Our
job or call as judicial officers is definitely not short of its comic
moments.
I
never did foresee that the establishment of a third High Court in
Zimbabwe, at Masvingo, under the good intentions of decentralisation
and bringing justice to people would at times achieve the unintended.
Indeed, it has opened flood gates to all manner of court processes
especially by self-actors who nonetheless have the right of audience
before this court.
After
this matter landed on my desk in the afternoon of 5 February 2018
when I was pressed for time due to other pressing commitments, I did
the expected by abandoning all other duties to attend to this “Urgent
Chamber Application”. I dutifully ploughed through the
“application.” By the time I finished reading the papers I was
unable to control a bout of laughter which seized me in the privacy
of my chambers. I could not resist the temptation to share this light
moment with my brother MAFUSIRE J who was equally busy in his
chambers. The interruption, in my view, was worth his while. After my
brother perused the papers he was so mesmerised that he laughed
uncontrollably and was unable to proceed with his work load for that
day. He simply packed his bags and left his chambers!
I
have decided to dispose of this matter in a rather unusual way
without hearing oral submissions from the parties. One of the reasons
informing this decision is that I am not sure if I would be able to
maintain the decorum expected of me if I was to call the parties to
my chambers. I am still seized with the bout of laughter and
amazement. I therefore decided to dispose of the matter on the papers
and give my brief reasons in the privacy of my chambers.
I
turn to the matter.
This
urgent chamber application has the following heading;
“URGENT
CHAMBER APPLICATION FOR AN APOLOGY”
The
relevant papers are drafted by the applicant who is a self actor.
What is evident is that the applicant should have sufficiently
bothered some other person or law firm for precedents in urgent
chamber applications which he then used to suit his own application
with astounding disastrous consequences.
The
papers include, inter alia, what is called “an affidavit of
urgency” duly commissioned. This should be in lieu of a certificate
of urgency not required for a self-actor.
The
nature of the relief sought is couched as follows;
“TERMS
OF INTERIM ORDER
1.
That the respondents be and are hereby ordered to publicly apologise
to the applicant.
2.
The respondents be and are hereby ordered to place the public apology
in the local and national paper for 4 consecutive weeks from date of
this order at respondents' expense.
3.
Respondents to pay costs of suit the one paying the other to absolved
payment.
Service
of order
Service
of this order shall be made on:
(a)
Beauty and Game Dollar Restaurant
Respondents
at
GAME
DOLLAR
JERERA”
(sic)
The
terms of the final order are drafted as follows;
“TERMS
OF FINAL ORDER SOUGHT
1.
The respondents be and are hereby ordered to publicly apologize to
the applicant.
2.
The respondents be and are hereby ordered to place the public apology
in the local and national paper for 4 consecutive weeks from the date
of this order at the respondents' expense.
3.
Respondents to pay costs of suit the one paying the other to be
absolved payment.” (sic)
All
I can say is that the nature of the relief sought is simply
astounding. One should not even bother to state that both the
so-called interim relief and final order sought are the same, never
mind the propriety of the relief sought being a public apology and on
an urgent basis.
It
is in the founding affidavit which steals the thunder as it were and
forms the basis of this so called urgent application. I cannot do no
more than to quote it in its entirety lest I do an injustice to what
the applicant perceives to be his case. It is as follows;
“APPLICANT'S
FOUNDING AFFIDAVIT
I,
JONATHAN CHIKUKWA, hereby make oath and state the following in
support of my application.
1.
I am the applicant in this case and my address of service is as
stated in the Notice of Application.
2.
The 1st
respondent is female only known to me as BEAUTY,
a waiter employed by Game Dollar Restaurant situated in Jerera.
3.
The 2nd
respondent is Game Dollar Restaurant, a restaurant whose principle
place of business is Game Dollar Restaurant, Jerera, which I believe
is registered in terms of the company laws of this land.
4.
On Sunday 4th
of February 2018 around 3pm I entered the respondents' place of
business and ordered sadza and chicken.
5.
I was served by the 1st
respondent along with about 8 or so other customers. It was a little
dark in the respondents' place of business as Jerera was
experiencing a power cut and it was not easy to see clearly.
6.
I secured a table and sat by myself. As I was having my meal I
noticed that there was something in my relish that I did not clearly
understand what it was.
7.
In an effort not to cause displeasure among other customers I
politely summoned the 1st
respondent who was having a conversation at another table where she
was seated. The 1st
respondent did not oblige. I asked her more than three times she did
not heed my plea.
8.
Instead of approaching my table 1st
respondent, to my amazement, started to be rude and disrespectful
towards me. She said in Shona;
'Tino
sevha macustomers akawanda pano handina nguva yekuuya ipapo kana
kuita zvaunoda taura zvaunoda ndo zvihwa mukagodii kuroora kana
muchida attention yemukadzi? Ndozva unoregera kuroora uchida
kuzotinyangadzira chikafu chedhora, iye ungada kugara nemunhu ane mop
yemusoro ndiani? Dzosa sadza redu ndikupe chidhora chako'.
Meaning:
we serve many customers here. I don't have time to attend to you
specifically. Why don't you marry so that your wife will attend to
you specifically? Is it the reason why you are not married so that
you come here for attention? Who would be married to someone with a
mop hairstyle? Bring back our food and get your refund'.
The
1st
respondent said the above words to amuse the other customers by
injuring my feelings and indeed the other customers were amused as
they cracked their ribs with laughter at the words of the 1st
respondent. My marital status and hair style is a question of my
privacy and has no bearing on the 1st
respondent at all. The 1st
respondent's intention was malicious and injurious.
9.
The 1st
respondent's words were injurious; they were said with the
intention to injure my feelings in front of the other customers and
indeed I was injured.
10.
Angry and embarrassed I walked to the counter with the hope that the
1st
respondent would come to the counter and address my issue. She
remained seated. She said she was not going to tolerate complaints
over food which costs a dollar. Thus, I did not get a refund.
11.
I left the respondents place of business and as I walked from the
respondents' restaurant 1st
respondent said something I did not grasp and she busted into
laughter in concert with other unknown people. I later texted a
message on the 2nd
respondent's number which I used for making payments through
Ecocash and demanded an apology. Minutes later I received a call me
back message and I complied. To my outer amazement I was again
verbally insulted by someone who refused to identify herself.
12.
The respondents are in the hospitality industry which industry
demands that service providers should be polite and courteous. The
conduct of the 1st
respondent should not be left without restraint. As a customer I had
a right to complain if I was not satisfied, to be treated with
dignity and respect and to be listened to. 1st
respondent should have heard my issue and apologised. 1st
respondent had no right to be rude towards me or to utter the words
she did and insult me. I verily believe that the 1st
respondent owes me a public apology and by virtue of her employment
with the 2nd
respondent the 2nd
respondent is also vicariously liable for such an apology.
13.
The apology should be made in the local and national paper for 4
consecutive weeks from the date of this order at the respondents'
expense.
14.
This matter is urgent in that if time lapses the issue will lose its
worth. I have no ordinary remedy at law other than for and order in
terms of the draft hereto annexed.”
The
District Administrator for Masvingo suffered the agony and clearly
the indignity of commissioning this founding affidavit….,.
Without
much ado all I can say is that there is absolutely nothing urgent
about this “application” if I can even call it an application.
The so-called urgent chamber application is clearly bogus. There is
absolutely nothing in the papers showing what constitutes urgency in
this matter. What is the impending harm to the applicant or his
interests? What is the irreparable harm the applicant would suffer if
this matter is not allowed to jump the queue?
The
long and short of it all is that the papers filed by the applicant do
not even disclose a cause of action. They even do not make sense at
all. All what the applicant is saying is that he felt insulted while
he was enjoying his meal (sadza and meat) at Jerera Growth point in
Zaka. For that inconvenience he believes he can rush to this court
and seek an incomprehensible remedy on an urgent basis. The applicant
should be a very litigious person to say the least. This is clearly
taking the High Court for granted.
In
conclusion, therefore, these papers do not make a case at all and it
is trite that an application falls on the founding affidavit. The
application does not even begin to be an application without a cause
of action. Clearly it has no merit.
All
the applicant has managed to do is to attract the precious attention
of this court's time. Maybe his only reward or consolation is this
judgment which he can always flaunt to show that he instituted some
proceedings in the High Court.
Accordingly,
the application be and is hereby dismissed with no order as to costs.
