Jonah Gumo v The Master of the High Court N.O and Zexcom Foundation Investment Fund Limited (Under Provisional Liquidation)

Zexcom Foundation Investment Fund Limited (the Company) was registered on 27 October 1998 with the principal object of raising funds from war veterans for investment to improve their economic and material wellbeing. It had between 3,000-5,000 war veteran shareholders. On 9 December 2009, the Company was placed under provisional liquidation under HC171-09 on the basis of mismanagement, debt, and failure to make profit. Victor Muzenda was appointed provisional liquidator but was later removed. After Muzenda's death, the Master of the High Court took over the Company's affairs. Barbra Lunga was appointed provisional liquidator of Zexcom Private Limited under HB10-14 in July 2014, though she had not been issued a certificate for the Foundation Fund. The applicant, Jonah Gumo, a shareholder, applied to remove the Company from provisional liquidation, claiming the basis for liquidation had fallen away, there were no unpaid debts, and the Company generated substantial monthly income from properties. The applicant had been subject to multiple adverse court orders, including orders to vacate Equity House, account for funds, and cease interfering with the provisional liquidator's duties, which he failed to comply with.

• Whether the applicant should be barred from being heard for failing to comply with extant court orders
• Whether contempt of court by disobeying court orders bars a litigant from audience
• Whether a company should be removed from provisional liquidation when the basis for liquidation has allegedly fallen away
• Whether proper service of the application was effected on the provisional liquidator
• The requirements for a provisional liquidator to furnish security in terms of section 274(1) of the Companies Act
• Whether the application was res judicata

1. The applicant is barred from being heard on the merits of the application for failure to obey the orders in case numbers HH 743-15, HC 2185-14 and HC 896-15. 2. The applicant's right of audience in any matter pertaining to the 2nd respondent and its affairs is curtailed; the bar may be uplifted on application and on proof that the abovementioned extant court orders have been complied with. 3. The applicant is ordered to pay costs on a legal practitioner-client scale.

A litigant who has failed to comply with extant court orders may be barred from being heard in further applications until such compliance is demonstrated. This principle applies even where the litigant seeks relief in new proceedings - the court may, either on application or mero motu, deny audience to a party in contempt of its orders. An order of court must be obeyed until set aside by a court of competent jurisdiction, and non-compliance may result in the litigant being barred from approaching the court. The court has inherent power to control its own processes and prevent abuse by refusing to hear parties who have shown flagrant disregard for its previous orders. This power may be exercised as a preliminary point before considering the merits of an application.

The court made several obiter observations: (1) There is a constitutional duty on the State and agencies of government to assist veterans of the liberation struggle, derived from sections 3(1)(i) and 3(2)(i)(iv) of the Constitution, even where veterans seek to enforce rights against each other. (2) The court expressed concern about the 'sordid chronicle' of litigation involving Zexcom and called for intervention by the relevant government ministry overseeing war veterans' affairs to introduce constitutional principles to the running of the Company. (3) The court noted that the 'spirit of good governance appears to have deserted the Company, whose principal object was to improve the economic and material wellbeing of all of its members and their dependents.' (4) The court directed that a copy of the judgment be served on the Registrar of the High Court at Bulawayo and Harare, and on the Law Society of Zimbabwe to take note of previous censure of the applicant's legal practitioners and the Deputy Master at Bulawayo. (5) The court deprecated the conduct exhibited by the applicant and described it as 'an extreme form of abuse of court process' and noted the applicant's 'calculated nefarious attempt' to obtain another judgment.

This case establishes important principles regarding access to courts for litigants who are in contempt of existing court orders. It demonstrates the court's inherent power to control its own process and deny audience to litigants who flagrantly disobey court orders. The case also highlights the courts' approach to abuse of process in the context of liquidation proceedings and emphasizes that war veterans, despite constitutional recognition, are not above the law and must comply with court orders. It illustrates the court's willingness to impose punitive costs and restrict future litigation rights where there is persistent non-compliance with court orders and abuse of process. The judgment also addresses tensions between constitutional objectives to assist liberation war veterans and the rule of law requiring compliance with court orders.