CHIWESHE JP: On 10 July 2007 my brother UCHENA J issued
the following order against the respondent:-
"1. The respondent be and is
hereby interdicted from unlawfully interfering with
applicant's right of occupation and use of
piece of land namely Rhodo 2, 26, 51
and 52 situated at Willesden Farm, Goromonzi.
2. The
respondent be and is hereby interdicted from making any threats against
applicant and his workers and or interfering with them in any manner.
3. The
respondent is ordered to keep peace towards applicant.
4. The
respondent shall pay costs of this application."
The applicant
has again approached this court. His
complaint is that the respondent is in breach of the terms of this order and
therefore in contempt of this honourable court.
In his founding affidavit the respondent avers to the following
effect. The respondent observed the
terms of this order for a period of eighteen months after its grant. Sometime in December 2008 the respondent went
on to Rhodo 2 and started cutting down trees seeking to create a field on which
to grow his crops. A report was made to
the police. The respondent was
reprimanded following which he stopped his activities. In February 2009 the respondent made a
similar move. He occupied Rhodo 26 and
52. He started cutting trees for
purposes of cropping. He was in May 2009
again reprimanded by the police and re-served with the above order. That did not deter him. It was then that the police opened a docket for
contempt of court. However the prosecution
advised that the matter be referred to this honourable court. For that reason the applicant has filed the
present application for contempt of court.
The applicant
has mining rights on the land in question.
He says that the applicant has interfered with his mining activities and
threatened his workers. The applicant
has approached the Mining Commissioner concerning the
respondent's activities. He was advised
to get the respondent to comply with the above court order. The applicant says
the respondent is wilfully failing to comply with that court order and must
accordingly be censured by this court.
The respondent
vehemently opposed this application. He
avers that it is the applicant who is interfering with his farming
activities. He says the order granted under
the hand of my brother UCHENA J was granted in default. He has since filed an application for
condonation for late filing of application of rescission of that judgment. That application is pending before this
court. He states that he is a beneficiary
of the land reform programme. He holds
an offer letter to occupy and utilise subdivision 5 of Willesden Farm,
Goromonzi. It is 100.08 hectares in
extent. On that same land applicant was
issued with a permit by the Mining Commissioner to carry out mining activities. He would be confined to 40 hectares. The respondent says the applicant is the
one who is not complying with the Mining Commissioner's directive as to how the
two parties should co-exist. The Mining
Commissioner's recommendations are filed of record and read in part as
follows:-
"Mr
Chiwalo has got a lot of land which he can utilise for his mining activities
without interfering with the farming activities of Mr Musekiwa and he should
stick to those areas without causing unnecessary problems to the land
owner. In light of this Mr Chiwalo
should not encroach into 6 hectares of Rhodo 51 and should concentrate on the
other side where he already has shafts."
The
respondent further states that he has been farming on this land since
2000. It is the applicant who has been
fighting for his removal from the farm.
He insists he is not in contempt
of the order of court - rather he is pursuing its rescission. The applicant is disregarding the Mining
Commissioner's directive as he is seeking to mine on arable land leaving those
areas indicated to him by the Commissioner.
The
applicant insists that the respondent is in wilful contempt of a valid court
order. This order has not been set
aside. The fact that an application to
have it rescinded is pending is neither here nor there. Until it is set aside it remains extant and
must be complied with. I agree with the
applicant in this regard and the pronouncements in the cases that he quotes in
support of this application, for example, Sabawu
vs Harare West Rural Council 1989 (1) ZLR 47 (H).
In my view
however the question to be asked is whether the respondent is in wilful defiance
of this order - Scheelite King Mining Co
Pvt Ltd vs Mahachi 1998 (1) ZLR 173 (H).
The term
"wilful" denotes disregard of the order given without lawful or other
justification. The respondent must have
set out to defy the order regardless of the consequences. Whilst technically the respondent may be in
contempt I doubt if it has been shown that he is in wilful defiance. The applicant admits that for 18 months the
respondent complied with this order. It
is not clear why thereafter he then decided to act contrary to the terms of
that order.
It is likely
that he was encouraged by the Mining Commissioner's recommendations the tenor
of which clearly blames the applicant for encroaching on to the respondent's
portion of the land. Whilst such recommendations do not take precedence over
valid court orders, they have a profound bearing on the conduct of the parties
on the ground. Sight must not be lost of
the fact that the applicant's rights on the land in question derive from a
permit granted in terms of the Mines and Minerals Act. This act is administered by the Minister of
Mines through the Mining Commissioner.
In granting an order such as the present order the court is to all
intents and purposes protecting the rights conferred on the applicant by the mining
authorities. Indeed such rights may be
withdrawn or curtailed without reference to the court. It is an area that falls for determination by
the executive branch of Government.
Where therefore the executive or its representative issues the kind of recommendation
that the Mining Commissioner did and communicates the same to a person in the
position of the respondent, the effect on the ground is a dilution of the
impact of the order granted by the court to the extent that such communication
is seen to be departing from the terms of that order.
Secondly, both
respondent and applicant have legitimate authority (again granted by the
executive, be it from two different departments) to occupy this farm. Their activities on the same farm are as
different as farming can be from mining.
The applicant is expected to operate on 40 hectares of the 100 hectare
farm. On paper it would appear that the
respondent's portion is that part of the farm which is arable. Without the maps/diagrams clearly indicating
the boundaries, if any between the two portions of this farm and the manner in
which either of the parties has encroached into each other's territory, it
might be difficult to ascertain whether the court order has been violated and
wilfully so. Further, such violation or
lack of it might be impossible to determine on the papers as they stand without
hearing oral evidence.
Thirdly, it is
common cause that the respondent seeks that the judgment granted in default be
rescinded. Whilst that alone does not per se suspend the operation of the
judgment sought to be rescinded, it is a fact which depicts the respondent in a
different light - that of a party that seeks recourse to the courts rather than
a party bent on defiance of the directions or orders of that same court. Indeed, the respondent may not even be aware
that the application for rescission is only an application which may or may not
be granted, and that, in the interim the default judgment remains in force.
The applicant
should have included in its papers affidavits from the Ministers of Lands and
Mines. He did not. For these reasons I would hold that the
applicant has not made out a clear case for the order that he seeks. Whilst the respondent may be acting outside
the terms of the relevant court order, it cannot be said on the papers as they
stand that he is in wilful defiance of that order.
Accordingly it
is ordered that the application be and is hereby dismissed with costs.
Goneso
& Associates, applicant's legal practitioners
Maganga & Company, respondent's legal
practitioners
