CHITAKUNYE J: The
applicant is a company with limited liability which purports to own
all agricultural equipment and implements and runs farming operations
at ELDORADO OF GWINDINGWI commonly known as MAFOSHORO FARM (PVT) LTD.
The first respondent is a beneficiary of land wherein he was offered
the “whole of Eldorado of Gwindingwi in Mutare District of
Manicaland Province.”
The farm is approximately 472.46 hectares in extent. He has an offer
letter dated 25 September 2007 in respect thereof.
The second respondent is said to be first respondent's farm
manager.
On the third of July 2008 the applicant obtained a provisional court
order against the respondents. The order was in the following terms:
“First respondent and all those
claiming and/or acting through him be and are hereby ordered to
refrain from:-
1.1. Using applicant's farming
implements and equipment.
1.2. Reaping bananas from applicant's farm.
1.3. Barricading Applicant's access road to the farm.
1.4 Barring Applicant's
directors and employees from entering the farm.”
The applicant has approached this court on a complaint that
respondents are in contempt of court in that they have not complied
with that court order.
In paragraph 8 of his founding affidavit Johannes Jacobus W Vorster,
applicant's Director, stated that despite the respondents' having
been duly served with the provisional order and being aware of the
contents of the said order they have continued to deny applicant's
directors and employees access to the farm.
Such access was denied even when they went in the company of the
Deputy Sheriff and the police.
The respondents have instead continued to harvest applicant's
bananas. Respondents have continued to use applicant's equipment
and implements and material contrary to the provisional order.
Some of the occurrences in Johannes' affidavit are supported by
affidavits from Brian Mwaonga and Liberty Dzarira both police
officers based at Mutare Police Station.
The net effect of their
affidavits was to confirm accompanying the Messenger of Court/ Deputy
Sheriff to Mafoshoro Farm whereat a copy of the provisional order was
served on one Tendai Mbereko. They also observed that despite the
service and explanation of the terms of the order by the Messenger of
Court/Deputy Sheriff first respondent's employees did not stop
harvesting and loading bananas onto trucks that they found there.
They also confirmed that when Mr Mbereko was confronted he
categorically indicated that he would not stop unless so instructed
by first respondent.
The applicant therefore prays that in these circumstances the
respondents be found to be in contempt of court and be sentenced to a
term of 6 months imprisonment.
The first respondent opposed the application contending that he is
not in contempt of the provisional order. He indicated that on the
occasions applicant said he was denied access he was not at the farm
and as per applicant's affidavit it was his employees who are
alleged to have denied him access and not himself. He contended that
the conflict is on applicant wanting to carry out operations.
On the question of bananas first respondent contended that as bananas
are perishables they cannot be kept on the trees for long hence
admitting harvesting the bananas.
He also argued that applicant no
longer owned the farm and so as the beneficiary of the farm he was
entitled to the bananas as this was no longer applicant's farm but
State land.
On the continued use of
implements and equipment he conceded that his employees may have used
them before he had advised them about the provisional order. In any
case he has received implements and inputs of his own from Government
and so he is no longer using applicant's implements.
The major issue for determination was whether the applicant was in
contempt of the provisional order.
Civil contempt is basically the willful or mala fide failure to
comply with an order of court. There are three basic requirements for
contempt procedure that need to be proved, namely:-
1. That an order was granted by a competent court.
2. That the respondent was indeed served with the said order or that
it was brought to his attention; and
3. That respondent has either disobeyed it or has neglected to comply
with it.
(See Consolidated
Fish Distributors (Pty)
Ltd v
Zive and Ors 1968 (2)
SA 517 at 522E-G).
In Scheelite
King Mining Co. (Pvt)
Ltd v
Mahachi 1998 (1) ZLR
173 (H) at 177H-178A GILLESPIE J noted 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
willful on the part of the defaulting party.”
In Haddow
v
Haddow 1974 (1) RLR 5
at 7H-8A GOLDIN J had this to say:-
“In my respective view,
whenever an applicant proves that the respondent has disobeyed an
order of court which was brought to his notice, then both willfulness
and mala fides will be inferred. The onus is then on the respondent
to rebut the inference of mala fides or willfulness on a balance of
probabilities. Thus, if a respondent proves that while he was in
breach of the order his conduct was bona fide, he will not be held to
have been in contempt of court because disobedience must not only be
willful but also mala fide.”
Willfulness connotes a deliberate decision not to comply with the
order. Mala fides connotes bad faith.
If it is proved that first respondent being aware of the terms of the
provisional order deliberately chose not to comply with them then he
would be guilty.
It is common cause that the basis
of the application is the provisional order granted by this court on
the 3rd
July 2008. That order stated in clear terms what the respondent was
required to do and not to do.
From the papers filed of record and the submissions by counsel it is
common cause that the order was served on the respondents. The order
was served on first respondent at his residence here in Harare and it
was also served at the farm in question. First respondent had the
opportunity to comply with the order.
There is therefore no denying that the first two requirements were
met.
The major issue is whether the first respondent complied with the
terms of the provisional order.
The applicant in its application alleged that access to the farm has
not been granted and respondents have not stopped using applicant's
equipment and machinery. The respondents have continued to harvest
bananas contrary to the terms of the order.
First respondent contended that he complied with the order to the
extent possible.
In seeking to defend himself
first respondent points at the fact that in his view the provisional
order is in violation of the constitutional law on land in that it
recognizes applicant's ownership on land acquired by the State.
The first respondent appears to confess and avoid the contempt. Thus
he says, in paragraph 7 of his opposing affidavit -
“7. As indicated above the
provisional order granted is in violation of constitutional law on
land in that it recognizes applicant's ownership on land acquired
by the State. The provisional order pre-supposes ownership of the
farm by applicant which is not the case anyone (sic)
by virtue of the compulsory acquisition that took place at the farm.”
And in paragraph 10 that;
“10. I do respect the courts
and the laws of this country and certainly abide by them. I am
informed and advised that for my defence to succeed in this
application I must proved (sic)
not to be acting mala fide and I content I am not acting so but in
fact it is the circumstances surrounding this matter and the
conflicting positions between the law of the land and the provisional
order granted that has resulted in the situation I now find myself
in.”
Apparently the situation first respondent finds himself in is one of
not complying with the provisional order in full.
(i) Firstly, in paragraph 11 of
his opposing affidavit he confirms that bananas are being harvested
when he says that;
“Bananas by their nature are
perishables and cannot be kept on the trees for long. When they are
ripe they have to be harvested. It is for this reason that they were
harvested…”
(ii) Secondly, on the question of
access he also seemed to confess such has not been granted in
paragraph 14 of his affidavit when he says that;
“The applicants cannot operate
on a farm that is no longer theirs. The provisional order was
cunningly drafted by applicant's legal practitioners. It orders me
to grant applicant access to the farm but not for them to carry out
operations on the farm. It is clear from para. 8 of applicant's
affidavit that his intention on coming to the farm is to 'operate',
which was never part of the order that applicant sought and obtained
from the court. In fact if it had been made clear to the court, the
court would not have granted the access as it is in clear violation
of laws on land acquisition by the government. In any event the order
does not order me to vacate or stop operations hence if applicant was
to come and carry out operations it would obviously clash with the
operations I am carrying out. This is why applicant is alleging I am
acting in disregard of the court order.”
It would appear that because first respondent believes applicant
wants to come and operate he won't let that happen.
Though at some stage he stated that access was granted this seemed to
have been done begrudgingly and clearly not in terms of the
provisional order.
The general tenor of first respondent's position seems to be of
trying to justify his failure to abide by all the terms of the
provisional order and not that he has fully complied.
He confirms this when in paragraph 25 he states that;
“As indicated before I am
complying with the interim order in
as far as I can. Where it
is impossible to comply
with (sic)
order I am unable to do so.”(Emphasis
is mine)
The extent of compliance is premised on his contention that applicant
no longer owns the farm and the bananas being harvested are not on
applicant's farm. He could only be in contempt if the bananas were
on applicant's farm.
This in my view is an argument in futility.
There is no confusion regarding
the farm and the bananas the provisional order related to. The first
respondent is fully aware that the order related to Mafoshoro Farm
and the banana plantation on this farm. The first respondent's
attempt at justifying his continued harvest of bananas is clearly
contrary to the order.
If, as first respondent seems to be saying, he was not happy with the
terms of the order there are legal or lawful steps he should have
taken rather than defy clear terms of a court order.
Our courts have made it abundantly clear that a party's
dissatisfaction or disagreement with a court order is no defence to
contempt proceedings.
In Whata
v Whata
1994 (2) ZLR 277 (S) at page 281F-282A GUBBAY CJ quoted with approval
what was held in S v
Mushonga 1994 (1) ZLR
296 (S) that:
“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 to the standing and
authority of the court…. The proper approach was for the person
first to obey the supposed invalid order and thereafter to seek
redress, if any, by way of appeal or review. It was not for him to
determine for himself whether the order ought not to have been made.
He should come to court for relief if advised that it was invalid.
The exception being where the order was blatantly absurd in its
command and would itself tend to weaken respect for the
administration of justice. Only in that remote eventuality would
disobedience not be regarded as contemptuous”.
The crime of contempt of court is
committed intentionally and in relation to the administration of
justice in the courts. This is so because as was held in Scheelite
King Mining Co.
(Pvt)
Ltd.
v Mahachi (supra);
“although the primary purpose
of contempt procedure is to compel compliance with the court's
order, in such proceedings the court will also have an interest in
protecting and upholding the dignity and respect of the court and the
legal process.”
In Moyo
v Macheka SC55/05 at
page 7 of the cyclostyled judgment ZIYAMBI JA. quoted with approval
the words of GOLDIN J in Haddow
v
Hadow (supra) wherein
he said that:
“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.”
In
casu, if the first
respondent seriously believed that the provisional order conflicted
with the law on land and that it posed great difficulties for him, he
had the option to anticipate the return date so that the matter is
heard earlier.
If respondent felt that the bananas needed to be harvested by him and
not applicant and that the provisional order is not practical to
enforce and was in conflict with what he terms the laws of the land
he had this option.
I did not hear any submission to the effect that upon realizing the
difficulties in complying with the order first respondent took any
steps to have the matter heard earlier.
Instead he contended that applicant is delaying finalization of the
main matter so as to use the provisional order indefinitely by his
application.
In terms of the High Court Rules
first respondent need not wait for applicant to set the matter for
hearing he can take that initiative himself.
Rule 236 of the High Court Rules
states that;
“Where the respondent has filed
a notice of opposition and an opposing affidavit and, within one
month thereafter, the applicant has neither filed an answering
affidavit nor set the matter down for hearing, the respondent, on
notice to the applicant, may either -
(a) set the matter down for
hearing in terms of Rule 223; or
(b) make a chamber application to dismiss the matter for want of
prosecution, and the judge may order the matter to be dismissed with
costs or make such other order on such terms as he thinks fit.”
Rule 236(4) goes on to state that:-
“Where the applicant has filed
an answering affidavit in response to the respondent's opposing
affidavit but has not, within one month thereafter set the matter
down for hearing, the respondent, on notice to the applicant, may
either -
(a) set the matter down for
hearing in terms of Rule 223; or
(b) make a chamber application to dismiss the matter for want of
prosecution, and the judge may order the matter to be dismissed with
costs or make such other order on such terms as he thinks fit.”
Rule 247 on Provisional Orders
states in sub rule 2 that -
“(2) Rules 231 to 240 shall
apply mutatis mutandis
to the enrolment and hearing of a matter consequent upon the issue of
a provisional order referred to in sub-rule (1).
Provided that where a legal practitioner has certified in writing
that a matter is urgent, giving reasons for its urgency, the court or
a judge may direct that the matter be set down for hearing at any
time and additionally, or alternatively, may hear the matter at any
time and place, and in such event the ordinary periods of notice to
the registrar and to any other party shall not apply to the matter.”
It is clear from the above rules that first respondent had adequate
avenues to take to ensure that the provisional order was dealt with
expeditiously if as he said applicant was delaying the finalization
of the matter.
In fact the Provisional Order is
also instructive to respondent on the this on the front page last
paragraph where it is stated that;
“If you wish to have the
provisional order changed or set aside sooner than the rules of court
normally allow and can show good cause for this, you should approach
the applicant/applicant's legal practitioner to agree, in
consultation with the registrar, on a suitable hearing date. If this
cannot be agreed or there is a great urgency, you make a Chamber
application, on notice to the applicant, for directions from a judge
as to when the matter can be argued.”
As already alluded to he chose none of the avenues to have the
provisional order dealt with expeditiously. He instead opted not to
comply with those terms of the order he did not agree with.
I am of the view that first respondent is in contempt of the
provisional order.
He has deliberately not complied with the terms of the provisional
order despite having been served with the order. His willful
disregard of the court order is certainly inexcusable. He has not
shown that his breach of the order was bona fide.
Regarding the second respondent, first respondent said he has no
employee by that name and applicant has not shown that any one by
that name was served with the court application for contempt of court
proceedings and so no decision can be made on second respondent.
The penalty to impose on first respondent has to be looked at from
the desire to ensure that court orders are obeyed at all times
irrespective of whether one agrees with the terms of the order or
not.
In casu
first respondent's counsel referred to the case of Haddow
v
Haddow (supra)
wherein it was held that not every breach of an order justifies
committal of contempt.
This is indeed true. Each breach or contempt must be taken on its own
merit.
The Court has a wide discretion on this aspect.
The sentence to be imposed has to be such as is necessary to ensure
that respondent complies with the court order and that dignity and
respect for courts is maintained.
It is my view that though the contempt is serious the period of 6
months prayed for by applicant is rather excessive. A sentence in the
region of 4 months should meet the justice of the case.
Accordingly it is ordered that:
1. The first respondent be and is hereby found guilty of contempt of
court.
2. First respondent is hereby
sentenced to 4 months imprisonment all of which is suspended on
condition that he complies with the terms of the provisional order
issued on the 3rd
July 2008 forthwith, that is:-
3. First respondent and all those
claiming and/or acting through him refrain from:-
(a) using applicant's farming
implements and equipments.
(b) reaping bananas from
Mafoshoro Farm.
(c) barricading applicant's
access road to the farm.
(d) barring applicant's
directors and employees from entering the farm.
Mugadza Mazengero & Dhliwayo C/o Muvingi Mugadza & Mukome,
applicant's legal practitioners
Mapondera & Company, 1st
respondent's legal practitioners
