MUZOFA
J:
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, applicant sought to amend its order.
After
hearing both parties, I granted the application and indicated that
the reasons will be incorporated in the judgment. These are they.
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;
1.
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.
2.
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.
3.
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.
4.
Any application for leave to institute proceedings or set down any
matter shall be made on notice to the applicant.
5.
The respondent is to pay the costs of this application on the legal
practitioner and client scale.”
The
notice was served on the respondent's legal practitioners on 8
March 2018. No notice of opposition was filed. In terms of the rules
the respondent was barred.
Surprisingly,
in the oral submissions before this Court the application was
opposed. It was submitted that the amendment that applicants sought
had the effect of changing the complexion of the case. No further
details were provided on the said changes to the case, or if indeed
they existed what prejudice would be suffered by the respondent that
may not be cured by costs.
Order
20 Rule 132 provides for amendment of pleadings in the following
terms;
“Subject
to Rule 134 and Rule 151, failing by all parties, the court or a
judge may, at any stage of the proceedings, allow either party to
alter or amend his pleadings, in such a manner and on such terms as
may be just, and all such amendments shall be made as may be
necessary for the purpose of determining the real question in
controversy between the parties.”
The
Rule gives the court or a judge a wide discretion as to the scope of
an amendment.
I
was referred by the applicant to the case of Agricultural Bank of
Zimbabwe Ltd t/a Agribank v Nickstate Investments (Pvt) Ltd & 2
Others 2010 (1) ZLR 419 (H) for the proposition that an amendment can
be sought at any time and it is in the court's discretion to allow
or disallow the amendment depending on the facts of the case.
The
applicant also referred to the case of Eusebia Butau v Leonard Butau
HH165/11 wherein the court cited the case of Horne v Hine 1947 (4) SA
757 (SA) which addressed the issue on amendments. The court concluded
that two issues have to be considered;
(i)
Firstly, whether there are prospects of success on the issue upon
which the amendment is sought.
(ii)
Secondly, whether or not an injustice would be occasioned on the
defendant that cannot be remedied by an order of costs.
The
first consideration is whether there are prospects of success on the
issue upon which the amendment is sought.
In
this case, a determination of that aspect means the court has to
delve into the merits of the case, which is the crux of this
application l shall therefore leave that aspect open.
It
is the Court's observation though that the draft order filed by a
party can only be granted by the Court where it is proved.
In
this case therefore it is for the applicant to prove what it seeks as
an order.
The
second issue is whether there is prejudice to the respondent that
cannot be cured by an appropriate order of costs.
The
Court was not addressed on this aspect and therefore l can safely
conclude that there is no prejudice occasioned on the respondent as a
result of the amendment. There is no valid basis to disallow the
amendment.
A
point in limine was taken for the respondent that the matter is res
judicata.
It
was submitted that, the same matter was before the Labour Court and
it was dismissed. I was referred to the case of Mvaami (Pvt) Ltd v
Standard Finance Ltd 1977 (1) SA 861 for the proposition that a
default judgment is a complete answer to res judicata, therefore even
where the merits of the case have not been dealt with res judicata
applies.
For
the applicant it was submitted that the Labour Court did not deal
with the merits of the case. On the authority of Mundangepfupfu &
Another v Chisepo HH188/17 applicant submitted that for res judicata
to be a complete defence the matter must be between the same parties,
on the same cause of action and should have been disposed on the
merits.
The
essentials of a plea of res judicata are trite.
In
Wolfenden v Jackson 1985 (2) ZLR 313 (S) at 316 B-C 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 if 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.
For
a party to successfully rely on res judicata it must show that:-
(i)
the same matter/question has been decided;
(ii)
the parties to the judicial decision or their privies were the same
persons as the parties to the proceedings in which res judicata is
raised;
(iii)
the judicial decision creating res judicata was final.
In
Kamupariro v Musendo & Another HH196/17 MATANDA-MOYO J cited the
Canadian case of Aratim Capital Inc v Appliance Recycling Centres of
America 2014 ONCA 62, which elucidated on the concept of a final and
definitive judgment held that;
“…
the
purpose of res judicata should be balanced between public interest in
finality of litigation with the public interest of ensuring a just
result on the merits.”
In
this case, it is common cause that the same parties were before the
Labour Court. It is also common cause that the application was for
perpetual silence based on the same facts as is in this case. The
only issue for determination is whether the order was final and
definitive.
The
proposition attached to the Mvaami (Pvt) Ltd v Standard Finance Ltd
(supra) by the respondent is not completely accurate.
In
that case DAVIES J (as he then was), after an incisive review of the
subject matter, concluded at 267 C;
“His
Lordship refers to these other authorities and at p 1012 accepts the
proposition formulated in New Brunswick Railway Co v British and
French Trust Corporation Ltd [1939] ACI, that – 'default
judgments, though capable of giving rise to estoppels, must always be
scrutinised with extreme particularity for the purpose of
ascertaining the bare essence of what they must necessarily have
decided and… they can estop only for what must “necessarily and
with complete precision” have been thereby determined.'
Applying
this test, the Privy Council proceeded to examine the pleadings in
the default case and came to the conclusion that the issue whether
the original agreement was one of hire or at loan had not been
decided against the defendant necessarily or with complete
precision.”
In
Mugabe, Mutezo and Partners v Barclays Bank of Zimbabwe Ltd and
Another 1989 (3) ZLR 162 (HC) GREENLAND J addressed the issue, in
light of a default order which was relied upon to found that the
matter was res judicata.
The
learned judge applied the test in the Mvaami case and made a finding
that the matter related to the same parties and the same issue. He
also found that the determination made in the default order against
the petitioners was final. Consequently the default order was held to
be a sufficient basis for res judicata.
The
principle that emanate from these cases is that the judgment relied
upon should be considered as to its effect in giving a final and
definitive decision. In other words where there is a default judgment
res judicata does not automatically apply, the default judgment
should be analyzed as to its character in the finalization of the
matter.
Even
if the Labour Court judgment was not a default judgment, I believe
the principle applies in this case.
Can
it be said the judgment disposed of the matter?
I
do not think so.
The
Court did not deal with the matter on the merits the substantive
issues of the case remained unresolved.
Even
if I am wrong in this conclusion, I am fortified in the case of
Arutim Capital (supra) that the judgment should be on the merits.
Clearly
res judicata is not applicable in casu. The preliminary point is
dismissed.
I
now deal with the merits of the case.
In
my view two issues fall for determination;
(a)
firstly whether the respondent has abused the court's process to
warrant the order sought; and (b) secondly whether the High Court can
issue an order regulating process in other courts.
I
had opportunity to peruse the judgments and orders between the
parties. The following is evident;
1.
Alois Matongo v Midlands State University LC/MD/18/11 (Labour Court
Gweru) an appeal against his dismissal. The appeal was dismissed. No
evidence that an appeal against this decision was filed. The
respondent was not legally represented. Each party to bear its costs.
2.
Alois Matongo v Midlands State University HH1744/13 respondent issued
summons action in this court claiming payment of a total of
US$120,643-28 for salaries, cash in lieu of leave, cash in lieu of
contract leave and cash in lieu of sabbatical leave. The matter was
dismissed for want of jurisdiction with costs. The applicant was
legally represented.
3.
Alois Matongo v Midlanda State University LC/MD76/13 (Gweru Labour
Court). A claim for terminal benefits claim dismissed with costs. The
respondent was legally represented.
4.
Alois Matongo v Midlands State University (Arbitration award) award
dated 15 September 2014 claim for terminal benefits. Claim dismissed
based on prescription. The applicant was not legally represented.
5.
Midlands State University v Alois Matongo LC/MS/APP/71/14 [LC/MS/ORD
54/15] (Chamber application for dismissal) Application granted.
Appeal dismissed the respondent in default at filing heads of
argument. Costs were granted against the respondent.
6.
Midlands State University v Alois Matongo LC/MD/APP/01/15 [LC/MD/ORD
2/15]. Chamber application for dismissal of a chamber application for
condonation of late filing of heads of argument. Application granted.
Chamber application for condonation dismissed with costs.
7.
Alois Matongo v Midlands State University LC/MD/ORD 84/15.
Application withdrawn by consent. Costs granted against the
applicant. The applicant was legally represented.
8.
Alois Matongo v Midlands State University LC/MD/ORD/157/16.
Application for rescission of judgment. Matter struck off the roll.
Costs were to be in the cause. The applicant was legally represented.
9.
Alois Matongo v Midlands State University LC/H/ORD/1049/2017.
Application for condonation of late filing of an application for
rescission of judgment. Application removed from the roll in terms at
Practice Direction 3 of 2013. No order as to costs. The applicant was
legally represented.
10.
Midlands State University v Alois Matongo LC/H/687/16. Application
for an order of perpetual silence. Application dismissed for want of
jurisdiction. No order as to costs. The respondent was legally
represented.
11.
Alois Matongo v Midlands State University LC/H/124/18 (ref
LCH/APP/528/217 cited as 520/17. Application for condonation of late
noting of an application for rescission of default judgment granted
under LC/MS/APP/71/14. The application was struck off the roll with
costs. The applicant was legally represented. This is the matter that
was pending at the time this case was filed.
It
is clear that case number 5 and case number 6 were preceded by an
appeal and application by the respondent. The Court failed to locate
the two files that relate to those proceedings. Of the eleven files,
orders and judgments perused in nine of the cases the respondent was
legally represented. In six of the cases costs were granted against
the respondent. The applicant did not make any effort to recover the
costs. I will revert to this issue later in the judgment.
A
decree of perpetual silence is recognized as a legal remedy in
deserving cases. This court has inherent power to prevent abuse of
its own process where there is a demonstration that the defendant or
the respondent is a serial litigator whose underlying intent is to
abuse not only the court's process but his adversary too.
In
terms of section 69(3) of the Constitution every person has the right
of access to the courts. This right though, can only be exercised
reasonably and with due regard for the rights and freedoms of other
persons in terms of section 86(1) of the Constitution. In essence, it
is a balancing act.
In
this balancing act, courts have pointed out that this drastic remedy
that muzzles an individual should be granted in exceptional cases. It
is not granted on the asking; see Hudson v Hudson 1927 AD at 268.
The
full bench in Brown v Simon 1905 TS 311 analyzed various leading
cases in such applications; the court concluded that the following
considerations should be made;
1.
the nature and subject matter of the claim;
2.
the likelihood of prejudice to either party if the decree is granted;
3.
the balance of convenience as shown by the circumstances of each
case.
Bearing
in mind the said principles, I shall proceed to determine the case.
The
Claim(s)
The
respondent filed numerous cases before the Labour Court. He did not
deny it. However he said he did not abuse the court process.
A
reading of case law shows that there can be no one size fits all
definition of abuse of court process. In jurisdictions where abuse of
process is recognized as a remedy, the courts have looked more to the
purpose for which the process is used. It is the improper use of
process after its issuance in order to accomplish a purpose for which
the process was not designed. Bone v Bernard, 2008 Ark App Lexisti
569. Such abuse of process includes ligation in bad faith meant to
harass and vex the respondent.
In
casu the respondent, upon his dismissal he noted an appeal with the
Labour Court. The appeal was dismissed. He did not appeal against
this dismissal to the Supreme Court. It may be safety inferred that
he came to terms with his dismissal. Thereafter he filed an
application to the Labour Court for his terminal benefits and/or
outstanding salaries. His efforts to get his dues birthed the
numerous applications and an appeal to the Labour Court and this
court. It is evident from the court records that when his claim for
benefits was dismissed by the arbitrator, he noted an appeal to the
Labour Court. The appeal was dismissed for want of filing of heads of
argument by the respondent. Thereafter he mounted several
applications for condonation and rescission of judgment all with a
view to undo the dismissal of the appeal so that the matter could be
heard on the merits. His efforts continued to hit a brick wall.
I
must say, the respondent was represented by legal practitioners. This
is a clear case where the legal practitioners failed to act timeously
in terms of the Labour Court Rules and in some instances a sheer lack
of appreciation of the procedure in the Labour Court. It is
unfortunate that, it is the litigant who bears the brunt of such poor
workmanship resulting in numerous applications to correct the
anomalies.
In
our jurisdiction, I have come across very few cases where the decree
of perpetual silence was granted; in Ignatius Masamba v The
Secretary, Judicial Service Commission HH283/17; City of Harare v
Masamba HH330/16; Vigour B Fuyana v Moyo SC54/06; and Mhini v
Mupedzamombe 1999 (1) ZLR 561.
What
cuts across the cases is that a plethora of cases are filed stemming
from one cause of action. In some cases the actions are not directed
to one person only, they involve other persons including judicial
officers who are impugned in the process. The respondent's conduct
in asserting his rights must be such that it clogs the court system
with groundless and unending litigation. In those cases, it can be
said both the courts and the sued parties were harassed by litigation
with no end in sight.
In
Mabwe Minerals (Pvt) Ltd and 3 Ors v Peter Valentine and Anor
HH793/16 the court dismissed an application for perpetual silence
despite the fact that there were thirty (30) cases between the
parties. The court noted that, the applicant contributed to the
confusion that beset the respondents who genuinely believed they had
a grounded cause of action.
In
casu one claim is pursued, the cause of the numerous applications in
the Labour Court is to reverse the dismissal of the appeal which
process is allowed in terms of the Rules. The respondent was genuine
in the pursuit of his claim for terminal benefits. The purpose of the
applications was not to abuse the process but to protect his rights.
In
the circumstances of this case I cannot find a deliberate intention
to vex the applicant by the respondent nor abuse the court process as
a result of the claims filed so far. Apparently the one matter that
respondent submitted was outstanding before the Labour Court has
since been determined.
Prejudice
The
likely prejudice to the applicant in the event the order is granted
is set out on p 5 of the founding affidavit. I say this because a
case stands or falls on the founding affidavit, on paragraph(s) 13.4
and 13.5 it is alleged;
“13.4
In the process of doing so, the applicant is not pursuing any
recourse to vindicate any legitimate rights, but is instead harassing
the applicant and putting it to unnecessary legal expenses.
13.5
There is no chance of the applicant recovering its expenses through
an award of costs, as to applicant's knowledge and belief, the
respondent is unemployed lives in penury and abject poverty, and is a
man of no financial means.”
And
at 28.1;
In
five (5) matters that the applicant was awarded costs, it did not
pursue the recovery of the costs against the respondent, because to
applicant's best knowledge, the respondent is a man of no means. To
pursue recovery of costs under such circumstances would at best be
vindictive and at worst fishing in a dry river bed.”
I
do not believe the respondent does not have a legitimate claim.
Nowhere
in the founding affidavit does the applicant indicate it paid the
terminal benefits and outstanding salaries.
The
applicant's main contention is that it is incurring unnecessary
legal expenses.
The
foregoing extracts from the founding affidavit show that the
applicant was awarded costs in 5 cases although my count was 6 cases.
The costs were not recovered through a deliberate decision by the
applicant not to recover the costs.
Herbstein
and Van Winsen in The Civil Practice of the High Court Vol. 2, 5th ed
at p 951, succinctly set out the purpose of an award of costs, as
follows:
“…
to
indemnify him for the expense to which he has been put through having
been unjustly compelled to initiate or defend litigation, as the case
may be.”
Even
in deciding the scale of costs courts have granted costs on a higher
scale to deter unnecessary litigation; see Wilbert Munonyara v CBZ
Bank Ltd and 2 Ors HH91/15 where costs on a legal practitioner and
client scale were granted being admonitory costs to signify the
court's displeasure at being taken for granted by litigants.
In
an application such as this, recovery of costs in my view should be a
deterrent to the respondent.
An
applicant should therefore demonstrate that it has recovered costs,
yet the respondent continues to file litigation.
In
the alternative, where an attempt to recover costs is unsuccessful
and the respondent is a self-actor with no means there must be proof
of a nulla bona return. The purpose of that return is to show that,
as the applicant continues to incur legal costs, they cannot be
recovered, and the respondent is a self-actor with no legal costs, as
was in the Mhini v Mapedzamombe case (supra).
In
casu there was no attempt to mitigate the prejudice by the applicant
as per its admission. Its reasons for doing so are based on
conjecture with no evidence, yet the respondent had legal
representation in some of the cases.
On
the other hand, the order sought, to silence the respondent
alternatively to allow him to approach the courts with leave impinges
on one of the respondent's fundamental rights, to access the court.
In
the event that, the decree of perpetual silence is granted the
respondent is likely to be prejudiced. The balance of convenience
favours allowing the respondent to pursue his claim.
In
view of the foregoing, that this is not a proper matter for an order
of perpetual silence, I leave open the second issue whether this
court can grant such a decree regulating process in other courts.
Costs
Costs
are always in the discretion of the Court and generally follow the
event. I see no reason to depart from this approach.
Accordingly
the following order is made;
1.
The application be and is hereby dismissed with costs.
Dzimba,
Jaravaza & Associates, applicant's legal practitioners
Charamba
& Partners, respondent's legal practitioners
