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/19/2003 – the operative part of that judgment reads-

“The appeal is accordingly dismissed and the decision appealed against is upheld with costs.”

The decision that had been appealed against was that of the Employment Council for the Banking Undertaking sitting as an Appeals Board. That Board had ruled that-

“Stanbic should effectively reinstate Mr. Munhumutema up to the day that they hold the new initial hearing. His reinstatement should be with full back pay of all monies owed to him.”

That ruling was given..., on 21 December, 1999; after the third respondent had appealed against that ruling to the Labour Relations Tribunal - that appeal was dismissed on 6 March 2003.

The question which begs the answer is whether the respondents, particularly the third respondent, did comply with the Board's order for reinstatement with full back pay of all monies owed to him as upheld by the Labour Relations Tribunal on 6 March 2003 when the Tribunal confirmed the Appeals Board ruling of 21 December 1999.

The third respondent contends that it did comply with the order of reinstatement with full pay and benefits. The applicant contends to the contrary.

On the facts of this case was the applicant reinstated?

In Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344 it was held that-

“Reinstatement meant no more than a directive that the employee be replaced in her post and remunerated. It did not entail the further obligations on the part of the employer to provide work.”

Upon reinstatement, the ordinary contractual relationship between employer and employee resumes i.e. the status quo ante dismissal is restored and the relationship should continue with all the rights and obligations under the contract of employment until such time as the contract was terminated on lawful grounds.

What the third respondent did in casu, by calculating all salaries with corresponding increments, together with interest, that were owed to the applicant and tendering the same to him, effectively amounted to reinstatement....,.

In the event, the third respondent did comply with the order of reinstatement and there is nothing on the papers to sustain that the respondents committed a civil contempt of court. Consequently, the application be and is hereby dismissed with costs.

This is an application for an order for contempt of court against the first respondent. The terms of the order sought are as follows;

“TERMS OF THE ORDER SOUGHT

IT IS DECLARED THAT:

1. The 1st respondent is guilty of contempt of court of the order of this honourable court granted under case no. HC99052/11 and HC6661/13 in that:

(a) He has willfully disregarded that orders refused to comply with it and has deliberately continued to prevent the applicant from enjoying his rights as established in the court orders;

(b) He has also expelled all the applicant's employees from the farm.

IT IS ACCORDINGLY ORDERED THAT:

2. The 1st respondent is sentenced to 60 days imprisonment with labour until full compliance by the 1st respondent, and all persons acting through him, with terms of the orders of the court in case no. HC9052/11 and HC6661/13.

Provided that that term of imprisonment shall be wholly suspended on condition:

(a) 1st respondent does not return to or enter upon the farm, unless the applicant has voluntarily vacated the farm or been evicted therefrom in terms of an order of a competent court having final effect; and

(b) 1st respondent that does not aid and abet anybody in any way in any attempt to evade the terms of this order or the order in case no. HC9052/11 and HC6661/13 while these orders are in place.

3. This order shall itself constitute and serve as a writ for the arrest and detention of the 1st respondent.

4. The costs of this application shall be borne by the 1st respondent.”

The first respondent is alleged have defied court orders in HC9052/11 and HC6661/13 respectively.

The application for contempt of court was served on P. Kapfumbe at Granger and Harvey Legal Practitioners.

It is the applicant's contention that the first respondent is now barred for failure to file opposing papers in terms of Order 43. The first respondent also failed to appeared in court today to answer the contempt charges.

Mr Venturas, who appeared in court for the first respondent, advised the court that he now acts for the respondent in this matter. He has dealt with other matters for the respondent. He was unaware that this matter had been set down for today. When he saw it on the roll, he decided to appear on behalf of the respondent but he had no instructions.

The matter was stood down to chambers.

When the matter resumed, Mr Venturas advised the court that he now acts for the first respondent. He enquired from Mr Harvey whether he was aware of the case. Mr Harvey confirmed receiving the contempt of court papers but he has since renounced agency.

Counsel for the applicant submitted, that, contempt of court process is governed by Order 43 and that Order 5 Rule 39(1) does not apply to the service of this application as that Rule relates to summons and other documents. Order 5 Rule 35(1) states thus:

“Manner of service of process generally

(1) Process in relation to a claim for an order affecting the liberty of a person shall be served by delivery or a copy thereof to that person personally.”

Order 5 Rule 35(1) defines 'process' as follows;

“In this order -

(1) 'process' means any document which is required to be served on any person in terms of these Rules.”

The Rule is clear that the term 'process' is inclusive of any document which is required to be served on any person in terms of the Rules.

Order 5 Rule 39(1) therefore applies to the application before the court.

The Rule specifically provides for service where the liberty of an individual is affected and contemplates personal service.

Rule 39(1) has not been complied with as there has been no personal service of the application on the first respondent. The application was not brought to the personal notice of the respondent.

This being an application for contempt of court, wherein the applicant seeks that the first respondent be imprisoned for 60 days, if he does not abide by the order of this court, and that the order granted by this court serve as a warrant for the arrest of the first respondent, it is the court's view that service of the contempt of court papers was not proper as service was effected on Mr Kapfunde and not on the first respondent personally.

Imprisonment is a harsh form of punishment and deprives a person of their liberty and is therefore a grave consequence the respondent may have to endure. It is imperative, in contempt of court applications, where the remedy sought is likely to result in imprisonment, that process is served personally.

The likelihood that these proceedings may result in a court imposing a custodial sentence is real…,.

In the case of Macheka v S. Moyo 2003 (2) ZLR 49 (H) the court stated that;

“It is trite that the principal objective of civil contempt of court process is to compel, by means of personal attachment and committal to gaol, the performance of the court order. The imprisonment imposed is very often suspended pending fulfillment by the defaulter of his obligations.”

The applicant's argument, that personal service was not necessary because it is unlikely that a court will impose a custodial sentence because there is a proviso in the order sought that enables the court to suspend the imposition of a custodial sentence, if he vacates the property, does not find favour with this court.

He is supposing that the respondent will vacate the farm.

The court must satisfy itself that the respondent has been properly served.

The rationale for requiring personal service, in a case where a person's liberty is likely to be affected, arises from the realization that an order for imprisonment is harsh and has drastic consequences. The courts have emphasized on the need for personal service in civil imprisonment and contempt of court proceedings.

As was put in National Insurance Company of Zimbabwe v Dhlamini 1999 (2) ZLR 196 (HC);

“Civil imprisonment for a debt, it goes without saying, (is) a drastic remedy. Personal service of a civil Imprisonment summons is (in the absence of unusual circumstances) a necessity.”

The approach has always been to require personal service in contempt of court proceedings.

In Scheelite King Mining Company (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (HC) the court dealt with an application for contempt of court.

Process had been served on the respondent's attorneys and the respondent had defaulted. The court refused to grant the order as there had been no personal service. The court, being alive to the need for personal service, ordered and directed the Deputy Sheriff to place under arrest the person of the respondent and bring him before the court.

In the case of Wilson v Ministry of Defence and Others 1999 (1) ZLR 144 (H) the court had issued a provisional order against the respondents calling upon them, inter alia, to show cause why they should not be declared to be in contempt of court and fined specified amounts. The order required personal service on the respondents.

The sentiments of the court, in the above cases, confirm that contempt of court proceedings do restrict the liberty of a person and hence it is my view that compliance with Rule 39(1) is therefore mandatory. Where there is likelihood that the liberty of a person may be restricted, Rule 39(1) should be strictly complied with.

The court, in this case, was alive to the requirements of Rule 39(1).

It is therefore the court's view, that, by their very nature, contempt of court proceedings do require personal service and are rightfully governed by Order 5 Rule 39(1) because they are a claim for an order affecting a person's liberty.

It did not appear to the court that the first respondent was aware of the hearing.

In the result, it is ordered as follows;

The application is removed from the roll for want of compliance with Rule 39(1). The applicant is directed to comply with Order 5 Rule 39(1) before enrolling this application for consideration by this court.

This is an action for civil imprisonment instituted by the plaintiff against the defendant.

The salient facts of the case are the following. Under HC982/12, this court ordered the defendant to pay the plaintiff the sum of US$81,488= together with interest thereon at the prescribed rate. The defendant was also ordered to pay costs on an attorney-client scale. Thereafter, the plaintiff sought to satisfy the judgment by attachment of the defendant's property - without success. The Deputy Sheriff was unable to satisfy the exigencies of the plaintiff writ as she was unable to locate any movable assets belonging to the defendant. The Deputy Sheriff rendered a nulla bona return on 13 September 2012. The plaintiff, as a result, instituted these proceedings seeking civil imprisonment of the defendant.

The defendant has opposed the action and has, instead, prayed that the  warrant of committal be dismissed on the basis that he is unable to pay the debt in terms of section 16 of the High Court Act [Chapter 7:06]. In the alternative, the defendant prays that this court suspends the warrant of committal on condition that the defendant pays the plaintiff US$1,000= per month.

The defendant responded to summons for civil imprisonment by attending the inquiry in the company of his legal practitioner. He adduced evidence on his financial position. The court enquired into the means of the defendant in terms of Order 41 Rule 370 of the High Court of Zimbabwe Rules 1971.

It is trite law that, in terms of Rule 370A, this court may issue an order for the committal of the defendant where it is satisfied that the defendant has the means and/or the capacity to pay the debt in issue but willfully neglects to do so. In terms of Rule 370C, the court may suspend the order for committal on conditions as the court may think fit. The onus stands upon the debtor to establish that he does not have the means or ability to pay the debt. Civil Practice of Supreme Courts in South Africa – HERBSTEIN and VAN WINSEN…, and Mansour v Sorour Bros 1912 EDL 208.

In casu, the defendant initially offered to pay the sum of US$500= per month. This offer was rejected by the plaintiff on the basis that it would take too long for the defendant to finalise payment. The defendant later increased his offer to US$1,000= per month. The defendant evinced on the indebtedness to other people and institutions. He showed that a company, Impala Enterprises (Pvt) Ltd, where he is Director, is currently under judicial management and nothing was coming from it by way of income. The defendant also testified that he was in the process of wooing investors in order to enhance his financial position. Having regard to the evidence placed before me, I conclude that the defendant is, to some extent, able to pay his debt, so section 16 of the High Court Act [Chapter 7:06] is not applicable. In my view he can afford US$2,000= per month. Accordingly, it is ordered that:

1. Civil imprisonment is hereby granted in favour of the plaintiff against the defendant for the defendant to be lodged at Bulawayo Prison for a period of ninety (90) days unless the defendant sooner satisfies the judgment granted against him by this court under HC982/12.

2. The order in paragraph (1) is suspended on condition the defendant pays US$2,000= per month with effect from the end of the month of January 2013.

3. The defendant shall pay costs of this suit on the ordinary scale.

The applicant is the beneficiary of an order of this court, per MUSAKWA J, issued against the first and third respondents on 21 March 2013, to writ;

“IT IS ORDERED THAT:

1. Default judgment be and is hereby granted as against the 1^st defendant and 2^nd defendant(s).

2. It is be and hereby ordered that the 1^st and 2^nd defendant(s) reallocate another Stand in Chitungwiza, measuring 400 square metres in a serviced area, to the plaintiff.

3. 1^st defendant and 2^nd defendants be and (are) hereby ordered to pay the costs of suit.”

The order was granted following an action instituted by the applicant, which the respondent saw no need to defend, seeking to enforce an agreement entered into on 15 July 2010 with the third respondent, which I shall refer to as “the Municipality”, in terms of which she was allocated Stand Number 33075 Unit H, Chitungwiza on a lease to buy basis. To the applicant's chagrin, after paying the full purchase price for the Stand, the Municipality was unable to complete the transaction and let her develop it after discovering that the area where it was located was set aside for recreational purposes.

Although other people who had been allocated Stands in the same recreational area were allocated replacement Stands elsewhere, the applicant was not that fortunate which prompted her to litigate against the Municipality and its Director of Housing seeking a replacement Stand. She obtained the order which I have quoted above in default of opposition.

This is an application for contempt of court.

The facts of this matter are common cause. The applicants were employed by the respondent as Assistant Human Resources Managers Grade 5. A dispute involving the applicants' grade was referred to arbitration on 2 March 2012. The applicants obtained an arbitral award in their favour. The award was registered with this court in terms of section 98(14) of the Labour Act [Chapter 28:01] for purposes of enforcement. The operative part of the award reads as follows.

“1. The respondent to carry out a job evaluation of the claimants' job within 14 working days from the date of receipt of this award.

2. Failure to implement the award within the stipulated timeframe, the claimants will be automatically elevated to Grade 4 with effect from the date of the award.”

The applicants have lodged this application for contempt of court on the basis that the respondent did not comply with the above award. The applicants seek the following order;

“1. That the respondent be and is hereby declared to be in contempt of court. 

2. That the respondent be and is hereby ordered to comply with the arbitral award registered by this Honourable Court on 19 April 2012 upon being served with this order failing which the Sheriff of the High Court be and is hereby authorized to arrest and commit the Respondent to Harare Central Prison for a period of 30 days or until the respondent has purged his contempt.

3. Costs.”

The applicants submitted that the respondent failed to comply with the award in that no job evaluation was carried out in respect of the applicants' posts. The applicants contended that the respondent adopted a general job evaluation exercise involving a complete restructuring and re-design exercise that was not directed at the applicant's jobs and endorsed it as the job evaluation in terms of the award and that the posts evaluated are not the applicants' posts. The applicants further aver that the job evaluation for the applicants was accelerated in order to comply with the time frame stated in the arbitral award. The applicants further contend that some aspects of their job description had been removed when the evaluation was carried out. They challenge the manner in which the evaluation was conducted.

The respondent contends that the application for contempt of court lacks a proper basis as it neither disobeyed nor neglected to comply with the arbitral award. The respondent contends that it conducted an evaluation exercise and produced a report within the prescribed time thereby complying with the award.

The primary objective of contempt proceedings is to compel compliance with the court's order.

In Levy v Benator 1987 (1) ZLR 120 (S), contempt of court was defined as “a wilful and mala fide refusal or failure to comply with a civil court order constituting a contempt for which the State can prosecute.” The applicant is required to show, factually, breach of the order. The following sentiments in Minister of Lands and Ors v CFU 2001 (2) ZLR 457 (SC) per CHIDYAUSIKU CJ are pertinent. He remarked as follows:

“CJ MILLER, in his book, Contempt of Court 2^nd ed at 423-4, had this to say on the issue of contempt of court; 

'Before a finding of contempt of court can be made it is necessary to determine whether there has been a factual breach of an order or undertaking 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 or to abstain from doing.'”

Before a finding of contempt of court can be made, the court must establish whether the applicant has shown, as a fact, that the respondent breached the court order. The applicant must also show that the respondent has wilfully disobeyed or neglected to comply with the court order. See Consolidated Fish Distributors (Pvt) Ltd v Zive & Ors 1968 (2) SA 17.

An applicant seeking an order for contempt of court is required to establish the following;

a) That an order was granted against the respondent.

b) That the respondent is aware of the order.

c) That the respondent wilfully disobeyed or neglected to comply with it.

The respondent concedes that the first two requirements were met. It denies that it disobeyed or neglected to comply with the order.

The applicants were employed by the respondent as Assistant Human Resources Managers, Grade 5. On 22 March 2012, the respondent wrote to the applicants advising them of the outcome of the job evaluation and attached a report. The report was received by the respondent on 2 March, which was a Friday. The days start running from 5 March 2012, which is a Monday, until 22 March 2012.The evaluation report came within 14 days as stipulated in the award.

The evidence on the papers discloses that there was a longstanding dispute between the parties over the issue of grades. There was already a general evaluation exercise that was in process. After the award, discussions and reports over the Assistant Human Resources Manager post ensued. The respondent submitted that the applicants were not cooperative and were bent on frustrating the process; that they refused to submit job descriptions or be interviewed. As a result, a meeting was held, on 20 March 2012, between the applicants and the consultants. The minutes of that meeting record that the consultants asked for the applicants' job description of the post which was going to be evaluated. The applicants' concerns were that they had not been consulted on the choice of consultants who would carry out the evaluation and that no method had been prescribed for the evaluation. The meeting agreed that the applicants would participate in the evaluation though under protest. Lorimak Consultants Holdings produced an evaluation report dated 21 March 2012. It shows that a job evaluation and grading exercise for the following post, Chief Accountant, Assistant Human Resource Manager was carried out. The evaluation placed the position of Assistant Human Resources Manager in Grade 7, which is a lower Grade. The consultants wrote in their report that the job evaluation exercise required interviews of the applicants. It records that the applicants were engaged and that they were not co-operative and were not interviewed in respect of their posts and this delayed the report. They evaluated their job description which they were given by their supervisor.

It is difficult to understand the applicants' argument that their post was not evaluated. Whilst they state that the post evaluated is not the applicants' post, they say, in another vein, that their evaluation was accelerated. It is clear from the foregoing that the respondent did engage in a process of job evaluation for the Assistant Human Resources Manager post and a report was compiled.

A party bringing contempt of court proceedings is required to show that there has been a factual breach of the order. The arbitral award was complied with. Whilst the applicants' concerns with regards the manner in which the evaluation was conducted may be valid, the court notes that there was no method prescribed by the arbitrator for carrying out the exercise. Contempt of court proceedings are a wrong procedure for challenging the fairness and substance of a job evaluation process. I am unable to find, as a fact, that the respondent disobeyed or neglected to comply with the award. I am satisfied that the order was complied with. In the result, I find as follows;

The respondent in this case, the Gospel of God Church International 1932 (hereinafter referred to as “the Church”) was founded by one Johane Marange in 1932.

Since it was founded, the Church has spread to a large portion of the continent. Its headquarters are located in Zimbabwe. The founder is buried at Marange, wherein a shrine in his memory has been established.

The Church has also, over the years, acquired considerable assets, both movable and immovable. The very existence of the shrine, and the assets, has produced strife between the followers of the Church which has seen countless disputes between competing factions and interests being filed for adjudication by these courts.

The present appeal is concerned with a dispute surrounding regalia associated with the Church as well as other property belonging to the Church, and who should legally possess such items.

The background to this appeal is as follows:

On 8 September 2009, the Church, under Case No. HC4101/09, filed a court application for certain relief, the particulars of which do not appear from the record.

The appellants, to whom the application was addressed, then filed a notice of opposition to which an opposing affidavit was attached.

Incorporated in the notice of opposition was a counter-application, and, notwithstanding the absence of a formal application for a counter application, in the opposing affidavit, the appellants made reference to such counter application and attached a draft order to the opposing affidavit.

The Church, for reasons that are not germane to the resolution of this dispute, did not file an answering affidavit.

Sometime in October 2009, officers of the Church discovered that the “counter application” referred to in the opposing affidavit filed under Case No. HC4010/09 had been granted by the High Court on 28 October 2009 in Motion Court.

It is common cause that the Church had not been served with a notice of set down.

As a consequence, the Church, under Case No. HC5403/09 filed a court application for the rescission of the default judgment in question.

The High Court ordered that the default judgment granted on 28 October 2009, under Case No. HC4101/09, be set aside.

Following upon the default judgment under Case No. HC4101/09, which was concerned with relief under the counter-application, the appellants sought compliance with the order from the Church and those of its members whom they considered to be bound by the order.

The Church, however, did not comply with the default order and chose, instead, to have the judgment rescinded resulting in the appellants instituting an application for contempt under Case No. HC976/10.

Even though the order under the counter application had been obtained against the Church only, the appellants, under Case No. HC No.976/10 sought an order of contempt against the Church, Zebron Pedzisai Nengomasha, Era Tapera, Jacob Machiha, Sara Muungani, Sesi Catherine, and Masawi Mhizha.

The order also sought for the committal of the named respondents to prison for contempt.

The allegations against the respondents, including the Church, were that they had failed or refused to comply with the order issued in default against the Church and granted in the counter application.

Both applications, the one for rescission and for contempt of court, were placed before one judge who then caused them to be set down for hearing at the same time.

As a consequence, the learned judge granted the application for rescission and set aside the order granted under the counter-application. The application for an order for contempt was dismissed. The terms of the composite order issued by the court are as follows:

“For the avoidance of doubt, the order of the court in HC5403/09 is as follows:

1. That the order granted by this court on 28 October, in HC4101/09, be and is hereby set aside.

2. That the applicant is granted leave to file the answering affidavit to the application in HC4101/09 within seven (7) days of this order.

3. That the respondents shall pay the applicant's costs.

The order of the court in HC976/10 is as follows:

It is ordered that the application be and is hereby dismissed with costs.”

It is against the above order that the appellants have appealed to this Court. The grounds on which the appeal is premised are the following:

That the court a quo erred and misdirected itself in:

1. Granting the respondent audience when the respondent was in clear contempt of court.

2. Treating the application in question as an application made in terms of Rule 449 of the High Court Rules.

3. Ruling that the default judgment was erroneously granted in circumstances where the judge had condoned non-compliance of the Rules.

WHETHER THE COURT SHOULD HAVE DENIED AUDIENCE TO THE RESPONDENTS DUE TO DIRTY HANDS

It was contended by the appellants that a court should deny audience to a party that is in contempt of court. It was further argued, on behalf of the appellants, that, the Church had not complied with the default judgment granted under Case No. HC4101/09 and, that, consequently, the Church should have complied with the judgment before seeking its rescission.

The contention by the appellants is that the respondent and its agents were aware of the judgment as an application for its rescission was filed. The appellants submitted, further, that, the Church and its human agents had a duty, at law, to abide by the order notwithstanding their views about the nature of the order and the application for rescission which was pending before the court. It was argued, further, that, the Church was not entitled to simply ignore the order or refuse to abide by it on the premise that the order was invalid.

The order granted under Case No. HC4101/09 was in the following terms:

“1. Respondents (appellants in this case) be and are hereby declared to have a right to peacefully visit and worship at the shrine.

2. Sister Dazi Dhliwayo be and is hereby declared the lawful President.

3. All church members who recognize Era Tapera as President, including Zeburon Pedzisai Nengomasha, be and are hereby ordered not to unlawfully prohibit the respondents and other church members from visiting at the shrine.

4. All the applicant's purported officer bearers listed in the application be and are hereby ordered to maintain peace towards the respondents.

5. Each party to meet its own costs.”

The crime of contempt of court is committed intentionally and in relation to administration of justice in the courts. This was captured in lucid terms by ZIYAMBI JA in Moyo v Macheka SC55-05…, quoting with approval GOLDIN J in Haddow v Haddow 1974 (1) RLR 5…, thus;

“The object of proceedings for contempt is to punish disobedience so as to enforce an order of court and in particular an order ad factum praestandum, that is to say, orders to do or abstain from doing a particular act. Failure to comply with such order may render the other party without a suitable or any remedy, and, at the same time, constitute disrespect for the court which granted the order.”

See also Whata v Whata 1994 (2) ZLR 277 (S); Sheetlite Mining Company Ltd v Mahachi 1998 (1) ZLR 173 (H).

Before holding a party to be in contempt of a court order, a court must be satisfied that;

(i) There is a court order which is extant;

(ii) That the order has been served on the individuals concerned; and

(iii) That the individuals in question know what it requires them to do or not do; that knowing what the order dictates, the individuals concerned deliberately and consciously disobeyed the order.

In addition to the above, the court must be satisfied that, not only was the order not complied with but also that the non-compliance, on the part of the defaulting party, was wilful and mala fide.

In Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S) GUBBAY CJ said:

“The finding was res judicata. In none of the subsequent proceedings was any new or different circumstances revealed; nor could they have been. I entertain no doubt that GARWE J was correct in concluding that the appellant remained bound by the order and had failed to comply with it.

Once it was established that the order had not been met, which of course was common cause, wilfulness and mala fides, on the part of the appellant, was properly inferred, with the onus upon him to rebut the inference on a balance of probabilities.

See Haddow v Haddow 1974 (1) RLR 5 (G) at 6; Gold v Gold 1975 (4) SA 237 (D) at 239F-G.

It may be, as indicated by BAKER AJ (as he then was) in Consolidated Fish Distributors (Pty) Ltd v Zive & Ors 1968 (2) SA 517 (C) at 521A-522A that wilfulness and mala fides are identical in direct contempt cases, whereas malafides is an essential element in constructive contempt. However that may be, I agree with the learned judge that the appellant failed completely to discharge the requisite onus.”…,.

An applicant seeking such an order must set out clearly, in his application, such grounds as will enable the court to conclude that the onus resting upon the applicant, of proving the contempt, has been discharged.

The applicant must also prove that the respondent has failed to comply with the order.

It is trite, that, before seeking to enforce an order through contempt proceedings, it is necessary to prove that the judgment or order which is alleged to have been disobeyed has been properly served.

The applicant must also show that the order with which the respondent has failed to comply has either been served upon him personally or has come to his personal notice.

The general rule is that no judgment or court order will be enforced by process of contempt unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question.

In considering whether or not the appellants can rightly contend that the Church's officers were guilty of contempt of court, it is necessary to have regard to the order issued in favour of the appellants.

Paragraph 1 of the order grants the appellants a right to worship at the church and does not appear to require discussion.

Paragraph 2 is a declaratur in favour of one of the widows of the founder and requires no further comment.

Paragraph 3 is an interdict which appears to be directed at all members of the respondent who belong to a particular faction of the respondent.

The last two paragraphs also require no comment.

The learned judge in the court a quo, found, rightly so in my view, that, in the main application, the Church was the only applicant and therefore it could be the only respondent in the counter-application.

The learned judge said:

“…,. Thus, the parties cited as respondents in HC976/10 were not parties to the proceedings in HC4101/09.

As they were not parties to the matter in HC4101/09 there would be no justification for them being cited as respondents in the application for contempt of court.

If there is any justification for so citing them, it would still be necessary for them to each be personally served with the order and the application.

With the exception of the second respondent, who was served with the court application for contempt of court on 19 February 2010, there is no such evidence of personal service on the rest of the respondents.

Notably, service on the second respondent was effected at 19534 Unit E, Seke, Chitungwiza. The return of service by the Deputy Sheriff who proceeded to serve the order in HC4101/09 at Gandanzara states that the order was 'served on the ground.'

In the circumstances, the order, having been apparently left or placed on the ground there was no service on any specific person.

Neither is there any evidence that the respondents, or any of them, prevented the Deputy Sheriff from effecting service. The three people who are named as and said to have been among the group of people that prevented the Deputy Sheriff from effecting service are not parties in this matter…,.

…,. There is also no evidence to the effect that the second respondent was party to the conduct alleged to constitute the contempt complained of by the applicants. There is no evidence that he was at the shrine at Gandanzara on 3 February 2010 when the applicants allege they were prevented from entering the shrine. He is not named in the applicants' affidavits as having been part of the group that prevented the applicants from entering the shrine. It is of note that the application for contempt of court was not served on any of the respondents.”

The court a quo correctly found that the appellants had not established that an order had been granted against all the respondents against whom the order of contempt was sought - with the exception of the Church.

The appellants did not show that the order had been served against any of the respondents, and, further, that having been served with the order any of the respondents wilfully disobeyed it.

The only proof of service filed in relation to the order was that service had been effected on the ground. This does not constitute service for an order for contempt especially where an order for commitment follows upon a finding of guilt.

For such an order, the Rules of the High Court require personal service in peremptory terms: Order 5 Rule 39(1).

Further to this, the Church cannot be subject to an order or committal. Consequently, in the circumstances of the case, the court could not find that any of the parties cited was guilty of contempt of court.

In my view, the learned judge was justified in dismissing the application for an order of contempt.

CONTEMPT OF COURT

During the hearing of this matter, the applicant's counsel was asked whether the applicant had issued certificates nolle prosequi as ordered by the Supreme Court and the High Court.

His simple response was that he had no instructions in that regard and he duly proceeded with argument in support of the present application.

Mr Warara, who acted for Francis Maramwidze in the High Court case, confirmed that the requisite certificate nolle prosequi had not been issued.

The simple fact of the matter is that the applicant has not complied with the orders in question and has proffered no explanation whatsoever for such non-compliance. He has, for some reason, seen it fit to disregard court orders; and yet he expects this Court to overlook his wanton and cavalier nonchalance.

For the applicant to refuse to obey court orders, and then to avoid answering the critical question as to why he has not, is tantamount to exhibiting flagrant contempt for this Court. This type of contempt in facie curiae cannot be countenanced by the Court. We have a duty to protect our processes from abuse and scandalous impunity. As was pointedly observed by CHIDYAUSIKU CJ in Associated Newspapers of Zimbabwe (Private) Limited v The Minister of State for Information and Publicity in the President's Office & Others SC20-03:

“The Court will not grant relief to a litigant with dirty hands in the absence of good cause being shown or until such defiance or contempt has been purged…,. This Court is a court of law, and, as such, cannot connive at or condone the applicant's open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards….,. In the absence of an explanation as to why this course was not followed, the inference of a disdain for the law becomes inescapable.”

On 5 June 2013, this court, MATHONSI J, registered an arbitral award that had been granted in favour of the applicant (hereafter referred to as “Sithole”). Paragraph 2 of that order directed the respondent (hereafter referred to as 'Kingstons') to sell to Sithole a certain Mazda vehicle (hereafter referred to as 'the vehicle') at book value as per Kingstons' motor vehicle policy.

That was not done.

On 8 April 2014, Sithole applied for contempt of court. The draft order was couched as follows:

“1. The Respondent be and is hereby declared to be in contempt of Court and hereby ordered to comply with the High Court order dated 5^th of June 2013 under case number 3681/13 within 5 days of this Court Order.

2. In the event that the Respondents (sic) fail to comply with paragraph one (1) above, be (sic) and is hereby fined $US10,000= (sic) and the committal to prison of the General Manager for 60 days at a designated prison (sic).

3. The Respondents (sic) to pay the applicant's costs of suit at the legal practitioner-client scale.”

Following criticism by myself on the reference to committal to prison in paragraph 2 of the draft order of someone whose name was not mentioned; whose “sins” had not been tabulated; and where service of process had not been effected upon him personally, as required by Order 5 Rule 39(1) of the Rules of this Court, which directs, in peremptory terms, that process in relation to a claim affecting the liberty of a person shall be served on him personally, counsel for the applicant, moved for an amendment to the draft order to delete the reference to committal to prison.

Kingstons admitted that it had not complied with the court order. However, it denied that its failure had been wilful. It said the vehicle, to Sithole's knowledge, was held up at the auctioneers. It had been attached by the Sheriff in pursuance of a writ issued by Sithole himself. The auctioneers were demanding a whopping US$4,600= in storage costs. They were exercising a lien over the vehicle and therefore would not release it without payment of the amount. Sithole was accused of not having joined the auctioneers to the action.

That the vehicle was being held up at the auctioneers had not been mentioned in Sithole's founding papers. His reply on the point was wishy-washy. He latched onto the misjoinder argument and said the auctioneers had no interest in the matter and so could not have been joined. He was adamant that as far as he was concerned the vehicle was in the possession and control of Kingstons. However, in court, counsel for the applicant conceded that the vehicle was held up at the auctioneers.

During argument, I queried both parties' stance. All that the court had directed Kingstons to do was to “sell” the vehicle to Sithole. The order had not directed it to sell and deliver the vehicle. The fact that the vehicle could have been in the custody of someone else could not have been a hindrance to Kingstons complying with the court order. The question of the auctioneers' storage charges and their supposed lien over the vehicle were separate matters altogether.

After the parties had conferred between themselves, and after several exchanges with myself, the matter was resolved on the basis that Sithole would withdraw his application and the parties would engage in dialogue in terms of which Kingstons would comply with the court order by selling the vehicle to Sithole whereafter both parties would engage the auctioneers to resolve the question of the storage charges.

I stressed that I would endorse the basis upon which Sithole was withdrawing his application so as to prevent Kingstons from reneging later on. Thus, the matter was concluded as follows:

Section 182 of the of the Criminal Law (Codification and Reform) Act [Chapter 9:23] creates the offence of Contempt of Court. It reads as follows;

“182 Contempt of Court

(1) Any person who, by any act or omission, impairs the dignity, reputation or authority of a court;

(a) Intending to do so; or

(b) Realising that there is a real risk or possibility that his or her act or omission may have such an effect; shall be guilty of contempt of court and liable to a fine not exceeding level six or imprisonment for a period not exceeding one year or both.”

Section 182 of the of the Criminal Law (Codification and Reform) Act [Chapter 9:23] goes on, in sub-section (2) to outline circumstances in which the offence may be committed as follows;

“182(2) without limiting subsection (1), a person may impair the dignity, reputation or authority of a court by doing any of the following acts -

(a) Having been properly summoned as a party or witness in any judicial proceedings to attend any court for the purpose of giving evidence or producing any document or thing before the court;

(i) Intentionally, or through negligence, failing to attend the court in accordance with the summons; or

(ii) And having attended the court, refusing to give evidence or to produce the document or thing, as the case may be; or

(iii) Refusing, as a witness, to answer any question put to him or her which he or she is lawfully required to answer;

(b) Obstructing, interrupting or disturbing judicial proceedings;

(c) Misbehaviour in court;

(d) Insulting a judicial officer or officer of court in the course of judicial proceedings;

(e) Knowingly contravening or failing to comply with any order of a court which is given during or in respect of judicial proceedings and with which it is his or her duty to comply;

(f) By words, conduct or demeanour pretending to be an officer of the court;

(g) Issuing or publishing to any other person a document that purports to be issued by or emanate from a court, knowing that the document is not issued by or does not emanate from the court concerned;

(h) Publishing evidence that has been given in camera or which the court has ordered should not be published.”

On 17 June 2014, the applicant obtained a provisional order against the first respondent and the Minister of Lands and Rural Settlement. The order is in the following terms:

“Pending the return day, the following relief is granted:

1. The 1^st respondent be and is hereby interdicted and barred from taking occupation of, or bringing cattle onto the piece of land, namely, a farm known as Subdivision A of Centenary, measuring 1304,5441 hectares situate in the Bulilima District.

2. The 2^nd respondent is interdicted from taking any steps to evict the applicant from the farm described above.

3. It is hereby declared that until this application is determined on the return day, the applicant and all claiming occupation through it are entitled to remain in peaceful occupation of the farm and to continue operations on the farm undisturbed.

4. In the event that the 1^st respondent, or any party claiming occupation through him, has, by the time of service of this order, taken occupation of the farm, it is ordered that the 1^st respondent or any such person shall vacate the farm immediately and restore occupation and possession to the applicant.

5. In the event of a party referred to in paragraph 4 above failing to vacate the farm in accordance with this order, the Deputy Sheriff is authorized and directed to evict such party from the farm.

6. Service of this application and provisional order

That the service of this provisional order and application shall be served on the parties as follows:

(a) On the 1^st respondent, at 92C Napier Avenue, Hillside, Bulawayo.

(b) On the 2^nd respondent, at Gwanda Ministry of Lands Offices.

(c) Applicant's legal practitioners, correspondent legal practitioners or a messenger in their employ are authorized to serve the provisional order and process as stated above.”

The facts of this matter are as follows:

The applicant is the owner of a piece of land situate in the district of Bulilima in the Figtree area known as Subdivision A of Centenary. The first respondent claims to be the holder of an offer letter issued by the Minister of Lands and Rural Resettlement. On 1^st May 2014, the first respondent arrived at the farm brandishing an offer letter authored by the second respondent and informed the applicant's workers that he would be taking occupation of the farm on the 1^st of August 2014. Subsequently, on 25^th May 2014, a person who identified herself as the first respondent's wife arrived at the farm and announced that she would be taking occupation on the 1^st of June 2014.

The applicant then brought an urgent application for an order interdicting the first respondent from taking occupation of the farm.

Despite being served with the application, the first respondent did not appear in court leading to the granting of the provisional order referred to above in the form in which it was sought. The provisional order was served on the first respondent on 27 June 2014 and the first respondent opposed the application through his legal practitioners of record.

Despite knowledge of the provisional order, under case number 1204/14, the first respondent did not comply with its terms resulting in the applicant filing this urgent chamber application against the first respondent on the grounds that he is in contempt of the order of court issued in HC1204/14 and for an order declaring him to be in contempt and other relief.

The basis of the application is set out in the applicant's founding affidavit, deposed to by David John Connolly, a Director of the applicant. In summary, the grounds are as follows:

1. Between the 1^st of August 2014 and the 6^th of August 2014, the first respondent began to systematically take occupation of the farm and to evict the applicant's employees and its livestock - the provisional order notwithstanding.

2. On 4 August 2014, a letter was done and addressed to the first respondent's legal practitioners in the hope that they would advise him to desist from taking occupation of the farm but that did not stop the first respondent.

3. Earlier, on 1^st of August 2014, the first respondent, his wife, employees and other persons, acting at his behest, moved tractors, trailers, ploughs and other implements onto the property.

4. Also, the first respondent brought various household goods, including beds, wardrobes, satellite dishes etc which have been dumped on the verandah of a house occupied by David John Connolly.

5. Further, the employees of the first respondent rounded up the applicant's cattle and drove them, without the consent of the applicant, off the property onto a neighbouring property owned by the applicant causing, in the process, overcrowding, extremely detrimental to the applicant's pedigree breeding programme.

6. Between the 1^st and the 6^th of August 2014, the first respondent ordered the applicant's employees to vacate their accommodation and some left for neighbouring farms resulting in a reduction of the labour force.

The first respondent opposed the application. In his opposing affidavit he states:

1. No eviction has taken place on the land in question and he has not interfered with the applicant's operations.

2. On 1^st of May 2014, he personally approached Mr Connolly and advised him that that portion of the land had been gazetted and offered to him and he therefore wanted to take occupation in terms of the law on the 1^st of August 2014. He returned on the 1^st of August 2014 to assess the progress as regards “winding up operations”.

3. Further, the first respondent denied that he had systematically taken occupation of the farm but admitted that he “stationed only 7” of his workers to “monitor applicant's progress in winding up operations”. Also, the first respondent admitted to have moved farm implements onto the land in question but denied carrying out any farming activity pending the outcome in case number HC1204/14.

4. The first respondent admitted that the “monitoring team” brought household goods to the farm. According to the first respondent, there is nothing amiss with that, since applicant is in unlawful occupation of gazetted State land long after the expiry of the statutory 90-day period.

5. It was denied that the monitoring team was interfering with the applicant's operations by evicting the applicant's workers from their accommodation.

6. Further, the first respondent stated that the application should have been brought by way of court application on notice rather than by way of Chamber Book. For that reason, it was said the relief sought is incompetent at law. It was also stated that the application is not urgent in that the alleged interference started between the 1^st and 6^th of August 2014 yet this application was filed on the 13^th of August 2014, some 7 days after. Finally, the first respondent contended that there is no financial prejudice that is being suffered by the applicant in that it has been allowed an “extended time to harvest its ripe crop and is delivering same to the market.”

The applicant filed an answering affidavit wherein it attached, as annexure RA1, a list of the employees who had been put out of their homes by the first respondent. Also attached, as annexure RA2, is a bundle of photographs which show, amongst other things, the following:

1. The wife of one of the first respondent's workers living in the applicant's Irrigation Foreman's house;

2. Bags of cement brought by the first respondent and stored between milk tanks in the applicant's dairy;

3. A Massey Ferguson 240 tractor and various other agricultural implements belonging to the first respondent;

4. A building under construction by the first respondent; and

5. Locks placed by the first respondent's workers on the doors of staff houses after the eviction of the applicant's workers.

The essentials of contempt of court are the following:

(i) That the person charged with contempt had knowledge of the court order;

(ii) That such person was aware of the constraints placed upon him by the court order;

(iii) That the person disobeyed the court order; and

(iv) That the disobedience was willful.

See Wilson v Minister of Defence & Ors 1999 (1) ZLR 144 (HC); Scheelite King Mining Co (Pvt) Ltd v Mahachi 1998 (1) ZLR 173; and Mudzimu v Municipality of Chinhoyi & Samuriwo 1986 (1) ZLR 12 (HC).

Further, it is trite that where defiance has been proved, the onus rests on the respondent to show that such defiance was not willful or mala fide – see Lindsay v Lindsay 1995 (1) ZLR 296 (S); Macheka v Moyo 2003 (2) ZLR 49; and John Strong (Pvt) Ltd v Wachenuka [2010] ZWHHC 44.

In casu, the first two requirements are common cause in that the first respondent admitted that he was aware of the court order and the constraints placed upon him by it. In fact, it is not surprising that he readily admitted knowledge of the provisional order. This is so because the first respondent was served with the provisional order through his legal practitioner of record on the 27^th of June 2014.

Secondly, the applicant's legal practitioners wrote a letter to the first respondent's legal practitioners on 4 August 2014 highlighting the existence of the order and requesting the first respondent to act in accordance with it. Thirdly, the first respondent has opposed the confirmation of the provisional order by filing an opposing affidavit and heads of argument in case number HC1204/14. This provisional order places the first respondent under various constrains contained in paragraphs 1 to 4. Finally, this order restrained the first respondent from taking occupation of the farm, bringing cattle onto the farm, or evicting the applicant from the farm.

What is in issue is whether or not there was defiance of the court order by the first respondent.

Again, it is difficult to understand why the first respondent contends that there was no defiance in view of the evidence - the bulk of which is common cause. The following conduct has been admitted by the first respondent during the hearing;

1. That he moved his workers onto the farm who padlocked the residences against re-entry by the applicant's workers – see annexure RA 2.

2. That he moved his farm implements and equipment onto the farm.

3. That he brought household furniture onto the verandah of a residence on the farm (paragraph 8 of the opposing affidavit).

4. That he brought building materials onto and had started building on the farm (annexure RA 2).

In my view, there can be no doubt that these actions, carried out after the first respondent became aware of the court order, show that he has indeed acted in defiance of that court order.

Having found that the first respondent acted in defiance of the constraints placed upon him by an order of court, the next question becomes whether such defiance has been willful. See Ex parte Mushambi 1989 (2) ZLR 191 (HC).

The onus rests on the first respondent to show that his disobedience of the court order was not mala fide.

At this point, it is necessary to closely examine the first respondent's papers to see whether the onus is discharged. In his opposing affidavit, the first respondent appears more focused on asserting a right on his part and lack of a right on the part of the applicant. Put differently, the first respondent feels justified for taking occupation of the farm through his workers and property. These justifications were stated as follows:

(a) The employees who are on the property are there for the purposes of “monitoring” the applicant. Surprisingly, the first respondent does not state how this sits in accord with an order which debars him from interfering with the applicant's operations and from moving onto the farm.

(b) The household property is for use by the monitoring team. However, it is not stated how this monitoring is in accord, and not in discord, with the provisional order. More interestingly, however, having denied that he has evicted any employees of the applicant from their accommodation the first respondent omits to state where this team is presently residing or sleeping.

(c) Implements and equipment have been brought onto the property, but no activities are going on. This, however, is in blatant contrast with photographic evidence that show that the first respondent had started building on the farm.

(d) The first respondent not only met the applicants' representatives and the police, who attempted to explain to him the exigencies of the order, but declared to them that he would not be removed by any Messenger of the Court.

These factors, in my view, prove that the first respondent willfully disobeyed the court order. Quite clearly, by putting his employees in the staff quarters and his farm equipment on the farm, the first respondent has effectively taken occupation of the farm - which conduct is specifically prohibited by the provisional order.

It appears from the first respondent's papers that he is be-labouring under a misconception that possession of an offer letter, per se, grants him the right to resort to self-help in evicting the previous owner or occupier of gazetted land. Self help is frowned upon by the law because it is inimical to the rule of law. Holders of valid offer letters should follow the specific procedure outlined in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] when seeking to evict previous owners or occupiers of gazetted land. The spirit of this Act is the provision of a legal framework that enables due process to ensue where eviction is sought. A key component of this process is that an Eviction Notice is issued, in writing, by the acquiring authority (that is the Minister of Lands) and not by the beneficiary or holder of an offer letter.

As regards the relief sought, it should be noted that contempt of court is a serious infraction in that it strikes at the heart of the rule of law. Consequently, those found liable must be sufficiently punished.

Accordingly, there shall be an order in the following terms:

1. It is declared that the first respondent is in contempt of court.

2. The first respondent, together with his employees and all persons occupying through him, are ordered to fully comply with the provisional order issued in case number HC1204/14 and shall do so by fully vacating the farm known as Subdivision A of Centenary, measuring 1304,5441 hectares, situate in the Bulilima District, and removing all livestock and movable assets within 48 hours of service upon the first respondent of this order.

3. Any person and/or property remaining upon the property in defiance of paragraph 2 shall be evicted by the Sheriff of this Court.

4. The second respondent shall provide an escort and any physical assistance necessary to the Sheriff during service and execution of this order.

5. The first respondent be and is hereby sentenced to 90 days imprisonment suspended on condition that he complies fully with this order and the provisional order in case number HC1204/14 within 14 days of the date of this order.

6. The first respondent shall pay the costs of this application on attorney and client scale.

In Mjeni v Minister of Health and Welfare, Eastern Cape, 2000 (4) SA 446 Jafta J said:

“A deliberate non-compliance or disobedience of a court order by the State, through its officials, amounts to a breach of [a] Constitutional duty [imposed by s165 of our Constitution]. Such conduct impacts negatively upon the dignity and the effectiveness of the courts….,.

The Constitutional right of access to courts would remain an illusion unless orders made by the courts are capable of being enforced by those in whose favour such orders were made. The process of adjudication and the resolution of disputes in courts of law is not an end in itself but only a means thereto - the end being the enforcement of rights or obligations defined in the court order.

To a great extent, section 3 of Act 20 of 1957 {immunity from execution clause} encroached upon that enforcement of rights against the State by judgment creditors.”

The peremptory provisions of Order 43 Rule 388 of the High Court Rules, 1971 are very clear on the form a contempt application must take. It can never be by way of an urgent chamber application unless it falls within the exceptions laid down in Order 32 Rule 226(2) of the same Rules.

The respondent was clearly in contempt of the Magistrates Court order…,. The respondent's conduct is contemptuous and deplorable, and he clearly showed a blatant disregard for court processes…,.

The starting point in this appeal is to restate what I said in Mathuthu v Chegutu Municipality & Others HH502-14 that:

“The authority, dignity and respect of courts of law should never be demeaned, prejudiced or undermined. It behoves the subject to bow to the decision of the court and, where there exists a remedy, to then pursue that remedy elsewhere. This is extremely important for the proper administration of justice.”

The appellant and the respondent are unfriendly neighbours occupying Plots number 12 and 13 Helenvale, Umguza, respectively, but have been fighting tooth and nail since year 2012 over a boundary dispute even though there are clear pegs marking each of the plots. The dispute over the demarcation of the plots forced the appellant to sue out a summons in the Magistrates Court of Bulawayo in case number 6187/12 complaining about the respondent's actions of erecting a homestead on his own plot. He sought an order evicting the respondent from that part of the land falling within the precincts of Plot 12 Helenvale, Umguza.

The respondent initially contested the action averring in his plea that there had been no boundary dispute between the parties until DDF and the Ministry of Lands officials came and re-pegged the plots resulting in the disputed 30 metre strip of land falling within Plot 12 belonging to the appellant. He further averred that the parties had agreed that he would compensate the appellant for the strip by ceding an equivalent portion to the south of his plot to the appellant given that he had built structures on the strip belonging to the appellant.

Believing that the respondent had not a bona fide defence, the appellant filed a summary judgment application. The respondent still contested the application, surprisingly stating that:

“Never at any given time did I refuse or imply to refuse to leave the plaintiff's plot, for when I did the construction it was bona fide and a fact that can be confirmed by lands officers or the responsible authority.”

The parties then filed a consent order signed by both of them which was then granted by the court on 10 January 2013. It reads:

“IT IS HEREBY ORDERED THAT:

1. Respondent be and is hereby ordered to relocate a portion of his homestead and cease carrying any agricultural activity on any fields that fall within applicant's plot by the 31^st August 2013 without fail.

2. The parties are hereby ordered and directed to complete the construction of their plot's boundary fence by the 31^st August 2013 without fail.

3. The parties be and are hereby ordered to keep peace towards each other.

4. In the event that any of the parties herein fail, refuse or neglect to comply with paragraph 1 and 2 of this order, the Messenger of Court, Bulawayo be and is hereby empowered to enforce this order including but not limited to the eviction of respondent and enforcing the construction of the boundary fence as alluded to in paragraph 1 and 2 herein above.

5. No order as to costs.”

It is common cause that after the consent order was granted the respondent did not relocate his homestead and that the appellant had to issue a writ of ejectment against him. It is common cause that the Messenger of Court executed the writ by evicting the respondent between 15 and 19 September 2014. He stated in his return of service:

“Full eviction carried out, defendant present, premises handed over to Mr P Moyo.”

The eviction process involved the demolition of the respondent's homestead and he confirmed at the hearing of this appeal that indeed the Messenger of Court demolished the homestead constructed on Plot 12 belonging to the appellant.

It is also common cause that prior to the eviction, the pegs demarcating the plots had been affirmed by the Ministry of Lands. In a letter to the officer in charge of Saurstown Police Station on 2 September 2014 the District Lands Officer had stated:

“REF: ILLEGAL OCCUPATION OF PLOT NO. 12 HELENVALE M

Sir, please be informed that our office received a complaint from Mr Petros Moyo I.D No 08-244845 B 39 over the illegal occupation of his plot, Plot 12 Helenvale M. Plot No.12 Helenvale M was offered to Mr Petros Moyo by the Ministry of Lands and Rural Resettlement in the year 2002. Pegging of Plot 12 was done successfully by the Ministry on the 13^th and 14^th of August 2014. The pegging confirmed that the two plot holders, Mrs Thalitha Mhlanga and Mr Robert Ncube, who are Mr Moyo's neighbours, are within the boundaries of Plot 12. Mr Moyo is also in possession of a court order issued sometime in 2013 of which the two illegal settlers were supposed to vacate his plot by the 31^st of August 2013. May you please assist him in whatever way possible.

Thank you.

P Ndlovu

District Lands Officer”

It is common cause that after eviction carried out in September 2014, the appellant erected a boundary fence marking the distinction between Plots 12 and 13 and that in December 2014 the respondent re-occupied the same land from which he had been evicted through a court order. He rebuilt a homestead there and resumed tiling the land falling within Plot 12 belonging to the appellant.

He says he did that because he did not agree with the boundary marked by the Ministry of Lands. He confirms that he did not go back to court to overturn the court order for eviction granted by consent. He merely resorted to self-help.

These are the facts that confronted the court a quo when an application for contempt of court arising out of the respondent's defiance of an eviction process was made. In its judgment, the court a quo misdirected itself on the facts. It stated, at page 7 of the record;

“The applicant stated that after the court order was granted by consent the respondent was served by the Messenger of Court and full eviction was effected. On the 17^th of September 2014, the applicant employed officials from the Ministry of Lands and Rural Resettlement who pegged the plots and clearly demarcated each respective plot and created boundaries. The respondent fearfully returned sometime in December 2014 and has resumed building domestic habitation and has resumed agricultural activities. The respondent, on the other hand, argued that the reason why he did not comply with the court order is that applicant invited officials from the Ministry of Lands they pegged the place afresh and set new boundaries and they removed the pegs from their proper spot and placed the plot (sic) at their preferred plots.”

The court then went on to find a dispute of fact which it said could not be resolved on the papers, and, without referring the dispute to trial, it outrightly dismissed the application with costs. It concluded at page 8 of the record:

“I am of the considered view that the conflicting positions of the parties are irreconcilable on the papers in several aspects; the applicant's affidavit does not clearly establish whether the boundaries demarcated by the Ministry of Lands and Rural Resettlement were the same boundaries from the initial order or they erected new boundaries; respondent also avers that they were new boundaries different from the ones that were agreed upon. I therefore conclude that there are material and significant disputes of fact that can only be resolved by calling of court evidence in trial proceedings. It is my view that the applicant should proceed by way of action. For the above reasons I therefore dismiss the application with costs.”

The appellant was unhappy with that outcome and launched this appeal against the whole judgment of the court a quo on the grounds, inter alia, that the court a quo failed to appreciate that the respondent had taken the law into his own hands by re-occupying the land after lawful eviction. It also failed to appreciate that no fresh demarcations were made by the Ministry of Lands after the eviction of the respondent, and, as such, there were no genuine disputes of fact.

I have said that the court a quo misdirected itself on the facts of the matter.

It was in possession of the letter written by the District Lands Officer on 2 September 2014 to the effect that pegging had been done on 13 and 14 August 2014 which confirmed the boundaries and that the respondent encroached onto the appellant's land…,. That pegging was undertaken before the eviction took place.

Indeed, the court a quo was in possession of a return of service by the Messenger of Court showing that eviction had been carried out on 15, 17 and 19 September 2014…,.

When the eviction was carried out the boundaries had already been determined by the pegging. The respondent was then evicted in terms of a court order following boundaries confirmed by a pegging process conducted on 13 and 14 August 2014.

Clearly, therefore, the pegging referred to by the court a quo could not be an excuse for re-entering the land 3 months later in December 2014. Much less could such pegging found a dispute of fact as could not be resolved on the papers in an application for contempt of court anchored on a defiance of an eviction carried out in terms of a court order more than a month after that pegging occurred.

The so-called dispute of fact was illusory.

While it is true that the resolution of the dispute without doing an injustice to the other party is one of the prime considerations in allowing or disallowing the use of application procedure, the respondent must at least disclose that there are material issues in which there is bona fide dispute of fact capable of being decided only after viva voce evidence has been heard. See Ex-Combatants Security Co v Midlands State University 2006 (1) ZLR 531 (H)…,.; Da Matta v Otto N.O 1972 (3) SA 858 (A) 882 I; Railings Enterprises (Pvt) Ltd t/a Paroan Trucking v Dowood Services (Pvt) Ltd t/a Bradfield Motors and Others HB53-16.

In any event, even where there exists a material dispute of fact, the court should take a robust and common sense approach to the dispute and endeavour to resolve it. If it succeeds then the matter ends there. If it does not, then it still has an election to either dismiss the application or refer the matter to trial for a resolution of that dispute.

The court should only dismiss the application where the dispute must have been apparent when the applicant embarked on application procedure. See Zimbabwe Bonded Fibre Glass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…,.

In my view, there was no dispute of fact at all which the court could not resolve.

The respondent was evicted long after the pegging which he threw into the fray to cause confusion. When he moved back onto the land from where he was evicted he was not being propelled by any pegging but by a contemptuous attitude towards the court that ordered his eviction.

Every citizen of this country is obliged to obey the orders of the courts. That is the essence of the rule of law: see Mapfumo v Director of Housing and Community Service and Others HH274-14.

As stated by ROMER LJ in Hadkinson v Hadkinson (1952) 2 ALL ER 567 (CA)…,.;

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it even extends to cases where the person affected believes it to be irregular or even void.”

See also Mpofu v Mlilo 2002 (1) ZLR 160 (H)…,.

A person who disobeys a court order is in contempt of court.

Where a court order is carried into execution by the eviction of the respondent and the respondent returns to the property from where he was evicted there can be no ambiguity. He is simply in contempt and no amount of argument over imagined boundary disputes can change his disdain of a court order.

In the result it is ordered that:

1. The appeal is hereby upheld.

2. The respondent is hereby found to be in contempt of court for having refused to comply with the court order directing him to vacate a portion of the appellant's property, namely, Plot Number 12 Helenvale, Umguza, that the respondent is currently inhabiting.

3. The respondent is hereby fined US$500= which is wholly suspended on condition the respondent vacates the applicant's Plot Number 12 Helenvale, Umguza by the 30^th October 2016.

4. This order shall operate as a permanent warrant authorizing the Messenger of Court, the police and other law enforcement agents to arrest and detain the respondent or anyone claiming through him on any future instance should they violate the court order granted by the Magistrates Court on 10 January 2013 under case number M.C6187/12.

5. The respondent shall bear the costs of suit in the court a quo and of this appeal.

This is an opposed application where the applicant seeks that the first respondent be declared to be in contempt of High Court order in HC10776/13. The applicant also seeks that should the first respondent fail to comply with paragraphs(e) and (f) of the judgment in HC10776/13 within seven days of the granting of this order, then its Managing Director be committed to Harare Remand Prison for an indefinite term until the first respondent complies.

In terms of paragraphs(e) and (f) of HC10776/13 this court ordered the following;

“(e) IT IS HEREBY DECLARED THAT TRIANGLE LIMITED has an obligation to cause the determination of the applicants' basic annual salary for purposes of the calculation of applicants pensionable emoluments, from the date of this judgment onwards, in accordance with the TSSPF Rules, and that, this obligation shall be discharged, in full, within (90) ninety days of the date of this order.

(f) CONSEQUENT TO THE ABOVE DECLARATION TO THE ABOVE DECLARATIONS, TRIANGLE is hereby directed, within (90) ninety days of this order, to recommence making its contributions, and to deduct the applicants' contribution for onward transmission to the TSSPF, towards the costs of providing benefits towards the applicants in terms of the TSSPF's rules as determined by the TSSPF's actuary, and approved by the TSSPF Trustees, EXCLUDING any arrears which arose between January 2009 and the date of this order until such time as the TSSPF has been terminated in accordance with the TSSPF Fund Rules.”

Counsel for the first and third respondents raised points in limine.

(i) Firstly, he attacked the validity of the founding affidavit.

It was his submission that such affidavit was the same affidavit filed in HC11975/15, and, as such, cannot be admitted before these proceedings.

Such point was raised for the first time in the first and third respondents' heads of argument. The applicant took issue with that. It is the applicant's contention that such challenges should have been initially taken in the opposing affidavits. This, the applicant's counsel argued should have been done so as to accord the applicants an opportunity to deal with the issue in their answering affidavits.

The question of validity of a founding affidavit is a legal point and not a factual one. Factually the affidavit speaks for itself. The court can simply look at the founding affidavit and ascertain the facts. Its validity becomes a legal point.

It is trite that legal points can be raised at any time during the proceedings.

The issue of the validity of the founding affidavit was raised in the first and third respondents' heads of argument affording the applicant to deal with the issue in their own heads. See Barkhuizen v Napier (CCT 72105) (2007) ZACC 5 or 2007 (5) SA 323 (CC).

On page 8 of the proceedings is the signature page of the affidavit. It is apparent the affidavit was sworn to in Triangle on 30 November 2015. That affidavit was the one used in the application in HC11975/15 which application was withdrawn on 18 December 2015. The affidavit of the 30^th of November 2015 did not include the third respondent. The third respondent was then added after the 30^th of November 2015 in the present case. It follows that the founding affidavit was never commissioned. No case was however made against the third respondent.

It is trite that an application stands or falls on its founding affidavit. No case was made against the third respondent in the applicants' founding affidavit. See Bowman N.O. v De Souza Roldao1988 (4) SA 326 T…, where the court said:

“In limine, Mr Zeiss, who appears for the respondent, argued that he has not made out a case in the founding affidavit to entitle him to any relief in terms of the notice of motion; he submits that there is a material and fatal lacuna in the founding affidavit which cannot be cured.”

Generally speaking, an applicant must stand or fall by his founding affidavits, he is not allowed to make out his case or rely upon new grounds in the replying. See for example, Director of Hospital Services v Ministry 1979 (1) SA 626 (A)…, where DIEMANT JA said the following:

“When, as in this case, the proceedings are launched by way of notice of motion, it is to the founding affidavit which a Judge will look to determine what the complaint is…,.”

The founding affidavit should contain all facts upon which an applicant relies in seeking relief. Courts will not normally allow or permit a mere skeleton of a case sought to be supplemented in an answering affidavit.

It is trite that all facts and the basis of seeking a relief must be established in the founding affidavit. See also Titty Bar and Bottle Store (Pty) Ltd v ABC Garare (Pty) Ltd and Ors 1974 (4) SA 362 (T); Pountas' Trustees v Lahanas 1924 WLD 67; Austerlands (Pvt) Ltd v Trade and Investment Bank & 2 Ors SC92-05.

The applicants' founding affidavit fails to allege any conduct by the third respondent warranting the relief sought. Of major concern is that certain additions were made to the founding affidavit but it is clear that such changes were not countersigned by the applicants.

When introduction of the third respondent as a party to these proceedings was done, such affidavit with those changes was not commissioned by a Commissioner of Oaths. Such founding affidavit fails to meet the requirements of a valid affidavit. I am satisfied this matter cannot proceed on the basis of an invalid founding affidavit and on the basis of an affidavit which fails to disclose the facts relied upon to obtain the relief sought.

The supporting affidavits, as the word “supporting” meaning, entails buttressing a founding affidavit properly before the court. Once the founding affidavit cannot stand so do the supporting affidavits.

I have not called the lawyer who prepared the papers to account and therefore I shall not deal with allegations raised against such lawyer.

In the result, the applicants' founding affidavit is invalid and the point in limine taken by counsel for the first respondent is well taken. In the result, the application is dismissed with costs.