how the sale happened or that it was unauthorized from corporate governance perspective. The concept of fraud delaying prescription could apply if, for example, someone else initiated the sale using his name or if he was misled about the nature of what happened to his shares. These are questions of fact. The defendant offered no witness to rebut the claim of active concealment. For instance, no one from the defendant explained what notice was given to shareholders or to Mr. Matewere at the time of the buy-back. It might be that documents in the bundle, like an email on page 61 of the record, which the plaintiff denies receiving would shed light on what he reasonably should have known. But without evidence, I have the plaintiff’s word that he didn’t receive that notice. Thus, a reasonable court could find (if it trusts his testimony) that prescription was delayed until he got wind in 2018. This is enough to fend off absolution on prescription, because it’s a triable issue.

The plaintiff’s legal contention that the claim falls into a 30-year period is debatable. The broad definition of “debt” in the Prescription Act would prima facie encompass a claim for delivery of shares or damages for their loss. South African courts have generally treated claims for the delivery of shares or damages for conversion as debts subject to prescription. The plaintiff’s analogy to “incorporeal property rights” might be more persuasive if this were a vindicatory claim for a tangible thing (where different rules sometimes apply). However, even if I lean toward the defendant’s view that 3 years is the limit, the plaintiff’s alternate argument of fraud/tolling still needs evaluation. Additionally, the plaintiff is right that certain claims – e.g., if based on a notarial deed or judgment – have longer periods, but here we have no suggestion of a notarial deed except the settlement which is not notarial as far as the record shows nor a judgment in his favour. So likely 3 years is correct. Yet because of point (1) above, even a 3-year period might be counted from 2018, which would make the filing timely.

It should also be noted that the plaintiff did file a prior action within 1½ years of the accrual (in November 2018). While that action was unsuccessful, it shows he did not simply let 3 years lapse quietly. He attempted to assert his rights relatively quickly, which bolsters his argument that he wasn’t sleeping on his rights, he was merely pursuing them against what he thought were the correct parties at the time. The policy underlying prescription, to penalize unreasonable delay and stale claims, is not strongly implicated here, since the dispute was in court well before three years, and the current action followed on the heels of the prior.

In sum, prescription is not unequivocally proven on the existing record. There is evidence on which a reasonable court could find that the claim is not prescribed, specifically, the plaintiff’s testimony about discovering the fraud in 2018 and the implication that the defendant’s concealment prevented earlier action. To be sure, the defendant has substantial counter-arguments on this, payment in 2017, etc., but those require fact-finding and perhaps evidence from the defendant’s side. Therefore, it cannot be said at this stage that no reasonable court could disagree with the defendant’s prescription plea.

Other Merits of the Claim

Beyond the technical defences, does the plaintiff’s evidence disclose a prima facie cause of action? The essence of his claim is that the defendant, in breach of its duties, contractual or delictual, wrongfully facilitated the sale or transfer of his shares without proper authority, thereby causing him the loss of his shares. He has produced the Deed of Settlement which imposed conditions on dealing with the shares. He has testified that he gave no valid authority for an early sale and that any purported instruction was either not from him or was invalid due to the involvement of the wrong entity. If believed, that evidence could establish wrongful conduct by the defendant. The defendant’s role as transfer secretaries presumably comes with a duty to ensure that share transfers are properly authorized. If the plaintiff’s email instruction was fabricated or obtained under false pretences (issues which are murky but hinted at by his denial), one could argue the defendant should have confirmed the authority through more secure means. All this is somewhat speculative at this point and the Court is mindful that the plaintiff’s credibility is seriously in question. However, credibility cannot ordinarily be the sole basis for absolution unless the plaintiff’s story is so inherently untenable or contradicted by all documents that no reasonable person would accept it. Here, the plaintiff’s story, while under strain, is not a physical impossibility; it is only rendered doubtful by contrary evidence which the defendant will later formally introduce.

The safer course is to allow the case to proceed, so that the Court can hear the defendant’s evidence (if any) regarding how the transaction occurred, who authorized what, and what the prior case’s precise scope was. With that complete record, the Court will be in a far better position to deliver a final judgment on both the facts and the applicable law. If indeed the plaintiff’s claim is as devoid of merit as the defendant suggests, the defendant should have no difficulty proving its special defences or rebutting the plaintiff’s allegations during the defence case. Absolution is not meant to be granted merely because a plaintiff’s case has weaknesses. It is meant for cases that are absolutely bereft of evidence on an essential element or clearly offends some fundamental legal requirement. While this case is hanging by a thread for the plaintiff, I cannot say it has snapped entirely. There remains a thread of evidence, the Deed, the plaintiff’s insistence of lack of consent, the unresolved question of what transpired behind the scenes, that could, however improbably, support relief. Thus, the plaintiff has made out a prima facie case, albeit one that may ultimately fail.

Weighing the Interests of Justice

Finally, it is worth noting the context and gravity of granting absolution here. To do so would effectively end the plaintiff’s quest to recover his shares without him ever getting to hear the defendant’s witnesses answer his allegations. Given that the defendant’s application itself leans heavily on facts from outside the plaintiff’s testimony (prior judgment, dates, etc.), fundamental fairness suggests those matters be brought in properly (they could be introduced as evidence by the defence, subject to any objections, rather than just via argument). The Court is also mindful that granting absolution on a special plea does not provide the same closure as a full judgment on the merits. It might leave lingering arguments. Denying absolution and proceeding to judgment on all issues even if that judgment likely favours the defendant in the end will ensure that all contentions are laid to rest with res judicata effect. The plaintiff, having had his day in court fully, would then be conclusively barred from further action.

By contrast, if absolution were granted now solely on procedural grounds like res judicata, the plaintiff might seek to appeal or find some other angle, claiming he was not heard on merits. It is generally more prudent to resolve cases on merit whenever possible, especially when factual disputes exist. The Court also notes that the defendant sought punitive costs, alleging the plaintiff’s conduct is abusive. Such a determination, branding a litigant’s conduct as vexatious, is better made with a full record, especially when the plaintiff disputes being dishonest this time around. The previous court found dishonesty in 2019. This Court, after full trial, may or may not agree he’s continuing that pattern. But that conclusion should be reached after hearing him and the opposing evidence, not at an interim stage.

Conclusion

In light of all the above, the Court concludes that the defendant’s application for absolution from the instance must be refused. Procedurally, the application is irregular because the defendant bears the onus on the key issues and should proceed to present its evidence. Substantively, even if considered, the plaintiff’s case is not so utterly devoid of evidence that no reasonable court could possibly find in his favour. There remain triable issues regarding the authority for the share sale, the role of the defendant, the plaintiff’s knowledge, and the applicability of the previous judgment and prescription statute to this claim. These issues should be adjudicated after full ventilation at trial.

The appropriate order is therefore to dismiss the application for absolution from the instance. The trial will continue, and the defendant is called upon to begin its case.

The issue of costs for this interlocutory application is at the Court’s discretion. The plaintiff urged that the defendant’s procedural blunder warrants censure. The defendant, conversely, sought punitive costs against the plaintiff, accusing him of vexatious litigation. At this juncture, the Court is not inclined to award punitive costs against either party. The defendant’s application, while premature, was not wholly frivolous. It raised serious legal points, albeit ones that require evidence to resolve. The plaintiff has achieved success in opposing the application but this is not the end of the matter. The final issue of cots will be decided at the end of this matter.

In the result, it is ordered as follows;

The defendant’s application for absolution from the instance is hereby dismissed.

The costs shall be in the cause.

The trial shall proceed, with the defendant to present its evidence on the remaining issues.

Mambara J: …………………………………………….

Coughlan, Welsh and Guest, defendant’s legal practitioners