The applicant seeks an order for perpetual silence against the respondent.
The order sought is, in the alternative, as follows:-
“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, that is to say, the respondent be and is hereby barred and interdicted from instituting any litigation, claim, application, action against the applicant.
2. An order that respondent pays applicant's legal costs on an attorney and client scale; or that
3. The respondent be and is hereby ordered not to commence any litigation, claim, application, action against the respondent without first obtaining leave of this Honourable Court (which this Honourable Court, depending on the facts, will either decline to grant, or will grant subject to precedent (sic) terms and conditions which this Honourable Court, may, in its discretion, stipulate).
4. An order that the respondent pays applicant's legal costs on an attorney and client scale.”
The respondent was employed by the applicant as the director of the Graduate School of Business Leadership at the Midlands State University. Following allegations of misconduct against the respondent he was suspended, charged, and, after a disciplinary hearing, he was dismissed. An internal appeal was unsuccessful.
According to the applicant, after the dismissal of his internal appeal, in 2011, there was no peace for the applicant. Between 2010 and 2017 the respondent filed a total of thirteen (13) applications, actions, and appeals before the Labour Court and the High Court. The applicant stated that although in most cases the respondent was unsuccessful and costs granted against him, it did not pursue the issue on costs as it was aware that the respondent had no means.
The application is opposed.
The respondent does not deny filing the applications or claims. He said they were all completed. Only one matter is still pending between the parties. His main contention is that in terms of section 86 of the Constitution of Zimbabwe he has a right to access justice and the courts of law for redress. Such an application is a negation of his constitutional right. In addition, it was submitted that this court cannot grant an order for perpetual silence regulating processes of other courts. It can only issue an order that relates to the abuse of its own process.
At the hearing of the matter, the applicant sought to amend its order....,.
The notice to amend the draft order was filed on 6 March 2018 to read:
“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, and is hereby barred and interdicted from instituting any litigation, claim, application, action, against the applicant, in any court or legal fear, in respect of the respondent's termination of employment, reinstatement of his appeal that was dismissed by the Labour Court, or purported claim of terminal benefits.
2. An order that respondent pays applicant's legal costs on an attorney and client scale.
Alternatively;
3. The respondent be and is hereby interdicted and restrained from instituting any action, application, or suit or proceedings in this Honourable Court, in the Labour Court, and in any other court, against the applicant or its employees, or its agents relating to the applicant or its agents, in respect of proceedings which relate directly or indirectly to the respondent's termination of employment, reinstatement of his appeal which was dismissed by the Labour Court, and purported terminal benefits due to the latter from the applicant, without leave of this Honourable Court first being applied for and obtained.
4. The respondent be and is hereby interdicted and restrained from setting down any matter already filed or commenced with this Honourable Court, the Labour Court, or any other Court subordinate to this Honourable Court, without leave of this Honourable Court first being applied for and obtained.
5. The Registrar of this Honourable Court, and the Registrar of the Labour Court, and the Registrar of any other Court subordinate to this Honourable Court shall not issue any process commencing any action or any application or set down any matter already filed or commenced by, on behalf of, or at the behest of, Mr Alois Matongo in connection with the termination of his employment, and the purported claim of terminal benefits or reinstatement of his appeal that was dismissed by the Labour Court, without the leave of this Honourable Court first being applied for and obtained.
6. Any application for leave to institute proceedings or set down any matter shall be made on notice to the applicant.
7. The respondent is to pay the costs of this application on the legal practitioner and client scale.”...,.
I now deal with the merits of the case.
In my view, two issues fall for determination;
(a)...,.
(b) Secondly, whether the High Court can issue an order regulating process in other courts....,.
I leave open the second issue whether this court can grant such a decree regulating process in other courts.
