Trustees for the Time Being of the Casper Masvikeni Family Trust v Tendai Guruwo and The Registrar of the High Court No.

### Preamble
1
HH 291-21
HC 4271/20
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TRUSTEES FOR THE TIME BEING OF THE

CASPER MASVIKENI FAMILY TRUST

versus

TENDAI GURUWO

and

THE REGISTRAR OF THE HIGH COURT NO.

HIGH COURT OF ZIMBABWE

MUZOFA J

HARARE, 17 March & 11 June 2021

Opposed Court Application

T Magwaliba with S Mahuni,.for the applicant

FF Hwemira,for the first respondent

No appearance for the second respondent

MUZOFA J. The applicant seeks a decree of perpetual silence and to interdict the first respondent from instituting or prosecuting any litigation concerning a certain piece of land known as 425 Marlborough Township Extension 2 of Marlborough ‘the property’ without the leave of the court and that service in the application for leave be served by the Sheriff to the applicant’s legal practitioners of record.

In January 2017 the applicant purchased the property through its trust in a Sheriff’s sale in execution. The first respondent was the owner of the property and held title before the sale. After the sale, title was transferred to the applicant. The first respondent did not move out of the property. It took an eviction order granted in favour of the applicant for the first respondent to give vacant possession of the property to the applicant. According to the applicant, from then on all hell broke loose, the first respondent filed numerous applications in a bid to reverse the sale.

The applicant listed eleven cases to demonstrate the first respondent’s hyperactive appetite to litigate abusing both the court process and the applicant. According to the applicant some processes were issued then withdrawn only to be issued out again seeking the same relief and in some instances process was issued without service on the applicant to snatch at a judgment. The applicant’s apprehension is that the first respondent has just turned litigious in  denial of the legitimate process that resulted in the sale in execution. The first respondent has demonstrated that he is capable of abusing court process at every turn. An order as prayed for can only bring some peace and sanity in the discourse bedevilling the property.

The first respondent denied being unnecessarily litigious. He believes he is entitled to restore title of the property since it was fraudulently transferred. His narration of events is that a company known as Sanctuary Insurance (Pvt) Ltd clandestinely obtained an order against him. Thereafter events unfolded unbeknown to him until the property was sold through a sale in execution. He became aware of all these machinations when he was served with a notice of eviction. In essence he does not deny filing process as indicated but avers that the applicant has a fair share in these cases. The first respondent believes the litigation is necessary to correct an injustice prejudicial to his interests in the property.

The Law

The onus is on the applicant to demonstrate that the respondent’s conduct is an abuse not only of court process but of the applicant. By so doing the applicant lays a basis for the clear right, an injury actually committed or reasonably apprehended and the absence of similar protection by other remedy which are the requirements for a prohibitory interdict. See Setlogelo v Setlogelo.

As far back as 1905 the court in Brown v Simon   relied upon by the applicant, laid down some of the considerations that the court should take in account in such an application. These include the nature and subject matter of the claim, the likelihood of prejudice to either party if the decree is granted and the balance of convenience as shown by the circumstances of the case.

In Mhini v Mapedzamombeand City of Harare v Masamba  which the applicant’s legal practitioner urged this court to follow, numerous cases were filed. The litigation was not instituted against one party it was directed also to anyone perceived to stand in the respondent’s way to correct the perceived wrong. Judicial officers were impugned in the process for making unfavourable findings. Besides the cause of action and the number of cases instituted the courts also considered the respondents in the litigation.

Where it is apparent that one cause of action begets many more that intend either to remedy some procedural irregularities or to seek some interim relief pending the disposal of the main matter the court may be inclined not to issue such an order. In Mabwe Minerals (Pvt) Limited and 3 others v Peter Valentine and Another the application was dismissed despite the numerous cases filed on the basis that the respondent’s litigation was primarily based on wrong legal advice. I may add that the court may consider the way the claims were prosecuted to help it come up with a decision.

Although a decree of perpetual silence is a limitation to a litigant’s right of access to courts of law it is trite that the right is subject to limitation.It remains a necessary evil to curb abuse of court process and protect the other party. It is a matter of balancing the rights. The limitation is not absolute, it allows the court to screen the matters brought to court by such a person to protect the interests of the victims who have been continuously subjected to costs and “the public interest that the functioning of the courts and the administration of justice proceed unimpeded by the clog of groundless proceedings.” The court is just called upon to exercise a gate keeper function to guard against abuse of its process and the other party.

In the South African jurisdiction a person can be declared a vexatious litigant in terms of the Vexatious Proceedings Act 3 of 1956. The Act applies where a person has persistently and without reasonable grounds instituted legal proceedings in a High Court or Magistrates Court. Perpetual silence is reserved for threats of litigation. In our jurisdiction it would seem, at least in respect of most of the cases where the order was granted, the relief is granted where litigation has been instituted. I have not come across a case where the relief was granted on the basis of mere threats of litigation. The requirement in the Act that the litigation is instituted persistently without reasonable ground is an important consideration in such applications.

Litigation must not be used to harass and vex the other party. In Price Waterhouse Coopers Inc v National Potato Cooperative Ltd abuse of court process was defined as

“….but no all-embracing definition of ‘abuse of process’ has been formulated. Frivolous or vexatious litigation has been held to be an abuse of process…… and it has been said that ‘an attempt made to use for ulterior purposes machinery devised for the better administration of justice” would constitute an abuse of process (Hudson v Hudson and Another). In general litigation is used properly when it is invoked for the vindication of rights of the enforcement of just claims and is abused when it is diverted from its  true course so as to serve exertion or exertion oppression so as to achieve an improper end…………….”

Where it is demonstrated that the proceedings where issued for other purposes other than to protect rights then the relief must be granted.

From the above I would rehash the considerations for the granting of such relief as follows,

The number of cases instituted and the respondents therein

The cause(s) of  action and how the matters were prosecuted

The likelihood of prejudice to either party if the relief sought is granted

The balance of convenience.

Analysis

I took time to call for the records involving the parties to ascertain the veracity of the applicant’s claim. The following is what is in the system:

Tendayi Guruwo and The Sheriff of Zimbabwe and 3 Ors HC 9860/17

A court application for setting aside of a Sheriff sale filed 23 October 2017.

The matter was withdrawn and the applicant tendered wasted costs.

Tendayi Guruwo v Casper Masvikeni Family Trust & Anor HC 9841/17 filed 22 October 2017

Urgent Chamber application for stay of execution (of eviction issued against applicant)

Matter dismissed for lack of urgency.

Tendayi Guruwo v Casper Masvikeni Family Trust & Another HC 8383/17 filed 9 September 2017

Urgent Chamber application for a restraint order

Matter not urgent and removed from the roll of urgent matters.

4.	Tendayi Guruwo v The Trustees for the time being of the Casper Masvikeni `		Family Trust HC 8983/19 field 26 November 2019.

- Chamber application for a default order withdrawn on 23 January 2020

5.	Tendayi Guruwo & Sanctuary Insurance Casper Masvikeni Family Trust HC 5025/19

- Chamber application for dismissal for want of prosecution

Application granted under case number HC 3189/19

6.	Tendayi Guruwo & Sanctuary Insurance (Pvt) Ltd (2) Casper Masvikeni Family Trust HC 9859/17

Application for rescission of judgment

- Application granted under HC 9923/14

7.	Tendayi Guruwo v (1) Sanctuary Insurance (Pvt) Ltd (2) Casper Masvikeni Family Trust HC 7616/18

Application for directions

Granted

8.	Casper Masvikeni Family Trust & Tendayi Guruwo & Anor HC 8896/18 consolidated matter of

(i) HC 8896/18 application for rescission of judgment entered in HC 7859/17

HC 761/16/1. Application granted

(ii) HC 377/19 – confirmation of a provisional order – provisional order granted.

(iii) HC 380/19 application for rescission of judgment entered in HC 930/18 application granted

In the three matters Casper Masvikeni Trust was the applicant judgment HH 22/20.

9.	Sanctuary Insurance and (1) Tendayi Guruwo (2) Casper Masvikeni Family Trust HC 3189/19

Application for rescission of judgment entered under HC 9923/14

Matter removed from the roll.

10.	Tendayi Guruwo and (1) Casper Masvikleni Family Trust (2) Casper Masvikeni HC 8458/17

Urgent Chamber application for spoliatory relief filed 17 September 2017

Provisional order granted.

11.	Casper Masvikeni Family Trust & (1) Tendayi Guruwo (2) The Sheriff of the High Court OF Zimbabwe HC 8390/17

Court application for eviction

Default order granted

12.	Casper Masvikeni Family Trust & Tendayi Guruwo & 3 Ors HC 380/19

Rescission of default judgment (granted under HH 22/20)

13.	Casper Masvikeni Family Trust & Tendayi Guruwo & 3 Ors HC 571/19

Urgent chamber application for an interdict

Provisional order granted by consent

14.	Casper Masvikeni Family Trust & Tendayi Guruwo HC 3771/19

Urgent chamber application for stay of execution of an order under HC 9580/18

- Provisional order granted

15.	Sanctuary Insurance (Pvt) Ltd v (1) Micromart (Pvt) Ltd (2) Tendayi Guruwo HC 9923/14

Summons for provisional sentence

-Application dismissed

I make the following observations. All the matters except for HC 9923/14 are process in respect of the property. Nine of the cases were issued out by the first respondent. The main matter challenging the sale in execution which was initially issued and withdrawn is still pending. The three matters instituted by the applicant were for recession of judgment obtained clandestinely by the first respondent.

In this case, the first respondent is obviously dissatisfied by the sale in execution and desires so much to have it set aside. Of the nine matters filed by the applicant three were obtained by default. The judgments were subsequently rescinded, in a scathing judgment the court observed that the first respondent had resorted to chicanery to obtain the judgments. Surely that approach to litigation ceases to achieve the intended purposes to protect rights. It is envisaged that litigation protects rights where it is procedurally and substantively correct. The litigation was certainly used for wrong purposes. Litigation is instituted to give the courts of law an opportunity to apply the law and come up with an equitable decision. In subverting that process the first respondent obviously abused court process. Although the number of cases filed by the first respondent is low compared to other cases where the relief was granted, what distinguishes the first respondent’s conduct is the propensity to snatch at judgments. This creates a prima facie case for the need to protect both the court process and the applicant from abuse.

The prejudice on the first respondent in the event the relief is granted is the additional costs to seek leave of the court to sue. As already stated the relief does not completely bar the first respondent from approaching the court, it just introduces a limitation. On the hand the applicant who is an innocent purchaser in a sale in execution and a title holder has had to defend more than nine cases and it seems there is no end to the litigation. The applicant had to incur costs in applications to recede judgments .Generally speaking litigation is no small feat, besides costs, litigation comes with its fair share of stress and so much uncertainty. The first respondent has the right to challenge the sale in execution but it does not provide for numerous unprecedented and ill-informed litigation. Subjecting buyers in a sale in execution to numerous litigation invariably reduces the credibility of this court process. The public will simply lose confidence in it .It is in the interest of the public that the courts also protect this process. The members of the public should have confidence in the process and freely participate in it. The applicant stands to be prejudiced by continuously defending future litigation that maybe unfounded. The balance of convenience is obviously in the applicant’s favour. As such a limitation on the first respondent’s right of access to the court should meet the justice of this case.

Accordingly the application is granted as follows,

A decree of perpetual silence is hereby granted against Tendayi Guruwo in respect of any litigation, against the Applicant, concerning a certain piece of land situate in the district of Salisbury, called stand 425 Marlborough Township Extension 2 of Marlborough measuring 6 808 held under deed of transfer 3282/2017 otherwise known as number 92 Harare Drive Harare,

The Applicant either personally or through or on behalf of any other person, is hereby interdicted from instituting or prosecuting any proceedings of whatever nature in connection with the property described above without the leave of this court.

Any application for the leave of this court as directed above shall be served by the Sheriff of this court on the Applicant’s legal practitioners Messrs Mahuni and Mutatu Attorneys At Law and to all interested parties.

First respondent to pay costs of suit on a higher scale.

Mahuni & Mutatu Attorneys at Law, applicant’s legal practitioners

Mushangwe & Company, 1st respondent’s legal practitioners

B, Chipadza Law Chambers, 2nd Respondent’s legal practitioners