Isador Husaiwevhu & 2 Ors v UZ-UCSF Collaborative Research Programme & 2 Ors

### Preamble
Judgment No. SC 86/25
1
Civil Appeal No. SC 302/25
REPORATABLE (86)
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REPORATABLE (86)

ISADOR     HUSAIWEVHU     (2)     WALTER     MUTOWO     (3)     FUNGAI ZINYAMA

v

UZ-UCSF     COLLABORATIVE     RESEARCH     PROGRAMME     (2) SHERIFF     OF     ZIMBABWE     N.O     (3)     HIGH     COURT     REGISTRAR     N.O

SUPREME COURT OF ZIMBABWE

UCHENA JA, MAKONI JA & MWAYERA JA

HARARE: 30 JUNE 2025

The first appellant in person

The second appellant in person

No appearance for the third appellant

T. Mpofu, for the first respondent

No appearance for the second and third respondents

MAKONI JA:

[1]   This is an appeal against the whole judgment of the High Court (“the court a quo”) sitting at Harare, dated 22 November 2024 in which it dismissed the appellants’ application with costs. After hearing submissions from the appellants and the first respondent’s counsel, the Court dismissed the appeal with costs and indicated that reasons for the decision would follow in due course. Below are the reasons for judgment.

BACKGROUND FACTS

[2] The first respondent is a Clinical Trials Unit (CTU) Programme of a foreign legal entity, the University of California, San Francisco. It is headquartered, domiciled and duly registered and incorporated under the laws of the United States of America. The second respondent is the Sheriff of Zimbabwe and the third respondent is the Registrar of the High Court cited in their official capacities.

[3] The appellants were employed by the first respondent in various capacities in terms of fixed term contracts.  Sometime in 2007, the first respondent terminated the appellants’ contracts.  A dispute arose regarding the termination of the contracts which was referred for compulsory arbitration before N.A Mutongereni.  An award was rendered in favour of the appellants with the arbitrator ordering the reinstatement of the appellants and payment of arrear salaries.  The first respondent did not reinstate the appellants and as a result, the appellants filed an application for the registration of the arbitral award in the court a quo.

[4]   The court a quo ordered quantification, by an arbitrator, of the salaries and benefits due to each appellant. To adhere to the court order, the parties then approached another independent arbitrator, R. Matsikidze, for quantification of the award. After quantification, the appellants approached the court a quo under HC 2411/10 to register the award and judgment was handed down under judgment number HH237/10 by Gowora J (as she then was) in favour of the appellants.

[5] Aggrieved, the first respondent appealed to this Court under case number SC 260/10.  It however, withdrew the appeal.  Subsequently, the appellants filed a writ of execution which was issued by the third respondent on 8 May 2014 for the cumulative debt of US$ 788 296.21.  In October 2020, the first respondent deposited the sum of ZWL $788 296.21 into the appellants’ legal practitioners account as settlement of the judgment debt.  The appellants rejected the money averring that they were owed the amount in United States dollars.  They made arrangements for the bank to return the ZWL$788 296.21 to the first respondent.

[6]   On 8 March 2022, the first respondent deposited ZWL$837 710.10 into the second appellant’s bank account as settlement of the debt inclusive of the second respondent’s fees.  The appellants did not accept the deposit alleging that it would not liquidate the debt.  Aggrieved by the conduct of the appellants, the first respondent approached the court a quo under case number HC 4183/22 seeking a declaratur that the debt had been discharged in full at the rate of 1:1 in terms of S.I. 33/19.  Tagu J, under judgment number HH 703/22, found that the debt, stated in the writ of execution, had been converted to RTGS dollars at the rate of 1:1 by virtue of Statutory Instrument 33/19, and had thus been discharged in full.

[7] This did not augur well with the appellants. Consequently, the appellants filed a chamber application for an order in terms of r 60 (1) of the High Court Rules, 2021, in the court a quo under HCH 3475/24, for the payment of the judgment debt under HH 237/10 by Gowora J (as she then was) in United States dollars.

PROCEEDINGS BEFORE THE COURT A QUO

[8]  The main argument by the appellants was that the debt under judgment number HH 237/10 by Gowora J (as she then was) could not be settled in RTGS dollars but in United States dollars.  They contended that the provisions of s 3(2) (a) and (b) and not s 4(1) (d) of Statutory Instrument 33/19 applied in this matter.  They based their claim on the fact that they had entered into contracts whereby their salaries and benefits were denominated in United States dollars.  It was their contention that the first respondent’s staff salaries and benefits were paid in United States dollars despite any legislation passed to the contrary.

[9] In opposing the application, the first respondent raised three preliminary objections. It however, abandoned two of them at the hearing of the matter.  The remaining preliminary objection was that the matter was res judicata.  It was argued, by the first respondent, that the court a quo had already pronounced itself under judgment number HH 703/22 by Tagu J in which the court held that the amount claimed by the appellants was converted to local currency at the rate of 1:1 by operation of Statutory Instrument 33/19.  In addition, it was argued that the payment of ZWL$837 710.10 in March 2022 was in accordance with the judgment of Tagu J under HH 703/22 and that the appellants had accepted the payment by using it to settle the Sheriff’s fees.

[10] In response, the appellants also raised three preliminary objections.  They stated that the deponent to the first respondent’s notice of opposition by was not duly authorized to represent the first respondent.  It was argued that there was no board resolution from the members of the first respondent’s controlling organ known as the Executive Committee or Scientific Leadership Group authorizing the deponent to depose to the opposing affidavit. The second preliminary point was that the notice of opposition was defective in that it did not comply with r 15B (1) (b) of the High Court (Amendment) Rules, 2024 (No 2).  The notice of opposition and its accompanying affidavits and annexures were not paginated. Lastly, the appellants contended that there was material non-disclosure by the first respondent regarding its status as to whether it was still operational or a defunct entity as pleaded in previous suits.

FINDINGS BY THE COURT A QUO

[11] In coming to its decision, the court a quo dealt with the preliminary point of res judicata first, as it was of the view that the point was dispositive of the matter.  It found that it was not in dispute that the case that had been determined by Tagu J was between the same parties as the parties before it and that both matters emanated from the registration of the arbitral award under judgment number HH 237/10.  The court also reasoned that Tagu J had determined that the judgment debt was payable in RTGS dollars.  Hence, the court held that the case had already been determined by Tagu J and was thus, res judicata.

[12] The court a quo then went on to deal with the other preliminary points.  On the issue of whether or not the board resolution proffered by the first respondent was defective, it held that through the senior management resolution, the first respondent’s senior management confirmed that it was indeed aware of the proceedings and that it had given Margret Mukoki authority to act in its stead.  On the issue that the notice of opposition was paginated on the left side instead of the right side, the court held that the appellants did not suffer any prejudice at all and condoned the first respondent in terms of r 7 of the High Court Rules, 2021.

[13] Regarding the issue of material non-disclosure, the court reasoned that the issue was not dispositive of the matter, as the first respondent had not pleaded that it could not pay the appellants should it be ordered to do so, nor sought any sympathy for its current position.  Accordingly, the court dismissed the preliminary points raised by the appellants and upheld the preliminary point of res judicata raised by the first respondent.  As a result, it dismissed the application.

[14]  Aggrieved, the appellants filed the present appeal on the following grounds:

GROUNDS OF APPEAL

“1.   The court a quo misdirected itself at law in admitting a senior management resolution as valid authorization to litigate on behalf of the first respondent where a board resolution is the only acceptable form of authority as settled by case law.

The court a quo erred at law in failing to treat the application as unopposed and find the first respondent to be in default in the absence of a board resolution authorizing litigation under its name as required by law.

The court a quo erred at law in failing to find that the first respondent ‘s claim to have ceased operations during the year 2017 means that it lacks locus standi to litigate as a defunct entity without a court order for substitution or joinder in terms of the law.

The court a quo erred on the facts in failing to find that the first respondent’s submission to have ceased operations during the year 2017 implies that the application under case number HC 4183/22 could not have been validly filed on 24 June 2022 by a defunct entity.

The court a quo erred at law in upholding the bar of res judicata in circumstances where the parties, cause of action, relief sought and merits in case HCH 3475/24 are different form the previously decided case HC 4183/22. The court a quo accepted the bar of                     res judicata where essential elements had not been satisfied.

The court a quo erred at law and on facts in failing to distinguish between the amount on 8 May 2014 writ of execution and the value of the debt assessed as formulae under judgment HH 237/10 as contemplated in r 2 of the High Court Rules, 2021.

The court a quo misdirected itself at law and on the facts in misinterpreting and giving consequential relief to the operative part of the judgment HH 703/22 granted in terms of s 14 of the High Court Act [Chapter 7:06] where such relief cannot be claimed.

The court a quo erred at law in declining to determine merits of the currency dispute of the debt under judgment HH 237/10 as ring fenced by s 44C (2)(a) and (b) of the Reserve Bank of Zimbabwe Act [Chapter 22:15], s 2(a) and (b) (sic) of S.I. 33/19 and case law.”

SUBMISSIONS BEFORE THIS COURT

[15]  At the hearing of the appeal, the appellants raised two preliminary objections.  The first objection was that the first respondent lacked locus standi since it had ceased its operations in 2017.  It was submitted that the first respondent had used the credentials of UZ-CTRC on the Integrated Electronic Case Management System (IECMS) showing that it was now a defunct entity.  The second point was that UZ-CTRC did not have locus standi as it was not a party to these proceedings.  It was contended by the appellants that it ought to have been joined to the proceedings.

[16]   Per contra, Mr Mpofu, counsel for the first respondent, submitted that the principle of law is that one cannot bring a party to court and argue that it lacks locus standi.  He submitted that the issue of locus standi could not be dealt with based on IECMS account details used by a party.  He further submitted that this very same issue had been dealt with before in the various proceedings between the parties.

[17]   Following an engagement with the Court, the appellants withdrew their points in limine.

[18]   On the merits, the appellants submitted that the matter was not res judicata.  They argued that the requirements of res judicata had not been met in the court a quo.  It was contended that the parties before Tagu J were different from the ones before Mushure J under case number HCH 3475/24 (the judgment on appeal) as the second and third respondents were not parties to the proceedings.

[19]   In addition, the appellants submitted that the issue before Tagu J was the currency in which the amount on the writ of execution was to be settled while before Mushure J, it related to the currency of the debt as stated in the arbitral award which was subsequently registered by Gowora J (as she then was).  The appellants’ main contention was that the debt on the writ of execution was different from the judgment debt as reflected in the Gowora J (as she then was) judgment.  They argued that the debt on the writ of execution was calculated as at 8 May 2014 when it was issued, however, the debt on the arbitral award was quantifiable by a formula.  I must however point out that it is not clear from the papers what formula the appellants are alluding to.

[20]   The appellants further submitted that the relief sought before Tagu J was for the debt on the writ of execution to be declared discharged at the rate of 1;1. However, before Mushure J the relief sought was for a determination of the currency of the judgment debt.  In addition, the appellants submitted that the first respondent received funding from offshore sources thus, the judgment debt was not affected by SI 33/19.

[21]   Per contra, Mr. Mpofu submitted that before both Tagu J and Mushure J, the issue was the currency in which the first respondent was to satisfy the judgment debt.  He argued that the amount which was sought before Tagu J and Mushure J was the same.  He further submitted that the appellants were employed on fixed term contracts and the contracts had terminated by effluxion of time.  Further, he submitted that the parties before Tagu J and Mushure J were the same.  Mr Mpofu concluded by stating that Tagu j, in his judgment, had made it clear that he was dealing with a judgment debt and the writ of execution, which the appellants rely on, emanated from that judgment debt.

ISSUE FOR DETERMINATION

[22]   Although the appellants raised eight grounds of appeal, from the submissions of the parties, it is clear that there is one major issue that is capable of disposing of the matter which is:

Whether or not the court a quo was correct in its finding that the matter was                                           res judicata.

ANALYSIS

[23]  The appellants contended that the parties, the cause of action, the relief sought, and the subject matter of the case under HCH 3475/24 by Mushure J were different from the previously decided case HC 4183/22 by Tagu J.  They argued that the parties under HC 4183/22 did not include the second and third respondents cited under HC 3475/24.  On the cause of action, the appellants contended that before Tagu J, it was for a declaratur with no consequential relief and filed in terms of s 14 of the High Court Act [Chapter 7:06]. On the other hand, before Mushure J was an application for an order made in terms of r 60(1) of the High Court Rules 2021.

[24]  The appellants further argued that ‘the merits” under HC 4183/22 were whether the writ of execution issued before 22 February 2019 was affected by the provisions of SI 33/19 while ‘the merits’ under HC 3475/24 were that S.I.33/19 was inapplicable as the debt had not yet been expressed in value by the effective date.

[25]  On the other hand, Mr Mpofu, argued that the appellants’ contention must be assessed in the context of the requirements of the plea of res judicata.  He argued under both matters, that is, HC 4183/22 and HC 3475/24, what was sought was the determination of whether or not the sum of money awarded to the appellants was to be settled in local currency or United States dollars.  Further, Mr Mpofu contended that the parties in both matters were essentially the same and had not changed.

THE LAW

[26]   Res judicata was explained in the case of Wolfenden v Jackson 1985 (2) ZLR 313 (S) at 316 B-C where Gubbay JA (as he then was) commented:

“The exceptio rei judicatae is based principally upon the public interest that there must be an end to litigation and that the authority vested in judicial decisions be given effect to, even erroneously. See Le Roux en’n Ander v Le Roux 1967 (1) SA 446 (A) at 461 H. It is a form of estoppel and means that where a final and definitive judgment is delivered by a competent court, the parties to that judgment or their privies (or in the case of a judgment in rem, any other person) are not permitted to dispute its correctness. See also Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] IQB at 640-1.”

[27] The concept was succinctly simplified in Tongogara Rural District Council v Ndiripo SC 19/23 on p 14 of the cyclostyled judgment, where the Court stated the following:

“The effect of successfully raising a plea of res judicata was enunciated in Anjin Investments (Pvt) Ltd v The Minister of Mines and Mining Development & Ors CCZ 6-18 to be that it precludes the court from re-opening a case that has been litigated to finality.  Nonetheless, there are certain requirements which must be met in order for a plea of res judicata to prevail.  These are essentially that:

The two actions must be between the same parties;

The two actions must concern the same subject matter;

The two actions must be founded upon the same cause of action; and;

There must be a final judgment or determination of the matter.”

[28]  In the Anjin case supra, quoted above, at p 6 of the cyclostyled judgment, a very important

point was made when the court stated the following;

“To be successful, where res judicata is raised, all the requisites for the plea must exist. These requisites were didactically stated in the case of African Wanderers Football Club (Pty) Ltd v Wanderers Football Club 1977 (2) SA 38 (A) at 45 E-G as follows:

‘There is nevertheless no room for this exception (of res judicata) unless a suit which had been brought to an end is set in motion afresh between the same persons about the same matter and on the same cause for claiming, so that the exception falls away if one of these three things is lacking.’” (My emphasis)

[29]   Put in simple terms, a plea of res judicata is successfully pleaded if all the above stated four

requirements are established. If any one of them is missing then that defence is not available to a defendant or a respondent.

APPLICATION OF THE LAW TO THE FACTS

The two actions are between the same parties.

[30]  The first requirement is that the two actions must be between the same parties.  Under the Tagu J judgment, it was the first respondent against the appellants only whereas under the Mushure J judgment, it was the appellants against the first, second and third respondents.  The second and third respondents, who were added under the Mushure J matter, were the Sheriff and the Registrar of the High Court cited in their official capacities.  It is on this basis that the appellants argued that the parties in the two matters were not the same.  Clearly the fact that the second and third respondents were not parties under the Tagu J matter is inconsequential.  This is so because they do not have a real and substantial interest in the matter as they were cited in their official capacities.  They were cited, solely, for purposes of enforcement of the judgment to be rendered in the dispute between the main contenders being the appellants and the first respondent.  They could have been left out and that would not have availed the respondents a plea of non-joinder.  The court a quo cannot therefore be faulted for making the finding that the parties were in effect the same.  In any event the court a quo found that this issue was not seriously contested before it.

The two actions must concern the same subject matter.

[31]   The second requirement is that the two actions must concern the same subject matter.  Under the Tagu J matter, the first respondent sought a declaratur to the effect that the amount of US$788 296.21 stated in the writ of execution had been converted to local currency at the rate of 1:1 by operation of law.  It is important to note that the amount stated in the writ of execution emanated from the arbitral award that was granted in favour of the appellants which was subsequently registered under the Gowora J (as she then was) judgment.

[32]  Tagu J was tasked with assessing whether the aforesaid amount had been affected by the coming into effect of S.I. 33/2019.  On p 6 of the cyclostyled judgment Tagu J put the issue for determination as follows;

“I am therefore being called upon to interpret and determine the applicability of the said statutes to the present matter.  Before I do that let me state what appears to be common cause.  In casu, it is common cause that applicant’s principal liability arises from an Arbitral Award which was issued on 31 August 2007 and was quantified on 31 March 2010 as US$ 788 296.21. It is common cause too that the Writ of Execution which the respondents are relying on was issued on 8 May 2014, a clear five (5) years before the first effective date and expressed the judgment debt in United States Dollars. Therefore, it ought to be accepted as common cause that the applicant’s liability purely arises from a Judgment Debt which existed before the first effective date.”

The judgment debt referred to arose from the Gowora J (as she then was) judgment.                Tagu J made a determination that the amount on the writ had been affected by operation of the law.

[33] 	Under the Mushure J judgment, the court a quo had to determine whether the judgment debt under the Gowora J (as she then was) judgment was payable in United States dollars or not.  Mushure J put the issue for determination as follows;

“In casu, the applicants were seeking an order that the first respondent fully extinguishes the entire debt under judgment number HH 237/10 in United States dollars. They argued that the debt was valid, extant and denominated in foreign currency. The applicants wanted the second respondent to execute every United States dollars writ of execution issued and certified in judgment number            HH 237/10 to satisfy the United States dollars debt. Thirdly, they wanted the third respondent to certify all the United States dollars denominated writs if execution issued under judgment number HH 237/10 until what they term full settlement of the United States dollars debt.”

[34]  It appears that the appellants are operating from the misapprehension that the amount in the writ of execution, that was before Tagu J, is different from that of the judgment debt issued by Gowora J (as she then was). This confusion comes out clearly in their heads of argument where they state the following:

“21.3 Relief sought in case: HC 4183/22 is for a declaratur without consequential relief declaring conversion of the currency on the writ at 1:1 (p 109, 110, 116, 164, 165). Case: HCH 3475/24 (p8-9, 33-34 & 88) seeks determination of the currency of the debt registered under judgment HH 237/10 (p 53-60).

21.4 Merits in case: HC 4183/22 are that the amount on the writ (p 68-73) issued before the 22 February 2019 was affected by provisions of s4 (d) of S.I. 33/19 and Finance Act No 2 of 2020 and converted to RTGS at the rate of 1:1. Whereas, merits in case: HC 3475/24 are that even though the arbitral award registered by judgment HH 237/10 was handed down on 31 March 2010 and the writ was issued on 8 May 2014, both s 4 (d) of S.I.33/19 reproduced as Finance Act Amendment No 2of 2020 are inapplicable to the debt. The debt was assessed as formulae but not expressed in value….” (My emphasis)

[35]  What the appellants seem to miss is that the writ of execution in issue stemmed from the judgment debt. The judgment debt having emanated from the registration of the arbitral award by R. Matsikidze.  Therefore, the amount in issue is as reflected in the judgment by Gowora J (as she then was).  There is no formula to talk about as suggested by the appellants.

[36]  It is therefore clear that the subject matter between the parties under the Tagu J judgment and the Mushure J judgment was the same, which is the judgment debt in the Gowora J (as she then was) judgment.

The two actions must be founded on the same cause of action

[37]   What constitutes a cause of action has been set out in the decision of Abrahamse & Sons v SA Railways & Harbours 1933 CPD 636 as follows:

“The proper meaning of the expression “cause of action” is the entire set of facts which gives rise to an enforceable claim and includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim. It included that all a plaintiff must set out in his declaration in order to disclose a cause of action. Such cause of action does not “arise” or “accrue” until the last of such facts and consequently the last of such facts is sometimes loosely spoken of as the cause of action.”

[38] The cause of action in the Tagu J judgment was a claim that the first respondent had discharged its obligation in terms of the writ issued in favour of the appellants by paying the debt in local currency at the rate of 1:1. The court was called upon to interpret the relevant statutes to determine the applicable currency in which the amount on the writ would be discharged.   In the Mushure J matter the claim was that the first respondent be ordered to discharge the Gowora J (as she then was) judgment in United States dollars.  It is clear that what was sought, in both matters, was the determination of whether or not the sum of money awarded to the appellants was to be settled in local currency or in United States dollars.  For this reason, what the appellants sought before the court a quo had already been determined by Tagu J under HC4183/22.  The Tagu J judgment is still extant as it has not been set aside by way of appeal or review.

There must be a final judgment in the first matter

[39]   The fourth requirement is that there must be a final judgment or determination of the matter in the first action.  The necessity of satisfying the requirement that there must be a final resolution of the matter during the prior proceedings when pleading res judicata was discussed by Makarau JP (as she then was) in the case of Chimpondah & Anor v Muvami 2007 (2) ZLR 326 (H) at 330B in the following manner:

“For the plea to be upheld, the matter must have been finally and definitively dealt with in the prior proceedings.  In other words, the judgment raised in the plea as having determined the matter must have put to rest the dispute between the parties by making a finding in law and/ or in fact against one of the parties on the substantive issues before the court or on the competence of the parties to bring or defend the proceedings.  The cause of action as between the parties must have been extinguished by the judgment.”

[40]  The judgment by Tagu J brought the matter between the parties to finality.  This is so because it determined that the amount of US$788 296.21, which was awarded to the appellants through the arbitral award, which award was subsequently registered as a judgment of the court a quo by Gowora J (as she then was), was to be settled in local currency at the rate of 1:1.  This meant that the claim regarding the appropriate currency had been extinguished.  Thus, the judgment by Tagu J put the dispute between the parties to rest regarding the currency in which Gowora J’s (as she then was) judgment was to be settled in.

DISPOSITION

[41]   In light of the above, it is clear that the court a quo was correct in finding that the matter was res judicata and dismissing the appellants’ application.  All the four requirements for res judicata were established.

Regarding costs there is no reason to depart from the established principle that costs follow the cause.

The appeal therefore lacked merit. It was for the above reasons that judgment was entered as afore-stated under para 1 of this judgement.

UCHENA JA       	 :	I agree

MWAYERA JA         :	I agree

Gill, Godlonton & Gerrans, 1st respondent’s legal practitioners.