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
5th 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:
“Matter is withdrawn from the roll on the
understanding that the parties will engage in dialogue to comply with the court
order and to resolve the aspect of removal of the motor vehicle from Ruby
Auctions for delivery to the applicant.”
