City of Harare v Masamba (HC 9428 of 2014; HH 330 of 2016; REF C 6235 of 2013) [2016] ZWHHC 330 (1 June 2016)

1 HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors CITY OF HARARE versus TENDAI SUSAN MASAMBA HIGH COURT OF ZIMBABWE MAFUSIRE J HARARE, 16 March 2016; 26 May 2016 & 1 June 2016 Opposed application C. Kwaramba, for the applicant The respondent in person MAFUSIRE J: In this matter, the citation of the respondent as “Tendai Susan Masamba” [“Ms Masamba”] was a misnomer. Her surrogate, one Ignatius Masamba [“Masamba”] was the litigant the applicant [“the City of Harare”] was after. That was borne out by the body of the application. Ms Masamba had nothing to do with the abuse the applicant complained of. In fact, the original index to the original court application cited Masamba as the respondent. That is why when Mr Kwaramba, for the City of Harare, moved for an amendment, I had no hesitation granting it. The application was one for a decree of perpetual silence. It had to come. Masamba has been extremely litigious. He has abused some dubious general power of attorney granted to him in 2011 by Ms Masamba. He has launched suit after suit in respect of some apartment in Harare, namely, 4 Residell Court, 56 Selous Avenue [“the flat”]. In some cases he would cite Ms Masamba as the applicant or plaintiff, invariably describing her as “… my sibling kid sister … who is domiciled overseas.” It has not mattered to him that this court, in Tendai S Masamba v Zimbabwe Electricity Transmission and Distribution Company [Pvt] Ltd1 [“ZETD”], has ruled that that power of attorney did not authorise him to institute and prosecute litigation. In other cases Masamba has just gone it alone, instituting and prosecuting litigation in his own name without restraint. Of the flat, he invariably says in his bombastic affidavits: 1 HH 411/15 HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors “Flat 4, Residell Court, 56 Selous Avenue … is a usufruct [sic] to me. The rental income is mine …” At the last count, there had been 26 cases instituted in this court by, or in respect of, or against Masamba. Of that number, over 92% were to do with the flat. The schedule below refers to those cases. That is what I managed to dig up from the system. Name of the Parties Ignatius Masamba v Robert Root Ignatius Masamba v City of Harare Leave to appeal Re damages against Associat’n. Re damages against Associat’n Nature of the Claim Re outstanding power bill Re-connection of water supply Re damages against Associat’n Interdict & other multiple remedies For re-connection of water supply Ignatius Masamba v City of Harare Ignatius Masamba v City of Harare Ignatius Masamba v Guest & Tanner Re damages for breach Ignatius Masamba v Contact Real Est Re damages for breach Case No. HC 6553/11 ZETD v Tendai Masamba HC 7144/11 HC 3975/12 Tendai S. Masamba v ? HC 6202/12 HC 11009/12 HC 11447/12 HC 14500/12 HC 34448/12 Tendai S. Masamba v ZETD HC 20/13 Tendai S. Masamba v A Chigwanda HC 3721/13 Tendai S. Masamba v Obgla Sales HC 6235/13 Tendai S. Masamba v City of Harare Rescission of judgment HC 9022/14 Re damages for breach HC 9428/14 City of Harare v Tendai S. Masamba Decree of perpetual silence HC 965/15 HC 6051/15 HC 2368/15 HC 7286/15 HC 9373/15 HC 9398/15 HC 9542/15 HC 9824/15 HC 9825/15 HC 10937/15 HC 2822/16 HC 2826/16 HC 2402/16 Ian F. Masamba & Anor v ZIMSEC Ian F. Masamba & Anor v ZIMSEC Ignatius Masamba v Secretary-JSC Ignatius Masamba v Guest & Tanner Re damages for breach Ignatius Masamba v Concept Real Est Re damages for breach Re damages for incompetence Ignatius Masamba v Secretary-JSC Ignatius Masamba v ZETD Rescission of judgment Ignatius Masamba v Concept Real Est Re damages for breach Ignatius Masamba v Secretary-JSC Ignatius Masamba v Secretary-JSC Ignatius Masamba v ZETD Ignatius Masamba v ZIMSEC Tendai S Masamba v ZETD Re damages for incompetence Application for recusal Rescission of judgment Rescission of judgment Rescission of judgment Re exam results Re exam results Re damages for incompetence 2 4 6 8 10 12 14 16 18 20 22 24 26 Masamba’s behaviour has been truly weird. He has clogged the system with groundless litigation. Some of the cases have been instituted in the magistrates’ court and have ended up in this court on appeal. Others have found their way to the Supreme Court. There are many disturbing features about Masamba’s suits. He pursues essentially the same remedy in several cases. It seems it all started with some water bill raised by the City of Harare in respect of the entire apartment block. Among other things, Masamba felt the bill was inflated. The situation was compounded by the City of Harare going on to disconnect the water supply. Since then no one has rested. It has been a charade. HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors In almost all the matters concerning him, Masamba has literally defaced the records. He would file endless volumes of incomprehensible verbiage. He would follow up with even more of it, purporting to amend or replace or withdraw or clarify previously filed verbiage. In the present matter, he has literally turned the record upside down by, among other things, filing and binding his own court application next to the original one. He has filed numerous other incomprehensible documents. Said by Mr Kwaramba in his Heads of Argument, quite aptly: “[Masamba] also does not know when to stop. Once he institutes a suit, papers keep falling like confetti at a wedding.” Almost all of Masamba’s documents are annotated in ink. Some have been crossed out. Others have completely been defaced. The whole record has been disfigured. That is the state of most of the other records. In this particular matter, Masamba purported to bar the applicant. He proceeded to set the matter down on the unopposed motion roll, three times in succession. The first time the matter was postponed. The second time I happened to be presiding. I struck it off the roll. He re-enrolled it for the third time. The presiding judge struck it off the roll again. Eventually the matter was properly set down by the City of Harare. Apart from this matter and the several others by him against the applicant, Masamba has also sued several other persons or bodies, including estate agents. The suits against the estate agents have all been about alleged mismanagement of the flat. There is a Residents’ Association at the apartment block. It too has been hit by several suits for one fault or another. The ZETD case above was for damages for alleged inflated power bills to the flat. Masamba has also sued the Judicial Service Commission [“the JSC”]. It has been accused of employing incompetent magistrates. One of them had dismissed one of his claims against the City of Harare in respect of the flat. To Masamba that was an unforgivable sin. The magistrate was condemned for having failed to grasp the nature of the claim. Other cases that have come before this court, either on first instance or on appeal, have almost always been dismissed for lack of substance or coherence. Masamba would react by filing further documents. However, these would all be scurrilous gibberish. In some cases HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors he would react by applying for rescission of judgments, despite that in none of them would the judgments have been given in default. Masamba has also blasted the JSC for employing incompetent judges that pander to the whims of political parties. In most of his affidavits or heads of arguments or letters or other writings, he has portrayed himself as a shrewd politician who is on course to land the post of presidency for Zimbabwe. Masamba’s other reaction to unfavourable outcomes in his cases has been to write scurrilous letters of complaint to individual judges, copying them to all manner of administrative authority, like the Judge President, the Chief Justice and the Secretary for the JSC. In most such letters he has sought the recusal of all such judges as would have dismissed his cases. I have counted up to 12. That is roughly 85% of the compliment of all the judges at the Harare station. Sometimes judges have advised Masamba to seek legal assistance in formulating and prosecuting his claims. However, such advice has been snubbed with disdain. He has argued that he is a professional in his own right, having acquired some CIMA [Chartered Institute of Management Accountants] qualification, which he says had law as a component. At one time he was granted in forma pauperis assistance. But he soon came back to file further intemperate documents against some relatively senior legal practitioner. He has also blasted the Legal Aid Directorate for a multitude of sins. In Ignatius Masamba v Secretary – Judicial Service Commission2 MUNANGATI- MANONGWA J said of Masamba: “Finally, whilst it is a constitutional right to be able to approach the courts to obtain relief, self-actors must know that the practice of law is a very specialised area which requires deep knowledge and skill. Simply reading law books at random does not equip one with the requisite knowledge. Legal assistance should be sought if one is to comply with the rules and file appropriate papers. The plaintiff in this matter fell into a pit by his mere belief that he can handle his claim without legal assistance. As a result, the defendant has had to be put to expense in defending fatally defective proceedings where the plaintiff filed numerous documents without restrain[t] some being withdrawn. This is a case which warrants that an order of costs on a legal practitioner [and client] scale be granted to discourage such conduct which is unnecessary and costly.” Masamba’s reaction was swift and belligerent. Giving notice to file an application for review, he launched a blistering diatribe against the learned Judge, stating in part: 2 HH 978/15, at 5 HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors “5. 6. The hon justice Munangati arguably is a biased judge and is extremely provocative of her and she must be stopped in her tracks. My pillar documents disclose a cause of action. And I am very angry. Her judgment must have been based on the pillar or milestone documents ie the Summons, Notice of Amendment, Amended Plaintiff’s Declaration, Response to Request for Further Particulars and my Heads of Argument related to the Defendant’s Exception vis a vis what the Defendant filed, not partly due to peripheral filings in the form of letters written by me after judgment had been reserved. The filings about which she used the phrase ‘without restraint’. Which court rule is she relying on? 7. This is why it feels the Judicial Service Commission seems poorly led because we cannot have such an arguable prevalence of what looks unmitigated corruption, incompetence and political interference.” In one typical letter seeking a judge’s recusal Masamba wrote: “3. 4. 5. 6. The inference is that justice Muremba possibly is politically motivated as a probable political hack judge in a probable facelessly operating malevolent confederacy attributable possibly either to ZANUPF or possibly the MDC T if possibly not both by dint of a probable or arguable whipsaw, or possibly she is corrupt, or still possibly she is incompetent or acted validly if there is justification extended in confutation by her. …………………………….. ……………………………. There is a spinster, Mercy, her phone is 0774 797721; who I have spoken and texted to from the numbers given below who I thought I would marry, but it seems the possibility or proper communication is being blocked possibly politically possibly by dint of a whipsaw unless I am misconceived about the true position. There was an incident that happened when I was with her where she is self-employed that seems to confirm the blocking scam. She is not the only one. There are many other spinsters before her which affairs between them and me were blocked who could specify by name just like the many court cases which it seems judges have temporarily blocked.” Masamba has exhibited extreme abnormalities of behaviour. For example, in one suit he features with his son, both suing the Zimbabwe Schools Examination Council [“ZIMSEC”]: see Ian Farai Masamba & Anor v Director - ZIMSEC3. But it was all his doing. The son was just a convenient front. He never came to court. The claim was plainly 3 HH 969/15 HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors weird. It was for a staggering US$1.4 million allegedly as damages for the poor results obtained by the son in the ordinary and advanced levels. The claim was couched as follows: “Professional negligence for mental suffering US$1 200 000-00 payable half and half to the first and second plaintiff’s and defamation-libel payable to the first plaintiff US$200 000-00 all in all being US$1 400 000-00.” The cause of action in respect of the son, the first plaintiff, was pleaded as follows: “i] ii] iii] breach of contract because the first plaintiff paid exam fees for a fit and proper result and the omission or failure to issue fit and proper [or competent] results and the unfair and provocative discriminating results in November 2006 and November 2008 diets which resulted in damage of mental suffering directly as a result of the defendant’s carelessness.” For himself, as the second plaintiff, the cause of action was pleaded as follows: “The second plaintiff is suing for the carelessness and deliberate act by the defendant of having to watch ghastly and inexplicable subtle torture of his son as well as being his home- based tutor being denied his exam results in the specified years in what looked unprincipled political corruption which basically resulted in financial sabotaging circumstances and a forced wastage of money. The second plaintiff was also greatly physically inconvenienced.” In upholding the exception taken by the defendant against such meaningless verbiage, MUNANGATI-MANONGWA J lamented as follows4: “In as much as individuals have constitutional rights to bring whatever claims they have to the courts for adjudication, it is necessary to ensure that processes comply with the rules of court and that they are fully and legally informed regarding the decisions to take legal action. This claim borders on abuse of legal process as the second plaintiff on his behalf and that of the first plaintiff unprocedurally filed numerous voluminous documents at will including amendments to other amendments, and wrote several letters to the registrar which documents had to be read by defendant and the court. Some of the documents did not even make legal sense, a typical example being a notice of withdrawal filed … well after this matter had been argued and judgment was being prepared, which notice reads as follows: 4 At p 6 of the cyclostyled judgment HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors ‘Take notice that 2nd Plaintiff is giving notice to withdraw this matter because the 1st Plaintiff was in default of plea. With no order as to costs as 2nd Plaintiff believes the defendant had been barred.’” There is little distinction between Masamba’s writings and his oral submissions. They are both foul. By his own admission, he suffers from an undisclosed mental ailment. A common feature in his myriad of cases includes a claim for damages for mental suffering. In one of the letters for recusal he has complained of hearing the amplified voice of his former girl-friend. He wrote: “9. When I stop visiting I begin hearing an amplified voice similar to hers almost incessantly lamenting saying: ‘So I have been rejected. I did not know it will make him unhappy. If he comes I shall not do it again. 10. But when I go the treatment never changes as if she probably is being manipulative or trying to free herself and me according to what she may know. And so on and on, so much so that, for me the side effects have become an incubus that must be rid of because and if the voice is hers it seems she is being politically intimidated and the amplified voice I hear from afar seems as if to confirm that she is being intimidated.” 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. INNES CJ put it this way in Corderoy v Union Government [Minister of Finance]5: “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 5 1918 AD, at 518 HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors 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.” [my emphasis]. See also Western Assurance Co. v Caldwell’s Trustee6; Mhini v Mapedzamombe7and Nehanda Housing Co-operative Society & Ors v Simba Moyo & Ors8. In Mapedzamombe the applicant was bombarded with incessant litigation in respect of the same issue which related to the setting aside of a certain sale in execution. The court issued an interdict barring the respondent from instituting any further proceedings in this court relating to that issue. Describing the conduct of the respondent, GARWE J, as he then was, said9: “The sale was subsequently confirmed … Since then there has been a multiplicity of proceedings in which the respondent has, in the main, attempted to have the sale in execution set aside. These attempts have failed. The respondent appealed to the Supreme Court against an order of this court dismissing the claim. The appeal was dismissed with costs. Since the dismissal of the appeal, the respondent has instituted various proceedings in which he has cited the applicant and others as the respondents. Some of the proceedings have not been pursued and in some instances the same relief has been claimed in different cases” [my emphasis] In this matter and the others involving Masamba, the situation has been worse. It is an exceptional and drastic course of action to withdraw a litigant’s constitutional right of access to the courts. But it is one the courts will not shirk from where there has been persistent abuse. Masamba’s suits have been flagrantly abusive, in both the literal and legal sense. Evidently, the sort of help Masamba really needs cannot be found within the corridors of the halls of justice. He operates at a completely different plane. His actions are harmful, not only to the applicant and the several other litigants that have appeared on his opposite side, but also to the courts and their officers. He has clogged the system with a litany of irrational verbiage. He has to be stopped. In the premises I issue the following order: 6 1918 AD 262, at 273 7 1999 [1] ZLR 561 [H] 8 HH 987/15, at p 8 9 At p 562B – D HH 330-16 HC 9428/14 Ref Case HC 6235/13 & 24 Ors A decree of perpetual silence is hereby issued against Ignatius Masamba in respect of his agency, management, occupation or interest of whatever kind in the property known as No 4 Residell Court, 56 Selous Avenue, Harare, more particularly that: 1.1 Ignatius Masamba, either personally, or through, or on behalf of any other person, is hereby interdicted and restrained from instituting or prosecuting in this court, any action, application, suit or proceedings of whatever nature in connection with whatever interest he may have in the property aforesaid without the leave of this court first being applied for and obtained, and in which application he shall demonstrate sufficient mental capacity to do so; 1.2 The Registrar of this court shall not issue out any process commencing action, or set down any matter already filed or commenced by, for, on behalf of, or at the behest of, Ignatius Masamba in connection with that property, without the leave of this court first being applied for and obtained; 1.3 Any application for the leave of this court as directed above shall be made on notice to all interested persons. The costs of this application shall be paid by Ignatius Masamba on a legal practitioner and client scale. 1 June 2016 Mbidzo, Muchadehama & Makoni, legal practitioners for the applicant.