The applicant states in her founding affidavit that her claim arises from the admissions which were made by the respondent in a pre-trial conference minute dated.,.

The respondent opposed the application.,. He submitted that the order made by the court did not deal with the division of money which was held in accounts outside Zimbabwe.,

Contempt of court has been defined as "wilful and mala fide refusal or failure to comply with a civil court order constituting a contempt for which the State can prosecute."

In order for a party to be in contempt of court, the applicant must show that the respondent wilfully disobeyed a court order.

In..., the Supreme Court upheld the decision of this court declaring the termination of the applicant's contract of employment null and void and reinstating him without loss of salary and benefits.,. He was allegedly reinstated to the position of Customer Services Manager.,. But the applicant's position before the purported dismissal was that of Marketing Director. What the respondents attempted to do was not in terms of the court order as they were demoting the applicant to a lower grade. The respondents were clearly wrong.

On 19 May 2009, the High Court (BHUNU J) granted an order in favour of the first respondent in the following terms:

“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. Costs of suit.”

The defendants referred to in the Order were the two appellants and the second, third and fourth respondents (“Macmillan”, “Finnigan” and “Across Enterprises”). I shall refer to the two appellants and the second to the fifth respondents collectively as “the defendants” and, where the context requires, to the two appellants as “the appellants”. The first respondent will be referred to as “Surtee”.

When the defendants failed to make delivery in terms of the Order made by BHUNU J, the Deputy Sheriff was charged with the execution thereof. He served the Order at 72 Eastern Road, Greendale, Harare, on 22 July 2009 and made the following return:

“Attempt to recover the fuel. Mrs Evans said they are no longer dealing in fuel supplies and they do not have the fuel. Nulla bona. Return to Attorneys.”

This prompted Surtee to file an application in the High Court seeking an order that the defendants be held to be in contempt of court and committed to gaol for 90 days.

Macmillan, Finnigan and Across Enterprises did not file opposing papers and were therefore in default. All five defendants were found to be in contempt of court. Across Enterprises was sentenced to a fine of US$55,000 while the remaining four defendants were sentenced each to a term of 30 days imprisonment. The sentences imposed were suspended on condition that the defendants, jointly and severally, the one delivering the other to be absolved, deliver to Surtee 47,500 litres of fuel on or before 30 November 2010.

The appellants now appeal against the order of the court a quo on the grounds, inter alia, that, the learned Judge erred:-

(i) In finding that the appellants were in contempt of the order made by BHUNU J;

(ii) In finding, that, that order was one ad factum praestandum;

(iii) In finding that the appellants intentionally disobeyed that Order despite the Deputy Sheriff's nulla bona return, the import of which was that the appellants did not have the fuel.

The main issues to be determined are whether the order by BHUNU J was an order ad factum praestandum, and, if so, whether the court a quo correctly found the appellants to be in contempt of court by reason of their disobedience of that order.

Orders of court are, generally speaking, divided into two categories:

(i) Orders to pay a sum of money, namely, orders ad pecuniam solvendam; and

(ii) Orders to do, or abstain from doing, a particular act, or to deliver a thing, namely, orders ad factum praestandum.

See HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3ed…,.

The remedy of committal for contempt is available only in the latter category of cases.

These definitions notwithstanding, the distinction between the two types of orders is, in practice, not as clear cut as it may seem. Thus, certain orders for the payment of money, namely, maintenance orders (which one would have regarded as orders ad pecuniam solvendam) have been classified by the courts as orders ad factum praestandum.

The principle was expressed by SCHREINER AJ, in Carrick v Williams 1937 WLD 76…, as follows:

“The reason for holding maintenance orders…, to be orders ad factum praestandum is that they are not really money orders at all.

In their essential nature, they are orders that the defendant do something, namely, maintain the wife or the children.

This duty might be performed in various ways, including the provision of housing, clothing, and food in kind, or the transfer of property; but, in practice, the Court indicates how the defendant is to fulfil the duty by the payment of a periodical sum of money fixed in relation to the apparent capacity of the defendant and the needs of the party to be maintained at the time of the making of the order.

This direction by the Court does not convert the judgment from one ordering the doing of an act by the defendant into one awarding a sum of money to the Plaintiff.”

And, in East London Transitional Council v MEC for Health, Eastern Cape & Ors 2001 (3) SA 1133 (Ck), an order directing a public official to pay a certain sum of money to the judgment creditor was held to operate against that official ad factum praestandum.

The following extract from the judgment of EBRAHIM J, at page 1140F-I of the judgment, is instructive:

“In its strict sense, the order that this Court issued on 28 July 2000, for payment of the sum of R801,249, is an order ad pecuniam solvendam. But, the crucial issue that falls to be considered is, in what manner such an order operates against the first and second respondents and what the effect thereof is.

In my view, its operation is similar to that of an order which indicates the manner in which maintenance must be paid: see Carrick v Williams 1937 WLD 76 at 83.

In casu, even though the order directs that the debt be paid, it is issued, and operates, against the respondents in their nominal capacities. At the same time, and because of their official capacities, it imposes an obligation on them to take such steps as are necessary to enable the relevant departmental procedures to be implemented so that payment of the debt can be effected.

The obligation it imposes is not of a financial nature but one that requires them to carry out one or other function which forms an integral part of their official duties. In this respect, I consider that the Court's order of 28 July 2000 operates against the first and second respondents as an order ad factum praestandum.”

On this basis, counsel for the appellants submitted, that, on the authorities, the key determinant is not the act directed but the nature of the obligation to be enforced.

He submitted, that, the true nature of the Order by BHUNU J was one for the payment of a debt – albeit in kind - and that the fact that the court ordered the delivery of fuel does not convert the order from an order for payment of a debt into an order ad factum praestandum in the same way that an order for the payment of money by way of maintenance is not converted from an order ad factum praestandum to an order ad pecuniam solvendam by the fact that it is expressed in monetary terms.

He further submitted, that, just as a Maintenance Order requires the performance of an act in a specific way (and is therefore an order ad factum praestandum), so, the order by BHUNU J, required the payment of a debt in a specific manner (and was therefore an order ad pecuniam solvendam).

Counsel for the first respondent, on the other hand, contended, that, the order was clearly one ad factum praestandum since it directed the appellants to do something, namely, to deliver 47,500 litres of fuel.

The learned Judge in the court a quo decided the first issue on the basis that:

“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 praestandum' (i.e. an order for specific performance or the performance of an act – namely, the delivery of 47,500 litres of fuel).”

I can find no such acknowledgement by the appellants on the record.

On the contrary, it is quite clear from the record that it was not common cause between the parties that the order was one ad factum praestandum.

In the supplementary heads of argument filed on behalf of the appellants in the High Court the following appears:

“It is submitted that the order sought to be enforced is not ad factum. The present case is very different from the one in Trevor Batezat case SC49-09 in that the appellant in that case was ordered to return an identified triaxle trailer Registration Number 490-816V…,.

In the case before this Honourable Court, the order arises out of a contractual arrangement of which the applicant cannot say he has no other remedy…, to cover his losses.”

In taking the parties to have agreed as to the nature of the order made by BHUNU J, the learned Judge misdirected himself.

Three factors persuade me to agree with counsel for the appellant's submissions:

(i) Firstly, the true nature of the order sought to be enforced is the repayment of a commercial debt.

In this connection: “I am disposed to take the word 'debt' in a wide and general sense as denoting whatever is due, debitum, from any obligation:” per KOTZE J in Leviton & Son v De Klerk's Trustee 1914 CPD 691: see C.J CLAASEN, Dictionary of Legal Words and Phrases.

The debt in question comprised of 40,000 litres of fuel as well as arrear rentals expressed in litres of fuel to the amount of 7,500 litres.

In terms of the contract between Surtee, on the one hand, and Across Enterprises and the remaining defendants, who were then its directors, on the other hand, Surtee, as I understand it, lent or made available to Across Enterprises 40,000 litres of fuel which would be utilised in the course of trading. At the end of the contract an equal quantity of fuel was to be returned to Surtee by Across Enterprises.

That much can be gathered from the judgment of the court a quo.

A copy of the contract does not form part of the record and no more is known of the facts forming the background of the events leading up to the grant of the order by BHUNU J despite the averment in paragraphs 3- 4 of the founding affidavit attested by Surtee that:

“3. I instituted legal proceedings in this Honourable Court on the 4th June 2008, under case number HC2926/08 against the 1st, 2nd, 3rd, 4th, and 5th Respondents claiming supply and delivery of forty-seven thousand five hundred (47,500) litres of fuel from the 1st, 2nd, 3rd, 4th, and 5th Respondents, jointly and severally, within 48hrs of service of the Court Order upon them.

4. I beg leave of this Honourable Court to incorporate herein by reference the averments as stated in Plaintiff's declaration filed of record and abide by the same.”

Needless to say, the record of those proceedings was not attached to the record of proceedings in this appeal, but, it was not disputed that the arrears of rent were to be paid in fuel or that the defendants were indebted to Surtee in the amount of 47,500 litres of fuel.

The purpose of the order by BHUNU J was therefore to secure payment of that debt.

(ii) Secondly, it would appear that prior to the grant of the order in question, no inquiry was conducted into the means of the appellants to comply with it.

The Deputy Sheriff's issuance of a nulla bona return would, without more, (for example, evidence that the fuel had been available but was spirited away before his arrival at the premises), appear to bear this out.

From a reading of the authorities on this subject, it appears, that, in each case where an order ad factum praestandum was granted, the Court was satisfied that the defendant was able to comply with it so that a refusal so to comply would be mala fides and therefore contemptuous of the court.

Thus, in Trevor Batezat's case, SC49-09, an order of committal to gaol was granted because there was clear evidence that the defendant was in possession of an identified tri-axle trailer and had given a number of excuses for failing to deliver it.

In Sabawu v Harare West Rural Council 1989 (1) ZLR 47 (HC) the defendant wilfully disobeyed an order to pull down certain buildings which he had unlawfully erected.

In view of the dire consequences attendant upon the failure to obey an order ad factum praestandum, namely, committal to gaol, it is my respectful view, that, before granting an order which is ad factum praestandum a court ought to satisfy itself as to the ability of the defendant to comply with the order otherwise it takes the risk of issuing a 'hollow and unenforceable' order.

There is also an obligation on the Court before whom an application for an order of committal for contempt of an order of court is made to examine the order sought to be enforced in order to ascertain its true nature and to determine in which of the two categories the order falls.

(iii) Thirdly, there were other remedies available to Surtee, for example, an alternative order for the value of the fuel. Such an order would have been enforceable in the usual manner, namely, by a warrant of execution over the appellants' property, and, if necessary, a warrant for civil imprisonment.

Orders ad factum praestandum are usually granted only where there is no other remedy available to the applicant, the rationale being, that, the successful party has other options to enforce an order ad pecuniam solvendam.

I therefore conclude, that, in its essential nature, the order by BHUNU J was one for the repayment of a debt, and, therefore, one ad pecuniam solvendam. The fact that the order was framed as it was did not convert that order to one ad factum praestandum.

In any event, the appellants, in my judgment, were wrongly found to be in contempt of that order.

While it is trite that disobedience by a litigant of an order ad factum praestandum is punishable by committal to goal, it is also true that the disobedience must be wilful and mala fide.

Punishment for contempt of such an order by committal to gaol is aimed at enforcing civil orders of court, and to bring to its logical conclusion an order given by a judge, which the court finds has been deliberately disobeyed.

The principal object of the proceeding is to compel, by means of personal attachment and committal to gaol, the performance of the Court's Order.

Thus, the Court has enforced, by committal for contempt, inter alia, orders to give up possession of and quit a farm; to pass transfer of a plot of ground; in the case of an executor, to file estate accounts; to frame an account showing profits of a partnership business; to give discovery: HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3ed…,.

Wilfulness and mala fides will normally be inferred upon proof that the order sought to be enforced was brought to the attention of the respondent and that he has either disobeyed the order or neglected to comply with it.

The onus then shifts to the respondent to rebut the inference on a balance of probabilities.

Proved inability to comply with the order of Court will afford protection against a committal for contempt: HERBSTEIN and VAN WINSEN, The Civil Practice of the Superior Courts in South Africa, 3ed…,.

Thus, in Haddow v Haddow 1974 (2) SA 181 (R), the Court did not grant an order of committal for contempt because the defendant's disobedience of its order was not shown to be mala fide: see also Clement v Clement 1961 (3) SA 861.

In the court a quo, the appellants expressed their inability to comply with the order by BHUNU J.

The company (Across Enterprises) had stopped operations and they were not able to comply with the order because they did not have the fuel.

Their failure to comply with the order was due to inability to do so, as appears from the nulla bona return made by the Deputy Sheriff, and not to wilfulness and mala fides on their part. They expressed their respect for the Court and averred that their failure to deliver the fuel did not constitute contempt of the court.

No evidence was placed before the court a quo to contradict the averments by the appellants that they were unable to comply with the order.

In my view, the appellants rebutted, on a balance of probabilities, the inference of wilfulness and mala fides.

The court a quo, therefore, erred in granting an order for committal to gaol in circumstances where the appellants proved, on a balance of probabilities, their inability to comply with the order and failure to comply therewith was not due to mala fides on their part.

The appeal is therefore allowed with costs.

The judgment of the court a quo is set aside and substituted as follows:

“The application is dismissed with costs.”

This is an application for contempt of court.

The background to this application is that the applicants were the owners of Disi Farm (the farm). The farm has since been acquired by the State. The respondent was issued with an offer letter for subdivision 7 (Plot 7) of the farm by the Minister responsible for land resettlement on 24 June 2008. When he moved onto the plot, he locked the tobacco grading shed, the irrigation pump station and borehole thereby denying the applicants access to the infrastructure.

The applicants approached this court, and, on 18 August 2008, successfully obtained, in case No. HC4110/08, an order directing the respondent to remove the locks and desist from interfering with the applicants' peaceful and undisturbed occupation of the farm.

The order was granted with the consent of the respondent.

The respondent complied with the court order until the beginning of December 2008 when he denied the applicants access to barns on the farm and interfered with the curing of the applicants' tobacco.

The applicants approached this court again on 11 December 2008 seeking an order for restoration of access to the barns.

A spoliatory order was issued by GOWORA J on 16 December 2008 in case No. HC7003/08 in default of the respondent.

The order was served on the respondent's wife on 12 January 2009.

It appears access to the barns was granted following the service of the order.

In April 2009, the applicant again approached this court after the respondent had again denied the applicant access to the barns, and sheds, and to water.

On 4 May 2009, PATEL J issued an order, with the consent of the respondent, in case No. HC1916/09. The following were the terms of the provisional order:

“1. 1st respondent, and all those claiming occupation through him, be and are hereby ordered to forthwith restore to applicants and their employees full possession, use, and access to the tobacco barns, grading sheds, workshop, office, and irrigation pump station on Plot 7 and all farming implements owned by applicants and located thereon so as to restore the status quo prevailing on Plot 7 as at 15th April 2009.

2. 1st respondent and all those claiming occupation through him permit the applicants and their employees to grade their tobacco and remove it for sale thereafter.

3. 1st respondent desists from threatening any of applicants workers (sic) or management in carrying out their normal duties.

4. 1st respondent shall be entitled to the full use and occupation of Plot 7, other than the structures and equipment referred to in paragraphs1 and the applicants shall refrain from interfering with 1st respondent's farming activities, equipment, and employees on Plot 7.

5. Should the applicants or 1st respondent breach any provision of this Order, the Zimbabwe Republic Police, Guruve is hereby authorized to enforce the terms of this order.”

This is the order (PATEL J's order) which is the subject of this application.

The basis of this application is that the applicant averred that, in defiance of this order, the respondent forcibly evicted the second applicant's manager from the office on Plot 7. He has again locked the gates to Plot 7 thereby denying the applicants possession, access to, and use of workshop, barns, and sheds.

It is on the basis of this defiance that the applicant seeks an order of contempt....,.

I now turn to the merits of the application.

Civil contempt is the wilful and mala fide refusal or failure to comply with an order of court.

Before holding the respondent to have been in contempt of court, it is necessary for the court to be satisfied both that the order was not complied with and that the non-compliance was wilful on the respondent's part: see Lindsay v Lindsay 1995 (1) ZLR 296 (S)…,; Macheka v Moyo HB78-03; Scheelite King Mining Co (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (HC)…,.

Once the applicant has established that the respondent has failed to comply with the order, the onus shifts to the respondent to establish that he or she was not wilful and mala fide: see HERBSTEIN and Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 1st ed…, and Macheka v Moyo 2003 (2) ZLR 49…,.

The respondent in casu was required, under the PATEL J order, to restore to the applicants and its employees, full possession, use, and access to the tobacco barns, grading sheds, workshop, office, and irrigation pump station on Plot 7. The respondent was allowed, in the order, to the full use and occupation of the plot other than the structures and equipment referred to above.

The applicants averred that the respondent is in wilful defiance of the order in case No. HC1916/09 in that he forcibly evicted the second applicant's manager from the offices on Plot 7 and locked out the respondent from that plot and thereby denied them possession, use, and access to the infrastructure on the plot. The applicants approached the Deputy Sheriff for assistance to enforce the order. The respondent denied the Deputy Sheriff access to the plot.

The applicants attached a supporting affidavit from the Deputy Sheriff.

The respondent contended that he has complied with the court order and the applicants have moved off the plot on their own accord. He averred that the applicants requested that they remove their property and he allowed them to do so. He further averred that he gave the applicants access but later denied them the same when they vandalised the property.

The respondent further stated that the offer letter issued to him entitles him to own and control the entire infrastructure on Plot 7.

He intended to use the facilities for storing his beans, sunflower and seed maize, and curing his tobacco.

He further stated, in the opposing affidavit, that the order by PATEL J was not properly obtained as the order by GOWORA J, in case No. HC7003/09, was then extant.

He stated that the order by GOWORA J was granted on the understanding that the applicants would move from the farm by 15 April 2009 when the order would take effect.

He refuted the allegations that he denied the Deputy Sheriff access onto Plot 7. He stated that it is the applicants who denied the Deputy Sheriff access and that the Deputy Sheriff was bribed by one Tob Strong to depose as she did in the supporting affidavit.

The respondent's explanation of what transpired is contradictory.

In one instance he stated that when the applicants moved off the Plot, they removed their property from the plot on their own accord. In the next breath, he confirmed that he allowed the applicants access to remove their property for a limited period but later denied them further access because they were vandalizing the infrastructure on the plot.

It appears that the access referred to by the respondent is access which was granted the applicants in terms of an order issued by KARWI J on 2 November 2009 in case No. HC5270/09. The order by KARWI J was issued following an urgent chamber application filed by the applicants on 29 October 2009. The applicants had again approached this court seeking, firstly, the setting down of the present application urgently because of continued defiance of the order by PATEL J, and, secondly, claiming the return of movable property that the respondent had unlawfully taken or denied them access to.

It is evident, from the opposing affidavit and heads of argument, that the respondent is under the impression that, because he has an offer letter, he owns all the buildings on the farm and the applicants do not have any claim irrespective of the orders that have been issued by this court.

He even stated, in paragraph 5 of his heads of argument, that he does not have a legal duty to allow the applicants use of the infrastructure on Plot 7.

Despite having consented to the order by PATEL J he still does not believe that he must comply with it.

He believes that the order was improperly obtained.

It is difficult to comprehend the basis upon which that belief is founded considering that he consented, in person, to the granting of that order.

The applicants conceded, in the founding affidavit, that the order would subsist until 15 April 2009. The understanding, when the order was granted, was that thereafter, the applicants would seek a formal lease to use the barns and facilities on Plot 7 from the Ministry of Lands, Agriculture and Resettlement.

The applicants, however, continued with the use of the infrastructure until they were again locked out by the respondent leading to the application before PATEL J.

Whilst the understanding between the parties, before GOWORA J, is conceded by the applicants, the fact still remains that, after 15 April 2009, the applicants were issued with an order to continue to possess and use the infrastructure on Plot 7.

As indicated earlier, the Order was issued with the consent of the respondent, and, therefore, cannot be said to have been improperly obtained.

Assuming that I have erred in holding that the Order was not improperly obtained, a person who believes that an order is invalid must generally comply with that order. He may seek to have the order set aside by way of review or appeal: see Capital Radio (Pvt) Ltd v Minister of Information & Ors 2000 (2) ZLR 289 (HC)…, and Whata v Whata 1994 (2) ZLR 277 (S)…,.

The respondent did not seek to have the Order set aside. He therefore cannot proceed as if the Order does not exist.

The respondent's conduct, in my view, not only demonstrates that he has wilfully disobeyed a court order, but, that he has also acted mala fide.

The applicants have had to approach this court in four different cases over the past two years in order to assert their rights against the respondent. In two of the cases, which include, the case in which PATEL J granted the order in issue, orders were granted with the respondent's consent yet he has still proceeded to defy those orders.

The applicant has not been able to obtain compliance of the order by PATEL J through the normal execution process set out in the Rules. The respondent has even denied the Deputy Sheriff access to Plot 7.

This is a demonstration of utter disdain of a court order.

Court orders must be respected and obeyed. It is the responsibility of this court to ensure that its orders are obeyed.

It appears to me that this is one of those instances where the court must ensure compliance with its order by ordering the committal of the respondent. Any lesser penalty would not adequately reflect the court's displeasure at the respondent's conduct.

It is trite that the primary object of contempt procedure is to compel compliance with the court's orders. It is for this reason that I will suspend the order of committal to prison to afford the respondent an opportunity to purge his contempt: see Harare West Rural Council v Sabawu 1985 (1) ZLR 179 (H)…,; Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S)…,; Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (HC)…,; and Macheka v Moyo 2003 (2) ZLR 49…,.

The applicants asked for costs on a higher scale.

It was contended that the applicants have had to approach this court on numerous occasions because of the respondent's defiance of court orders. This has resulted in additional and unwarranted expenses to the applicants.

The court has been asked to express it displeasure by awarding costs on a higher scale.

I am persuaded by the applicants' submissions. An award of costs on a higher scale is justified under the circumstances.

Counsel for the applicants, conceded, and rightly so, that the applicants have not justified their prayer that the noting of appeal against my order should not suspend the operation of the order.

It is therefore not necessary to make any determination on their prayer in this regard.

In the result, it is ordered that:

1. The respondent be and is hereby declared to be in contempt of this court.

2. The respondent be and is hereby committed to prison for a period of 90 days (ninety) days.

3. The order for committal be and is hereby suspended on condition that the respondent purges his contempt by complying with the order given in this court in case No. HC1916/09, on 4 May 2009, within 48 (forty-eight) hours of the service of this order.

4. The respondent shall pay the costs of this application on a legal practitioner/client scale.

On 3 October 2007, this court granted a provisional order in favour of the applicant. The litigants were not present but were represented by counsel.

On 23 November 2007, the applicant instituted the present proceedings for contempt of court.

The applicant avers that the respondent has defied the provisional order. He was legally represented when the order was granted. It is its belief that same was communicated to him or a copy of the order was sent to him.

The respondent admits that the order was granted in the presence of his legal practitioner. He, however, avers that his legal practitioner advised him that he would be served with the order.

Up to the time of filing his opposing papers he had not been served with the court order.

It was submitted, on behalf of the applicant, that the conduct of the respondent was intended to and indeed undermines the authority of this court. The court was urged to redeem its dignity, reputation, and authority by imposing an appropriate penalty on the respondent.

It was further submitted that if the court were to accept the respondent's defence, it should still find him to be in contempt of court. He has since been served with the order at the time that he was served with the present application. He has not purged his contempt.

Contempt of court is continuous until it is purged by compliance. The court should therefore find him to be in contempt of court based on this fact.

It was submitted, on behalf of the respondent, that in order for the conduct of a party to constitute contempt of court, such conduct must be wilful or intended and calculated to impair the dignity or reputation of the court. The conduct complained of must be in violation of an obligation imposed on such person by a court of competent jurisdiction to obey a court order until its discharge. The respondent was not served with the order. His conduct cannot be said to be unlawful, intentional, and willful.

The provisional order had a provision to the effect that leave was granted to the Deputy Sheriff to serve the provisional order upon the respondent. It is clear from the applicant's papers that no such service took place.

In terms of Rule 42B(1)(a) where service has been effected by the Sheriff or his deputy, proof of service shall be by return of service in Form No.5A or by endorsement on the process concerned.

There is no such proof attached to the applicant's papers.

The applicant advances the argument that the respondent must have been aware of the terms of the provisional order as his legal practitioner was present when it was granted.

This argument cannot succeed. As I have already alluded to, the provisional order had to be served on the respondent.

It appears that cases whereby parties institute contempt of court proceedings, where the order in issue has not been served, are on the rise. There might be need to re-state the elementary requirement in relation to service of court orders.

The need for sufficient notice of the terms of the order being put in issue cannot be over emphasized. This point was made by C J MILLER in his book Contempt of Court, 2nd edition…, when he wrote:

“In all cases, it must be shown that the person against whom it is sought to apply the sanction of the law of contempt has sufficient notice of the terms of the judgment or order which it is alleged he has disobeyed.”

The need for sufficient notice of the terms of the order becomes clearer when one looks at the essential elements in contempt proceedings.

GILLESPIE J, in Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H)…, had this to say:

“Before holding a person to have been in contempt of court, it is necessary to be satisfied both that the order was not complied with and that the non-compliance was willful on the party of the defaulting party.”

See also Lindsay v Lindsay 1995 (1) ZLR 296 (S)…,.

For one to establish wilfulness, he must establish that the defaulting party was fully aware of the terms of the court order and he chose not to comply with the order. As C J MILLER in his book Contempt of Court, 2nd edition, puts it…,:

“In so far as possible, that person should know, with precision, what it is he is required to do or to abstain from doing.”

CHIDYAUSIKU CJ, in Minister of Lands & Ors v Commercial Farmers Union 2001 (2) ZLR 457 (S), made the same point and quoted from the same author…,:

“Before a finding of contempt can be made, it is necessary to determine whether there has been a factual breach of an order or understanding on the part of the body or person brought before the court. This necessarily demands that the terms of the order be expressed in clear unambiguous language, and, in so far as possible, the person should know, with complete precision, what it is he is required to do.”

This can be achieved if the defaulting party is served with the court order - unless if he was present when the order was pronounced.

In casu, the respondent was not present when the order was pronounced and was not served with the order as was ordered by the court.

The applicant has not, therefore, established wilfulness on the part of the respondent.

The applicant further contends that the respondent should be found to be in contempt of court as he has now been served with the provisional order and has not purged his contempt.

It is my view that, to date, the provisional order has not been served on the respondent.

What was served on the respondent was the court application in this matter to which the provisional order was attached as an annexure. That cannot constitute service of the order as is required by the provision of service in the order itself.

In any event, the facts establishing contempt after the alleged service have not been placed before me. The respondent has not been given an opportunity to comment. The applicant's argument in that regard can therefore not succeed.

Accordingly, I make the following order:

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs.

The Accused appeared before a Magistrate in a maintenance court at Harare...,. During the court sitting, the Accused committed acts of contempt of court. He was convicted thereof and sentenced to undergo forty-five days of imprisonment.

In terms of section 71(2) of the Magistrates Court Act [Chapter 7:10], the Magistrate referred the matter to this court for review.

The facts which gave rise to the conviction were that upon being ordered by the Magistrate to pay maintenance in the sum of $400 per month for the maintenance of his children, he wilfully committed certain acts of contempt of court. The record shows that during the court's sitting, the Accused charged at the Magistrate and shouted “Bullshit! There is no justice in this court.” He went on to bang the Magistrate's bench four times in a most threatening manner. He further shouted: “You are paid to do your job. This is nonsense.” He advanced towards the Magistrate and tried to slap her but she evaded the blow. He then threw a bundle of papers at her face. He continued to shout on top of his voice disrupting business in the nearby courts. Police had to use force in order to effect an arrest as he was resisting. He left the courthouse still shouting unprintable words, and vowed to deal with the Magistrate.

Nothing turns on the conviction as it was proper. There is no doubt the Accused committed a most serious act of contempt of court.

Section 71 of the Magistrates Court Act [Chapter 7:10] provides that –

“(1) If any person, whether in custody or not –

(a) Wilfully insults the magistrate during his sitting in court, or any clerk, or messenger, or other officer, of any court, during his attendance therein; or

(b) Wilfully interrupts the proceedings of, or otherwise misbehaves in court; or

(c) Being a witness, refuses to answer any legal question relative to the matter in issue;

It shall be lawful for any police officer, or private person, by order of the magistrate, to take such offender into custody, and detain him until the rising of the court, and the magistrate may, by warrant under his hand, impose on the offender, a fine not exceeding level three, or commit him to prison for a period not exceeding one month, or impose such a fine on him and commit him to prison for such a period.”

In this case, the Accused did not only insult the Magistrate and interrupt the court proceedings, but went further to assault and threaten the Magistrate. He showed open insolence to a judicial officer during her sitting. This is the highest form of contempt of court. The court was correct in convicting him of contempt of court.

The problem, however, is with the sentence the Magistrate imposed.

Section 71(c) of the Magistrates Court Act [Chapter 7:10] provides that the magistrate may, by warrant under her hand impose on the offender a fine not exceeding level three, or commit him to prison for such a period not exceeding one month. The Magistrate in the court a quo imposed a sentence of forty-five days in prison.

The sentence imposed is certainly ultra vires the statutory provisions, and cannot, therefore, stand.

The Magistrate in the court a quo was, however, correct in imposing a prison term, as punishment in this case, because of the severity of the offence committed. Any other form of punishment would have an effect of seriously trivializing the offence. There is certainly a need to uphold the sanctity of courts. In my view, the wilful actions of the Accused seriously undermined the administration of justice.

There is need for deterrence.

This is the reason why it would not be proper to impose the sentence of a fine...,. This is despite the fact that the Magistrates Court Act [Chapter 7:10] calls for either the imposition of a fine, or imprisonment of not more than one month, or both such fine and imprisonment.

On 1 June 2009 this court granted an order that case numbers HC2190/09 and HC2224/09 be heard urgently and simultaneously, consequent to an application that the matters be heard on an urgent basis and simultaneously. For ease of reference, I will refer to the parties as they are cited herein in both matters.

The brief background to the matter is that on 13 May 2009, this court, and on the unopposed roll, granted an order(“the order”) directing that the applicants and all persons acting on their authority shall forthwith vacate Homefield Farm or any portion of the farm and that they pay the respondents' costs. On 14 May 2009 the applicants filed an application for the rescission of that judgment. On 15 May 2009 the Deputy Sheriff attempted to serve the order. A disagreement arose between the applicants on one side and the first and second respondents and the Deputy Sheriff on the other side. It degenerated into an assault on the Deputy Sheriff and the first respondent.

The court order was finally served on 18 May 2009.

On 19 May 2009 the applicants filed an application for stay of execution of the order pending the determination of the application for rescission of judgment. On 20 May 2009 the respondents filed an application for contempt of court for failure to abide by the order served on them on 18 May 2009 by the applicants.

On 4 June 2009, the parties entered a gentlemen's agreement whereby the respondents undertook not to enforce the order pending the determination of the matters before me.

At the hearing of the matters, I decided to deal with case number HC2224/09 which is the application for rescission of judgment.

In this matter, the respondents raised a point in limine to the effect that the applicants cannot be heard as they were in contempt of the order referred to above. My reasoning was that if I upheld the point in limine, then the application will be dismissed at that stage. If I dismissed the point in limine, I would then proceed to determine the issue of rescission of judgment. It was also my reasoning that the arguments advanced in respect of the point in limine in HC2224/09 would assist in disposing of case number HC2190/09.

The point was taken, by the respondents, that the applicants should not be heard as they were in contempt of court. The order of 13 May 2009 directed that the applicants vacate the farm forthwith. The applicants remain in occupation.

The applicants deny that they are in contempt of court and advance, in the main, three reasons;

(i) Firstly, they contend that prior to 18 May 2009, the order had not been served on them personally. Upon being served with the order, they applied, on a certificate of urgency, for stay of execution.

(ii) Secondly, that the applicants immediately filed an application for rescission of judgment. The application was filed within twenty-four hours of the judgment being granted.

(iii) Thirdly, that the order was vague by its use of the word “forthwith”.

(iv) Fourthly, that the applicants could not be in contempt of court after the “gentlemen's agreement” entered into on 4 June 2009.

According to learned author C J MILLER in Contempt of Court, 2^nd ed.., there is need for sufficient notice of the terms of the order. He states:

“In all cases, it must be shown that the person against whom it is sought to apply the sanction of the law of contempt had sufficient notice of the terms of the judgment or order which it is alleged he has disobeyed.”

In casu, it is common cause that the order was granted in the presence of the applicants' legal practitioners. The following day, after the granting of the order, the applicants deposed to affidavits seeking the rescission of the order. It is clear from the above that the applicants had sufficient notice of the terms of the order even before it was served on them. Their contention that from 13 to 19 May 2009 they had not personally been served with the order is untenable. In any event, our rules provide for personal service in relation to a claim for an order affecting the liberty of the person only.

The applicants submitted that they were not in contempt of the order as they immediately filed an application for rescission of judgment. It was further argued that the Rules give the defendant a window period of one month to set aside a judgment granted in default and that the application for rescission suspended the order until the determination of the application.

This is a novel argument.

It is a settled position in our law that an application for rescission does not suspend an order of court. If that was the position, the procedure of an application for stay of execution would not have been necessary. Instead, there would have been a provision for an application for execution pending the determination of the application for rescission of judgment. We do not have such a procedure as an application for rescission does not suspend the order. The applicants must have been aware of this position and this explains why they proceeded to file an application for stay of execution on 19 May 2009.

The issue of the ambiguity of the order is, in my view, being raised as a red herring.

It is clear from the applicants papers that they had no intention of obeying the order at any stage, as they had filed an application for rescission of the order, which they believed suspended the order.

It was submitted that, from June 2009, the applicants could not be held to be in contempt of court as they had entered into a gentlemen's agreement with the respondents.

In my view, a gentlemen's agreement is exactly that, a gentlemen's agreement. It does not set aside or suspend a court order. The order remained extant and the applicants cannot escape liability on the basis of the agreement.

In view of the above, I will make a finding that the applicants are in contempt of an order of this court.

The applicant contended that the respondent's conduct is contemptuous of this court's divorce order which awarded her custody of the minor children.

An order that a party is in contempt also allows such party an opportunity to purge his contempt before he can be incarcerated for contempt.

No notice was given to the parties sought to be found in contempt, that such an order would be sought against them in the event that they disobeyed the court order.

C.J.MILLER in his book Contempt of Court..., states as follows regarding notice –

“In all cases, it must be shown that the person against whom it is sought to apply the sanction of the law of contempt had sufficient notice of the terms of the judgment, or order, which it is alleged he has disobeyed. The ways in which this requirement of notice may be satisfied are set out in RSC Ord.45. r7.

The general rule is that personal service of a copy of the judgment, or order, is required. In the case of a judgment, or order, against a corporate body, enforcement will be possible against an individual director, only if he has been personally served.”

The same point was made by ARLIDGE and EADY in their book The Law of Contempt..., wherein they state –

“It is clear that because of the special nature of the court's jurisdiction, where there is prescribed any procedural step antecedent to the exercise of that jurisdiction, every such rule should be scrupulously observed, and strict compliance insisted upon. This is because the court's powers to punish for civil contempt are quasi-criminal in nature. Where committal is sought, although the court has the power to dispense with service of the notice of motion, personal service will, generally, be insisted on unless there is clear evidence of evasion. It has even been held that the attendance of the alleged contemnor at the hearing does not, per se, waive the need for service. It is also necessary to establish service of the order which is alleged to have been disobeyed by leaving a copy with the person to be served. The importance of personal service, where committal is sought, is to enable the alleged contemnor to know what conduct would amount to a breach, and what would not; and before committal, such notice is required to be proved beyond a reasonable doubt..”

Although the Rules being referred to above are the Rules of Court pertaining in English courts, it goes without saying that our own Rules are not very different when it comes to orders for contempt of court.

In terms of Order 9 Rule 39(1), process in relation to a claim affecting the liberty of a person shall be served by delivery of a copy thereof to that person personally. This requirement, that personal service be effected upon a person whose liberty is in issue, has been recognised by our courts, per GILLESPIE J in Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173.

This is an application for directions in the execution of the provisional order.

The salient facts of the matter are that the applicant entered into a lease agreement with the respondents wherein he leased Shop Number 10 Njube Trading in 2003 and another shop in 2005 known as Jika Jika Bar, Restaurant and Grocery.

At the beginning of 2008, a rent dispute arose which resulted in this application.

I granted the provisional order on 5 January 2009 and the Deputy Sheriff effected service on both respondents. On 6 January 2009, the respondents filed a notice of opposition and served it on the applicants' legal practitioners on 7 January 2009. On the same day, the 7th day of January 2009, the respondents filed a notice of appeal to the Supreme Court appealing the interim relief.

On the advice of their legal practitioner that the appeal to the Supreme Court suspended the provisional order, the respondents disregarded the provisional order.

Upon receipt of this information, the applicants' legal practitioners contacted the respondents legal practitioners on the 12th day of January 2009 in an attempt to resolve the misconception regarding the effect of their “appeal”.

It is conceded by counsel for the respondents that he undertook to counsel for the applicant that the Deputy Sheriff would be advised to proceed with the removal of the respondents on the property thereby giving the applicant vacant possession. Counsel for the applicant had brought to his attention that he was due to leave the country on the 13th day of January 2009. Counsel for the respondents wrote a letter to counsel for the applicant's legal firm, the contents of which are as follows:-

“13 January 2009

Messrs Dube-Banda, Nzarayapenga and Partners
Legal Practitioners
Bulawayo

Dear Sirs

RE: GREENFIELD NYONI VS MRS. L. P EMISSIRY AND ANOTHER HC02/09, SC02/09 AND HC32/09

We are of the view that you used the wrong procedure in obtaining a hearing date for HC02/09. Your application was for directions yet your intention and draft order was to anticipate the matter. Be that as it may, the matter did not take off on the said date.

We are also of the view that if you are aggrieved with the Notice of Appeal filed by ourselves, you will have to file a separate application challenging it. It is our respectful view that the said Notice of Appeal cannot be dealt with within HC02/09.

We filed our Notice of Opposition in HC02/09. If the matter is to continue, we believe you should file you answering affidavit. However, in our view, until the appeal is dispensed with, it is not possible for HC02/09 to be heard.

If you believe our client is in contempt of court, we believe you know the procedure.

Yours faithfully

(signed)
CHEDA AND PARTNERS”

Counsel for the applicant has urged the court to give a directive in view of counsel for the respondents conduct as he has assisted his client to be in contempt of court. The said contempt is based on the following facts which are not in dispute:-

1. The appeal is a nullity.

2. The order he appealed against is not appealable without the leave of the court.

3. Did not approach him for a set down date as per the court order.

4. To date he has not taken steps to prosecute the appeal.

5. He has not paid the security costs.

6. His clients remain in defiance of a court order.

7. He has remained defiant up to date.

In response to this, counsel for the respondents initially became defiant until, at a later stage of the proceedings, when he admitted that he did not act properly as he misled his client and consequently expressed sorrow for what he did.

The fact that the respondents are in contempt of court admits of no doubt. The law is clear in this point; a person who is in contempt remains so until he purges that contempt. Such a person cannot be heard until the contempt is purged.

Counsel for the applicant has urged the court to find counsel for the respondents guilty of misconduct.

In my view, the misconduct complained of was wilful.

In Lewis v Great Western Railway Company BRAMWELL LJ (1877) 3 QBD 195…, defined it as follows:-

“'Willful misconduct' means misconduct to which the will is a party, something opposed to accident or negligence; the misconduct, not the conduct, must be willful. It has been said, and that, I think, correctly, that, perhaps, one condition of 'wilful misconduct', must be that the person guilty of it should know that mischief will result from it.”

The golden rule for misconduct for all legal practitioners is clearly set out in Legal Ethics, E.A.L. LEWIS…, where the learned author states:-

“A practitioner must avoid all conduct which, if known, could damage his reputation as an honourable citizen.”

A legal practitioner has a duty to act honestly and fairly at all times. In addition to this, he must always be truthful and candid in all his dealings.

Counsel for the respondents was not honest with his colleague when he misled him into believing that he would implement the agreement; that he would advise the Deputy Sheriff to execute the provisional order. In fact, all the complainants listed by counsel for the applicant (supra) are correct.

All I can say, without more, is that this type of conduct is deplorable and reprehensible.

Legal practitioners are warned to desist from this type of conduct lest their professional careers stand the risk of being brought to a complete halt. Lawyers, as officers of the court, have an unfailing duty to obey court orders and should not be seen to be assisting litigants in the said disobedience.

I find that counsel for the respondents actively and persistently assisted his clients to do so.

Counsel for the applicant has urged the court to award costs against counsel for the respondents de bonis propiis in view of his misconduct.

I find favour in this submission.

Infact, counsel for the respondents, at a very late stage of the proceedings, conceded that he had ill-advised his clients to disobey the court order.

I am of the opinion that this is an appropriate case for costs of this nature in order to show the court's indignation for such wilful misconduct by a legal practitioner.

The following order is made:-

(1) The provisional order issued by this court on the 15th day of January 2009 should be executed within 48 hours of this order; and

(2) Mr. Mangena should pay costs of today's hearing de bonis propriis.

I do not believe that this case ought to be determined on the submissions made by both legal practitioners when they appeared before me.

In their submissions, the respondents raised a point in limine that the applicants were in contempt of the judgment that they seek to rescind.

The applicants opposed the issue of contempt.

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:

“IT IS ORDERED THAT:

1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody and under its control vehicles registration number no. AAU 8190, ABC 3354 and AAP 1952.

2. Mydale International (Pvt) Ltd shall record the mileage on each vehicle from the time of receipt from the second respondent.

3. Mydale International (Pvt) Ltd shall be entitled to ordinary use of the motor vehicles and shall not sell or otherwise alienate the said motor vehicles without an order of court.

4. Messrs Byron Venturas & Partners shall within 24 hours of the order surrender to the Registrar of the High Court, Harare the US$28,500 the proceeds for the sale of the six motor vehicles owned by Mydale International (Pvt) Ltd for retention by the Registrar pending the determination of any dispute over ownership of Mydale International Marketing (Pvt) Ltd.”

On 4 April 2009, the first respondent noted an appeal against the order, and, as a result, he did not surrender the money to the Registrar as had been ordered....,.

On 21 April 2009, the applicant launched these proceedings under a certificate of urgency for the grant of a Provisional Order....,.

The terms of the interim relief being sought were the following:

“INTERIM RELIEF GRANTED:

(a) Pending appeal, within 24 hours of the service of this order on him, the first respondent and his lawyers Messrs Venturas & Samukange shall comply with para 4 of the judgment by OMERJEE J in case HC1049/09 dated 3 April 2009.

(b) Failing compliance, the first respondent, and the said lawyers, shall, within a further 24 hours, appear before this honourable court to show cause why he/they should not be committed to prison for contempt of court.”

The order by OMERJEE J is still extant in the sense that it has not been set aside by the Supreme Court.

The order was to the effect that the money which is subject matter of a dispute between the applicant and the first respondent be deposited with the Registrar until the ownership of the shareholding in the applicant has been determined.

The respondent has taken the position that he noted an appeal, and, as a result, did not need to comply with the part of the order requiring that he surrender the money to the Registrar.

In the interim relief sought, the applicant sought to make the order operational without having sought from court an order for execution of the judgment pending appeal.

Although the underlying theme in the body of the founding affidavit is to the effect that the judgment was interlocutory and could not be appealed against, the order being sought, for the legal practitioners of the respondent to pay the money to the Registrar, seems to recognize the validity of the appeal, as the preamble to the order sought shows.

The applicant has made much of the allegation that the appeal was made in order to frustrate the execution of the order by the learned judge.

The question as to whether the appeal has merit is not before me and I cannot delve into such an issue.

The applicant also avers that the appeal is null and void for want of validity as the judgment is interlocutory. The applicant cited no authority for this proposition.

It is a generally acceptable principle that at common law the noting of an appeal suspends the operation of a judgment, and that the consequence of the noting of the appeal is that the execution of the judgment is stayed unless the court directs otherwise. Normally, the party intending to execute against the judgment would approach the court for leave to execute pending appeal.

The applicant has not applied for leave to execute pending appeal which is a necessary procedural step.

The leading case in South Africa which has been followed by our courts is that of South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) 534. At p 544H-545C CORBETT JA stated:

“Whatever the true position may have been in the Dutch Courts, and more particularly the Court of Holland (as to which see Ruby's Cash Store (Pty) Ltd v Estate Marks & Anor 1961 (2) SA 118 (T) at pp120-3), it is today the accepted common law rule of practice in our courts that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal, with the result that, pending the appeal, the judgment cannot be carried out and given effect thereto, except with the leave of the court which granted the judgment.

To obtain such leave, the party in whose favour the judgment was given must make special application. (See, generally, Olifants Tin “B” Syndicate v De Jager 1912 AD 377 at 481; Reid and Anor v Godart & Anor 1938 AD 511 at p513; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746).

The purpose of this rule, as to the suspension of a judgment on the noting of an appeal, is to prevent irreparable damage from being done to intending appellant either by levy under a writ of execution or by execution of the judgment in any other manner appropriate to the nature of the judgment appealed from (Reid's case supra at p513). The Court to which application for leave to execute is made has a general discretion to grant or refuse leave, and, if leave be granted, to determine the conditions upon which the right to execute shall be exercised (See Voet, 49.7.3; Ruby's Cash Store (Pty) Ltd v Estate Marks & Anor, supra at p127. This discretion is part and parcel of the inherent jurisdiction which the court has to control its own judgments (c.f. Fismer v Thornton 1929 AD 17 at p.19).”

In my view, before seeking to have the court order that the respondent deposit with the Registrar the money in dispute before the parties, the applicant ought to have sought an order to the effect that the appeal was null and void for want of compliance with the Rules on the grounds that the order was interlocutory or for an order for leave to execute pending appeal.

It is also pertinent to note that the appeal is before the Supreme Court, and, it is, in my view, the Supreme Court which should state whether or not the appeal is null and void for want of compliance with the Rules.

In the absence of such a declaration, it is not open to this court to find that the appeal is null and void.

The applicant has done neither, and, it is therefore not in this court's power to order that the respondent complies with the order of OMEREE J....,.

In paragraph (b) of the draft order, it is sought that failing compliance, this court finds that the respondent and his legal practitioners (who have not been cited in these proceedings) appear before the court within 24 hours to show cause why they should not be committed to prison for contempt.

It would seem to have escaped the attention of the learned counsel for the applicant that a party against whom an order of contempt is sought must not only be personally cited but that process for such citation must be personally served on the respondent.

I do not have any party from the legal practitioners of the respondent cited personally and I will therefore not dwell further on this aspect.

The present feud has its genesis in matters of employment law. The first and second respondents are the third respondent's Managing Director and Human Resources Manager respectively. The applicant was employed by the third respondent as a Manager. In 1995 he was dismissed from employment by the respondents.

On 21 December 1999, the Employment Council for the Banking Undertaking, which heard the applicant's appeal, resolved that an incorrect Code of Conduct had been used and ordered that the applicant “should be reinstated with full pay and benefits from the date of his initial discharge to the date that the hearing in terms of the NEC's Code of Conduct (S.I.111 of 1994) takes place.”

Dissatisfied with this decision, the third respondent lodged an appeal to the then Labour Relations Tribunal. On 6 March 2003, the Labour Relations Tribunal dismissed the appeal and upheld the Employment Council's decision of reinstatement.

This is the judgment number LRT/H/19/2003.

Thereafter, the third respondent approached the Labour Court to quantify the amount payable to the applicant. This was after the parties had, in vain, attempted to settle out of court. The Labour Court ruled that the third respondent was barred from approaching the court until after purging its contempt of not complying with its earlier judgment upholding the Employment Council's decision of reinstatement.

This is the judgment number LC/H/156/2007....,.

On 22 September 2009 the applicant registered the two Labour Court judgments cited above with this court for enforcement purposes.

The current application, filed on 6 July 2010, avers that the applicant has, on countless occasions, tendered his services to the third respondent but the respondent, via its agents the first and second respondents, has scoffed at him and refused to reinstate him.

The order sought in terms of the draft reads-

“IT IS ORDERED THAT:

1. The first, second and third respondents are hereby declared in contempt of judgment number LRT/H/19/2003 of the Labour Relations Tribunal (delivered on 2 September 2002) and judgment number LC/H/156/2007 of the Labour Court (delivered on 21 May 2007) which were registered with the court in terms of section 92B of the Labour Act [Chapter 28:01].

2. The first and second respondents shall be committed to prison for ninety (90) days until such time they comply with the aforesaid orders.

3. The third respondent is hereby ordered to pay a fine of US$500= per day from the date of the granting of this order up to the date upon which the third respondent complies with judgment number LRT/H/19/2003 of the Labour Relations Tribunal (delivered on 2 September 2002) and judgment number LC/H/156/2007 of the Labour Court (delivered on 21 May 2007) which were registered with this court in terms of section 92B of the Labour Act [Chapter 28:01].

4. The costs of this application shall be borne by the first, second and third respondents jointly and severally the one paying the other being absolved on a legal practitioner and client scale.”

The respondents opposed the application on the main plank that the facts of the matter do not ventilate any semblance of contempt of court.

Firstly, the judgment of the Labour court of 21 May 2007 (LC/H/156/2997) is not an order ad factum praestandum that can be enforced by contempt of court proceedings. Secondly, the judgment (LRT/H/19/2003) dated 2 September 2002 was complied with in that the applicant was reinstated and all that he was owed by the third respondent by way of backpay was calculated and tendered to him but the applicant rejected the tender. It so happened that due to effluxion of time, by the time the applicant was reinstated, he had already reached retirement age but he refused to retire.

Contempt of court was described by LORD DIPLOCK in Attorney General v Times Newspapers Ltd (1973) 3 ALL ER 54 HL..., as follows-

“Contempt of court is a generic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. One may leave aside, for the purposes of the present appeal, the mere disobedience by a party to a civil action of a specific order of the court made on him in that action. This is classified as a 'civil contempt'. The order is made at the request and for the sole benefit of the other party to the civil action. There is an element of public policy in punishing civil contempt, since the administration of justice would be undermined if the order of any court of law could be disregarded with impugnity...,.”

Now, on the facts of the present case, does the respondents' conduct amount to disobedience of a court order?

Regarding judgment LC/H/156/2007, the import of the order was that the employer (“the third respondent”) was barred from approaching the court until after purging its contempt of failing to reinstate the applicant to employment. It therefore imposed no enforceable obligation, and, in the event, the order should not have been registered in terms of section 92B of the Labour Act [Chapter 28:01]. Its registration created no order ad factum praestandum that can be enforced. Perhaps, had the respondents approached the court in pursuit of the same subject matter one could argue that they would have disobeyed that court order but that is not the case.

Since none of the respondents breached or disobeyed that order, which, in any event, created no enforceable obligation, I find no ground upon which it can be said that the respondents are in contempt of court regarding this particular order.

As regards the other judgment – LRT/H/19/200