Ashman (Private) Limited v Harare Car Breakers, Sales and Repairs (Pvt) Ltd and Bobby Maparanyanga

The first respondent (Harare Car Breakers) previously owned property known as Lot 1 of Willowvale, Gleneagles Road, Willowvale. The property was sold in execution at the instance of Zimbabwe Banking Corporation in December 1994. The applicant (Ashman Private Limited) purchased the property at a sheriff's sale and transfer was effected into its name on 17 February 1995. The first respondent subsequently embarked on a series of unsuccessful applications in the High Court (cases HC 3353/91, 1239/95, 10851/96, 5187/01, 3247/02, and 3251/03) attempting to reverse the sale in execution and restore ownership. In case HC 3012/95, the respondents consented to eviction from the property but continued with further applications. The respondents were ordered to pay costs in all unsuccessful applications, but attempts to execute resulted in a nulla bona return. The second respondent, Bobby Maparanyanga, was the managing director of the first respondent.

• Whether the respondents' repeated frivolous and vexatious litigation constituted an abuse of process
• Whether the court should grant a decree of perpetual silence barring the respondents from instituting further legal proceedings
• Whether conditions should be imposed on the respondents' constitutional right to institute legal proceedings
• Whether security for costs should be required before instituting fresh proceedings
• Whether costs on the higher (attorney-client) scale were justified

The court ordered: (1) That the respondents are free to institute legal proceedings against the applicant and its subsidiaries after meeting all legal costs as ordered by the court in all previous legal proceedings; (2) That before instituting fresh legal proceedings against the applicant and its subsidiaries regarding the property (Lot 1 Willowvale), the respondents shall furnish security for costs to the satisfaction of the Registrar; (3) That the respondents pay costs for these proceedings on an attorney-client scale jointly and severally, one paying and the other to be absolved.

The binding legal principles established are: (1) The constitutional right to institute legal proceedings and have one's day in court is not absolute and must not be exercised in a manner that infringes on the rights of others through abuse of process; (2) Repeated frivolous and vexatious litigation, particularly where the litigant knows the other party cannot recover costs, constitutes an abuse of process; (3) Courts have jurisdiction to impose conditions on future litigation, including requiring payment of outstanding costs orders and furnishing security for costs, as an alternative to completely barring access to courts; (4) Such conditions strike a balance between preventing abuse of process and preserving the constitutional right of access to courts; (5) Costs on the attorney-client scale are justified where a party's conduct throughout proceedings amounts to an abuse of process.

The court made obiter observations acknowledging the fundamental nature of the right to access courts as enshrined in the Constitution, stating that it would "hesitate to muzzle the respondents" completely given this constitutional protection. This reflects judicial respect for constitutional rights even when dealing with vexatious litigants. The court also noted that supplementary affidavits were filed unprocedurally and would not be taken into account in determining the application, reinforcing proper procedural requirements.

This case is significant for establishing the court's willingness to impose conditions on litigants who abuse court processes through vexatious and frivolous litigation, while balancing this against the constitutional right of access to courts. It demonstrates that constitutional rights are not absolute and must be exercised responsibly without infringing on others' rights. The case is important for the principles governing security for costs and the imposition of attorney-client scale costs as a deterrent to vexatious litigation. It also illustrates the court's approach to preventing abuse of process while preserving access to justice.