Nkululeko Mabhena V P G Industries Zimbabwe LTD AND P G Zimboard Products (Pvt) LTD AND P G Industries (Zimbabwe) LTD – CEO, NO AND Manica Boards AND Doors (Pvt) LTD

### Preamble
1
HB 159/19
HC 1764/19
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NKULULEKO MABHENA

Versus

P G INDUSTRIES ZIMBABWE LTD

And

P G ZIMBOARD PRODUCTS (PVT) LTD

And

P G INDUSTRIES (ZIMBABWE) LTD – CEO, NO

And

MANICA BOARDS AND DOORS (PVT) LTD

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 14 & 17 OCTOBER 2019

Opposed Application

Applicant in person

S. Chamunorwa for the respondents

MAKONESE J:	It is improper, inappropriate and wrong for litigants to malign and attack judicial officers without just cause.  The right to file process asserting one’s rights does not entitle any person to use abusive language directed at judicial officers and parties to any dispute.  An attack on the court and its officials is an assault on the integrity and independence of the judicial system.

The applicant’s legal battles span over a period in excess of ten years.  All the judges that have handled applicant’s cases have incurred his wrath and have been accused of one thing or the other.

This is an application for condonation for the late application for rescission of judgment under case number HC 3432/12.  The order was granted in default on the 23rd February 2012.  The application is made in terms of Order 49 Rule 449 of the High Court Rules, 1971.  Applicant relies on the ground that the order was erroneously sought and granted in his absence.

Respondents consented to the granting of the application for condonation for the late filing of an application for rescission of judgment.  The concession was made in the spirit of good faith.  Respondent in so doing, indicated that an order for costs on a punitive scale would be sought against the applicant should he persist with the entire relief sought in the draft order.  The applicant did not relent.  He persisted with his application and continued to file voluminous documents, largely irrelevant to the order sought.

The application before the court can best be described as peculiar, unusual and bizarre.  Applicant took an approach wherein he makes unfounded and scandalous allegations against judges of this court without any supporting documents to sustain his claims.  Applicant has confused issues in this matter, in a manner that borders on abuse of court process.  Despite the attempt to unnecessarily confuse and complicate the matter, this is rather a simple matter.

Factual background

The applicant in this matter was an employee of P G Industries (Zimbabwe) Ltd.  By letter dated 8 May 2000 1st respondent sought to dismiss the applicant with effect from 31 July 2000.  Applicant contested his dismissal.  On 17 July 2002 this court granted an order declaring the dismissal unlawful and null and void (HH-115-02) per MUNGWIRA J.  The applicant was back in court two years later suing the employer for an order compelling the respondents to render on account of his salary and benefits from 1st  June 2000 to the date of his re-instatement.  On 15 February 2007 this court granted an order compelling the respondents to render on account of applicant’s salary and benefits. HB 25/07)  per NDOU J.   The issue of whether or not the above order was complied with attracted divergent versions from the parties   It would seem that the issue remained unresolved from applicant’s stand point.  In 2011 applicant filed another application in this court, this time seeking an order for reinstatement.  On 12th January 2012 judgment in the matter was handed down in applicant’s favour (HB-1-2012) per KAMOCHA J. On 23rd February 2012 this court made an order in the following terms:

“1.	The plaintiff’s claim as against the defendant be and are hereby dismissed for want of prosecution with plaintiff paying the costs of suit.

2.	If plaintiff for some reason whatsoever seeks to revisit this matter on any platform, he shall first have to satisfy the order for costs herein before being given the right of audience.”

This is the order that has given rise to this application.  Under case number HC 1775/19, the applicant has separately filed an application for rescission of this default judgment.  The respondents have conceded that the default judgment may be set aside on condition the applicant pays the costs of suit.

Merits of the application

I have indicated that the respondents do not oppose the application for condonation.  The applicant filed a lengthy draft order.  I shall set out its full terms in order to illustrate that the application was drafted and in a manner that the raises superfluous and irrelevant issues as follows;

“1.	The condonation of late filing of application for rescission of order HC 3432/2012 erroneously granted on 23rd February 2016 by Her Lordship Mrs Justice Moyo in the absence of the applicant, who was out of Zimbabwe since 12th November 2015 and returned on 9 December 2018 be and is hereby granted.

2.	The 1st – 4th respondents be directed and ordered to place factual proof that applicant was on 14th July 2004 actually reinstated as per order HH 115/2002 to his job which he held a millisecond before the unlawful dismissal on 8th May 2000, which job is collectively reflected by records 134 – 148 marked ZD – ZL on applicant’s founding affidavit, before the respondents being granted audience in HC 1764/2019, HC 1775/2019 and HC 3432/2012

3.	The 1st – 4th respondents be directed and order to place factual proof that that the accounts noted by the Honourable Mr Justice Ndou in order HB 25/2007 at page 2 (at the hearing on 9 December 2005) [marked AA – AB, records 30 – 34 of founding affidavit] are the true and actual salary and benefits schedule and factual settlement relating to applicant’s true job as ordered into be reinstated effective from 1st July 2000 without loss and benefits up to the date of factual reinstatement before being granted an audience in HC 1764/2019, HC 1775/19 and HC 3432/2012.

4.	The 1st – 4th respondent be directed and ordered to place factual proof that that the true settlement of applicant’s due arrear salary and benefits ordered to be rendered within seven (7) days of the order HC 25/2007 was indeed rendered within the time limit of order HB 25/2007 and actual debate took place between the parties and factual compliance by respondents with order HC 25/2007 too place before the 1st – 4th respondents are granted audience in HC 1764/2019 and HC 3432/2012.

5.	The 1st – 4th respondents be and are hereby ordered and directed to pay the cost of this application joint and severally, one paying the other to be absolved.”

Save for the first ground in the draft order, the rest of the relief sought is incomprehensible.  An application for condonation is entirely procedural.  The relief sought is irregular and confusing.  The applicant first seeks the disposition of the application for condonation and other forms of relief which border on the application for rescission itself.  Applicant not only seeks condonation but other forms of relief in the draft order in irrelevant to the application before the court.

In Gurupira & Anor v Sheriff of Zimbabwe NO & Ors HH-80-2008, this court emphasised the importance of separating an application for condonation and that of rescission.  It was stated thus:

“It seems to me that this application ought to have been brought separately by the applicants firstly as one for condonation.  Depending on their success, they would have embarked on the main application in which they seek the present relief.”

Applicant’s imprecise and meandering draft order is not only confusing but amounts to an attempt to smuggle substantive matters under the guise of an application for condonation for late filing of rescission of judgment.

In Moonlight Provident (Pvt) Ltd v Sebastian & Anor HB-254-16, this court held that a draft order was incompetent to the extent that it sought not only to rescind the default judgment but to obtain substantive relief against the respondents.  In this present application, the applicant’s relief that seeks to deal substantively with extraneous matters ought to be dismissed.

Costs

The respondents submitted that the applicant’s insistence on proceeding with a draft order which is patently defective should result in an order for costs on a punitive scale.  See;  Mohamed & Son v Mohamed 1959 (2) SA 688 (T).  It was further argued by the respondents, that they have been put out of pocket unnecessarily by defending a baseless application.  While it is not in doubt that the applicant’s entire application and draft order is largely defective in form and substance, the respondents do concede that the application for condonation for the late filing of an application for rescission of judgment is merited.  For that reason alone, the applicant should not saddled with costs on an attorney and client scale.  I did caution the applicant against the use of abusive language against judicial officers.  The applicant did apologise for his unwarranted attack on judges of this court.

It is therefore, the finding of this court, that  applicant’s application went beyond the object of the application itself.  The applicant’s reliance on voluminous documents to raise irrelevant issues and his filing of process outside the rules of this court entitles the respondents to an award of costs on the ordinary scale.

In the result, it is ordered as follows:

The application for condonation of late filing of an application for the rescission of judgment in case number HC 3432/19 and extension of time to file an application for rescission of judgment be and is hereby granted.

The applicant shall bear the costs of this suit.

Mawere & Sibanda Legal Practitioners c/o Calderwood, Bryce Hendrie & Partners respondents’ legal practitioners