OPPOSED
APPLICATION
TSANGA
J:
This
is an opposed application in which the applicants seek that the
respondent Econet Wireless (Private) Limited (“Econet”), be fined
for contempt of a court of an order granted on the 4 February 2011 by
consent of both parties.
In
terms of the order that was granted, Econet was to desist forthwith
from carrying out building operations on its property. The property
is located in a certain upmarket neighbourhood in the suburb of
Highlands. The applicants' residential home is directly opposite a
property owned by Econet.
The
allegations that gave rise to the court order granted on 4 February
2011 were that at the time, starting in November 2010, Econet was
carrying out building operations without complying with the Regional
Town and Country Planning Act [Chapter
29:12].
The acts complained of included the level of noise on a daily basis
arising from the said operations and the intensity of building
operations both inside and outside the house. The operations were
said to have caused a heightened nuisance and a danger to the public
as the road was narrow and heavy vehicles were blocking the road. The
entrance that had been created from knocking down a wall was said at
the time to have facilitated the movement of earth moving equipment,
construction equipment and materials, 30 ton trucks and large dumper
trucks. Hundreds of tonnes of building materials were also said to
have been delivered.
Econet
also owned another adjacent property nearby where it was carrying out
legitimate renovations.
An
urgent application had been filed and an order had been granted by
consent at the time. It was worded as follows:
“1.
That 1st
Respondent
concedes that building operations/developments were being conducted
at 75 Orange Grove Drive, Highlands.
2.
That the new entrance on 75 Orange Grove Drive, Highlands shall be
sealed off within 7 days of this order.
3.
That building operations/developments shall cease at 75 Orange Grove
Drive, within 7 days of this order.
4.
That within the 7 days period all traffic shall be managed by the 1st
Respondent who shall ensure that all motorists are given adequate
warning.
5.
That the 1st
respondent shall pay applicants costs on an attorney client scale.”
This
order was complied with forthwith as Econet stopped its activities
and the case was closed with payment of costs for the infractions.
However,
more than three years following the granting of the above order,
Econet again knocked the wall to create an entrance for the delivery
of a generator.
It
is applicants' allegation that on 20 December 2014, the second
applicant, Mr Robert Strong, observed that an entrance to the
perimeter wall had been made. This was the same entrance that had
been ordered by the court to be closed in 2011. On the same date, he
observed that a freightliner truck delivered a massive generator.
Through direct inspection of the premises, Mr Strong averred that he
observed that there had been substantial developments on the premises
which included a concrete slab and an oil soak away for the
generator.
From
this, he concluded that Econet was in fact carrying out commercial
and industrial operations on the premises, contrary to the Regional
Town and Country Planning Act and in violation of the Pockets Hill
residential zoning.
The
actions were said to be in violation of the court order as Econet
should not have been a carrying out any building operations.
It
is these acts that have led the applicants to approach this court
seeking that Econet be charged with contempt of a valid court order
in that once again these developments were taking place without the
requisite statutory authority.
The
applicants through their counsel Ms Wood
stressed that the onus of proving that the contempt was not wilful
and mala
fide
is on the respondent. (John
Strong (Pvt) Ltd & Anor v William Wachenuka
(1)).
Her
interpretation of the court order on behalf of the applicants was
that the entrance was to remain sealed off and that no building
operations could take place on the premises whilst the order remained
in force. She interpreted the order as referring to building
operations in general. She stated that the order could not be read to
imply that fresh building operations could resume at some future
date. She insisted that what was being carried out were building
operations as the wall which was knocked down was a structure and
would need to be rebuilt. She also argued that slab for the generator
is a structure normally undertaken by a builder. The operations were
also said to fall foul of the Act in that they change the use of the
building from residential to commercial/industrial.
Econet,
through its legal counsel Mr Mpofu,
vehemently denied that it was in violation of the court order and
maintained that it could not be in contempt as it complied with all
aspects of the order in 2011 and the matter was closed.
If
there had been violation, he said the application would no doubt have
been filed sooner. Moreover, he maintained that the order did not
interdict Econet from installing a basic necessity such as a
generator, which they regard as essential given the electricity
situation in the country. He argued that a generator is a necessity
and insisted that all activities complained were consistent with the
purchase, supply and installation of the said generator. Moreover, he
emphasised that there is no law which prescribes the maximum capacity
of generators that individuals can purchase and utilise.
Since
the generator was not on the property in 2011, his position was that
it was never part of the order.
He
also insisted that if so inclined to pursue legal action then the
applicants ought to have approached this court by way of a fresh
application rather than seek to enforce an order that was fully
complied within the context of the facts that had given rise to its
quest at the time. As regards the soak away he argued that no
evidence was placed before the court that this was a recent
development.
He
asserted that the application was merely meant to frustrate Econet
because the applicants were miffed at the occupation of the property
by a company.
Mr
Mpofu
maintained that the order was complied with and fell away.
The
gist of his legal argument was that where the order has been served
and non-compliance is alleged, the onus is on the applicant to show
wilfulness or mala-fides
beyond a reasonable doubt. [Ex
Parte Mushambi;
Consolidated
Fish Distributors Pty Ltd v Zive & Ors;
Fakie
NO v CCII Systems (Pty) Ltd;
Gold v Gold.]
He
argued that the meaning of the order must be sought from the four
corners of the order itself. (Firestone
South Africa (Pty) v Genticuro AG).
He
also
argued that to the extent that the respondent flouted the Act by not
obtaining the necessary permit, then s27 of the Regional, Town and
Country Planning Act [Chapter
29:12] allows
regularisation of any such development. Reliance was placed on the
case of Bruce
v Econet Wireless (Pvt)
for this assertion.
Drawing
on the case of Nzara
& Ors v Kashumba and Ors
he also argued that the judgment became superannuated after three
years, meaning that the judgement became too old to use after three
years expired and would need to be revived.
However,
the applicant's response to this argument was that Order 40 r324
applies to superannuated judgments in respect of execution.
In
essence, the rule provides that no writ of execution may be issued
after the judgment has become superannuated unless the judgment has
been revived.
Ms
Wood
challenged the claim that the applicants should have made a fresh
application as the basis of the consent order was to ensure that
Econet complied with the Act, yet the operations were carried out
without a permit.
She
argued that installing an industrial generator and construction of an
industrial septic tank is a violation of the Part V of the said Act.
The
Legal Position on Contempt of Court
In
terms of s3 of our Constitution,
one of the founding values and principles upon which Zimbabwe is
founded is respect for the rule of law.
If
the court's authority is not respected there can be no fostering of
respect for the rule of law. Furthermore, in terms of s164(3) an
order of a court binds the state and all persons and governmental
institutions and agencies to which it applies and must be obeyed by
them. Contempt of court has clear bearings on legal proceedings in
that if it is not addressed, the jurisdictional power of the courts
would be illusionary. It is regarded as an act of disrespect and
insult to the court and an obstruction to justice. Contempt can take
place inside or outside the court.
In
the case of Nthabiseng
Pheko & Ors v Ekurhuleni Metropolitan Municipality
contempt of court was explained as follows:
“Contempt
of court is understood as the commission of any act or statement that
displays disrespect for the authority of and officers acting in an
official capacity. This includes acts of contumacy in both senses:
wilful disobedience and resistance to lawful court orders.…Wilful
disobedience of an order made in civil proceedings is both
contemptuous and a criminal offence. The object of contempt
proceedings is to impose a penalty that will vindicate the court's
honour, consequent upon the disregard of its previous orders as well
as to compel performance in accordance with the previous order”.
Central
to contempt is not only the disobedience to a court order but also
contumacious or stubborn and wilful disrespect for authority.
Econet's
counsel placed heavy reliance on the South African case of Fakie
in
his argument that the standard of proof in contempt cases must now be
beyond a shadow of doubt. Materially, what was sought in the Fakie
case was committal to prison arising from the alleged contempt. It
was in that context that it was laid down in that case that an
applicant for committal for contempt is required to prove all
elements of contempt beyond a reasonable doubt so as to accord with
constitutional protections availed accused persons.
However,
it was highlighted that the respondent in such proceedings is “not
an accused person but is entitled to analogous protections as are
appropriate in motion proceedings”.
It
was further explained in that case that the applicant is not required
to lead evidence on the respondent's state of mind.
Therefore,
once an applicant in contempt proceedings proves three requisites
namely, the existence of the order, its service or notice, and
non-compliance, it is the respondent who then leads evidence as to
whether the non-compliance was wilful or mala
fide.
The respondent need only adduce evidence that establishes a
reasonable doubt.
The
parameters of contempt of court were summed up in the Fakie
case
as
follows:
“(a)….
(b)…..
(c)
In particular the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness and
malafides)
beyond
a reasonable doubt.
(d)
But once the applicant has proved the order; service or notice; and
non compliance; the respondent bears an evidential burden in relation
to wilfulness and mala
fides.
Should
the respondent fail to advance evidence that establishes a reasonable
doubt as to whether non-compliance was wilful and mala fide, contempt
will have been established beyond a shadow of doubt…
(e)….”
Whether
contempt has been committed or not is largely a question of fact
given that contextually not every act of disobedience of a court
order amounts to civil contempt. Whilst a fine may be merited in some
cases, in others a rebuke or a warning may suffice given the
circumstances of the case.
That
there was an order of the court is not in doubt. That it was served
and the respondent was also fully aware of it is equally not in
dispute. The issue is whether for decision in so far as the onus is
on the applicant, is whether or not that order was complied with.
Given
that the essence of bringing contempt of court proceedings is to
induce compliance with a previous order, and that the court grants
enforcement to foster obedience to a court order,
I do not think that the facts before me show that there was
disobedience with the order granted by the court.
It
is far from being alleged that any of the acts that gave rise to the
complaint in 2011 continued unabated in the face of the court order.
I
agree fully that if that had indeed been the case, given the wording
of the court order, any contempt of that order would have been
brought to the notice of the court at that time.
The
entrance was sealed; the building operations did cease; and Econet
managed all traffic as per court order. It also paid costs. In other
words, Econet was in full compliance with that court order in light
of the facts to which the order related to. It was a readily
enforceable agreement which was couched in manner which gave finality
to the dispute as much of the action was to be done within a
specified period.
I
am therefore also in agreement with Econet's counsel that what is
complained of in this matter, more than three years later, arises
from an entirely new set of facts which must of necessity be examined
in context.
The
breaking down of the wall in the same spot as the previous one cannot
in itself be used as an indicator of disobedience and should not be
looked at in isolation of the facts that gave rise for the need. The
applicants themselves are clear that what they observed being
delivered through the created entrance was a generator. An inspection
by the second applicant of the premises also showed that a platform
have been put in place for the mounting of the generator.
There
are no allegations that besides this purpose the entrance was now
being used for the very same operations that had led to the granting
of the court order.
Having
found that the order was complied with and that the complaint before
me is a new cause of action, there is no need in my view in this
instance to also delve into the superannuation argument and the
import of r324 in this instance which the respondent also sought to
rely on.
In
my view, applicants have failed to discharge the onus of showing that
this order was not complied with.
But
even if my conclusion is erroneous that the order was complied, and
even if the evidential burden shifts to Econet as respondent to show
that it did not act wilfully and with mala
fides,
I am of the view that the respondent succeeds in raising a reasonable
doubt, which is all that is required of it, that its actions were not
wilful or mala
fide.
The
respondent clearly highlighted that the major purpose of knocking
down the wall was because the vehicle delivering the type of
generator could not fit through its normal entrance. It is not an
unusual occurrence to have a household item delivered where his
vehicle may not fit through the standard gate.
In
the absence of clear proof that the respondent was motivated by
disrespect for authority, the respondent's explanation succeeds
that it genuinely did not believe that it was acting in violation of
the court order.
There
was also no legal argument placed before his court that the type of
generator in question is forbidden in residential areas.
It
is common knowledge that in light of the electricity shortages that
have faced this country for more than fifteen years now, individuals
and companies have had to find ways of obtaining their own
electricity. Installing generators has become one of the common
solutions in addition to solar panels and invertors.
The
size of generator is dependent on the use to which the generator is
to be put.
Others
are designed for heavy duty needs which include not only lighting but
running cookers, geysers, boreholes among other requirements, while
some provide basic power for lights and plugs.
It
is the needs to which the generator is to be put that determines its
size.
Applicants
seem to allege that its mere size denotes that the premises are being
used for commercial purposes.
No
evidence of this was placed before the court other than the
applicants say so.
While
naturally in light of the facts previous facts that had necessitated
the obtainment of the court order by consent, applicants may have had
justifiable reason to panic at observing an opening and seeing a huge
delivery track, the circumstances that had necessitated opening the
wall had been fully explained to them. The explanation had been
reasonable. In the absence of any other evidence that Econet intended
to wilfully resume operations without a court order and that it has
indeed done so, that should have been the end of the matter.
If
indeed the slab constructed for the generator does need town planning
authority then Econet should rectify this by using s27 of the
Regional Town and Country Planning Act as they have already asserted.
Overall,
this application lacks merit and there is no reason why costs should
not follow the result.
In
the result this court makes the following order:
1.
The application be and is hereby dismissed.
2.
Applicants are ordered to pay the costs of suit.
Venturas
and Samkange,
applicants'
legal practitioners
Mtetwa
& Nyambirai,
respondent's
legal practitioners
1.
Having been Econet in that case
2.
2010
(1) ZLR 151
3.
1989 (2) ZLR 191 (HC)
4.
1968 (2) SA 517 at 523
5.
2006 (4) SA 326 (SCA)
6.
1975 (4) SA 237 D at 239F
7.
1977 (4) SA 298 (A) at 304
8.
HH52/2009
9.
HH151-2016
10.
Amendment (No.20) Act 2013
11.
See section 3(1)(b) in particular
12.
[2015] ZACC 10
13.
See note 3 supra
14.
Fakie No v CCII Systems note 3 supra at p332 A-C
