Amos Edington Matengambiri v Newton Elliot Dongo

The applicant sought a decree of perpetual silence against the respondent regarding property known as Number 17/18535 Culverwell Road, New Arcadia, Harare. The respondent had previously entered into an agreement of sale for the property with a third party. In case HC 4076/10, the respondent consented to judgment acknowledging the cancellation of the sale agreement and confirmed he had been refunded his money on 26 July 2011. Despite this, the respondent persistently instituted multiple court processes (more than seven applications including HC 7734/12, HC 4840/13, HC 2636/15, HC 10482/13, HC 5726/17, HC 7456/17, and HH 551/17) all relating to the same property, seeking declarations of ownership, eviction orders, rescission of judgments, and stays of execution. The respondent obtained some default judgments by failing to disclose the existence of prior orders. The applicant contended this persistent litigation was in bad faith and constituted abuse of court process.

• Whether the respondent's repeated litigation regarding the same property constituted vexatious litigation and abuse of court process
• Whether a decree of perpetual silence should be granted to prevent further litigation between the parties
• Whether the doctrine of privity of contract applied to prevent the application (raised as a preliminary point by the respondent)
• Whether the court has inherent power to shut its doors to litigants who abuse the court process

The court granted the application for perpetual silence and ordered: (1) The respondent is barred and interdicted from instituting any litigation/claim/application/action against the applicant; and (2) The respondent shall pay the applicant's costs of suit on a legal practitioner and client scale.

Courts have inherent power to prevent abuse of their processes by granting decrees of perpetual silence against vexatious litigants. Where there has been repeated and persistent litigation between the same parties regarding the same subject matter, particularly where such litigation is groundless and constitutes abuse of court process, the court can make a general order prohibiting the institution of such litigation. The constitutional right of access to courts under Section 69(3) is not absolute and can be curtailed in exceptional cases where a litigant persistently abuses court processes through frivolous, vexatious or burdensome litigation. Courts have a duty to guard against abuse of court process and protect their integrity by shutting their doors to litigants who engage in persistent abuse.

The court observed that the respondent's behavior was befitting that of a vexatious litigant whose conduct clogs the courts and puts the applicant under unnecessary legal expenses. The court noted approvingly CHAREWA J's earlier observation that the respondent had no prospects of success whatsoever in the underlying litigation. The court emphasized that courts of justice are open to all, but noted various intolerable infractions that may lead courts to shut their doors, including frivolous, vexatious or burdensome litigation, incessant lawsuits that generate unpaid costs, abuse of judicial officers, contempt of court, and non-disclosure of material facts. The court noted that closure of court doors may be temporary or perpetual depending on circumstances, and doors may not be reopened without leave.

This case is significant in Zimbabwean jurisprudence as it demonstrates the court's willingness to exercise its inherent power to prevent abuse of court process by granting decrees of perpetual silence against vexatious litigants. It reinforces that while constitutional rights of access to courts exist, they are not absolute and can be curtailed in cases of persistent abuse. The case provides practical guidance on what constitutes vexatious litigation (repeated litigation between same parties regarding same subject matter, failure to disclose material facts, obtaining default judgments improperly) and the remedies available. The award of costs on a legal practitioner-client scale (rather than party-party scale) serves as an additional deterrent against frivolous litigation. The case also affirms that courts have a duty to guard against abuse of court process and protect their integrity.