Moffat Mungazi
Trust Maanda
Legal Position
WHERE a part repeatedly brings litigation against another on the same cause of action and in respect of the same subject matter, the party against whom it is brought can apply for an order of perpetual silence.
This is an order which prohibits a persistently pestering litigant, who files cases for similar relief against the other party, from filing any action against that party without leave of the court.
An order for perpetual silence is granted to prevent abuse of court process and harassment of an innocent party who is being persistently dragged to court, incurring costs in the process.
In Cardiroy v Union Government (Minister of Finance) 1918 AD 512, it was opined as follows: “Where there has been repeated and persistent litigation between the same parties on the same cause of action, and in respect of the same subject matter, a defendant should not be driven to file repeated pleas of res judicata, or to make a succession of applications to stay proceedings where prior costs have not been paid.
“I think he is entitled to more effectual protection against long-continued unsuccessful onslaughts in respect of the same dispute. Such protection could only take the form of a general order curtailing, in some respects the plaintiff’s ordinary rights of litigation in that matter.”
In Ignatious Masamba v Secretary, Judicial Service Commission HH 283/17, it was held that: “Courts have a duty to guard the abuse of the court processes, and where there is unmitigated abuse as in this case, it is only reasonable, expected and indeed proper for the court to shut its doors to the abuser and or place such abuse on terms with regards how he may be allowed to exercise his rights of access to the courts.”
A decree of perpetual silence is not easily or commonly granted.
It is a drastic action as it may negatively impact a litigant’s rights access to the courts for relief.
But as with any other rights, the right to access to the court can be curtailed in the interest of justice and other considerations.
The other users of the courts have a right to easy access to the courts by not having the system clogged by frivolous and vexatious cases brought about by a needlessly litigious litigant.
A party who is unnecessarily and persistently dragged to court on the same matter has a right not to be abused.
The court process must also not be abused.
While it is an exceptional and drastic cause of action to withdraw a litigant’s constitutional right of access to the courts, it is one the courts will not shirk from where there has been persistent abuse.
It is only granted where a party succeeds in showing the court that the person against whom it is sought is a serial litigator who has the tendency to abuse the court and its process to the detriment of his adversary.
A decree of perpetual silence, prima facie flies in the face of the right to equal protection and benefit of the law and also the right to be heard, but it can be granted.
Mafusire J in, The City of Harare vs Masamba, HH-330-16 as follows: “Courts of justice are open to all. Section 69[3] of the Constitution says that every person has the right of access to the courts, or to some other tribunal or forum established by law, for the resolution of any dispute. But this right is not absolute. In exceptional cases the courts will draw the line.
They will shut their doors.
They have an inherent right and power to prevent an abuse of their processes.
They have inherent powers to protect their integrity.
Frivolous, vexatious or burdensome litigation; incessant lawsuits that churn out pesky bills of costs which remain unpaid; dirty hands; abuse of judicial officers in any manner; contempt of court; non-disclosure of material facts, and so on, are some of the intolerable infractions that may lead the courts to shut their doors.
The closure may be temporary.
But it can be perpetual. It all depends on the circumstances. The doors may not be re-opened without leave.”
A decree of perpetual silence is an order to protect a party from being vexed by a serial litigator and to stop abuse of court process.
A party seeking it must show that he is being vexed by a litigant who should be silenced because he has previously filed against him a series of cases on the same subject matter, which were thrown out.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
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