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.