MTSHIYA J: In
this application the applicant seeks the following relief:
“1. The
respondents be and are hereby held to be in contempt of this
Honourable Court Order granted on 19 May 2009.
2. The
respondents be and are hereby incarcerated for a period of ninety
(90) days each.
3. Costs of
this application shall be paid by the respondents”.
The background to the relief sought can briefly be stated as follows:
On 4 June 2008 the applicant instituted legal proceedings in this
court by way of summons. The relief sought therein was:-
“(a) An
order that the first, second, third, fourth and fifth defendants
supply and deliver to the plaintiff the total of 47,500 litres of
fuel, within forty eight (48) hours of service of this order upon
them failing which the Deputy Sheriff be and is hereby authorized to
recover the fuel and deliver it to the plaintiff.
(b) Cost of
suit”.
In terms of the declaration to the summons, the above claim arose out
of the fact that in July 2006 the first, second, third, and fourth
respondents (then defendants) as directors of the fifth respondent
(then also defendant) entered into a verbal agreement with the
applicant (then plaintiff) whereby the respondents agreed to use the
applicant's service station for the storage of their fuel. For the
usage of the service station by the respondents, the applicant would
receive 2,500 litres of fuel per month in lieu of monthly rent.
At the commencement of the agreement the applicant made available to
the respondents 30,000 litres of petrol and 10,000 litres of diesel.
This means that a total quantity of 40,000 litres of fuel were due to
the applicant at termination of agreement in August 2007.
In addition to that quality the respondents were liable for 7,500
litres of fuel in respect of three months outstanding rentals. That
brought the total quantity of fuel due to the applicant to 47,500
litres.
The above quantity of fuel forms the basis of the court order
obtained from this court by the applicant on 19 May 2009 which order
reads as follows:-
“1. The
defendants, jointly and severally, the one paying the others to be
absolved deliver to the plaintiff 47,500 litres of fuel within
forty-eight (48) hours of service of this order, failing which the
Deputy Sheriff be and is hereby authorised to recover the fuel and
deliver it to the plaintiff.
2. Cost of
suit.”
The
respondents did not deliver the fuel within 48 hours as directed in
the above order. The Deputy Sheriff was then mandated to recover the
fuel and on 22 July 2009 the Deputy Sheriff issued a 'Nulla
Bona'
return of service.
It is the alleged non-compliance with the above order that has led to
the current proceedings.
I first heard this application on 30 July 2010. At the commencement
of the hearing the first and second respondents applied to file heads
of arguments out of time. The application was not opposed. I allowed
it. The third, fourth and fifth respondents were in default and had
not filed any opposing papers.
The applicant applied for default judgment.
I initially granted default judgment against the third, fourth and
fifth respondents. However, I later thought it best to reserve my
decision on the issue of default judgment until a full hearing of the
application with respect to the remaining respondents who had filed
opposing papers. I then caused an attendance of both parties in my
chambers on 11 August 2010 where, in terms of the rules, I altered my
earlier decision on default judgment against the third, fourth and
fifth respondents.
As correctly
acknowledged by both parties this court's order of 19 May 2009 was
the type of order normally referred to as 'ad
factum praestendum'
(i.e an order for specific performance or the performance of an act –
namely the delivery of 47,500 litres of fuel). The order did not
grant the respondents the alternative of paying the applicant the
monetary value of the fuel.
In its heads
of argument the applicant raised a point in
limine.
The point was that the opposing affidavits of first and second
respondents were improperly commissioned. It was argued that the
Commissioner of Oaths' name was not spelt out and that the stamp
used read “true copy of the original”.
However, I pointed out that, in my view, there were obvious
unintended errors on the part of the Commissioner of Oaths. The
affidavits were sworn to before a Commissioner of Oaths from a
reputable law firm, namely Wintertons.
The applicant
then abandoned the point in
limine.
In support of
its case, the applicant correctly quotes from Haddon
v Haddon
1974 (1) RLR 5 where GOLDIN J said:
“The object
of proceedings for contempt is to punish disobedience so as to
enforce an order of court and in particular an order ad
factum praestandum,
that is to say, orders to do or abstain from doing a particular act”.
As will be
seen later in this judgment, the above enunciation of the law was
relied upon by our own Supreme Court in the case of Trevor
Batezat v
Permassan
(Private) Limited
SC49/09 where the contemnor had failed to return a tri-axle trailor
as ordered by the court.
On whether or
not the order to be complied with was incompetent for lack of clarity
(i.e on the type of fuel to be delivered) and the citation of first
and second respondents, the applicant submitted that the respondents
were obliged to comply with the order and raise their objections
later. In making that submission the applicant relied on Whata
v Whata
1994 (2) ZLR 277 (SC) where GUBBAY CJ, as he then was, had this to
say:-
“The
proposition advanced was closely considered by this court in S
v Mushonga
1994 (1) ZLR 296 (S). It was there held, after a review of he cases,
that generally a person may not refuse to obey an order of court
merely because it has been wrongly made, for to do so would be
seriously detrimental to the standing and authority of the court. The
judgment went on to point out that the proper approach was for the
person first to obey the supposed invalid order and thereafter to
seek redress, if any, by way of appeal or review. It was not for him
to determine for himself whether the order ought not to have been
made. He should come to the court for relief if advised that it was
invalid. The exception being where the order was blatantly absurd in
its command and would itself tend to weaken respect for the
administration of justice. Only in that remote eventuality would
disobedience not be regarded as contemptuous.
However, as
was noted in S
v Mushonga supra,
it is not an inevitable consequence that disobedience to a simply
wrong order of court constitutes the crime of contempt. It must be
committed intentionally and in relation to the administration of
justice in the courts. Contempt is not an offence of strict
liability. Mens
rea
remains an essential element to be proved”.
In making my determination herein I shall stand guided by the above
principles of our law in respect of the offence of contempt of
court.
It was the
applicant's submission that the order in question was made against
and served on the respondents. The Deputy Sheriff had then proceeded
to execute against the cited respondents. It was the applicant's
contention that failure to react to the order within 48 hours was
deliberate and intentional. There was, therefore, it was submitted,
wilfulness and mala
fides on
the part of the respondents.
The respondents had instead sought to challenge the court order and
also declare that they had no fuel (not that they could not get the
fuel).
The
respondents had in turn submitted that the Nulla
Bona
return was clear evidence that they did not have the fuel. They said
the fact of having no fuel did not render them contemptuous of a
court order. They argued that the correct procedure upon the Nulla
Bona
return was an application for civil imprisonment. The applicant, it
was argued, has alternative remedies.
In its heads of argument the applicant correctly responded to the
above in the following terms:-
“2. It must
be noted that the order obtained by the applicant did not contain any
monetary figures and hence clearly an application for Civil
imprisonment would be inappropriate and would certainly not apply in
this mater. Accordingly the present case can clearly be distinguished
from the case of Chinamora
v Angwa Furnishers (Pvt) Ltd & Ors
1996 (2) ZLR 664 (S) which case deals with imprisonment for a debt.
In the present case there is no debt to talk about nor is the
applicant claiming payment of debt”.
The court order that led to these proceedings is, in my view, very
clear and calls for no debate. The order is for the delivery of
47,500 litres of fuel. The order is still in force. The order has not
been complied with. The pleadings clearly show that all parties were
aware that what was in issue were 30,000 litres of petrol and 10,000
litres of diesel. Another 7,500 litres of fuel were in respect of
outstanding rentals.
True, the type of fuel for rentals is not spelt out but the parties
were fully aware of how they had been operating prior to the dispute.
That, in my view, removes any possible ambiguity.
Given the
competence of the order, I find myself being unable to distinguish
this matter from the Trevor
Batezat case
(supra)
where it was ruled as follows:-
“In my view,
the learned Judge's reasoning is unassailable. The appellant
disobeyed a court order which was brought to his notice more than
once. Therefore, the appellant's wilfulness to disobey the court,
as well as his mala
fides,
must be inferred.
That being so,
the
onus was on the appellant to rebut the inference of mala
fides
or wilfulness on a balance of probabilities. In my view, there can be
no doubt that the appellant failed to discharge that onus.
The contradictory explanations given by the appellant about what
happened to the trailer clearly indicate that the appellant was lying
in order to defeat the course of justice.
Quite clearly,
the appellant deserved the sentence imposed by the learned Judge. As
GOLDIN J said in Haddow's case supra
at 8A-C:
'The object
of proceedings for contempt is to punish disobedience so as to
enforce an order of court, and in particular an order ad
factum praestandum,
that is to say, orders to do or abstain from doing a particular fact.
Failure to comply with such order may render the other party without
a suitable or any remedy, and at the same time constitute disrespect
for the court which granted the order”. (My own underlining).
In casu
the issue is not about lying but about the intentional unwillingness
to obey a court order or lack of will to comply with a court order.
The order,
granted by this court on 19 May 2009, required compliance within 48
hours. The application for contempt of court was only filed on 15
March 2010. There is nothing in the papers to show that respondents
ever took steps to show that the order was incapable of enforcement
or indeed to throw away the obvious inference of mala
fides
or wilfulness. That, they could not do because they knew fuel is
available in Zimbabwe. They could get the fuel. The order for the
delivery of fuel was specific and gave no alternative. They had ample
time within which to organise the delivery of the fuel. The order did
not say the fuel was to be sourced only from their premises/business.
I am therefore, on a balance of probabilities, satisfied that the
respondents wilfully and deliberately refrained from complying with
the court order. All respondents, including those who did not file
opposing papers and also defaulted from the hearing of this matter,
are therefore in contempt of court.
The order applied for should, however, be granted in an amended form.
An amendment is necessary because, as an artificial person, the fifth
respondent cannot be imprisoned. However, the disobeyed order had
equal weight on all the respondents. Rule 391 of the High Court
Rules, 1971 clearly connotes that this court has the power to impose
a fine for contempt of court. I do believe that, in the circumstances
of this case, it will serve the interests of justice for the fifth
respondent to be fined for the offence. I shall therefore order as
follows:-
It is ordered that:
1. The respondents be and are hereby held to be in contempt of this
Court's Order granted on 19 May 2009.
2. The first,
second, third and fourth respondents be and are hereby sentenced to
imprisonment for 30 days each.
3. The fifth
respondent be and is hereby ordered to pay a fine of US$55,000-00.
4. The prison
sentences and the fine referred to in 2 and 3 above, be and are
hereby suspended on condition the respondents, jointly and severally,
the one delivering the others to be absolved, deliver to the
applicant 47,500 litres of fuel on or before the 30 November 2010.
5. Costs of
this application shall be paid by the respondents jointly and
severally the one paying the others to be absolved.
Ahmed & Ziyambi,
applicant's legal practitioners
IEG Musimbe & Partners,
respondents' legal practitioners
