Court Rejects Jena Mines’ Bid to Silence Former Manager

The High Court has rejected a sweeping attempt by Jena Mines (Private) Limited to shut down former mine manager Francis Zambuko’s access to the courts, ruling that the company had failed to justify such an extreme measure.

Justice Dembure dismissed the mining company’s application for a decree of perpetual silence, which would have barred Zambuko from instituting further proceedings over his dismissal. The court also rejected Jena Mines’ alternative demand that Zambuko be forced to obtain permission before filing or setting down any future cases.

The company was ordered to pay the costs of the failed application.

The ruling exposes the limits of using procedural setbacks as a basis for permanently blocking a litigant from seeking legal redress. Although Zambuko’s repeated applications were affected by procedural defects, the judge found that they had largely not been decided on their merits.
“A decree of perpetual silence is a drastic remedy and is, therefore, not lightly granted,” Justice Dembure said.

Zambuko joined Jena Mines as a mine manager in March 2020 under a five-year contract that was subject to satisfactory performance. Three months later, on June 6, 2020, the company terminated his employment, citing dissatisfaction with his performance.

Zambuko challenged the dismissal before a labour officer, alleging that it was unfair. The labour officer ruled in his favour and ordered either his reinstatement or the payment of damages in lieu of reinstatement.

The labour officer subsequently approached the Labour Court to have the draft ruling confirmed.

However, the matter became entangled in a series of procedural disputes. The first case, LC/MD/LRA/01/21, was struck off the roll after Jena Mines raised a preliminary objection over the company’s citation. The matter was later deemed abandoned by the Registrar, after which the labour officer filed a notice of withdrawal.

A second confirmation application, LC/MD/94/21, was also struck off the roll following objections by Jena Mines concerning alleged defects in the proceedings.

Zambuko then filed several applications seeking to revive or advance his claim. Five were filed in the Labour Court and two in the Supreme Court. Some were dismissed, while others were struck off because of procedural shortcomings.

In one Labour Court matter, LC/MD/74/25, the court found that Zambuko had abused court process. Jena Mines subsequently turned to the High Court, seeking to have him permanently barred from bringing further proceedings.

The company argued that Zambuko’s repeated defective filings had forced it to incur unnecessary legal expenses. Zambuko opposed the application, maintaining that his claim had never been determined on its merits and that he was simply attempting to have the dispute resolved.

Justice Dembure found that the stringent remedy sought by Jena Mines could only be granted in circumstances demonstrating persistent and vexatious abuse of court process.

The judge rejected the characterisation of Zambuko as a serial litigant bent on abusing the courts and his opponent.

“The respondent cannot be taken as a serial litigator who tends to abuse the court process and his adversary,” Justice Dembure said.

The court noted that although Zambuko had filed seven applications, none had produced a final determination of the substance of his underlying claim.

As a result, the judge held that he was not attempting to reopen matters that had already been conclusively decided.

“There is no question of res judicata, as the matters have not been determined on the merits,” the judge said.

The High Court also considered section 128 of the Labour Act, introduced through section 36 of the Labour Amendment Act No. 11 of 2023. The provision allows certain draft rulings issued by labour officers before the amendment to be treated as judgments or rulings capable of registration and execution.

Justice Dembure held that the amendment had altered the legal position concerning the labour officer’s draft ruling in Zambuko’s case. While Zambuko could not simply take over proceedings that had already been deemed abandoned, the court found that he could pursue enforcement of the labour officer’s ruling in his own right.

The judge made it clear that the High Court was not deciding whether the labour officer had been correct in finding that Zambuko was unfairly dismissed. That question remains within the jurisdiction of the Labour Court.

However, the court’s message was unequivocal: procedural failures, even when repeated, do not automatically justify extinguishing a person’s right to seek justice.

Jena Mines’ application was dismissed with costs.