A court application for contempt of court was brought before me on 9 November 2016 in motion court. I granted the application and herein I give my reasons for so doing against the backdrop of a brief narrative of the history of the matter which puts the order in context.
Contextual Background
1. The Default Judgment
The order for contempt has its genesis in a default judgment obtained by the applicant, Mr Mangwiro (as plaintiff), under HC4766/13 on the 18th of February 2015, against the respondent (“the Minister”) and others (as defendants), jointly and severally.
The import of the judgment was that the applicant was to be paid the sum of US$78,000 as well as interest and costs of suit for money that had been taken from him by the State in a matter in which he had finally been acquitted in 2012. The State had failed to return the money to him.
2. The Application for Rescission
An application for rescission of the above judgment was lodged on behalf of the defendants by the Attorney General's Office, Civil Division, on the 1st of April 2015 under HC3001/15. Despite the lodging of this application for rescission, it was, however, not prosecuted to finality leading the applicant to file an application for its dismissal for want of prosecution.
3. Dismissal for Want of Prosecution
The application for dismissal of the defendants' application for rescission had been served on the 1st of June at the Attorney General's Office–Civil Division. Again, the lawyer handling the matter remained in slumber and no response was received to the application for dismissal. Accordingly, the order dismissing the application for rescission for want of prosecution was granted under HC4942/15 on the 30th of June 2015.
4. Order to comply with Statutory Duty to Effect Payment
On the 16th of May 2016, under HC4261/16, the respondent, as Minister of Home Affairs, was ordered to comply with the statutory duty cast upon him in terms of section 5(2) of the State Liabilities Act [Chapter 8:14] to pay, from the Consolidated Revenue Fund, the money awarded to the applicant by the court on the 18th of February 2016. In particular, the order also stated as follows:
“The respondent is ordered and directed to comply with the order in the above paragraph (1) within 14 days of this order having been served on him, or his (permanent) secretary, or any responsible person in his Ministry, failing which, the respondent be and is hereby declared to be in contempt of this order.”
The order was sent directly to the Minister with a letter on the 19th of May 2016. It is endorsed as having been received by Madakufa T on behalf of the Minister. Another letter was written on the 7th of June, again directly to the Minister, following up the letter of the 19th of May and reminding him that the court order would lapse on the 9th of June.
It is date stamped as having been received by one G Mahlunge on his behalf on the 7th of June.
There was no compliance by the Minister, and a court application for contempt was filed on the 13th of June 2016.
5. The Court Application for Contempt
Having initially attempted personal service of the order for contempt on the 15th of June, without success, the record shows, through the return of service, that, the application for contempt, being HC5970/16, was finally served, successfully and personally, on the Minister on the 24th of June 2016 by Mr Benhura, the Additional Sheriff of the High Court.
6. Motion Court Directive to further serve the AG's Office - Civil Division
On the 20th of July 2016, the judge sitting in Motion Court further directed that the application for contempt of court be served on the Attorney General-Civil Division. This was done on the 13th of October with the application being received by Ms E Manjokoto of the Attorney General's Office.
The accompanying letter clearly stated, that, upon expiry of the prescribed period, the matter would be set down again, in Motion Court, as the Minister remained barred, having taken no action.
Again, there was no action on their part.
Having complied fully the with requirement to serve the Minister personally as well as on the Attorney General - Civil Division, the applicant then reset this matter for contempt on the 9th of November 2016.
What emerges from a reading of the files, leading to the application for contempt, is an underlying lackadaisical approach to court processes and orders on the part of the Minister's counsel handling the matter and ultimately by the Minister himself.
It was against the above background that the matter for contempt was on the unopposed roll on 9 November 2016.
On 8 November 2016, the Minister had filed an “opposing” affidavit in which he raised a point in limine that he was never served personally nor were any of his officers.
Personal service is indeed required by Rule 39(1) of the High Court Rules, 1971 in any application which affects a person's freedom: see Mutyambizi v Goncalves & Anor 2013 (2) 375.
Counsel from the Civil Division appeared to oppose the matter in Motion Court on the day and he was given audience in light of the assertion by the Minister that he had not been served personally.
In other words, the court did not stand resolute on the ground that the Minister was barred but accorded his counsel a hearing.
Counsel from the Civil Division spoke to the content of the affidavit; the gist of his point being that the order for contempt would be improper in view of lack of personal service.
However, as the court pointed out to him, there were fundamental problems with the Minister's affidavit which was before the court regarding his averment.
In his affidavit, the Minister was categorically clear, that, the application he had not been served with was HC942/16. The Minister's point in limine, in his sworn affidavit, was couched as follows:
“1. It is my humble submission that I was never served personally, or any of my officers, with the court application HC4942/16 for contempt of court.
2. Notwithstanding the above, I am willing to respond to the applicant's founding affidavit if I am served with it.
3. Wherefore, I pray that the court be pleased to postpone this application with costs pending the applicant's founding affidavit being properly served to me.”
First of all, there was no application HC4942/16. There was court application HC4942/15.
Materially, HC4942/15 was not a court application for contempt of court but for dismissal for want of prosecution. It was rightly served on the Attorney General's Office - Civil Division and not on the Minister personally because the Civil Division were the ones representing him and others in the application for rescission.
The application for contempt is HC5970/16.
It was not the Minister's assertion, in his affidavit, that he had not been served with this particular application.
If the file reference was an error, there was no application to amend.
Furthermore, the assertion of non-receipt of the court application for contempt was a bare denial.
If all a party opposing an application for contempt has to do in order to stay proceedings, is to allege, without any substantiation whatsoever, that they never received the application personally, in the face of a return of service to the contrary, then justice would be hampered.
Where a return of service clearly indicates that proper service has been effected, then the onus is on the person alleging otherwise to prove their assertion.
To counter counsel for the Civil Division's assertion, that there was no service despite the return of service clearly indicating that there was, the applicant's counsel drew attention to the Supreme Court case of Gundani v Kanyemba 1988 (1) ZLR 226 (SC).
It was stated therein, that, the return of service by an officer of court, be they the Sheriff, Deputy Sheriff or Messenger, is to be accepted as prima facie proof of what is stated therein - albeit it can be rebutted by clear and satisfactory evidence.
In casu, there was nothing remotely equating to clear or satisfactory evidence rebutting the Additional Sheriff's return of service that he had served the court application for contempt, in HC5970/16, personally on the Minister, Dr Ignatius Chombo himself.
Having read the Minister's affidavit, and having heard his counsel, the court's conclusion was that there was no averment that the relevant application had not been served, and, equally, there was lack of proof to substantiate the claim on non-service that had been made.
The Minister, Dr Ignatius Chombo, is a well-known public figure who is unlikely to be mistaken. The Additional Sheriff would have no reason, as an officer of the court, to lie that he had served him personally.
I therefore had no reason to disbelieve his return of service which indicated that he had served him, personally, at his offices at 11th Floor Mukwati Building in 4th Street on 24 June 2016.
The application had been served on him personally for the reason that the court order compelling him to pay within 14 days, under HC4261/16, had been unequivocal that failure to pay would render him personally, Dr Ignatius Chombo, as being in contempt of the order of court.
I was equally content that there was a valid court order entitling the applicant to the sum paid which the respondent was fully aware of.
I was also satisfied, from the record, that, the order under HC4261/16, for Dr Ignatius Chombo, as Minister of Home Affairs, to comply with his statutory duty to pay had been brought to his attention.
I was further satisfied that there had been non-compliance with that order leading to the application for contempt under HC5970/16 which had been served personally on Dr Ignatious Chombo.
Besides the factual realities, the legal basis for granting the order for contempt was fundamentally constitutionally rooted.
In Karnec Investments (Private) Limited & Anor v Econet Wireless (Private) Limited HH261-16, I emphasized as follows regarding the applicable constitutional provisions:
“In terms of section 3 of our Constitution, Amendment (No.20) Act 2013 one of the founding values and principles upon which Zimbabwe is founded is respect for the rule of law.
If the court's authority is not respected there can be no fostering of respect for the rule of law.
Furthermore, in terms of section 164(3), an order of a court binds the State and all persons and governmental institutions and agencies to which it applies and must be obeyed by them. Contempt of court has clear bearings on legal proceedings in that if it is not addressed, the jurisdictional power of the courts would be illusionary. It is regarded as an act of disrespect and insult to the court and an obstruction to justice.”
Section 3(1)(a) and (b) of our Constitution states as follows:
“(1) Zimbabwe is founded on respect for the following values and principles -
(a) Supremacy of the Constitution.
(b) The rule of law.”
In simple terms, the rule of law has been defined as follows:
“Rule of law denotes a government of laws and not of men. Individuals working within the State machinery are expected to exercise their official duties and responsibilities in accordance with the law. In other words, rule of law represents the supremacy of law:” see MARU BAZEZEW, Constitutionalism, Mizan Law Review, Vol 3, No.2, 2009…,.
Central to the rule of law is that no person is above the law.
The rule of law binds Government and all officials to its precepts and also preserves the equality and dignity of all persons. In essence, equality before the law is not a hollow concept. Everyone, regardless of factors such as their economic or social status, or political affiliation is subject to the law: see section 56 of the Constitution as regards equality and non-discrimination.
Accordingly, the courts play a vital role in protecting the rights of all individuals.
Effectiveness of the courts is central to the rule of law and democratic governance. Section 164(1) to (3), which deals with independence of the judiciary, provides as follows:
“164 Independence of judiciary
(1) The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously, and without fear, favour, or prejudice.
(2) The independence, impartiality, and effectiveness of the courts are central to the rule of law and democratic governance, and, therefore —
(a) Neither the State nor any institution or agency of the Government, at any level, and no other person, may interfere with the functioning of the courts;
(b) The State, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility, and effectiveness and to ensure that they comply with the principles set out in section 165.
(3) An order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them.”
In summary, the Constitution is clear, that, the courts are subject only to the Constitution and to the law.
However, this does not mean that constitutional principles are applied using abstract rationality. Proper interpretation of constitutional principles is never divorced from the facts. Additionally, courts are enjoined to apply the law without fear or favour. Furthermore, an order or decision of the court is binding on the State and all persons and institutions to which it applies.
The facts herein, as captured in the various court applications regarding this matter which I have outlined, spoke for themselves in terms of equities that underlay the application for contempt.
Respect for the rule of law would be ferociously eroded were courts to permit a Government official to send a message to a litigant, who has successfully sued, that the State does not value court orders.
For the avoidance of doubt, what the Minister was directed to do in HC4261/16 was as follows:
“1. The respondent is ordered and directed to comply with statutory duty cast upon him, in terms of section 5(2) of the State Liabilities Act (Chapter 8:14), that is, to cause to be paid out of the Consolidated Revenue Fund, the sums of money awarded to the applicant by order of this Honourable Court, dated 18 February 2015, in case number HC4766/13, judgement number HH147-15.
2. The respondent is ordered and directed to comply with the order in the above paragraph (1) within 14 days of this order having been served on him, or his (permanent) secretary or any responsible person in his Ministry, failing which, the respondent be and is hereby declared to be in contempt of this order.
3. The respondent is to pay the applicant's costs of suit on a legal practitioner and client scale.”
In terms of section 5(2) of the State Liabilities Act [Chapter 8:14], his duty in his nominal capacity, is to cause payment to be made out of the Consolidated Revenue Fund.
Section 5(2) of the State Liabilities Act provides as follows:
“Subject to this section, no execution or attachment or process in the nature thereof shall be issued against the defendant or respondent in any action or proceedings referred to in section two or against any property of the State, but the nominal defendant or respondent may cause to be paid out of the Consolidated Revenue Fund such sum of money as may, by a judgment or order of the court, be awarded to the plaintiff, the applicant, or the petitioner, as the case may be.”
This is what he had seemingly failed to direct up to the time that application for contempt was made.
In order to facilitate the process of payment, he must give the directive, or authority to pay as the catalyst for payment.
That is his role.
In other words, the order sought was that he be declared to be in contempt until he had taken the necessary measures to cause payment to be made. He evidently does not make the actual payment himself as there are Government channels that ultimately make the payment upon his request or directive that payment be made.
Having been satisfied, from the return of service, that the relevant Minister was served personally with the application for contempt, the finding of contempt of court against Dr Ignatious Chombo, as Minister of Home Affairs, was accordingly made in this context.
