Opposed
Matter
MANGOTA
J:
The
applicants applied for a decree of perpetual silence against the
respondents. They submitted that these constituted a nuisance to
them. The respondents, they said, took them to the magistrates
courts, this court and the Supreme Court with no end in sight. They
stated that the respondents took them to court on not less than forty
(40) occasions. They averred that they have been subjected to a
series of abusive criminal and civil proceedings. They said, despite
repeated dismissal of their claims by the courts, the respondents
maintained the position that the judgments which were entered against
them were ineffectual. They complained that the respondents were
harassing and vexing them. They insisted that the court should
protect them as well as itself from the abusive conduct of the
respondents. They moved the court to grant them the decree.
The
respondents opposed the application.
They
moved the court to examine the cases which formed the basis of the
application in relation to their cause. They denied that they were
always in the driving seat when the cases which the applicants made
reference to found their way to the court(s). They stated that the
applicants filed some of the cases with the court(s). They said all
the cases upon which the current application rests had a bearing on a
mine tribute agreement which the fourth applicant concluded with the
second respondent. The fourth applicant, they said, concluded the
tribute agreement with them through his Chiroswa Minerals (Pvt) Ltd
[“the company”]. They submitted that they should not be silenced
for their effort to assert their right in the tribute agreement. They
moved the court to dismiss the application with costs.
At
the centre of the parties dispute is Dodge Mine [“the mine”]. It
lies in Shamva District under Mashonaland Central Province. It has
six claims. These are lucrative, according to the evidence filed of
record.
The
fourth applicant and his partner used to own and work the mine. They
worked it under the name Chiroswa Syndicate. The fourth applicant
later sold the mine to the first applicant. This was after his
partner had left the syndicate. The first applicant is currently the
owner of the mine.
The
issue of the mine has seen the parties take each other to court on
thirty (30), and not forty (40), occasions.
The
applicants filed actions and/or applications against the respondents
on nine (9) occasions. The respondents filed actions and/or
applications on sixteen (16) occasions. The following five (5) cases
were not accounted for: HC233/13, HC5669/13, HC5460/13, HC6842/14 and
HC308/12.
The
court could not tell which party filed what action or application in
respect of the mentioned five (5) cases. What it could tell, however,
was that the parties have been in and out of courts on thirty (30)
occasions.
The
relief which the applicants moved the court to grant to them is not
new to the jurisdiction of this court.
In
Mhini
v Mupedzamombe,
1999 (1) ZLR 561, 566E GARWE J (as he then was) had the occasion to
deal with an issue which was similar to the present one. The learned
judge quoted with approval what CURLEWIS J said in Brown
v Simon,
1905 TS 311, 322 wherein he remarked that the procedure:
“… affords
a useful
means of bringing to a conclusion all threatened actions,
and in our opinion, it is applicable under due safeguards not only to
cases where a claim has been made or an action threatened publicly,
but to every case where by demand or threatened action there
has been a disturbance of, or interference with, the quiet enjoyment
of another's rights.”
[emphasis added]
In
Corderoy
v Union Government [Minister of Finance]
1918 AD 512 which GARWE J was pleased to make reference to in Mhini
v Mupedzamombe (supra)
the South African Appellate Division held that when there has been
repeated and persistent litigation between the
same parties
in the same cause of action and in respect of the same
subject–matter, the court can make a general order prohibiting the
institution of such litigation without the leave of the court but
that power extended only to prevent abuse of its own process without
being concerned with the process of other courts.
The
paucity of case authorities on the current subject is ample evidence
of the fact that the relief, whilst recognised at law, is seldom
resorted to.
It
is only granted where a party succeeds in showing the court that the
defendant or respondent is a serial litigator who has the tendency to
abuse not only the court but also its process and his adversary.
It
is important for the court to examine and establish the fact of
whether or not the respondents fall into the category of serial
litigators who abuse the applicants, the court(s) and their
processes.
The
dispute of the parties has its origin in the judgment of PATEL J (as
he then was). The learned judge had the occasion to hear and
determine the matter in which Chiroswa Minerals (Pvt) Ltd [“the
company”] and the second respondent brought before him under case
number HH2612/11. The company and the second respondent had sued the
following three parties – the Minister of Mines, one Morris Tendayi
Nyakudya and the latter's company, Vambo Mills (Pvt) Ltd. They
succeeded in having Mr Nyakudya and Vambo Mills (Pvt) Ltd evicted
from the mine where they were operating in terms of an expired
tribute agreement. They successfully moved the court to order the
Minister of Mines to refer the tribute agreement which they had
concluded between them to the Commissioner of Mines for approval and
registration.
A
reading of PATEL J's judgment under HH261/11 tends to suggest that
it was Chiroswa Minerals (Pvt) Ltd which entered into the tribute
agreement with Morris Tendayi Nyakudya and his Vambo Mills (Pvt) Ltd.
It is also not a far-fetched suggestion that Chiroswa Mills (Pvt) Ltd
moved to enter into the second tribute agreement of the mine with the
second respondent.
The
abovementioned observations find support from the fact that it is
Chiroswa Minerals (Pvt) Ltd, and not Chiroswa Syndicate, which moved
for the eviction of Mr. Nyakudya and his Vambo Mills (Pvt) Ltd from
the mine. The company worked hand-in-glove with the second respondent
to achieve its desired end-in-view.
The
impression which the company created in the mind of the respondents,
at the time, was that it owned the mine. It could not successfully
evict those from the same if it was not the owner of the mine. It
would have had no locus
standi
to do so.
It
is common cause that the fourth applicant owned Chiroswa Minerals
(Pvt) Ltd. He, in appreciation of his good working relationship with
the first respondent, donated 50% of his shares in the company to the
first respondent. The first respondent, it is not in dispute, was or
is the managing director of the second respondent.
The
above observed matters do, in the court's view, account for the
misunderstanding which later ensued between the fourth applicant and
the respondents.
These,
the first respondent in particular, must have laboured under the
genuine but mistaken belief that they, or he, as a 50% holder of
shares in Chiroswa Minerals (Pvt) Ltd, had a substantial interest not
only in the company but also in the mine which the company owned.
The
first respondent's belief in the mentioned regard finds support
from a reading of MATANDA-MOYO J's
judgment
under case number HH557/14.
The
first respondent had, in the case, sued the first, second and fourth
applicants. He moved the court to set aside the agreement of sale of
the mine which the fourth applicant had concluded with the first and
the second applicants. He claimed that he owned 50% of the mine. He
challenged his omission from participating in the sale of the mine.
He insisted that the sale was, on the mentioned basis, null and void
and had, therefore, to be set aside.
It
is such belief as has been stated in the foregoing paragraphs which
caused the respondents to file one suit after another with the
courts.
They
worked on the impression which had been created. They believed that
they, or one of them, owned 50% of the shares in the company which
owned the mine. They, therefore, made every effort to assert what
they believed belonged to them.
The
respondents belief was shattered when MATANDA-MOYO J ruled, to their
disappointment, that Chiroswa Syndicate, and not Chiroswa Minerals
(Pvt) Ltd, owned the mine.
The
respondents could not, under the stated circumstances, be said to
have engaged themselves in a wild goose chase, as it were. They
honestly believed, in the court's view, that they were pursuing a
genuine cause. They believed, further, that the fourth applicant and
the company were treating them unfairly. They, therefore, made effort
to have their case determined by the courts.
The
respondents unrelenting effort to assert their right in what they
believed belonged to them took their case to a higher level in 2013.
In
a matter which Chiroswa Minerals (Pvt) Ltd and the second respondent
filed under case number HC5208/13, TAKUVA J remained alive to the
judgment which PATEL J delivered under HH261/11.
The
learned judge ordered the Minister of Mines, one Obert Mpofu, and the
Commissioner of Mines, a Mrs E Kahonde, to process the tribute
agreement which Chiroswa Minerals (Pvt) Ltd and the second respondent
concluded as at the time of PATEL J's judgment and to have the same
registered at the offices of the Mining Commissioner.
The
order contained a stiff sanction which the minister and the
commissioner would suffer if they did not comply with it. They would
each be held to have been in contempt of court and be committed to
thirty (30) days imprisonment.
It
was as a result of TAKUVA J's order that the Mining Commissioner
did, on 13 February 2014, register a tribute agreement in favour of
the second respondent.
The
fourth applicant represented the company and Chiroswa Syndicate in
the tribute agreement which the parties registered with the Mining
Commissioner. The first respondent represented the second in the
same. The tribute was or is to endure for a period of three years. It
would, therefore, expire on 13 February, 2017.
Given
the above described set of circumstances, it would be difficult, if
not impossible, for one to suggest, as the applicants did, that the
respondents were or are a nuisance to them.
The
applicants, the fourth applicant in particular, conveyed an
impression to the respondents. These believed him only to discover,
at a later stage, that he was hunting with the hounds and running
with the hares, so to speak.
He
dined and wined with them, as it were. He later switched his
allegiance from them and proceeded to work with the applicants
against them.
The
fourth applicant was undoubtedly the main cause of the parties
misunderstanding.
He,
through his Chiroswa Minerals (Pvt) Ltd, worked with the second
respondent to evict persons who were at the mine from the same. He
agreed to enter into a tribute agreement of the mine with the second
respondent. He sold the mine to the first applicant. He sold his 50%
shareholding in Chiroswa Minerals (Pvt) Ltd to the third applicant.
He
consulted no one in this complicated matrix which he created not for
himself but for the respondents.
The
court was not amused by the fourth applicant's manner of dealing
with his business partners. It viewed the applicants effort to
conceal certain matters from it with serious disquiet.
They
attached to the application a wrong tribute agreement. The agreement
showed its life span as commencing on 14 December 2011 and expiring
on 14 December, 2014. They did not make any reference to the correct
tribute agreement which was registered at the Mining Commissioner's
offices on 13 February, 2014. They plucked off the last page of
PATEL J's
judgment i.e. the page on which the learned judge's order was
recorded. They made an effort not to disclose the existence of TAKUVA
J's order under HC5208/13.
In
acting as they did, the applicants aim and object were to paint the
picture which showed that the respondents were a rogue element which
must be placed under leash all the time, so to speak. They,
unfortunately for themselves, over-did their trick to a point where
their story remained difficult, if not impossible, to believe.
They
were ably legally represented in this and other actions or
applications. Their legal practitioner should have been more candid
with the court than he did. The court, therefore, viewed the conduct
of the applicants and their legal practitioner with displeasure.
The
respondents could not be faulted for having made an effort to assert
their right in what they believed belonged to them. They cannot be
blamed for asserting their right in the tribute agreement which was
registered in the second respondent's favour on 13 February 2014.
That
agreement is still extant. It will only expire on 13 February, 2017.
The
application cannot, on the basis of the foregoing, be allowed to
stand. A decree of perpetual silence, as I understand it from the
papers which were placed before me, is a very extra-ordinary remedy.
It seeks to make a person not deaf but dumb before the court which
perpetually silenced him. Its aim and object are to bar him from
instituting any criminal or civil proceedings against the party in
whose favour the bar operates. It bars him from litigating or
prosecuting except with the leave of a judge or the court and for
good cause shown as well as on notice to his adversary. It sees him
as a serial litigator who abuses the court, its process and his
adversary with no end which is of any benefit to him being ever in
sight. Its extra-ordinary character lies in that, once it is granted,
it deprives a person of his constitutional right to litigate or to
prosecute. It can, for the mentioned reasons, be granted only in
exceptional circumstances.
The
respondents in
casu
were not shown to be a set of serial litigators. They were not shown
to have been suing or prosecuting the applicants with no end in sight
which was not of benefit to them. They had, and still have, a clearly
defined cause which they were, and are, enforcing. They took the long
road to realise their intended benefit because of unsound advice
which their esterwhile legal practitioner continued to dish out to
them. He made them use the wrong method to achieve their lawfully
acquired right.
They
should not, therefore, be made to suffer for the sins of their legal
practitioner.
Indeed,
the courts expressed their displeasure against the legal practitioner
when they ordered him to pay costs on two separate occasions. Such
was the height of the courts lack of amusement on the work of the
respondents legal practitioner.
If
he had sat down to reflect as he should have, he would have realised
that something was not sticking in the manner that he approached the
case of his clients.
The
court has considered all the circumstances of this case. It is
satisfied that the applicants were not able to discharge the onus
which rested upon them. Their application stood on nothing. They made
their case less credible by concealing vital evidence which related
to the application.
The
application is, accordingly, dismissed with costs on a higher scale.
Mushoriwa
Pasi Corporate Attorneys,
1st
and 2nd
applicants legal practitioners
Stanslous
& Associates,
respondents legal practitioners
