Unopposed
Matter
DUBE J: This is an
application for an order for contempt for court against 1st
respondent. The
terms of the order sought are as follows;.
“TERMS
OF THE ORDER SOUGHT
IT IS DECLARED THAT:
1. The 1st respondent is guilty
of contempt of court of the order of this honourable court granted
under case no. HC99052/11 and HC6661/13 in that:
(a) he has willfully disregarded
that orders refused to comply with it and has deliberately continued
to prevent the applicant from enjoying his rights as established in
the court orders;
(b) he has also expelled all the
applicant's employees from the farm.
IT IS ACCORDINGLY ORDERED
THAT:
2. The 1st respondent is
sentenced to 60 days imprisonment with labour until full compliance
by the 1st respondent and all persons acting through him with terms
of the orders of the court in case no. HC9052/11 and HC6661/13.
Provided that that term of
imprisonment shall be wholly suspended on condition:
(a) 1st respondent does not
return to or enter upon the farm, unless the applicant has
voluntarily vacated the farm or been evicted therefrom in terms of an
order of a competent court having final effect; and
(b) 1st respondent that does not
aid and abet anybody in any way in any attempt to evade the terms of
this order or the order in case no. HC9052/11 and HC6661/13 while
these orders are in place.
3. This order shall itself
constitute and serve as a writ for the arrest and detention of the
1st respondent.
4. The costs of this application
shall be borne by the 1st respondent.”
The 1st
respondent is alleged have defied court orders in HC9052/11 and
HC6661/13 respectively.
The application for contempt of
court was served P. Kapfumbe at Granger and Harvey Legal
Practitioners.
It is the applicant's
contention that the 1st
respondent is now
barred for failure to file opposing papers in terms of Order 43. The
1st
respondent also failed to appeared in court today to answer the
contempt charges.
Mr
Venturas who
appeared in court for the 1st
respondent advised
the court that he now acts for the respondent in this matter. He has
dealt with other matters for the respondent. He was unaware that this
matter had been set down for today. When he saw it on the roll, he
decided to appear on behalf of the respondent but he had no
instructions.
The matter was stood down to
chambers.
When the matter resumed Mr
Venturas advised
the court that he now acts for the 1st
respondent. He
enquired from Mr
Harvey whether he
was aware of the case. Mr
Harvey confirmed
receiving the contempt of court papers but he has since renounced
agency.
Mr
Ndudzo submitted
that contempt of court process is governed by Order 43 and that order
5 r39(1) does not apply to the service of this application as that
rule relates to summons and other documents. Order 5 r35(1) states
thus:
“Manner
of service of process generally
(1)
Process in relation to a claim for an order affecting the liberty of
a person shall be served by delivery or a copy thereof to that person
personally.”
Order 5 R35(1) defines 'process'
as follows;
“In this order-
(1)
'process' means any document which is required to be served on
any person in terms of these rules.”
The rule is clear that the term
'process' is inclusive of any document which is required to be
served on any person in terms of the rules.
Order 5 r39(1) therefore applies
to the application before the court.
The rule specifically provides
for service where the liberty of an individual is affected and
contemplates personal service.
Rule 39(1) has not been complied
with as there has been no personal service of the application on 1st
respondent. The application was not brought to the personal notice of
the respondent.
This
being an application for contempt of court wherein applicant seeks
that 1st
respondent be imprisoned for 60 days if he does not abide by the
order of this court, and that the order granted by this court serve
as a warrant for the arrest of the 1st
respondent, it is the court's view that service of the contempt of
court papers was not proper as service was effected on Mr
Kapfunde and not on
1st
respondent personally.
Imprisonment
is a harsh form of punishment and deprives a person of their liberty
and is therefore a grave consequence the respondent may have to
endure. It is imperative, in contempt of court applications, where
the remedy sought is likely to result in imprisonment that process is
served personally.
The likelihood that these
proceedings may result in a court imposing a custodial sentence is
real...
In the case of Macheka
v S. Moyo 2003 (2) ZLR 49 (H)
the court stated that;
“it is trite that the principal
objective of civil contempt of court process is to compel, by means
of personal attachment and committal to goal, the performance of the
court order. The imprisonment imposed is very often suspended pending
fulfillment by the defaulter of his obligations.”
The respondent's argument that
personal service was not necessary because it is unlikely that a
court will impose a custodial sentence because there is a proviso in
the order sought that enables the court to suspend the imposition of
a custodial sentence, if he vacates the property does not find favour
with this court.
He is supposing that the
respondent will vacate the farm.
The court must satisfy itself
that the respondent has been properly served.
The rational for requiring
personal service in a case where a person's liberty is likely to be
affected arises from the realization that an order for imprisonment
is harsh and has drastic consequences. The courts have emphasized on
the need for personal service in civil imprisonment and contempt of
court proceedings.
As was put in National
Insurance Company of Zimbabwe v Dhlamini 1999 (2)
ZLR 196 (HC);
“Civil imprisonment for a debt,
it goes without saying, (is) a drastic remedy. Personal service of a
civil Imprisonment summons is (in the absence of unusual
circumstances) a necessity.”
The approach has always been to
require personal service in contempt of court proceedings.
In Scheelite
King Mining Company (Pvt) Ltd v Mahachi 1998 (1)
ZLR 173 (HC) the court dealt with an application for contempt of
court.
Process had been served on the
respondent's attorneys and the respondent had defaulted. The court
refused to grant the order as there had been no personal service. The
court being alive to the need for personal service ordered and
directed the Deputy Sheriff to place under arrest the person of the
respondent and bring him before the court.
In the case of Wilson
v Ministry of Defence and Others 1999
(1) ZLR 144 (H) the court had issued a provisional order against
respondents calling upon them inter alia, to show cause why they
should not be declared to be in contempt of court and fined specified
amounts. The order required personal service on the respondents.
The sentiments of the court in
the above cases confirm that contempt of court proceedings do
restrict the liberty of a person and hence it is my view that
compliance with r39(1) is therefore mandatory. Where there is
likelihood that the liberty of a person may be restricted, r39(1)
should be strictly complied with.
The court in this case was alive
to the requirements of r39(1).
It is therefore the court's
view that by their very nature, contempt of court proceedings do
require personal service and are rightfully governed by order 5
r39(1) because they are a claim for an order affecting a person's
liberty.
It did not appear to the court
that 1st
respondent was aware of the hearing.
In the result it is ordered as
follows;
The application is removed from
the roll for want of compliance with r39(1). The applicant is
directed to comply with order 5 r39(1) before enrolling this
application for consideration by this court.
Mutamangira and Associates,
for the applicant
Venturas and Samukange, for
the 1st respondent
