The applicant, Midlands State University, employed the respondent, Alois Matongo, as the director of the Graduate School of Business Leadership. Following allegations of misconduct, the respondent was suspended, charged, and after a disciplinary hearing was dismissed. His internal appeal was unsuccessful in 2011. Between 2010 and 2017, the respondent filed thirteen (13) applications, actions and appeals before the Labour Court and the High Court relating to his dismissal and claims for terminal benefits and outstanding salaries. In most cases, the respondent was unsuccessful and costs were granted against him, but the applicant did not pursue recovery of costs, claiming the respondent had no means. The applicant sought an order for perpetual silence against the respondent to bar him from instituting any further litigation against the applicant.
The application was dismissed with costs.
An order for perpetual silence is an exceptional remedy that should only be granted where there is clear evidence of deliberate abuse of court process intended to harass or vex the respondent, not merely where multiple applications arise from genuine pursuit of legal rights or procedural failures by legal representatives. For res judicata to apply, a judgment must be final and definitive, having disposed of the matter on the merits; a default judgment or judgment that does not address the substantive issues does not create res judicata. When considering whether to grant an order restricting access to courts, the court must balance the alleged prejudice to the applicant against the respondent's constitutional right of access to courts under s 69(3) and s 86(1) of the Constitution of Zimbabwe. An applicant seeking perpetual silence must demonstrate actual prejudice, including evidence of attempts to recover costs awarded; failure to pursue recovery of costs undermines claims of prejudice from ongoing litigation.
The court observed that in nine of the eleven cases the respondent was legally represented, and the proliferation of applications resulted from legal practitioners' failure to act timeously and appreciate Labour Court procedure, noting it is unfortunate that litigants bear the brunt of such poor workmanship. The court commented that the purpose of costs awards is to indemnify parties unjustly compelled to litigate and that recovery of costs should serve as a deterrent in applications for perpetual silence. The court noted that to demonstrate irrecoverable costs where a respondent is a self-actor with no means, an applicant should produce a nulla bona return. The court left open the question of whether the High Court can grant a decree of perpetual silence regulating process in other courts, having found the case was not proper for such an order on other grounds.
This case provides important guidance on when Zimbabwean courts will grant the drastic remedy of perpetual silence or orders restricting access to courts. It affirms that such orders are only granted in exceptional cases involving deliberate abuse of court process intended to harass, not where multiple applications arise from genuine pursuit of rights or poor legal representation. The judgment emphasizes the importance of balancing a court's inherent power to prevent abuse of process against the constitutional right of access to courts under sections 69(3) and 86(1) of the Constitution. It establishes that applicants seeking perpetual silence must demonstrate actual prejudice, including evidence of unsuccessful attempts to recover costs awarded, rather than merely asserting inconvenience. The case is significant for its analysis of when a judgment constitutes res judicata, confirming that default judgments and judgments not dealing with merits may not create a final and definitive determination necessary for res judicata to apply.