GOWORA J: On 31
August 2006 the applicant herein concluded a lease agreement with an entity
known as Calvary Family Fellowship Trust in respect of certain immovable
property commonly known as Guild Hall Uniprops, Harare. The applicant is the registered owner
of the building. The agreement was to commence on 1 September 2006 and
terminate on 31 August 2007. Some time in 2007 prior to the expiry of the
lease, the applicant gave notice to the City Calvary Fellowship Trust of its
intention to carry out renovations on the building in order that it, applicant,
would occupy the premises after their renovation. It seems common cause that
the building is somewhat dilapidated and in need of renovations. The lessee did
not vacate in terms of the notice resulting in the applicant instituting
proceedings under Case No H.C. 4945/07 for its eviction. On 26 October 2007 the
parties compromised and entered into a Deed of Settlement which is the basis
upon which the applicant has now approached this court for appropriate relief.
At the outset I sought the views of
counsel regarding the identity of the parties before me. Both assured me that
even though the deed of settlement was in the name of City Calvary Fellowship
Trust the respondent whose name was cited on the papers was one and the same
person as the trust. Thereafter Mr Nkomo,
on behalf of the applicant indicated that the applicant did not, through these
proceedings, seek the eviction of the respondent from the premises but sought
merely to give effect to the terms as set out and agreed in the deed of
settlement. All that the applicant was seeking was to be permitted to undertake
the renovations which the parties bound themselves to in the aforementioned
deed of settlement.
Paragraph
5 of the Deed of Settlement which the applicant seeks to have enforced through
an order of this court is framed as follows:
- Plaintiff when making renovations of the church hall
shall provide defendant an office within the partitions.
Although in filing the application
the draft sought the eviction of the respondent from the premises in line with
his submission that all that was sought was that the parties comply with the
terms of the deed, Mr Nkomo sought
that the draft order be amended to permit the applicant to commence renovations
and that anyone resisting be taken into custody and arrested. Mr Diza did not oppose the application to
amend the draft order and the amendment was granted by consent.
As regards the merits of the application,
it is obvious that when the settlement was negotiated and agreed to by the
parties, it was in the contemplation of the parties, whatever their
appellation, that there was need for the building to be renovated. Although
inelegantly worded the theme running through the deed is that of the parties
accommodating each other to achieve this goal. It is with this understanding
and intention of the parties gleaned from the deed that I now approach this
dispute in order to achieve a resolution of the same.
In terms of para 2 of the deed of
settlement the respondent was required to vacate space occupied by the
bookshop, the bridal shop, the electrical shop and any other office within the
same section of the building in order to accommodate Fidelity Funeral Assurance
Company, for the latter to commence renovations. The respondent also agreed
that if by 31st October 2007 it had not vacated the space stated
then the Sheriff for Zimbabwe
or his lawful deputy could evict the respondent from the same. As this was not a
court order I am not convinced that the eviction could be carried out on the
strength of the deed of settlement. A statement in the founding affidavit to
the effect that once the deed of settlement was filed with the registrar of
this court, it then became a court did not convince me that it was in fact a
true statement of the law. Nevertheless, it goes without saying that the
respondent agreed to vacate the said section of the building to make way for
renovations. The renovations to this portion of the building have in fact been
effected. What is left are renovations to the church. It is the paragraph which
relates to the church which the applicant now wishes the respondent to vacate
and afford the applicant the opportunity to renovate.
In order to oppose the granting of
the relief sought the respondent has raised a number of defences to the same.
The first ground on which it seeks the dismissal of the application is that
there are material disputes of fact, such that the matter cannot be resolved on
the papers. The material disputes of fact alluded to is whether the notice of
2007 is still valid since the parties entered into negotiations for a new
lease. In his address to me Mr Diza
did not touch on the alleged dispute of fact which was raised I believe in
answer to the initial claim for eviction. As the applicant has clearly stated
that it is not seeking eviction, I believe that this is not an issue I need
exercise any more effort and time on.
The deed of settlement required that
the parties enter into a new and separate lease agreement, but it is not clear
which part of the premises the lease was supposed to cover. The applicant in an
effort to place the background to the application before the court has gone to
some length to explain why the lease agreement has not been executed. The
respondent has in turn gone to equally lengthy explanations as to why there is
no lease agreement concluded. This however is not the issue before me. What I
have to determine is whether or not the applicant is required to request that
the respondent give it, the applicant, an opportunity to effect renovations as
agreed between the parties in terms of the deed of settlement. I do not see any
lawful reason on the papers why the applicant should not be allowed to renovate
as agreed to.
In submissions to the court the
respondent contended that the applicant is not the entity that filed the plans
for permission to renovate. Indeed the plans submitted bear the name of
Fidelity Life Assurance. The date of the approval by the local authority is 11
June 2007. From the date quoted on the permit, it is clear that the deed of
settlement was entered into after the parties had agreed on the need for the
renovations as the approval had been given. It is also clear on the deed of
settlement that the party effecting the renovations was not Zimre, but a
subsidiary, Fidelity Life Assurance. It is also common cause that the
respondent, did, in terms of para 2 of the deed vacate the space stated therein
in order to permit renovations to the same, which renovations, according to the
agreement, were being effected by Fidelity Assurance Company. In the opposing
affidavit the respondent did not question the need to renovate. I must confess
that given the manner in which the application was made, the respondent would
have been confused as to the exact nature of the relief being sought by the
applicant. The averments being made as to the different parties on the plans
and the application were made from the bar, and I was not disposed to discount
them as the draft order was changed at the last moment thus placing the
respondent somewhat at a disadvantage. However, I find that all that the
applicant is seeking is that the parties comply with the deed of settlement, to
which the respondent, even in the oral address was unable to mount a reasonable
defence. When the parties agreed to the renovations, it was in the
contemplation of them both that it was to accommodate the applicant's sister
company, not the applicant itself. I find it self serving and hypocritical for
the respondent to raise at this stage an issue that should have been raised
when the compromise was made. It should have in agreeing to the terms of the
deed insisted that Fidelity Funeral Assurance Company was not a party to the
lease agreement and had therefore no right to be referred to in the compromise
agreement. Instead it agreed to all conditions requiring it to give space and
vacate certain portions of the building to allow for renovations, not by the
lessor but by a sister company of the applicant. It cannot at this late stage
refuse to comply with the deed on the basis of the lack of locus standi of Fidelity Life Assurance to renovate the building. Given
the history of the matter and the circumstances under which the compromise was
reached I am of the view that the attitude adopted by the respondent is
indicative of dishonesty to say the least.
Again in his oral address Mr Diza submitted that the permit provided
that building work connected with the plan had to be implemented on or before 11
June 2009 or such later date as may be approved by the local authority on good
cause shown. The applicant was not afforded an opportunity to respond to this
aspect as it was not raised in the opposing affidavit. I will therefore not let
it weigh with me in the decision that I make.
There is an aspect of the case which
neither party addressed me on as elates to the incidence on the scene of
Fidelity Life Assurance Limited as the applicant for the renovations as opposed
to Fidelity Funeral Assurance Limited which was specifically mentioned in the
deed of settlement. It would seem that the parties are not very concerned about
the niceties of attaching to a holding company and its subsidiaries. I will not
let it weigh with me as neither Fidelity Funeral Assurance nor Fidelity Life
Assurance is a party before me. The deed of settlement would appear to have
been effected for the benefit of one or both of them.
In the result I find that the
respondent has not established any basis for this court not to order that the
deed of settlement be put into effect. It is therefore only just that the
applicant be permitted to renovate the church hall as agreed by the parties. I
cannot however order the arrest of any party barring the applicant from
effecting the renovations. In the amended order now being sought by the
applicant it is required that any persons or persons inhibiting the applicant
from effecting the renovations as ordered in this matter be arrested. An arrest for failure to comply with a court
would only ensue after a finding by a court that a party has deliberately
failed or refused to comply with a court order. An order that a party is in
contempt also allows such part an opportunity to purge his contempt before he
can be incarcerated for contempt. No notice was given to the parties sought to
be found in contempt that such an order would be sought against them in the
event that they disobeyed the court order.
C.J. MILLER in
his book Contempt of Court states as follows regarding notice:
“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. The ways in which this requirement
of notice may be satisfied are set out in RSC Ord. 45, r 7.
The general rule
is that personal service of a copy of the judgment or order is required. In the
case of a judgment or order against a corporate body enforcement will be
possible against an individual director only if he has been personally served.”
The same point
was made by Arlidge and Eady in their book The Law of Contempt
wherein they state:
“It is clear
that because of the special nature of the court's jurisdiction, where there is
prescribed any procedural step antecedent to the exercise of that jurisdiction,
every such rule should be scrupulously observed and strict compliance insisted
upon. This is so because the court's powers to punish for civil contempt are
quasi-criminal in nature. Where committal is sought, although the court has the
power to dispense with service of the notice of motion, personal service will
generally be insisted on unless there is clear evidence of evasion. It has even
been held that the attendance of the alleged contemnor at the hearing does not
per se waive the need for service. It is also necessary to establish service of
the order which is alleged to have been disobeyed by leaving a copy with the
person to be served. The importance of personal service, where committal is
sought, is to enable the alleged contemnor to know what conduct would amount to
a breach, and what would not; and before committal such notice is required to
be proved beyond a reasonable doubt”.
Although
the rules being referred to above are the rules of court pertaining in the
English courts, it goes without saying that our own rules are not very
different when it comes to orders for contempt of court. In terms of Order 9 r
39 (1) process in relation to a claim affecting the liberty of a person shall
be served by delivery of a copy thereof to that person personally. This
requirement that personal service be effected upon a person whose personal
liberty is in issue has been recognized by our courts, per GILLESPIE J in Scheelite King Mining Co (Pvt) Ltd v Mahachi.
Before a person can be held in contempt it is necessary to establish that not
only was the order not complied with but that the non compliance was willful on
the party of the person being complained against.
In
casu I have not been asked to find a
person in contempt of compliance with a court order served on the person. I am
being asked to find that a person may refuse to obey the order and that in such
a case anyone behaving in that manner be found in contempt. Such an order would
be in violation of the audi alteram
partem rule, that is tantamount to having a party found in contempt of an
order of court without being brought to court for an order of contempt. I am
unable to grant an order in those terms. In the event however, that the
respondent refuses to comply with the order the applicant would then be at
liberty to institute appropriate proceedings to ensure compliance. I will
therefore issue an order in the following terms:
IT IS HEREBY ORDERED THAT:
- The applicant be and is hereby permitted to effect
renovations to the church hall in terms of the deed of settlement entered
into by the parties on 25 October 2007.
- In compliance with para 5 of the deed of settlement
the applicant is to provide the respondent with an office.
- The respondent is ordered to pay the costs of this
application.
Mtetwa & Nyambirai, legal practitioners for the applicant
Musunga &
Associates, legal practitioners for the respondent.
