MUSAKWA
J:
In
an ex
parte
application filed under case number HC 2259/15 I granted the
following provisional order-
“TERMS
OF THE FINAL ORDER SOUGHT
That
you show cause to this honourable court why a final order should not
be made in the following terms:-
1.
The provisional relief granted by this court on the 16th
day of March 2015, by the Honourable Mr Justice Musakwa sitting at
Harare be and is hereby confirmed as final.
2.
It is hereby declared that the possession, publication, or
re-publication of applicants' confidential communications as
between their directors and third parties, and their confidential
information, violates applicants' right to protection of their
privacy.
3.
The respondents be and are hereby permanently interdicted from
releasing and/ or causing to be released, personally and thorough
agents, information gleaned from the source documents referred to in
the interim relief granted.
4.
The respondents be and are hereby ordered to delete all private
communications and information owned by and pertaining to the
applicants.
5.
The documents and information seized in terms of paragraph 4 of the
interim relief granted be released to the applicants forthwith.
6.
The respondents, jointly and severally, the one paying for the other
to be absolved be and are hereby ordered to pay applicants' costs
of suit on a legal practitioner and own client scale including the
costs incurred in retaining an instructing counsel where applicable.
INTERIM
RELIEF GRANTED
Pending
the return day:
It
is hereby ordered that:
1.
The respondents be and are hereby jointly ordered to immediately
delete and expunge the two articles entitled 'Steward Bank seeks to
settle $2.1 million Chiyangwaloan'and 'updated: debt distressed
Zimbabwe moves to reschedule domestic debt' published on 2nd
March 2015 and 26th
February respectively from the online publication 'The Source'
hosted on http://source.co.zw in their entirety, or alternatively any
information contained in them relating to the applicants, their
directors, consultant, customers, or counter parties.
2.
The respondents be and are herby jointly interdicted from publishing
or republishing, personally or through the agency of other persons,
and through the online publication,'The Source' hosted onhttp:
//source.co.zw the names of the applicants' customers and details
of their loan or credit agreements with applicants.
3.
The respondents be and are herby jointly interdicted from publishing
or republishing contents of e-mail and internal memoranda or
correspondence of a private nature relating to the applicants'
business or that of its customers, consultants, or other
counter-parties.
4.
An anton pillar order be and is hereby issued authorizing the
applicants, their legal practitioners and technology experts with the
assistance of the Sheriff of this honourable court or his lawful
deputy, or the police as may be necessary to search the premises and
computer systems of the respondents for any information belonging to
the applicants that may be in the possession of the respondents
without their consent, and to seize and place such information in the
custody of the Registrar of this honourable court pending the return
day.”
When
the matter was set down for hearing the Registrar erroneously
notified the present applicants. Nonetheless they were not served
with the application itself. It turned out that they attended at the
High Court after the matter had been disposed of and after the other
parties had already left. They sought audience notwithstanding that I
was now functus
officio.
The
present application seeks the following relief-
“TERMS
OF THE FINAL ORDER SOUGHT
1.
The procedure adopted by the Respondents in HC 2259/15 is in
violation of the Applicant's constitutional rights.
2.
The Provisional Order that have (sic) granted in HC2259/15 be and is
hereby set aside and replaced with the finding of the Constitutional
Court of Zimbabwe.
3.
The 1st
and 2nd
Respondents shall (sic) the costs of suit on an attorney-client scale
including the cost of instructing counsel if Applicant chose to
appoint one, the one paying and the other to be absolved.
INTERIM
RELIEF SOUGHT
Pending
the final determination of this present case:
1.
The case of Steward Bank Limited and another v The Source + three
others HC 2259/15 be and is hereby referred to the Constitutional
Court of Zimbabwe for a determination on the constitutionality of the
proceedings and the order issued in HC 2259/15.
2.
The execution of the Order granted by Justice Musekwa (sic) in HC
2259/15 be and is hereby stayed, pending the determination of the
relevant constitutional questions at the Constitutional Court.
3.
Applicants in this matter be furnished with the details of HC 2259/
by the 1st
and 2nd
Respondents, to enable Applicants to prosecute their Constitutional
Court challenge more fairly.”
The
certificate of urgency prepared by Peter Matsanura claims that the
proceedings under HC2259/15 were conducted secretively and do not
conform with the principles of natural justice. He also opines that
the present application raises important constitutional questions
that merit a hearing before the High Court as well as the
Constitutional Court.
The
founding affidavit claims that this is an application for referral of
the proceedings in HC2259/15 to the Constitutional Court.
The
deponent then further avers that although they have no information
regarding the proceedings in HC2259/15 the applicants are
apprehensive that this will result in the violation of their
fundamental rights. It is also claimed that the applicants' legal
practitioners were denied audience. Whilst claiming not to know the
nature of the order granted against the applicants the deponent to
the founding affidavit then claims that the order that was granted is
unconstitutional in the following respects-
1.
Violation of the applicants' rights to freedom of expression and
freedom of the media;
2.
Violation of the applicants' right to be heard before harsh
punishment is meted on them; and
3.
Violation of the applicants' rights to privacy since their work
related equipment and work spaces do not contain information that
relates only and exclusively to the Respondents in the present case.
In
opposing the relief sought the respondents have attacked the
speculative nature of the certificate of urgency. It is contended
that the matter lacks urgency. The applicants should have secured the
application as well as the order that was granted. It would then have
been apparent that there were alternative remedies available to the
applicants.
It
is also contended that the applicants have approached the court with
dirty hands. This is because they wrote to the Sheriff and the Police
not to execute any order until their contemplated application had
been heard.
Part
of the letters written to the Sheriff and Police in identical fashion
reads as follows-
“1...,.
2...,.
3.
The applicants in HC 2259/15 somehow went ahead to have the matter
determined by a Judge without the participation of the Respondents in
that case i.e. our above-mentioned clients.
4.
Concerned about the possible irregular and harsh nature of the
outcome from those mysterious proceedings in HC 2259/15, our clients
have now filed an urgent chamber application in HC 2443/15 for the
referral of HC 2259/15 to the Constitutional Court.
5.
Our clients are still concerned that as they await the allocation of
a set down date for the urgent chamber application in HC 2443/15,
Steward Bank Limited and the other applicant of HC 2259/15 might
still proceed with the dreaded action that is likely to emanate from
HC 2259/15, by instructing you or the Zimbabwe Republic Police to
execute a High Court Order whose contents our clients are yet to
ascertain.
6.
We hereby request you to desist from executing any order that may be
presented to you bySteward Bank Limited, any other party acting in
terms of an HC 2259/15 procedure (sic) that excluded the Respondents
of that case.
7.
We shall further update you once progress has been registered in the
Urgent Chamber Application HC 2443/15.”
The
Request For Referral
Without
even considering whether the request is merited, one has to consider
whether it is competent to make such an order. A referral to the
Constitutional Court is provided in s 175 of the Constitution which
states that -
“If
a constitutional matter arises in any proceedings before a court, the
person presiding over that court may and, if so requested by any
party to the proceedings, must refer the matter to the Constitutional
Court unless he or she considers the request is merely frivolous or
vexatious.”
Mr
Mpofu
submitted that there is no matter before me for referral to the
Constitutional Court. This is because a provisional order has already
been granted. The applicants can only make such a request on the
return date.
On
the other hand Mr Ochieng
submitted that the court is still seized with such a matter and can
make such a referral. He further submitted that the court retains the
right to regulate its own process.
It
is self-evident that at the time of hearing the present application I
was not presiding over proceedings in HC2259/15.
One
only has to look at the words; “If
a constitutional matter arises in any proceedings before a court, the
person presiding over that court
may and, if so requested by any party to the proceedings,…”
The
relief that was granted in HC2259/15 awaits confirmation or discharge
on the return date. The applicants may exercise their right to
request a referral on that occasion. Alternatively, the applicants
are not precluded from making a direct application to the
Constitutional Court.
Material
Non-Disclosure
Mr
Mpofu
submitted that the applicants lied that they are not aware of the
order that was granted. He made reference to the founding affidavit
in which an attempt is made to paraphrase the order in paragraph 23
thereof. He further submitted that the concerns raised were
objectively considered when the provisional order was granted. He
also queried why it is thought the order mete out harsh punishment.
Mr
Ochieng
maintained that the applicants were not aware of the contents of the
order. He contended that the applicants were served with a notice of
set down although they were not heard.
It
is noted that in the applicants' answering affidavit it is averred
that the applicants sought to have access to the record through the
relevant Judge's clerk and this was denied. Correspondence was
addressed to the Registrar and not responded to.
It
should be well known that court records are under the custody of the
Registrar. There is no indication that the Registrar was approached
and declined to grant access to the record. I did observe that as at
the date of hearing this application the preparation of the order was
being finalised. That notwithstanding, a party desirous of accessing
court records can even bring this to the attention of the Judge
President.
The
applicants get the benefit of the doubt on this issue. This is so
when there is no proof that they had been served with the order.
Certificate
of Urgency
The
impression given is that secretive proceedings were conducted by the
court. A legal practitioner who is requested to certify an
application as urgent should verify the averments made by the
applicant. The averments made by Peter Matsanura are speculative as
they are a mere rehash of the averments made in the founding
affidavit. Any legal practitioner should be aware that a chamber
application can even be determined without hearing the parties. It
looks like PeterMatsanura refrained from verifying what actually
transpired and this must be deprecated.
Dirty
Hands
Mr
Mpofu
forcefully submitted that the applicants should not be heard on the
merits as they have dirty hands. He also submitted that the
applicants forfeited the right to be heard as they arrived late at
court. Where a decision is made in default a party may seek
rescission. Where a matter is heard ex
parte
an interested party may anticipate the return date.
I
did not hear any meaningful submissions made on behalf of the
applicants on this issue. There is a fleeting reference in Nelson
Banya' answering affidavit to the effect that the applicants'
legal practitioners did not incite the Sheriff and Police not to
execute the order but that they requested.
A
reading of the letters addressed to the Sheriff and the Police
clearly shows that the applicants were interfering with court
process. They were aware that an order had been granted. On what
authority were they urging the addressees not to comply with the
order?
It
is well established that a litigant must approach a court with clean
hands. A party against whom a court order has been granted must first
obey that order whilst seeking any other redress. This should be the
case irrespective of how unpalatable the order is. See, Capital
Radio (Pvt) Ltd
v
Minister of Information and Others
(3) 2000 (2) ZLR 289 (H), Chikadaya
v
Chikadaya
and Another
2000 (1) ZLR 343(H) and Deputy
Sheriff, Harare vMahleza
and Another 1997
(2) ZLR 425 (H).
To
grant a party who is seeking to undermine the authority of the court
audience is to encourage anarchy. For a party to urge those who are
entrusted with executing court orders or maintaining law and order to
refrain from executing their duties without having sought an order
staying execution is an affront to the administration of justice.
The
issue of dirty hands was succinctly expressed by BARTLETT J in
Deputy Sheriff, Harare v
Mahleza
and Another (supra)
where at p 1 he stated the following-
“People
are not allowed to come to court seeking the court's assistance if
they are guilty of a lack of probity or honesty in respect of the
circumstances which cause them to seek relief from the court. It is
called, in time-honoured legal parlance, the need to have clean
hands. It is a basic principle that litigants should come to court
without dirty hands. If a litigant with unclean hands is allowed to
seek a court's assistance, then the court risks compromising its
integrity and becoming a party to underhand transactions. As stated
by Davidson J in Underhay
v
Underhay
1977 (4) SA 23 (W) at 24E -F:
'It
is fundamental to court procedures in this country and in all
civilised countries that standards of truthfulness and honesty be
observed by parties who seek relief.'
If
this court were not to enforce that standard, it would be washing its
hands of its responsibility.”
I
am mindful that the court has discretion whether to hear a party who
is approaching it with dirty hands. In my view, to grant the
applicants audience on the merits is tantamount to encouraging a
party to undermine the authority of the court.
Therefore
the applicants are non-suited on account of their unclean hands. The
applicants are ordered to pay respondents' costs on a legal
practitioner and client scale.
Atherstone&
Cook,
applicants' legal practitioners
Mtetwa&Nyambirai,
respondents' legal practitioners
