The last issue that falls for determination is whether or the principle of res applies in the present case. In litigiosa Waikiki Shipping Company Limited v Thomas Barlaw 1978 (1) SA 671 at 676 H the court defined as and Sons (Natal) Ltd and Anor “res litigiosa” objects that are the subject matter of litigation. In Zimbabwe Banking Corporation Ltd & Anor v Distributors (Pvt) Ltd 2000 (2) ZLR 11 (H) at 18F the court held that: and Ors - - a may not be sold after institution of action as there is no-one who res litigiosa “- can be enriched by the right as everyone has an equal right to prosecute it.” It is trite that all personal actions have the effect of rendering their subject matter res litigiosa at the stage of The relevant stage is not the time of commencement of action, litis contestatio. but the time of In the case of litis contestatio. Opera House (Grand Parade) Restaurant (Pvt) 1986 (2) SA 656 (C), it was held that in a real action (action in Ltd v Cape Town City Council the land becomes on the service of summons while in a personal action, that rem) res litigiosa status was achieved at the closure of pleadings. I am in agreement with the findings of the Judge that in the present matter, it was unnecessary to determine whether the rights in issue were real or personal rights as at the time of the alienation summons had been served and pleadings closed. It is common cause that the contested rights were res litigiosa.
The last issue that falls for determination is whether or the principle of res litigiosa applies in the present case. In Waikiki Shipping Company Limited v Thomas Barlaw and Sons (Natal) Ltd and Anor 1978 (1) SA 671 at 676 H the court defined “res litigiosa” as objects that are the subject matter of litigation. In Zimbabwe Banking Corporation Ltd & Anor v Distributors (Pvt) Ltd and Ors 2000 (2) ZLR 11 (H) at 18F the court held that: “- - - a res litigiosa may not be sold after institution of action as there is no-one who can be enriched by the right as everyone has an equal right to prosecute it.” It is trite that all personal actions have the effect of rendering their subject matter res litigiosa at the stage of litis contestatio. The relevant stage is not the time of commencement of action, but the time of litis contestatio. In the case of Opera House (Grand Parade) Restaurant (Pvt) Ltd v Cape Town City Council 1986 (2) SA 656 (C), it was held that in a real action (action in rem) the land becomes res litigiosa on the service of summons while in a personal action, that status was achieved at the closure of pleadings. I am in agreement with the findings of the Judge that in the present matter, it was unnecessary to determine whether the rights in issue were real or personal rights as at the time of the alienation summons had been served and pleadings closed. It is common cause that the contested rights were res litigiosa.