MAKARAU JP: On 12
September 2006, the applicant obtained an order from this court
compelling Africa International Removals to pay her the sum of
$4,441,841,67 together with interest thereon, to deliver to her
vehicle and a mobile phone together with a line for use in that
phone.
A warrant of execution was taken out against the defendant and some
vehicles belonging to the defendant were attached in execution.
A few days after the attachment, the defendant paid the amount levied
on the warrant in full. The motor vehicle and the mobile phone
handset were not delivered, prompting the applicant to approach this
court for an order committing the respondent to prison for contempt.
The application was opposed.
In his opposing affidavit, the respondent averred that it was not
necessary to deliver the motor vehicle and the mobile phone to the
applicant as she had always had possession of these. It was
specifically averred in the opposing affidavit that the applicant has
always had possession of these assets and did not surrender them when
she left employment.
The respondent further averred that after receiving a letter from the
applicant's legal practitioners demanding delivery of the vehicle
and the mobile phone, the respondent caused the legal practitioners
for Africa International Removals to surrender to the applicant the
registration book of the motor vehicle as the applicant already had
the motor vehicle.
On the basis of its belief that the applicant already had in her
possession the mobile phone and the line that she used during the
course of her employment with the removals, the respondent averred
that the approach to court by the applicant in the proceedings before
me was an abuse of process.
In answer to the opposing affidavit, the applicant admitted that the
respondent has complied with some of the terms of the order but has
not delivered to her the handset and has not paid the sales
commission that was due to the applicant together with accrued
interest.
On that basis, the applicant persisted with the proceedings for
contempt and prayed that the respondent be sentenced accordingly.
The answering affidavit by the applicant is rather terse and does not
assist the court much in resolving the dispute between the parties. I
shall revert to the brevity of the answering affidavit in detail
below.
At the hearing of the matter, the applicant's legal practitioner
submitted from the bar that all that the respondent has not caused to
be delivered to the applicant is the handset that she has always had
when she was employed by International Removals.
It is on account of the non-delivery of this handset that the
applicant seeks the imprisonment of the respondent.
It was accepted that the other aspects of the court order had been
complied with although details of such compliance were not given.
It may be impertinent of me to note at this stage that the issue of
the line for use in the handset was not persisted with.
Again details of when and how the line may have been delivered to the
applicant were not given in the papers nor in the oral address by the
legal practitioner.
In my view, the purpose of an answering affidavit is akin to that
that of a replication in an action. It is filed not merely for the
form but to specifically meet and traverse all the averments made in
the opposing affidavit that have the effect of defeating the
applicant's claim.
Like in any pleading filed with the court, all issues that are not
specifically denied and traversed in the answering affidavit are to
be taken as if they have been admitted.
It is my further view that answering affidavits, like all other
affidavits, must be drafted with precision and must meet the sting of
the defence being raised in the opposing affidavit.
In casu,
it is my view that the answering affidavit is not only too brief but
fails to meet the sting of the defence that the respondent is
proffering.
In the opposing affidavit, the point is specifically raised that the
handset is already in the possession of the applicant. It is further
averred that the applicant never returned the handset to her former
employer when her services were terminated.
In answer to such a specific denial by the respondent, the applicant
merely repeats that the respondent has not delivered the handset to
her in terms of the court order.
With respect, this is inadequate.
The applicant in my view had to go further and specifically deal with
the allegation of whether or not she had always had possession of the
hand set and if so, when she returned it to the possession of her
former employer so that the charge of contempt could be sustained.
It is trite that before holding a person to be 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 part
of the defaulting party.
The primary purpose of contempt procedure is to compel compliance
with the court's order where such compliance cannot be obtained
through any other execution set out in the rules of court. Where,
however, there is a dispute as to whether the court order can be
complied with or not, in my view, contempt proceedings are not
competent until it has been proven on a balance of probabilities that
the respondent can comply with the court order and is willfully
deciding not to.
In casu,
it appears to me that there is a real dispute of fact as to whether
the mobile phone handset is in the custody or under the control of
the respondent as alleged by the respondent or whether as for the
motor vehicle, it has always been in the possession of the applicant.
The dispute becomes real in view of the acceptance by the applicant
that she has always had the motor vehicle and the handset in her
possession during the period she was employed by Africa International
Removals. Without further proving that she was dispossessed of the
handset at some time, in my view she cannot succeed in having the
respondent committed for contempt as she prays for.
Assuming that I have erred in holding that I cannot determine whether
there has been non-compliance in the matter, I will proceed to hold
that the requisite mental element for the offence has not been
proved.
I am persuaded by the respondent's protestations of good faith. He
genuinely believes that the applicant already has the handset and
that there is nothing for him to deliver.
The opportunity that the procedures of this court afforded the
applicant to challenge that belief went begging.
In contempt proceedings, the onus if on the applicant to prove not
only that the court order has not been complied with, but that such
non-compliance was willful on the part of the respondent.
It is not enough for the applicant to wave a court order in his or
her favour and cry that such has not been complied with.
Contempt proceedings are not only concerned with enforcing orders of
this court. Such proceedings also relate to the integrity of the
court and its processes. The integrity of the court is further
enhanced by only holding respondents to be in contempt were their
actions threaten the dignity and integrity of the court and are
literally thumping their noses at the judiciary. It is not enhanced
by holding defaulting respondents to be in contempt where such
respondents act under a genuine and reasonable belief that there is
nothing further required of them in terms of an order of court.
It is my view that the necessary mental element requisite in contempt
proceedings has not been adequately proved in this matter.
Having failed to satisfy me on the two elements necessarily attendant
upon a finding that the respondent is in contempt, I will dismiss the
application and order costs against the applicant.
In the result, I make the following order:
1. the application is dismissed.
2. The applicant pays the costs
of the application.
Hungwe & Partners, applicant's legal practitioners
Robinson & Makonyere, respondent's legal practitioners
