On
1 June 2009 this court granted an order that case numbers HC2190/09
and HC2224/09 be heard urgently and simultaneously, consequent to an
application that the matters be heard on an urgent basis and
simultaneously. For ease of reference, I will refer to the parties as
they are cited herein in both matters.
The
brief background to the matter is that on 13 May 2009, this court,
and on the unopposed roll, granted an order(“the order”)
directing that the applicants and all persons acting on their
authority shall forthwith vacate Homefield Farm or any portion of the
farm and that they pay the respondents' costs. On 14 May 2009 the
applicants filed an application for the rescission of that judgment.
On 15 May 2009 the Deputy Sheriff attempted to serve the order. A
disagreement arose between the applicants on one side and the first
and second respondents and the Deputy Sheriff on the other side. It
degenerated into an assault on the Deputy Sheriff and the first
respondent.
The
court order was finally served on 18 May 2009.
On
19 May 2009 the applicants filed an application for stay of execution
of the order pending the determination of the application for
rescission of judgment. On 20 May 2009 the respondents filed an
application for contempt of court for failure to abide by the order
served on them on 18 May 2009 by the applicants.
On
4 June 2009, the parties entered a gentlemen's agreement whereby
the respondents undertook not to enforce the order pending the
determination of the matters before me.
At
the hearing of the matters, I decided to deal with case number
HC2224/09 which is the application for rescission of judgment.
In
this matter, the respondents raised a point in limine
to the effect that the applicants cannot be heard as they were in
contempt of the order referred to above. My reasoning was that if I
upheld the point in
limine,
then the application will be dismissed at that stage. If I dismissed
the point in limine,
I would then proceed to determine the issue of rescission of
judgment. It was also my reasoning that the arguments advanced in
respect of the point in
limine
in HC2224/09 would assist in disposing of case number HC2190/09.
The
point was taken, by the respondents, that the applicants should not
be heard as they were in contempt of court. The order of 13 May 2009
directed that the applicants vacate the farm forthwith. The
applicants remain in occupation.
The
applicants deny that they are in contempt of court and advance, in
the main, three reasons;
(i)
Firstly, they contend that prior to 18 May 2009, the order had not
been served on them personally. Upon being served with the order,
they applied, on a certificate of urgency, for stay of execution.
(ii)
Secondly, that the applicants immediately filed an application for
rescission of judgment. The application was filed within twenty-four
hours of the judgment being granted.
(iii)
Thirdly, that the order was vague by its use of the word “forthwith”.
(iv)
Fourthly, that the applicants could not be in contempt of court after
the “gentlemen's agreement” entered into on 4 June 2009.
According
to learned author C J MILLER in Contempt
of Court, 2nd
ed..,
there is need for sufficient notice of the terms of the order. He
states:
“In
all cases, it must be shown that the person against whom it is sought
to apply the sanction of the law of contempt had sufficient notice of
the terms of the judgment or order which it is alleged he has
disobeyed.”
In
casu,
it is common cause that the order was granted in the presence of the
applicants' legal practitioners. The following day, after the
granting of the order, the applicants deposed to affidavits seeking
the rescission of the order. It is clear from the above that the
applicants had sufficient notice of the terms of the order even
before it was served on them. Their contention that from 13 to 19 May
2009 they had not personally been served with the order is untenable.
In any event, our rules provide for personal service in relation to a
claim for an order affecting the liberty of the person only.
The
applicants submitted that they were not in contempt of the order as
they immediately filed an application for rescission of judgment. It
was further argued that the Rules give the defendant a window period
of one month to set aside a judgment granted in default and that the
application for rescission suspended the order until the
determination of the application.
This
is a novel argument.
It
is a settled position in our law that an application for rescission
does not suspend an order of court. If that was the position, the
procedure of an application for stay of execution would not have been
necessary. Instead, there would have been a provision for an
application for execution pending the determination of the
application for
rescission of judgment. We do not have such a procedure as an
application for rescission does not suspend the order. The applicants
must have been aware of this position and this explains why they
proceeded to file an application for stay of execution on 19 May
2009.
The
issue of the ambiguity of the order is, in my view, being raised as a
red herring.
It
is clear from the applicants papers that they had no intention of
obeying the order at any stage, as they had filed an application for
rescission of the order, which they believed suspended the order.
It
was submitted that, from June 2009, the applicants could not be held
to be in contempt of court as they had entered into a gentlemen's
agreement with the respondents.
In
my view, a gentlemen's agreement is exactly that, a gentlemen's
agreement. It does not set aside or suspend a court order. The order
remained extant and the applicants cannot escape liability on the
basis of the agreement.
In
view of the above, I will make a finding that the applicants are in
contempt of an order of this court.
It
was argued, on behalf of the respondents, that the applicants must
first obey the order and then seek redress. The applicants cannot be
heard.
The
applicants submitted that this court has a discretion to hear a party
even when the court has found that the applicants were in contempt of
a court order.
The
position is settled in our law that a party must first obey the order
and then seek redress. In Whata
v Whata
1994 (2) ZLR 277 (S)…, GUBBAY CJ…, said the following quoting
from S
v Muneya
1994 (1) ZLR 296 (S):
“It
was there held, after a review of the cases, that generally a person
may not refuse to obey an order of court merely because it has been
wrongly made; for to do so would be seriously detrimental to the
standing and authority of the court….,. The proper approach was for
the person first to obey the supposed invalid order and thereafter to
seek redress….,.”
Where
a party approaches the court for a redress and is in contempt of
court, the court has a discretion whether to hear the applicant or
not. See Commercial
Farmers Union v Minister of Lands and Associated Newspapers of
Zimbabwe (Pvt) Ltd v Minister of State for Information &
Publicity & Ors
2004
(1) ZLR 588 (S)…,.
In
the latter case, CHIDYAUSIKU CJ was of the view that there is no
difference, in principle, between a litigant who is in defiance of a
court order and a litigant who is in defiance of the law. He went on
to state:
“The
court will not grant relief to a litigant with dirty hands in the
absence of good cause being shown or until such defiance or contempt
has been purged.”
In
their papers, the applicants did not advance any reasons why the
court should exempt them from the application of the dirty hands
principle. They have therefore not shown good cause for the court to
exercise its discretion in their favour.
In
the result, the point in limine
succeeds. The applicants are in contempt of the order and their
application for its rescission will not be determined on the merits
until they purge their contempt.
Accordingly,
the application in HC2224/09 is dismissed with costs.
