MAKONI J: On 3 October
2007, this court granted a provisional order in favour of the
applicant. The litigants were not present but were represented by
counsel.
On 23 November 2007, the applicant instituted the present proceedings
for contempt of court.
The applicant avers that the respondent has defied the provisional
order. He was legally represented when the order was granted. It is
its belief that same was communicated to him or a copy of the order
was sent to him.
The respondent admits that the order was granted in the presence of
his legal practitioner. He, however, avers that his legal
practitioner advised him that he would be served with the order. Up
to the time of filing his opposing papers he had not been served with
the court order.
It was submitted on behalf of the applicant that the conduct of the
respondent was intended to and indeed undermines the authority of
this court. The court was urged to redeem its dignity, reputation and
authority by imposing an appropriate penalty on the respondent.
It was further submitted that if the court were to accept the
respondent's defence, it should still find him to be in contempt of
court. He has since been served with the order at the time that he
was served with the present application. He has not purged his
contempt.
Contempt of court continuous until it is purged by compliance. The
court should therefore find him to be in contempt of court based on
this fact.
It was submitted on behalf of the respondent that in order for the
conduct of a party to constitute contempt of court, such conduct must
be willful or intended and calculated to impair the dignity or
reputation of the court. The conduct complained of must be in
violation of an obligation imposed on such person by a court of
competent jurisdiction to obey a court order until its discharge. The
respondent was not served with the order. His conduct cannot be said
to be unlawful, intentional and willful.
The provisional order had a provision to the effect that leave was
granted to the Deputy Sheriff to serve the provisional order upon the
respondent. It is clear from the applicant's papers that no such
service took place.
In terms of Rule 42B(1)(a) where
service has been effected by the sheriff or his deputy, proof of
service shall be by return of service in Form No.5A or by endorsement
on the process concerned.
There is no such proof attached to the applicant's papers.
The applicant advances the argument that the respondent must have
been aware of the terms of the provisional order as his legal
practitioner was present when it was granted.
This argument cannot succeed. As I have already alluded to, the
provisional order had to be served on the respondent.
It appears that cases whereby parties institute contempt of court
proceedings where the order in issue has not been served are on the
rise. There might be need to re-state the elementary requirement in
relation to service of court orders.
The need for sufficient notice of
the terms of the order being put in issue cannot be over emphasized.
This point was made by C J Miller in his book Contempt
of Court 2nd
edition p423 when he wrote:
“In all cases it must be shown
that the person against whom it is sought to apply the sanction of
the law of contempt has sufficient notice of the terms of the
judgment or order which it is alleged he has disobeyed”.
The need for sufficient notice of the terms of the order becomes
clearer when one looks at the essential elements in contempt
proceedings.
GILLESPIE J in Scheelite
King Mining Co (Pvt)
Ltd v
Mahachi
1998 (1) ZLR 173 H at 177 H and 178 A had this to say:
“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 party of the defaulting party.”
See also Lindsay
v Lindsay
1995 (1) ZLR 296 S at 299 B.
For one to establish willfulness,
he must establish that the defaulting party was fully aware of the
terms of the court order and he chose not to comply with the order.
As C J Miller supra
puts it at p 424:
“In so far as possible that
person should know with precision what it is he is required to do or
to abstain from doing”.
CHIDYAUSIKU CJ in Minister
of Lands & Ors v
Commercial Farmers
Union 2001 (2) ZLR 457
(S) made the same point and quoted from the same author at p 453 to
424:
“Before a finding of contempt
can be made, it is necessary to determine whether there has been a
factual breach of an order or understanding on the part of the body
or person brought before the court. This necessarily demands that the
terms of the order be expressed in clear unambiguous language and, in
so far as possible, the person should know with complete precision
what it is he is required to do”.
This can be achieved if the de-faulting party is served with the
court order unless if he was present when the order was pronounced.
In casu
the respondent was not
present when the order was pronounced and was not served with the
order as was ordered by the court.
The applicant has not therefore established willfulness on the part
of the respondent.
The applicant further contends that the respondent should be found to
be in contempt of court as he has now been served with the
provisional order and has not purged his contempt.
It is my view that to date the provisional order has not been served
on the respondent.
What was served on the respondent was the court application in this
matter to which the provisional order was attached as an annexure.
That cannot constitute service of the order as is required by the
provision of service in the order itself.
In any event the facts establishing contempt after the alleged
service have not been placed before me. The respondent has not been
given an opportunity to comment. The applicant's argument in that
regard can therefore not succeed.
Accordingly, I make the following order:
(1) The application is dismissed.
(2) The applicant is to pay the
respondent's costs.
Mhiribidi Ngarava & Moyo, applicant's legal
practitioners
C Mpame & Associates, respondent's legal practitioners
