JOHN STRONG (PVT) LTD

and

TOBS STRONG (PVT) LTD

versus

WILLIAM WACHENUKA

HIGH COURT OF ZIMBABWE

CHATUKUTA J

Harare24 February & 3 March 2010

Opposed application

Ms Wood, for applicants

Respondent in person

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. HC 4110/08, 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. HC 7003/08 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. HC 1916/09.  The following were the terms of the provisional order:

“1.      1^st 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 15^th April 2009.

1. 1^st respondent and all those claiming occupation through him permit the applicants and their employees to grade their tobacco and remove it for sale thereafter.
2. 1^st respondent desists from threatening any of applicants workers (sic) or management in carrying out their normal duties.
3. 1^st 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 1^st respondent’s farming activities, equipment and employees on Plot 7.
4. Should the applicants or 1^st 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 2^ndapplicant’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.  The first issue is that the minister responsible for lands should be joined to the present application.  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.  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. HC. 1916/09.  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 CourtFlats (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 CourtFlats (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 299BMacheka 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, 1^stEd 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. HC 1916/09 in that he forcibly evicted the 2^ndapplicant’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. HC 7003/09 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 HC 5270/09.  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.