Hilary Muza 
THE law is often a serious endeavour because people’s livelihoods, freedom and reputations are often at stake. But sometimes lighter moments occur that remind us of what the law is really meant to achieve in society, to promote and protect human dignity.
At the core of all the law is the requirement that people be dignified. That is why litigants sue, so that they compel other people to do the dignified thing, or to protect their own dignity.
It could be to demand payment of a debt, the return of an asset or asking for a divorce because the marriage has irretrievably broken down. Ultimately, there is no separating litigation and the ego because the ego does not take kindly to being slighted. This results in all sorts of litigation. Some cases are to prove a point, some are to protect legitimate legal interests.
What should never happen, however, is to allow the ego to be the underlying cause of litigation, instead of legitimate interests rooted in the law.
The problem with ego litigation is that emotion is often hard to defend using sound legal principles.
That is why some legal practitioners will refuse to represent a client in some cases where they see that the client has lost all objectivity.
This week, I will talk about the matter of Jonathan Chikukwa v Beauty and Game Dollar HMA 13/18. This case was an urgent application for an apology. Yes, an apology.
The facts of the matter are that Chikukwa had a meal of sadza and chicken at Game Dollar Restaurant in Jerera, Zaka. He sat down to enjoy his meal but soon noticed something was amiss.
Something was apparently floating in his relish and he called the first respondent, Beauty, over to register his complaint. It was alleged that instead of offering good customer service, Beauty let fly a tirade of insults towards the applicant, insinuating amongst other things that the applicant was unkempt and was looking to enjoy her company rather than make a serious complaint.
This rubbed the applicant the wrong way such that he had to say to the court, “[t]he 1st respondent’s words were injurious; they were said with the intention to injure my feelings in front of the other customers and indeed I was injured.”
The applicant sought to have the respondents issue a public apology in a local newspaper for four consecutive weeks. The judge found the application laughable and proceeded to dismiss it. An important observation was, however, made by the judge. It is that the applicant only approached the court because he felt insulted.
The truth is nobody has the right not to be insulted. In other words, generally it is not against the law to insult someone. What is unlawful is when an insult is intended to cause widespread reputational injury to someone in a libellous or defamatory way.
The reason I refer to the Chikukwa case is because of its uniqueness in that it is all ego and no law. It epitomises why a litigant should not go to court based on emotion because it is purely retaliatory.
There is no reference to legal principles, no coherence and no compliance with the applicable rules of procedure. There is not even a cause of action. The court rightfully said:
“The long and short of it all is that the papers filed by the applicant do not even disclose a cause of action. They even do not make sense at all. All that the applicant is saying is that he felt insulted, while he was enjoying his meal (sadza and meat) at Jerera Growth Point in Zaka.
“For that inconvenience he believes he can rush to this court and seek an incomprehensible remedy on an urgent basis. The applicant should be a very litigious person to say the least. This is clearly taking the High Court for granted.”
The law endeavours to regulate human relations. This is because where there’s human interaction, rights duties and obligations arise as of necessity. Litigation is the process of approaching a court of law to protect one’s rights or alternatively to compel others to abide by their duties and obligations.
There is, however, a limit to what you can litigate over. Most court processes, being summons and applications, must be brought in terms of a clearly spelt our legal basis to be sustained. Where court process is not premised on a clear and discernible legal basis, it stands to be dismissed.
It is the job of legal practitioners to separate the legal essence in a matter from the chaff of emotion. I can say with a reasonable degree of confidence that if Chikukwa approached a legal practitioner for representation, they would flatly refuse to go before a judge to argue that their client urgently deserves an apology.
So next time you want to sue. Call your
lawyer first.
Muza is a duly admitted lawyer with expertise in business advisory, labour law and commercial litigation. He writes in his personal capacity. For feedback, email him at hilarykmuza@gmail.com or call on +263719042628.
