MAVANGIRA
J:
These
two matters were heard at the same time for the purposes of
convenience.
In
the first matter, HC5403/09, the applicant seeks rescission of an
order issued by this court on 28 October 2009 in HC4101/09.
In
the second matter, HC976/10, the applicants seek an order be found to
be in contempt of court and for their committal to prison for such
contempt.
The
first application being HC5403/09 will be dealt with first.
The
parties are the same as in HC4010/09. In HC4010/09 the applicant, the
Gospel of God Church International 1932 sought an order in the
following terms:
“It
is hereby ordered:
1.
That the respondent and its followers are interdicted from using the
name THE GOSPEL OF GOD CHURCH INTERNATIONAL in any manner and form.
(sic)
2.
That the respondent and his followers are interdicted from entering
Gandanzara Shrine, Rusape in the Manicaland Province.
3.
That the respondent and its followers should vacate immediately and
forthwith from number 140 St. Patrick's Road, Hatfield, Harare
failure which the Deputy Sheriff is authorized to evict them. (sic)
4.
That the operation of this order shall not be suspended from the
noting of an appeal by the respondent. (sic)
5.
That the respondent pays costs on an attorney and client scale."
The
first respondent therein, Simba Mukambirwa deposed to an opposing
affidavit in which immediately after para 43 thereof, he prays for
the dismissal of the application with costs.
Immediately
after this prayer, the following heading appears:
“Counter-Application
for Peace Order
and
Interdict.”
Paragraph
44 then follows in which the deponent states that he wishes to make a
counter-application for a peace order and an interdict.
After
paragraph 53 appears his prayer for dismissal of the applicant's
application and for an order in terms of the draft. The order that he
seeks is in the following terms:
“IT
IS ORDERED THAT:
1.
Respondents be and are hereby declared to have a right to peacefully
visit and worship at the shrine.
2.
Sister Dazi Dhliwayo be and is hereby declared the lawful president.
3.
All church members who recognize Era Tapera as the president
including Zeburon Pedzisai Nengomasha be and are hereby ordered not
to unlawfully prohibit the Respondents and other church members from
visiting at the shrine.
4.
All the applicant's purported office bearers listed in the
application be and are hereby ordered to maintain peace towards the
Respondents.
5.
Each party to meet its own costs.”
The
respondents thereafter proceeded to cause the counter application to
be set down on the unopposed roll on the basis that the applicant had
not filed any opposing papers to the counter-application and was
therefore barred.
The
matter was set down for 28 October 2009 and on that date an order was
issued by this court as prayed for in the counter-application in the
terms already quoted immediately above.
It
is this order whose rescission the applicant now seeks.
The
main contention on the part of the applicant is that the default
judgment in favour of the respondents was granted in error as the
purported counter-application was fatally defective and that this is
therefore a proper matter for the court to rescind its order in terms
of r449.
It
is permissible for a respondent to a court application to file a
counter-application. This is so because r229(a) provides:
“(1)
Where a respondent fills a notice of opposition and opposing
affidavit, he may file, together with those documents, a
counter-application against the applicant in
the form, mutatis
mutandis,
of a
court
application or a chamber application,
whichever is appropriate.” (emphasis is added)
Sub
rule (2) of the same Rule, further provides:
“(2)
This order shall apply, mutatis
mutandis,
to a counter-application under sub rule (1) as though it were a court
or a chamber application, as the case may be and subject to sub rule
(3) and (4), it
shall be dealt with at the same time as the principal application
unless the court or a judge orders otherwise.” (emphasis added).
In
terms of sub rule (1) as quoted above, the counter-application ought
to have been made in the form of a court application.
Rule
230 requires a court application to be in Form No. 29 which shall be
supported by one or more affidavits setting out the facts upon which
the applicant relies.
The
purported counter-application did not meet or satisfy the
requirements stipulated by the rules.
There
was no compliance with the rules.
There
was thus no valid counter-application before the court and the order
sought in the purported counter-application ought not to have been
granted.
Had
the purported counter-application been dealt with at the same time as
the principal application as stipulated in sub rule (2) this non
compliance with the rules would in all probability have been exposed
or bought to the court's attention by the applicant's legal
practitioner. But as it turned out, the applicants were unaware of
the date set for the hearing of the purported counter-application.
For
the above reasons the application for rescission of the order granted
on 28 October 2009 in HC4101/09 must succeed.
It
is now intended to deal with the application in HC976/10 by the
respondents for contempt of court alleged to have arisen from alleged
non-compliance with the order of 28 October 2009 in HC4101/09 by the
parties cited therein.
In
HC4101/09, the main application, the Gospel of God Church
International 1932 was the only applicant. It must therefore also
follow that it was the only respondent in the purported
counter-application.
Thus
the parties cites as respondents in HC976/10 were not parties to the
proceedings in HC4101/09. As they were not parties to the matter in
HC4101/09 there would be no justification for them being cited as
respondents in the application for contempt of court.
If
there is any justification for so citing them it would still be
necessary for them to each be personally served with the order and
the application.
With
the exception of the second respondent who was served with the court
application for contempt of court on 19 February 2010, there is no
such evidence of personal service on the rest of the respondents.
Notably,
service on the second respondent was effected at 19534 Unit E, Seke,
Chitungwiza. The return of service by the Deputy Sheriff who
proceeded to serve the order in HC4101/09 at Gandanzara states that
the order was “served
on the
ground
as applicant's security guards refuse(d) to accept service.”
In
the circumstances, the order having apparently been left or placed on
the ground there was no service on any specific person.
Neither
is there any evidence that the respondents or any of them prevented
the Deputy Sheriff from effecting service.
The
three people who are named and said to have been among the group of
people that prevented the Deputy Sheriff from effecting service are
not parties to this matter.
What
they are alleged to have uttered at the time can only be regarded as
hearsay evidence.
The
Deputy Sheriff could have in terms of s22 of the High Court Act
called for the assistance of the Police to enable him to effect
service of the order on the intended individuals.
He
appears not to have done so.
There
is also no evidence to the effect that the second respondent was
party to the conduct alleged to constitute the contempt complained of
by the applicants. There is no evidence that he was at the shrine at
Gandanzara on 3 February 2010 when the applicants allege that they
were prevented from entering the shrine. He is not one of the three
persons named in the applicants' affidavits as having been part of
the group that prevented the applicants from entering the shrine. It
is of note that the application for contempt of court was not served
on any of the other respondents.
In
Scheelite
King Mining Co (Pvt)
Ltd v
Mahachi 1998
(1) ZLR 173 (H) it was stated at 177H – 178A 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.”
Rule
39(1) requires that “process in relation to a claim for an order
affecting the liberty of a person shall be served by delivery of a
copy thereof to that person personally.”
This
rule was complied with only in relation to the second respondent as
already stated above. The shortcomings of the application with regard
to the second respondent have already been discussed above.
With
regards to the other respondents, the said non compliance with r39(1)
is such as to dispose of the application as against them without any
need to go into the merits of the matter or discuss it any further.
With
regard to the second respondent, for the reasons discussed above, no
order can be granted against him.
The
application cannot therefore succeed. Costs will follow the cause.
The application will therefore be dismissed with costs.
For
the avoidance of doubt the order of the court in HC5403/09 is as
follows:
IT
IS ORDERED:
1.
That the order granted by this court on 28 October 2009 in HC4101/09
be and is hereby set aside.
2.
That the applicant is granted leave to file the answering affidavit
to the application in HC4101/09 within seven (7) days of this order.
3.
That the respondents shall pay the applicant's costs.
The
order of the court in HC976/10 is as follows:
It
is ordered that the application be and is hereby dismissed with
costs.
Venturas
& Samkange,
applicants' legal practitioners
Magwaliba
& Kwirira
respondents' legal practitioners
