CHATUKUTA J: This is an
application for contempt of court.
The background to this
application is that the applicants were the owners of Disi Farm (the
farm). The farm has since been acquired by the State. The respondent
was issued with an offer letter for subdivision 7 (Plot 7) of the
farm by the Minister responsible for land resettlement on 24 June
2008. When he moved onto the plot, he locked the tobacco grading
shed, the irrigation pump station and borehole thereby denying the
applicants access to the infrastructure.
The applicants approached this court and on 18 August 2008,
successfully obtained, in case No. HC4110/08, an order directing the
respondent to remove the locks and desist from interfering with the
applicants' peaceful and undisturbed occupation of the farm. The
order was granted with the consent of the respondent.
The respondent complied with the court order until the beginning of
December 2008 when he denied the applicants access to barns on the
farm and interfered with the curing of the applicants' tobacco.
The applicants approached this court again on 11 December 2008
seeking an order for restoration of access to the barns.
A spoliatory order was issued by GOWORA J on 16 December 2008 in case
No. HC7003/08 in default of the respondent.
The order was served on the respondent's wife on 12 January 2009.
It appears access to the barns was granted following the service of
the order.
In April 2009, the applicant again approached this court after the
respondent had again denied the applicant access to the barns and
sheds and to water.
On 4 May 2009 PATEL J issued an order, with the consent of the
respondent, in case No. HC1916/09. The following were the terms of
the provisional order:
“1.
1st
respondent and all those claiming occupation
through
him be and are hereby ordered to forthwith restore to applicants and
their employees full possession, use and access to the tobacco barns,
grading sheds, workshop, office and irrigation pump station on Plot 7
and all farming implements owned by applicants and located thereon so
as to restore the status quo prevailing on Plot 7 as at 15th
April 2009.
2.
1st
respondent and all those claiming occupation through him permit the
applicants and their employees to grade their tobacco and remove it
for sale thereafter.
3.
1st
respondent desists from threatening any of applicants workers (sic)
or management in carrying out their normal duties.
4.
1st
respondent shall be entitled to the full use and occupation of Plot
7, other than the structures and equipment referred to in paragraphs1
and the applicants shall refrain from interfering with 1st
respondent's farming activities, equipment and employees on Plot 7.
5.
Should the applicants or 1st
respondent breach any provision of this Order the Zimbabwe Republic
Police Guruve is hereby authorized to enforce the terms of this
order.”
This is the order (PATEL J's order) which is the subject of this
application.
The basis of this application is
that the applicant averred that, in defiance of this order, the
respondent forcibly evicted the 2nd
applicant's manager from the office on Plot 7. He has again locked
the gates to Plot 7 thereby denying the applicants possession, access
to and use of workshop, barns and sheds.
It is on the basis of this defiance that the applicant seeks an order
of contempt.
The respondent raised three preliminary issues.
(i) The first issue is that the
minister responsible for lands should be joined to the present
application.
(ii) The second issue is that
Robert Strong who deposed to the founding affidavit did not produce
authority from the applicants to institute the present proceedings.
(iii) The third issue is that the
applicants do not have the locus
standi to institute
these proceedings as they are in unlawful occupation of the farm.
I shall deal with the first and last issues jointly as they are
linked.
As the applicants rightly
observed, the remedy sought in this application is intended to ensure
that the respondent and not the Minister responsible for lands,
complies with PATEL J's order.
The order compelled the
respondent to restore the status quo
ante obtaining as at
15 April 2009 and to desist from interfering with the applicants'
activities.
The respondent seems not to appreciate the import of this
application.
It is not an application for the confirmation of the provisional
order granted in case No. HC1916/09. It is an application for
contempt of court in which the respondent is alleged to have
disregarded that provisional order.
The minister responsible for lands is not enjoined in that order to
perform any acts or desist from any conduct. It seems to me that the
minister cannot therefore be part of these proceedings.
Turning to the second preliminary
issue, the applicants cannot, under the circumstances, be said to
lack locus standi to
seek the enforcement of PATEL J's order.
The applicants merely seek to
enforce the order. They derive the locus
standi from that
order.
The last preliminary issue is that Robert Strong appears not to have
the authority to institute the present contempt of court proceedings.
It is trite that a person
purporting to represent a company must establish his authority to do
so. (See Thelma Court
Flats (Pty) Ltd v McSwigin 1954
(4) SA 457 and Director
Response Marketing (Pvt) Ltd v Shepherd
1993 (2) ZLR 218).
However, this is not always the
case. Each case depends on its own merits. (See Thelma
Court Flats (Pty) Ltd v McSwigin (supra)
at ******and Director
Response Marketing (Pvt) Ltd v Shepherd
(supra)
at 221E-222D).
It is not in issue that Robert Strong is the deponent to the founding
affidavits in all the applications brought by the applicants. In two
of the said applications the respondent consented to orders granted
by this court. One of such order is PATEL J's order which the
respondent stands accused of defying.
In casu,
it appears to me not proper to dismiss the application on the basis
that Robert Strong has not produced said authority.
This was the position in Thelma
Court Flats (Pty) Ltd v McSwigin (supra).
In that case, the deponent to the founding affidavit did not even go
as far as Robert Strong did, to aver that he had authority to
institute proceedings on behalf of Thelma Court Flats (Pvt) Ltd. He
merely averred that he was a director.
It appears to me that in the present case, it is not necessary for me
to require such proof. This is so in view of the previous
proceedings in which the respondent consented to orders granted by
this court where Robert Strong was the deponent.
I therefore find that all the preliminary issues raised by the
respondent have no merit.
I now turn to the merits of the application.
Civil contempt is the wilful and
mala fide refusal
or failure to comply with an order of court.
Before holding the respondent to
have been in contempt of court, it is necessary for the court to be
satisfied both that the order was not complied with and that the
non-compliance was wilful on the respondent's part. (See Lindsay
v Lindsay 1995 (1) ZLR
296 (S) at 299B;
Macheka
v Moyo
HB-78-03; Scheelite
King Mining Co (Pvt) Ltd v Mahachi 1998
(1) ZLR 173 (HC) at 177H-178C).
Once the applicant has
established that the respondent has failed to comply with the order,
the onus shifts to the respondent to establish that he or she was not
wilful and mala
fide.(See Herbstein
and Van Winsen, The
Civil Practice of the Superior Courts in South Africa,
1st
Ed p 657 and Macheka v
Moyo 2003 (2) ZLR 49
at 53G-54A).
The respondent in casu was required under the PATEL J order to
restore to the applicants and its employees full possession, use and
access to the tobacco barns, grading sheds, workshop, office and
irrigation pump station on Plot 7. The respondent was allowed in the
order to the full use and occupation of the plot other than the
structures and equipment referred to above.
The applicants averred that the
respondent is in wilful defiance of the order in case No. HC1916/09
in that he forcibly evicted the 2nd
applicant's manager from the offices on Plot 7 and locked out the
respondent from that plot and thereby denied them possession, use and
access to the infrastructure on the plot. The applicants approached
the Deputy Sheriff for assistance to enforce the order. The
respondent denied the Deputy Sheriff access to the plot.
The applicants attached a supporting affidavit from the Deputy
Sheriff.
The respondent contended that he has complied with the court order
and the applicants have moved off the plot on their own accord. He
averred that the applicants requested that they removed their
property and he allowed them to do so. He further averred that he
gave the applicants access but later denied them the same when they
vandalised the property.
The respondent further stated that the offer letter issued to him
entitles him to own and control the entire infrastructure on Plot 7.
He intended to use the facilities for storing his beans, sunflower
and seed maize and curing his tobacco.
He further stated in the opposing affidavit that the order by PATEL J
was not properly obtained as the order by GOWORA J in case No.
HC7003/09 was then extant.
He stated that the order by GOWORA J was granted on the understanding
that the applicants would move from the farm by 15 April 2009 when
the order would take effect. He refuted the allegations that he
denied the Deputy Sheriff access onto Plot 7. He stated that it is
the applicants who denied the Deputy Sheriff access and that the
Deputy Sheriff was bribed by one Tob Strong to depose as she did in
the supporting affidavit.
The respondent's explanation of what transpired is contradictory.
In one instance he stated that when the applicants moved off the
Plot, they removed their property from the plot on their own accord.
In the next breath, he confirmed that he allowed the applicants
access to remove their property for a limited period but later denied
them further access because they were vandalizing the infrastructure
on the plot.
It appears that the access referred to by the respondent is access
which was granted the applicants in terms of an order issued by KARWI
J on 2 November 2009 in case No HC5270/09. The order by KARWI J was
issued following an urgent chamber application filed by the
applicants on 29 October 2009. The applicants had again approached
this court seeking firstly, the setting down of the present
application urgently because of continued defiance of the order by
PATEL J and secondly, claiming the return of movable property that
the respondent had unlawfully taken or denied them access to.
It is evident from the opposing affidavit and heads of argument that
the respondent is under the impression that, because he has an offer
letter, he owns all the buildings on the farm and the applicants do
not have any claim irrespective of the orders that have been issued
by this court.
He even stated in paragraph 5 of his heads of argument that he does
not have a legal duty to allow the applicants use of the
infrastructure on Plot 7.
Despite having consented to the order by PATEL J he still does not
believe that he must comply with it.
He believes that the order was improperly obtained.
It is difficult to comprehend the basis upon which that belief is
founded considering that he consented, in person, to the granting of
that order.
The applicants conceded in the founding affidavit that the order
would subsist until 15 April 2009. The understanding when the order
was granted was that thereafter, the applicants would seek a formal
lease to use the barns and facilities on Plot 7 from the Ministry of
Lands, Agriculture and Resettlement.
The applicants however continued with the use of the infrastructure
until they were again locked out by the respondent leading to the
application before PATEL J.
Whilst the understanding between the parties before GOWORA J is
conceded by the applicants, the fact still remains that after 15
April 2009, the applicants were issued with an order to continue to
possess and use the infrastructure on Plot 7.
As indicated earlier, the order was issued with the consent of the
respondent and therefore cannot be said to have been improperly
obtained.
Assuming that I have erred in
holding that the order was not improperly obtained, a person who
believes that an order is invalid must generally comply with that
order. He may seek to have the order set aside by way of review or
appeal. (see Capital
Radio (Pvt) Ltd v Minister of Information & Ors
2000 (2) ZLR 289 (HC) at 293C-F and Whata
v Whata 1994 (2) ZLR
277 (S) at 281G-282A).
The respondent did not seek to have the order set aside. He therefore
cannot proceed as if the order does not exist.
The respondent's conduct, in my
view, not only demonstrates that he has willfully disobeyed a court
order but that he has also acted mala
fide.
The applicants have had to approach this court in four different
cases over the past two years in order to asset their rights against
respondent. In two of the cases, which include, the case in which
PATEL J granted the order in issue, orders were granted with the
respondent's consent yet he has still proceeded to defy those
orders.
The applicant has not been able
to obtain compliance of the order by PATEL J through the normal
execution process set out in the Rules. The respondent has even
denied the Deputy Sheriff access to Plot 7.
This is an demonstration of utter disdain of a court order.
Court orders must be respected and obeyed. It is the responsibility
of this court to ensure that its orders are ordered.
It appears to me that this is one of those instances where the court
must ensure compliance with its order by ordering the committal of
the respondent. Any lesser penalty would not adequately reflect the
court's displeasure at the respondent's conduct.
It is trite that the primary
object of contempt procedure is to compel compliance with the court's
orders. It is for this reason, that I will suspend the order of
committal to prison to afford the respondent an opportunity to purge
his contempt. (See Harare
West Rural Council v Sabawu 1985
(1) ZLR 179 (H) at 183D; Lindsay
v Lindsay (2) 1995 (1)
ZLR 296 (S) at 299F; Scheelite
King Mining Co (Pvt) Ltd v Mahachi
(supra)
at 178D; and Macheka v
Moyo (supra)
at 51C).
The applicants asked for costs on a higher scale.
It was contended that the applicants have had to approach this court
on numerous occasions because of the respondent's defiance of court
orders. This has resulted in additional and unwarranted expenses to
the applicant.
The court has been asked to express it displeasure by awarding costs
on a higher scale.
I am persuaded by the applicants' submissions. An award of costs on
a higher scale is justified under the circumstances.
Ms Wood,
for the applicants,
conceded, and rightly so, that the applicants have not justified
their prayer that the noting of appeal against my order should not
suspend the operation of the order.
It is therefore not necessary to make any determination on their
prayer in this regard.
In the result, it is ordered that:
1. The respondent be and is
hereby declared to be in contempt of this court.
2. The respondent be and is
hereby committed to prison for a period of 90 days (ninety) days.
3. The order for committal be and
is hereby suspended on condition that the respondent purges his
contempt by complying with the order given in this court in case No.
HC1916/09 on 4 May 2009 within 48 (forty-eight) hours of the service
of this order.
4. The respondent shall pay the
costs of this application on a legal practitioner/client scale.
Messrs Venturas & Samkange, applicants' legal
practitioners
