Online Reporter
Fidelis Munyoro
Chief Court Reporter
THE High Court has dismissed Jena Mines (Private) Limited’s application seeking to stop former mine manager Francis Zambuko from instituting further court proceedings over his dismissal, ruling that his repeated applications did not justify a decree of perpetual silence.
Justice Dembure also dismissed the company’s alternative request that Zambuko first obtain leave of the court before instituting or setting down any further proceedings and ordered Jena Mines to pay the costs.
The judge said Zambuko’s applications had largely failed because of procedural defects and had not been determined on their merits.
“A decree of perpetual silence is a drastic remedy and is, therefore, not lightly granted,” Justice Dembure said.
Zambuko was employed by Jena Mines as a mine manager on a five-year contract beginning in March 2020, subject to satisfactory performance.
The company terminated the contract on June 6, 2020, before the expiry of his three-month probation period, citing dissatisfaction with his work.
Zambuko then lodged a complaint with a labour officer alleging unfair dismissal. The labour officer found in his favour and ordered reinstatement or payment of damages in lieu of reinstatement.
The labour officer subsequently approached the Labour Court seeking confirmation of the draft ruling.
The first matter, under case number LC/MD/LRA/01/21, was struck off the roll after Jena Mines raised a preliminary objection concerning the company’s citation.
The matter was later deemed abandoned by the Registrar and the labour officer subsequently filed a notice of withdrawal.
A second application for confirmation, under case number LC/MD/94/21, was also struck off the roll after Jena Mines raised objections concerning defects in the proceedings.
Zambuko thereafter filed a series of applications seeking to revive or pursue the matter.
Five were filed in the Labour Court and two in the Supreme Court. The Labour Court dismissed some of the applications and struck others off the roll because of defects.
In one of the Labour Court matters, LC/MD/74/25, the court found that Zambuko had abused court process. Jena Mines then approached the High Court seeking a decree of perpetual silence.
The company argued that Zambuko had repeatedly filed defective proceedings, causing it to incur legal costs.
Zambuko opposed the application, arguing that his cases had not been determined on their merits and that he was attempting to have his claim resolved.
Justice Dembure said the remedy could only be granted where the circumstances showed persistent and vexatious abuse of court process.
“The respondent cannot be taken as a serial litigator who tends to abuse the court process and his adversary,” the judge said.
The court noted that Zambuko’s seven applications had not resulted in a determination of the merits of his underlying claim.
The judge said the absence of a determination on the merits meant that Zambuko was not reopening matters that had been finally decided.
“There is no question of res judicata, as the matters have not been determined on the merits,” Justice Dembure.
The court also considered section 128 of the Labour Act, introduced through section 36 of the Labour Amendment Act No. 11 of 2023.
The provision provides for certain draft rulings made by labour officers before the amendment to be treated as judgments or rulings capable of registration for execution.
Justice Dembure said the provision changed the position concerning the labour officer’s draft ruling in Zambuko’s case.
While Zambuko could not take over proceedings that had already been deemed abandoned, the court held that he could seek to enforce the labour officer’s ruling in his own right.
The High Court stressed that it was not determining whether the labour officer had been correct in finding that Zambuko was unfairly dismissed.
The judge said that issue fell within the jurisdiction of the Labour Court.
The court held that Zambuko’s repeated procedural failures did not justify completely restricting his right of access to the courts.
The application was dismissed with costs.
