Unopposed
Roll
TSANGA
J:
A
court application for contempt of court was brought before me on 9
November 2016 in motion court. I granted the application and herein I
give my reasons for so doing against the backdrop of a brief
narrative of the history of the matter which puts the order in
context.
Contextual
background
1.
The default judgment
The
order for contempt has its genesis in a default judgment obtained by
the applicant Mr Mangwiro (as plaintiff) under HC4766/13 on the 18th
of February 2015, against the respondent (“the Minister”) and
others (as defendants), jointly and severally.
The
import of the judgment was that applicant was to be paid the sum of
US$78,000-00 as well as interest and costs of suit for money that had
been taken from him by the state in a matter in which he had finally
been acquitted in 2012. The state had failed to return the money to
him.
2.
The application for rescission
An
application for rescission of the above judgment was lodged on behalf
of the defendants by the Attorney General's Office, Civil Division
on the 1st of April 2015 under HC3001/15. Despite the lodging of this
application for rescission, it was however, not prosecuted to
finality leading the applicant to file an application for its
dismissal for want of prosecution.
3.
Dismissal for want of prosecution
The
application for dismissal of defendants' application for rescission
had been served on the 1st of June at the Attorney General's
Office–Civil Division. Again, the lawyer handling the matter
remained in slumber and no response was received to the application
for dismissal. Accordingly, the order dismissing the application for
rescission for want of prosecution was granted under HC4942/15 on the
30th of June 2015.
4.
Order to comply with statutory duty to effect payment
On
the 16th of May 2016 under HC4261/16 the respondent as Minister of
Home Affairs, was ordered to comply with the statutory duty cast upon
him in terms of s5(2) of the State Liabilities Act [Chapter 8:14] to
pay from the Consolidated Revenue Fund, the money awarded to the
applicant by the court on the 18th of February 2016. In particular,
the order also stated as follows:
“The
respondent is ordered and directed to comply with the order in the
above paragraph (1) within 14 days of this order having been served
on him, or his (permanent) secretary or any responsible person in his
Ministry, failing which, the respondent be and is hereby declared to
be in contempt of this order.”
The
order was sent directly to the Minister with a letter on the 19th of
May 2016. It is endorsed as having been received by Madakufa T on
behalf of the Minister. Another letter was written on the 7th of June
again directly to the Minister following up the letter of the 19th of
May and reminding him that the court order would lapse on the 9th of
June.
It
is date stamped as having been received by one G Mahlunge on his
behalf on the 7th of June.
There
was no compliance by the Minister and a court application for
contempt was filed on the 13th of June 2016.
5.
The Court application for contempt
Having
initially attempted personal service of the order for contempt on the
15th of June without success, the record shows through the return of
service that the application for contempt being HC5970/16 was finally
served successfully and personally on the Minister on the 24th of
June 2016 by Mr Benhura the Additional Sheriff of the High Court.
6.
Motion Court Directive to further serve the AG's Office Civil
Division
On
the 20th of July 2016, the judge sitting in motion court further
directed that the application for contempt of court be served on the
Attorney General - Civil Division. This was done on the 13th of
October with the application being received by Ms E Manjokoto of the
Attorney General's Office.
The
accompanying letter clearly stated that upon expiry of the prescribed
period, the matter would be set down again in motion court as the
Minister remained barred, having taken no action.
Again,
there was no action on their part.
Having
complied fully the with requirement to serve the Minister personally
as well as on the Attorney General - Civil Division, the applicant
then reset this matter for contempt on the 9th of November 2016.
What
emerges from a reading of the files leading to the application for
contempt, is an underlying lackadaisical approach to court processes
and orders on the part of the Minister's counsel handling the
matter and ultimately by the Minister himself.
It
was against the above background that the matter for contempt was on
the unopposed roll on 9 November 2016.
On
8 November 2016, the Minister had filed an “opposing” affidavit
in which he raised a point in limine that he was never served
personally nor were any of his officers.
Personal
service is indeed required by r39(1) of the High Court Rules, 1971 in
any application which affects a person's freedom. (See Mutyambizi v
Goncalves & Anor 2013 (2) 375).
Mr
Mumbengegwi from Civil Division appeared to oppose the matter in
motion court on the day and he was given audience in light of the
assertion by the Minister that he had not been served personally.
In
other words, the court did not stand resolute on the ground that the
Minister was barred but accorded his counsel a hearing.
Mr
Mumbengegwi spoke to the content of the affidavit, the gist of his
point being that the order for contempt would be improper in view of
lack of personal service.
However,
as the court pointed out to him, there were fundamental problems with
the Minister's affidavit which was before the court regarding his
averment.
In
his affidavit Minister was categorically clear that the application
he had not been served with was HC942/16. The Minister's point in
limine in his sworn affidavit was couched as follows:
“1.
It is my humble submission that I was never served personally or any
of my officers with the court application HC4942/16 for contempt of
court.
2.
Notwithstanding the above, I am willing to respond to the applicant's
founding affidavit if I am served with it.
3.
Wherefore I pray that the court be pleased to postpone this
application with costs pending the applicant's founding affidavit
being properly served to me.”
First
of all, there was no application HC4942/16. There was court
application HC4942/15. Materially, HC4942/15 was not a court
application for contempt of court but for dismissal for want of
prosecution. It was rightly served on the Attorney General's Office
- Civil Division and not on the Minister personally because Civil
Division were the ones representing him and others in the application
for rescission.
The
application for contempt is HC5970/16.
It
was not the Minister's assertion in his affidavit that he had not
been served with this particular application.
If
the file reference was an error, there was no application to amend.
Furthermore,
the assertion of non-receipt of the court application for contempt
was a bare denial. If all a party opposing an application for
contempt has to do in order to stay proceedings, is to allege without
any substantiation whatsoever that they never received the
application personally, in the face of a return of service to the
contrary, then justice would be hampered.
Where
a return of service clearly indicates that proper service has been
effected, then the onus is on the person alleging otherwise to prove
their assertion.
To
counter Mr Mumbengegwi's assertion that there was no service
despite the return of service clearly indicating that there was, the
applicant's counsel, Mr Mhlekiwa, drew attention to the Supreme
Court case of Gundani v Kanyemba 1988 (1) ZLR 226 (SC).
It
was stated therein that the return of service by an officer of court
be they the sheriff, deputy sheriff or messenger, is to be accepted
as prima facie proof of what is stated therein, albeit it can be
rebutted by clear and satisfactory evidence.
In
casu, there was nothing remotely equating to clear or satisfactory
evidence rebutting the Additional Sheriff's return of service that
he had served the court application for contempt in HC5970/16
personally on the Minister, Dr Ignatius Chombo himself.
Having
read the Minister's affidavit and having heard his counsel, the
court's conclusion was that there was no averment that the relevant
application had not been served, and, equally there was lack of proof
to substantiate the claim on non-service that had been made.
The
Minister, Dr Ignatius Chombo is a well-known public figure who is
unlikely to be mistaken. The Additional Sheriff would have no reason
as an officer of the court to lie that he had served him personally.
I
therefore had no reason to disbelieve his return of service which
indicated that he had served him personally at his offices at 11th
Floor Mukwati Building in 4th Street on 24 June 2016.
The
application had been served on him personally for the reason that the
court order compelling him to pay within 14 days under HC4261/16 had
been unequivocal that failure to pay would render him personally, Dr
Ignatius Chombo, as being in contempt of the order of court.
I
was equally content that there was a valid court order entitling the
applicant to the sum paid which the respondent was fully aware of.
I
was also satisfied from the record that the order under HC4261/16 for
Dr Ignatius Chombo as Minister of Home Affairs to comply with his
statutory duty to pay had been brought to his attention.
I
was further satisfied that there had been non-compliance with that
order leading to the application for contempt under HC5970/16 which
had been served personally on Dr Ignatious Chombo.
Besides
the factual realities the legal basis for granting the order for
contempt was fundamentally constitutionally rooted.
In
Karnec Investments (Private) Limited & Anor v Econet Wireless
(Private) Limited HH261-16, I emphasised as follows regarding the
applicable constitutional provisions:
“In
terms of s3 of our Constitution1
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”.
Section
3(1)(a) and (b) of our Constitution states as follows:
“(1)
Zimbabwe is founded on respect for the following values and
principles -
(a)
supremacy of the Constitution.
(b)
the rule of law.”
In
simple terms, the rule of law has been defined as follows:
“Rule
of law denotes a government of laws and not of men. Individuals
working within the state machinery are expected to exercise their
official duties and responsibilities in accordance with the law. In
other words, rule of law represents the supremacy of law”.2
Central
to the rule of law is that no person is above the law.
The
rule of law binds government and all officials to its precepts and
also preserves the equality and dignity of all persons. In essence,
equality before the law is not a hollow concept. Everyone, regardless
of factors such as their economic or social status, or political
affiliation is subject to the law.3
Accordingly,
the courts play a vital role in protecting the rights of all
individuals.
Effectiveness
of the courts is central to the rule of law and democratic
governance. Section 164(1) to (3) which deals with independence of
the judiciary provides as follows:
“164
Independence of judiciary
(1)
The courts are independent and are subject only to this Constitution
and the law, which they must apply impartially, expeditiously and
without fear, favour or prejudice.
(2)
The independence, impartiality and effectiveness of the courts are
central to the rule of law and democratic governance, and therefore —
(a)
neither the State nor any institution or agency of the government at
any level, and no other person, may interfere with the functioning of
the courts;
(b)
the State, through legislative and other measures, must assist and
protect the courts to ensure their independence, impartiality,
dignity, accessibility and effectiveness and to ensure that they
comply with the principles set out in section 165.
(3)
An order or decision of a court binds the State and all persons and
governmental institutions and agencies to which it applies, and must
be obeyed by them.”
In
summary, the Constitution is clear that the courts are subject only
to the constitution and to the law.
However,
this does not mean that constitutional principles are applied using
abstract rationality. Proper interpretation of constitutional
principles is never divorced from the facts. Additionally, courts are
enjoined to apply the law without fear or favour. Furthermore, an
order or decision of the court is binding on the state and all
persons and institutions to which it applies.
The
facts herein, as captured in the various court applications regarding
this matter which I have outlined, spoke for themselves in terms of
equities that underlay the application for contempt.
Respect
for the rule of law would be ferociously eroded were courts to permit
a Government official to send a message to a litigant who has
successfully sued, that the state does not value court orders.
For
the avoidance of doubt, what the Minister was directed to do in
HC4261/16 was as follows:
“1.
The respondent is ordered and directed to comply with statutory duty
cast upon him in terms of section 5(2) of the State Liabilities Act
(Chapter 8:14) that is to cause to be paid out of the consolidated
revenue fund, the sums of money awarded to the applicant by order of
this Honourable Court dated 18 February 2015 in case number
HC4766/13, judgement number HH-147/15. (My emphasis)
2.
The respondent is ordered and directed to comply with the order in
the above paragraph (1) within 14 days of this order having been
served on him, or his (permanent) secretary or any responsible person
in his Ministry, failing which, the respondent be and is hereby
declared to be in contempt of this order.
3.
The respondent is to pay the applicant's costs of suit on a legal
practitioner and client scale.”
In
terms of s5(2) of the State Liabilities Act [Chapter 8:14] 4,
his duty in his nominal capacity, is to cause payment to be made out
of the consolidated revenue fund.
This
is what he had seemingly failed to direct up to the time that
application for contempt was made.
In
order to facilitate the process of payment, he must give the
directive, or authority to pay as the catalyst for payment. That is
his role.
In
other words, the order sought was that he be declared to be in
contempt until he had taken the necessary measures to cause payment
to be made.He evidently does not make the actual payment himself as
there are government channels that ultimately make the payment upon
his request or directive that payment be made.
Having
been satisfied from the return of service that the relevant Minister
was served personally with the application for contempt, the finding
of contempt of court against Dr Ignatious Chombo as Minister of Home
Affairs was accordingly made in this context.
Mahuni
& Matatu, applicant's legal practitioners
Civil
Division, Attorney General's Office, respondent's legal
practitioners
1.
Amendment (No.20) Act 2013
2.
See Maru Bazezew Constitutionalism, Mizan Law Review, Vol 3, No.2,
2009 p358-369 at p364
3.
See section 56 of the Constitution as regards equality and
non-discrimination
4.
Section 5(2) of the Act provides as follows:
“Subject
to this section, no execution or attachment or process in the nature
thereof shall be issued against the defendant or respondent in any
action or proceedings referred to in section two or against any
property of the State, but the nominal defendant or respondent may
cause to be paid out of the Consolidated Revenue Fund such sum of
money as may, by a judgment or order of the court, be awarded to the
plaintiff, the applicant or the petitioner, as the case may be.”
