FOROMA
J:
This
matter was originally filed as court application for contempt of
court and ancillary relief. Bere
J as he then was referred the matter to trial.
At
the pre-trial conference held before Makoni
J
as she then was the issues were agreed upon as follows:
(1)
Whether or not the first and second defendants are in contempt of
court in respect of the order granted in HC2887/05 and confirmed in
SC37/09 and if so the appropriate remedy; and
(2)
Whether the defendants should pay the costs of suit on a legal
practitioner client scale.
The
burden proof was agreed to be on the plaintiff.
The
relevant factual background to this dispute can best be summarised as
indicated herein below.
The
plaintiff a group of residents of Knowe Housing Development. Each
member of the Group purchased an undeveloped stand from the first
defendant a duly registered company whose business was a developing
and selling residential stands on the property owned by the first
defendant which had obtained a permit from Norton Town Council as the
Local Authority to develop a portion of a farm known as sub-division
of Lot 2 of Knowe Hartley District as a housing project.
The
permit obliged the first defendant to service the area concerned in
order to provide tarred roads proper drainage reticulated water
supplied to all stands and sanitary systems.
As
a result of the plaintiff's membership's disgruntlement with the
first defendant's failure to fulfil the terms of the permit which
the defendant had agreed to comply with when it sold the unserviced
stands to plaintiff they sued defendant in the High Court for
specific performance. Guvava
J as she then was presided over the dispute and handed down the
following order:
1.
The first respondent be and is hereby ordered to fully service the
residential area in phase 1 of the Knowe Housing Development in
Norton within 90 days of this order. In particular the first
respondent shall provide the following services:
(a)
Ensure that reticulated water supplies are connected to all stands;
(b)
Ensure that sanitary systems are connected;
(c)
Ensure that proper drainage systems are put in place; and
(d)
Ensure that roads are properly tarred.
2.
The first respondent shall pay the costs of suit.
It
is common cause that the first defendant appealed the decision of the
High Court to the Supreme Court and lost the appeal which was
dismissed with costs.
Despite
dismissal of its appeal the first defendant did not comply with the
High Court order. Consequent upon the said default plaintiff
instituted contempt of court proceedings against the first defendant
and the second defendant which is its Managing Director.
The
contempt of court proceedings which plaintiff instituted are the
subject of this matter which the defendants defended.
The
contempt of court proceedings were instituted as a court application
which Bere
J
as he then was referred to trial for resolution; with the court
application and founding affidavit standing as the summons and
opposing affidavit standing as the appearance to defend.
Pursuant
to the order of Bere
J referring the matter to trial plaintiff filed a declaration and
defendants filed a plea.
In
their joint plea the first and second defendants denied being in
contempt of court and averred that the order plaintiff sought had
been over taken by events in that the defendants had already
constructed infrastructure described in the declaration which was the
subject of the High Court order of Guvava
J.
It
is clear from the defendants' plea that the defendants adopted the
position that by the time that the plaintiff instituted HC2887/05 the
infrastructure forming the subject of contempt of court proceedings
was already in place thus suggesting there was nothing further to be
done to comply with Guvava
J's order.
This
was mischievous as in essence defendants were clearly arguing that
the court's judgement was ill advised and would not be complied
with.
That
the defendants displayed contemptuous mischief is supported by the
fact that before the trial of this matter the parties filed a joint
statement of agreed facts in which the first and second defendants
conceded that after the judgment of the Supreme Court dismissing
defendant's appeal with costs no further development work was done
by first defendant in respect of Knowe Phase 1 in terms of the order
of Guvava
J of the 12 September 2007.
As
a result of the concession that no further construction/development
work was done post the Supreme Court dismissal of the first and
second defendant's appeal the factual position that defendants had
not complied with the order of Guvava
J became irrevocably established.
For
this reason the parties then agreed in the statement of
agreed facts to refer the only issue to trial as “whether or not
non-compliance with the order of the High Court handed down by Guvava
J
was (1) willful and malafide?
At
the commencement of the trial the duty to begin was agreed to be on
the Defendants as clearly the onus had shifted as a result of the
filling of the statement of agreed facts namely para 3.
The
trial accordingly proceeded with defendants calling upon the second
Defendant.
I
must say the calling of the second defendant was not only ill advised
but a clear demonstration by the defendants of their persistence with
contempt.
This
unrepentant attitude is clearly demonstrated by the fact that both
defendants admitted the contents of a report prepared by an Engineer
one Dr Diarra which vindicated the findings and order of Guvava
J.
The said engineer prepared the report after an inspection in loco
conducted by the said engineer and witnessed by the parties' legal
representatives. Dr Diarra's report which was admitted by the
Defendants highlighted the areas or aspects which Guvava
J
found and ordered as requiring attention in order for the defendants
to complete servicing of Knowe Phase 1.
The
defendants determined that they did not agree with the judgment of
Guvava
J
hence their an appeal against the said judgment. This they were
entitled to do.
However
when their appeal was dismissed by the Supreme Court it was incumbent
upon them to abide and comply with the order of the High Court.
Any
suggestion by the first and second defendants that there was nothing
needing further attention despite confirmation of the High Court
Order by the Supreme Court on appeal was a contemptuous, wilful and
mala
fide
disregard, of a court order which remained extant.
The
Defendants' mala
fides
is clearly demonstrated by their plea where in they plead that the
judgment of Guvava
J
had in fact been overtaken by events that took place before
instituting HC2887/05.
For
these reasons I dismiss unreservedly the evidence put forward by
defendants seeking to excuse their contempt as totally without merit
and also a further demonstration by the defendants of their
determination to persist with their contemptuous conduct.
The
law regarding the need to comply with court orders which a party
disagrees with is very clear - it is that in general all orders of
court whether correctly or incorrectly granted have to be obeyed
until they are properly set aside – Culverwell
v Berra
1992
(4) SA 490 (W).
There
is clearly no excuse in
casu
for non-compliance with the High Court order.
The
argument that the Defendants were not mala
fide
in failing to comply with the High Court order is lame and spurious
in that not only is it not borne out by the defendants plea but is
directly discredited by the plea which suggests that there was
nothing further to be done. As indicated herein above the defendants
admitted the report prepared by Dr Diarra at the parties joint
request which unequivocally highlighted aspects requiring attention
which were on all fours with what Guvava
J had
ordered as highlighted
above.
In
the circumstances Defendants' contempt is found to have been both
willful and mala
fide-
See Haddow
v Haddow
1974 I RLR 5 and Mukambirwa
and Others
v The
Gospel of God Church International
1932 SC-8-14.
It
is clear that the plaintiff has established the requirements of
contempt of court beyond reasonable doubt.
Re:
Costs
Given
the attitude of the defendants as found namely that they regarded
themselves as excused from complying with a judgment they disagreed
with and further that they had no justifiable excuse for persisting
with their contemptuous conduct after their appeal had been dismissed
by the Supreme Court, I find that a punitive of costs is justified
against both of them.
It
is accordingly ordered that:
(1)
First and second defendants are hereby declared to be guilty of
contempt of this court.
(2)
First defendant is hereby sentenced to a fine of Two Thousand United
States Dollars (US$2,000) for contempt of court.
(3)
Second defendant is sentenced to 90 days imprisonment the whole of
which is suspended on condition that first defendant performs its
obligations as ordered by this court in HC2887/05 to the satisfaction
of Norton Town Council as the local authority which satisfaction
shall be evidenced by the issue of an appropriate certificate of
compliance.
(4)
First and second defendants pay plaintiff's costs of suit on a
legal practitioner and client scale jointly and severally the one
paying the other to be absolved.
Mapondera
& Company,
plaintiff's legal practitioners
Mtetwa
& Nyambirai,
for the 1st
& 2nd
Defendants legal practitioners
