MATHONSI J: 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 1st defendant and 2nd
defendant(s).
2. It is be and hereby
ordered that the 1st and 2nd defendant(s) reallocate
another stand in Chitungwiza, measuring 400 square metres in a serviced area, to
the plaintiff.
3. 1st defendant
and 2nd 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. The order remains unchallenged to
this date and therefore valid and effectual. It was served upon the
Municipality on 3 June 2013 but was not complied with.
On 5 July 2013, Messrs Uriri Attorneys-At-Law, the legal practitioners
for the applicant addressed a letter to the Municipality, through its director
of housing, in the following:
“RE: JUDITH MAPFUMO vs
YOURSELF AND ANOTHER: CASE NO. HC 10888/12
The above matter refers and in particular that you were
served with an Order of the High Court on 3 June 2013 and up to now you have
not complied with the Order.
May we advise you that you must comply promptly with the
Order otherwise we will institute contempt of court proceedings against yourselves.
Kindly reallocate a serviced stand to our client within
seven (7) days failing which we will have no option but to institute contempt
of court proceedings and execution at your cost. Stand guided accordingly.
Yours faithfully
Mr F. Chauke
Uriri Attorneys-At-Law”
Having been warned of possible contempt of court proceedings the Municipality's
laid back and indeed lackadaisical approach was most shocking. In a letter to
the applicant's legal practitioners dated 11 July 2013, the second respondent,
writing in his capacity as the “Acting Director of Estates, Education, Housing
and Community Services” stated:-
“”RE: JUDITH MAPFUMO v THE DIRECTOR OF HOSUING AND
COMMUNITY SERVICES AND ANOTHER : CASE NO:
HC 10888/12
We acknowledge receipt of our (sic) letter dated 5
July 2013 in connection with the
above issue.
We are however unable to process anything due to the fact
that both your letter and the High Court Order do not contain the relevant
stand number to enable us to attain pertinent information from the relevant
file.
Kindly request your client to visit our offices and furnish
us with the stand number concerned so that we may trace the history of the case
and take appropriate action.
Yours faithfully
T. Muronzi
Acting Director of Estates, Education,
Housing and Community Services;
FOR: TOWN CLERK”
The Municipality was not
prepared to act on the court order. It wished to be furnished
with a stand number, presumably the stand initially
allocated to the applicant, so that it could trace the history of the case, not
to allocate another stand to the applicant. It is not clear what appropriate
action it wished to take. Clearly, nobody at those offices was prepared to put
a shift for this matter. If they took it seriously they would have used the
High Court case number given in the correspondence which the erstwhile Acting
Director gleefully cited in his letter, to trace the history of the case.
The applicant's legal practitioners responded by letter dated 16 July 2013
giving the stand number which had been requested in the heading of that letter.
They stated:
“RE: JUDITH MAPFUMO v
YOURSELF & CHITUNGWIZA MUNICIPALITY: CASE NO. HC 10888/12: STAND NO 33075
UNIT H, CHITUNGWIZA
Your letter dated 11 July 2013 has come to our attention.
We advise you that the Order directs you to 're-allocate' a serviced stand to
our client measuring 400 square and nothing more.
It is your duty to make sure that you comply with the Order
promptly not later than 25 July 2013 otherwise you will be in contempt of
court. The High Court has inherent original jurisdiction over all civil matters
and over all persons in ZIBMABWE.
Stand guided accordingly.
Yours faithfully
MR F. CAUKE (sic)”.
When that letter did not attract any reaction from the respondents, in fact the
applicant still has not been allocated a replacement stand more than a year
after the order of MUSAKWA J, the applicant brought this application seeking
the committal of the first and second respondents to prison and a fine of
$5000-00 against the Municipality for contempt of court. In that application,
the applicant not only made reference to stand number 33075 Unit H, Chitungwiza
which was originally allocated to her but taken away, she also attached the
summons and declaration in HC 10888/12 and the Court Order as annexures. The
entire application was served upon the Municipality on 26 September 2013.
While seeing no wisdom in complying with the court order even when equipped
with all relevant information relating to what they had earlier called “the
history of the case”, the respondents still found time to oppose the
application. In an opposing affidavit deposed to by George Makunde, the Town
Clerk, the respondents trifled about the citation of the parties, about the
applicant's failure to come to their office thereby frustrating reallocation
and about offering “a stand of comparable status in Nyatsime” which she
refused.
In fact, Makunde's affidavit is noteworthy more for what it does not say than
what it says. It does not say what the Municipality did when it received the
court order towards fulfilling its terms. It does not state which stand was
allocated to the applicant in compliance with the court order. If indeed a
stand was earmarked for the applicant in Nyatsime, how was this done? How was
this brought to the attention of the applicant? Since the applicant is said to
have refused to attend at the Municipal offices, the said allocation could not
have been done physically. If it was in writing, surely the written offer and
indeed the rejection, would have been attached to the opposing affidavit. It
was not. In fact nothing was. Clearly the explanation that the “good faith of
the third respondent cannot be questioned”, cannot withstand scrutiny, and I
reject it.
There can be no doubt that every citizen of this country is obliged to obey the
orders of the courts. That is the whole essence of the rule of law, a commodity
which the state sells to the citizen as a reward for his allegiance, taxes and
personal services. It is a commodity which our courts have always upheld and
will not compromise on. In that regard, the seminal remarks of Romer L J in Hadkinson
v Hadkinson [1952] 2 ALLER 567 (CA) at 569 C are apposite: He said:
“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) ZLR160
(H) 163 B-C.
A person who disobeys a court order is in contempt of court. In
interpreting an order of court such an order must be presumed where it is not
ambiguous, to mean what it says and no evidence would be admissible to
contradict, alter or add to the contents of the order. Baron v George
1994 (2) ZLR 141 (S) 145 C-D. GILLEPSIE J made the crucial point in Scheelite
King Mining Co (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H) 177 G and
178 A that:
“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 wilful on the part of the defaulting party.”
See also Haddow v Haddow 1974 (1) RLR 5
(G) 6 A; Lindsay v Lindsay 1995 (1) ZLR 296 (S) 299 B.
Incasu there can be no doubt that the order was
brought to the attention of the respondents and that notwithstanding, they have
not complied with it.
Once a failure to comply with a court order is proven, as
has been in this case, a presumption arises that the failure was wilful and mala
fide. The onus then shifts to that party to prove that the failure
was not wilful and mala fide: John Strong (Pvt) Ltd & Anor
v Wachenuka 2010 (1) ZLR 151 (H); Mawere & Anor v Director
Administration – Central Intelligence Organisation & Ors
HH267/13.
In my view, the respondents have not discharge that
onus. They wilfully disobeyed a lawful order resulting in the applicant
not enjoying any benefit from the court order more than a year after it was
issued. If I entertained any doubt about the wilfulness of the
respondents' conduct, such doubt dissipates upon reference to the submissions
made by Ms Nyagura who appeared for the respondents. This is
what she stated in her heads of argument:
“2.1. Generally a
person may not refuse to obey an order of Court merely because it has been
wrongly made for to do so would be seriously detrimental, if not fatal, for the
authority of the court. However where blind compliance with an obviously
invalid order would itself tend to weaken respect for the administration of
justice, disobedience of the order cannot be regarded as contemptuous.
2.2.
More so it is accepted that a corporation can only comply with a court order
through its offices (sic) and can thus only be guilty of contempt if
the offices (sic) for whose conduct it can in law be held
liable, have refused or failed to comply with the order. A director of a
company who cause (sic) the company to disobey the order is guilty of
contempt of court.”
Ms Nyagura contradicts herself but whatever the
case, the respondents took the view that the order was invalid and elected not
to comply with it for that reason. Unfortunately it has not been shown
how a lawful order can be said to be invalid.
Having found that there has been contempt, I now have to
decide how to react to it. Mr Chauke for the applicant urged me
to commit the first and second respondents to prison for a period of 2 months
and to fine the third respondent $5 000-00. Ms Nyagura, who took the
view that there was no contempt, found it unnecessary to address me on the
appropriate penalty.
I am in agreement with the sentiments of GILLESPIE J in Scheelite
King Mining Co (Pvt) Ltd v Mahachi, supra at 178 C-F and
intend to proceed along those lines. He said:
“In determining how to respond to this contempt, I bear in
mind the many dicta to the effect that:
'The primary object of contempt
procedure is to compel compliance with the court's order. It often
follows for this reason, that any order of committal to goal is suspended to
afford the intransigent party a powerful inducement to fulfil his obligations
in terms of the order' (per REYNOLDS J in Harare West Rural Council v Sabawu
1985 (1) ZLR 179 (H) at 183 D)
It has been said:
'Generally speaking punishment
by way of fine or imprisonment for civil contempt of an order of court in civil
proceedings is only imposed where it is inherent in the order made that
compliance with it can be enforced only by means of such punishment.' (per
MILNE J in Cape Times v Union Trades Directories & Ors
1956 (1) SA 105 (N) at 120 D)
This is not to say, however, that enforcing compliance is
the only purpose of committal. There remains an interest in protecting and
upholding the dignity and respect of the court. Although the contempt may be
referred to as 'civil' contempt, it remains a criminal offence wilfully to
disobey the order of a court with intent to violate its dignity or authority.
Where such contempt is established, the purpose of securing compliance with the
flouted order, while it may remain the main, is not necessarily the only,
purpose of committal for contempt.”
I take the view that this is a case where the imposition of
a fine meets with justice, after all it is competent to impose a fine in terms
of r 391 of the High Court of Zimbabwe Rules, 1971. This is because the
order was effectively directed at the Municipality although its director of
housing was also cited. Whatever the director did, was done on behalf of
the Municipality. It is therefore against the Municipality, which is an
artificial person so to speak, that the expression of disfavour and indignation
must be directed.
I therefore order that:
1.
The third respondent is hereby fined $5 000-00 for contempt of court.
2.
Of that fine of $5 000-00, a sum of $3 000-00 is suspended on condition the
third respondent allocates to the applicant a 400 square metre stand in a
serviced area of Chitungwiza within seven (7) days of the grant of this order
in compliance with the court order issued in HC10888/12.
3.
This order shall forthwith be drawn to the attention of the Registrar of this
Court for enforcement in terms of r 391 of the High Court of Zimbabwe, Rules,
1971.
4.
The third respondent shall bear the costs of this application on a legal
practitioner and client scale.
Uriri Attorneys At Law,
applicant's legal practitioners
Matsikidze
and Mucheche, respondents' legal practitioners
