Zion Apostolic Church V Chirumhanzi Rural District Council [2025] ZWMSVHC 1 (8 April 2025)

4 HCMSC 227-24 HMA 13-25 ZION APOSTOLIC CHURCH versus CHIRUMHANZI RURAL DISTRICT COUNCIL HIGH COURT OF ZIMBABWE CHAREWA J MASVINGO, 22 October 2024 & 8 April 2025 Opposed application: contempt of court Mr N Mugiya, for applicant Mr H Mutasa, for respondent CHAREWA J: This is an opposed application for contempt of court brought on the basis of failure to fully comply with an order of court ordering respondent to allocate and transfer stand number 2861 measuring 2035 square metres and stand number 2356 measuring 1969 square, to applicant within 14 days of the granting of the order wherein the applicant seeks the following relief: “1. The respondent be and is hereby held to be in contempt of court in particular to the order in CAPP29/23. The respondent is ordered to pay costs of suit on a client - attorney scale” Factual background On 2 October 2017, the parties entered into a deed of settlement in HC1245/17, wherein the applicant had sued the respondent for payment of USD900, 000.00. The settlement was to the effect that in lieu of the monetary claim, and in full and final settlement of any claims between the parties, the respondent would allocate and, within a reasonable time, transfer (at applicant’s cost) two institutional stands numbered 2861 and 2356 and measuring 2035 square metres and 1969 square metres respectively, to applicant. Further, respondent would fence off its sewer ponds within applicant’s farm within 6 months of the date of the deed of settlement. Respondent failed to adhere to the terms of the deed of settlement. Applicant was, accordingly and upon suing for specific performance on the deed of settlement, granted an order on 19 April 2023, and in CAPP29/23, requiring respondent to: Allocate and transfer two institutional stands numbered 2861 and 2356 measuring 2035 square metres and 1969 square metres respectively within 14 days of the grant of the order.Fence off, with fence appropriate to keep wild animals and applicant’s livestock from consuming sewer pond water, sewer ponds located in applicant’s farm within 30 days of the grant of the order.Pay costs of suit on attorney client scale. It is this order that the applicant wishes the respondent to be held in contempt of. It is common cause that as at 15 January 2024, respondent had only complied with the order for costs, but had taken no steps to comply with the rest of the order. It was only on 20 February 2024 that assurance was given that paragraph 2 of the order would be complied with before the end of that month. Further, as at 2 April 2024, almost a year after the order was granted, there was still no compliance with paragraph 1 of the court order. Therefore, on 23 May 2024, applicant filed this application. Parties’ submissions In limine, respondent raised two points in its opposing papers. The first was that in view of the fact that the resolution which clothes him with power to act was passed before the cause of action arose, applicant’s deponent had no authority to act, either in instituting the proceedings or in deposing to the founding affidavit, and in any event, such founding affidavit was improperly commissioned and therefore invalid. The second was that the order which respondent is alleged to be in contempt of was not served upon it, and accordingly, it cannot be held in contempt of what it was unaware of. On the merits, the respondent submits that it is in fact not in contempt of court as it is actually complying with the court order, having allocated stand number 2861 as ordered, and stand number 4434 in lieu of Stand 2356, to applicant; erected the fence around the sewer ponds as ordered and settled costs of suit. It is only now awaiting applicant’s compliance with transfer requirements (which include meeting minimum construction requirements) in order to effect transfer. In any event, if there is any failure to comply with the order it is neither a deliberate or conscious decision not to comply, nor is it mala fide. On the other hand, applicant submits that the points in limine lack merit and should be dismissed. The Board resolution authorising the deponent to act is not, as a matter of law, defective, and the founding affidavit is properly commissioned. Further, respondent was well aware of the court order given that it complied with the third paragraph with respect to payment of costs between August and September 2023. On the merits, the applicant’s case is brief: that respondent was ordered to perform certain acts within certain time frames. It was aware of the order but did not perform as ordered despite being put on notice by applicant. Ultimately respondent has not discharged the onus to show that it had indeed fully complied with the court order. Therefore, it is in contempt. In limine Whether the applicant’s deponent had no authority to institute proceedings or depose to the founding affidavit. This point is, in my view, ill taken and shall not detain me. On 2 April 2023, the deponent was given general power to institute proceedings on behalf of applicant. The presumption is that the applicant trusted its deponent to institute proceedings in its best interests and therefore gave him carte blanche to do so. That the authority pre-dates the cause of action is neither here nor there. Further, and in any event, the record shows that the current proceedings are a continuation of litigation on a dispute dating back to 2017 and wherein the deponent has represented applicant. In fact, respondent itself acknowledges that when it negotiated with applicant for the substitution of the stands mentioned in CAPP29/23, the applicant was represented by the same deponent. Whether the founding affidavit is properly attested. I also make short shrift of this point: the deponent swore to the veracity of the contents of the founding affidavit before a legal practitioner. While the typing on the affidavit referred to a commissioner of oaths, it is clear that it is sworn before a named legal practitioner. By virtue of registration as a legal practitioner and notary public, an individual is entitled to perform the functions of a commissioner of oaths. No submission was made by respondent that in casu, the particular legal practitioner had an impediment preventing him to so act. Whether respondent was not served with and was accordingly unaware of the court order This final point also fails to find favour with me. While it is true that no proof of service of the court order is on the record, the fact remains that: The court order itself does not require that it be formally served before compliance may be made therewith.Secondly, respondent admits that it was aware of the order and sought to comply with it. This is borne out by the fact that respondent complied with the order of costs, though belatedly; and also after being nudged, complied with the order to fence its sewer ponds. However, its reluctance to comply with the order to allocate and transfer property led to the current situation. The law requires that either the order must be served or it must have come to the notice of the contemnor. On that basis, I am inclined, in the interests of justice and finality to litigation, to depart from the requirements of the rules regarding service of court orders. Accordingly, despite apparent lack of formal service of the court order, respondent was sufficiently aware thereof to enable it to comply therewith. In the circumstances, the points in limine are dismissed and the matter must be decided on the merits. The Issues I glean the issues on the merits of this matter to be: Whether or not there was a deliberate and/or mala fide breach of a clear and unambiguous court orderWhether or not the respondent has discharged the onus that it did comply with the court order. The law The goal of contempt proceedings is to uphold court orders and penalize noncompliance. This is predicated from the duty by all persons to respect and abide by the law and the principle that disregard of court orders is an attack on the very fabric of the rule of law. Contempt of court is therefore committed where one wilfully and with mala fides refuses to comply with an order of court1. It follows therefore that in order to succeed in proceedings for contempt of court one must prove a direct and significant interest in the matter, a factual violation of a clear and unambiguous court order or undertaking, and that the disobedience was committed maliciously. Consequently, the test for contempt is that: That there is a court order which is extantThat the order has been either served on the individual(s) concerned, or has come to their personal notice,That the individual(s) in question know what it requires them to do or not to do, andKnowing what that order dictates, the individuals concerned deliberately and consciously disobeyed the order.2 The requirements for contempt of court are now trite, in that an applicant who alleges contempt must establish that: an order was granted against the alleged contemnor; the alleged contemnor was served with the order or had knowledge of it; and the alleged contemnor failed to comply with the order. Once these elements are established, wilfulness and mala fides are presumed and the respondent bears an evidentiary burden to establish, on a balance of probabilities, a reasonable doubt. Should the respondent fail to discharge this burden, contempt will have been established3. Analysis At the commencement of the hearing I enquired of the parties whether it was really necessary for this matter to have been brought before the court in the manner it was and whether a compelling order would not have been more appropriate. This is because the relief sought itself, being a mere finding of the presence of contempt, does not take the matter further, and is not executable. Further, I wondered whether, given the steps that have since been taken to comply with the order in CAPP29/23, the present application or even an application to compel was still called for or had been overtaken by events; it being common cause as at the date of hearing that: The order for costs was complied with between August and September 2023.The order for fencing of sewer ponds was complied with in February 2024.The order for allocation of stands was complied with by the allocation of stand number 2861 as ordered in CAPP29/23 and stand number 4434 in lieu of stand number 2356 after a compromise agreement was negotiated as stand number 2356 was no longer available. However the applicant in particular insisted on proceeding with the application, seeking contempt of court for failure by respondent to fully comply with the court order as transfer of the stands had not yet been done. In relating the facts of this case to the test for contempt, it is common cause that: An order was granted against the respondent and such order is extant.While there is no proof that respondent was served with the order, there is no doubt that respondent had knowledge of the order and its contents, otherwise, it would not have complied with the order of costs therein or eventually the order to fence off its sewer ponds. And as already stated above, the law does not require that there must be formal service of the order before contempt proceedings may be instituted. It is enough that the order came to a respondent’s notice, but respondent did not comply therewith.There is no doubt that despite being aware of the order respondent has dragged its feet over the years such that full compliance with the order made in April 2023 as transfer of the stands was yet to be done as at 22 October 2024. Respondent thus has an evidentiary burden to discharge in order to raise doubt of any contempt of court. It is this last requirement that led me to inquire of the parties whether the application was still necessary as at the time it finally came before the court. The application itself acknowledges that compliance had been done but not to the full extent of the court order in that transfer of the properties involved was still outstanding. However, the court takes judicial notice that transfer, particularly of land under charge of local government authorities, is not done merely because a party demands it, but that such party must comply with the laws, regulations and conditions for such transfer. Applicant has not shown that it did so. In fact, its reply inferred that it was waiting to be advised of the transfer requirements by respondent but did not think it fit to stir itself to take proactive action to find out the requirements and meet them. While it is true that the pace of compliance with a court order by respondent has been painfully slow, there has, nevertheless been substantial compliance. Accordingly, as at the time of the hearing, the burden of the required full compliance which forms the basis of this application rests heavily on the applicant itself: to first fulfil the transfer requirements. On balance therefore, I cannot, in the circumstances find that the respondent can be held to be in contempt as there is no evidence of a failure to disobey a clear and unambiguous court order, but rather, evidence of tardy compliance coupled by applicant itself failing to fulfil transfer requirements. Consequently, wilfulness and mala fides being presumed from a failure to comply with a court order, I am of the view that the respondent has discharged the onus that it did comply with the court order. Costs The applicant sought costs on an attorney client scale as against the respondent. Its application having failed, applicant cannot obtain those costs as they normally follow the cause. In any event, even if I had found respondent to be in contempt, I would have been loath to grant higher costs, as this matter ought not to have been persisted with given the situation between the parties on the ground. The matter of contempt had become moot given the state of compliance and the relief sought itself, made the application an academic exercise. For its part, respondent also claimed costs on the higher scale in its opposing affidavit. However, in its heads of argument it only sought ordinary costs and did not motivate for higher costs. Further, and in any event, had respondent diligently and promptly complied with the order for specific performance, this application, clearly borne out of frustration by the applicant at the length of time respondent has taken to ensure finalisation of the matter, would not have been necessary. In the circumstances, this is a matter where, costs being in the court’s discretion, it is just and equitable that I depart from the default position and let each party bear its own costs. DISPOSITION Accordingly, IT IS ORDERED THAT The application for contempt of court is dismissed.Each party shall bear its own costs. Mugiya Law Chambers, applicant’s legal practitioners Messrs Gill Godlonton & Gerrans, respondent’s legal practitioners 1See Madzimbamuto v Musamadiya (235 of 2024) [2024] ZWHHC 235 (6 June 2024) 2 See Borges v Shumba HH 403/21, Simba Mukambirwa & 7 Ors v The Gospel of God Church International SC 8/2014, Batezat v Permassan (Pvt) Ltd SC 49/09. 3 See Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others [2021] ZACC 18; 2021 (5) SA 327 (CC) para 37; Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S); Moyo v Macheka SC 55/05; Mukambirwa & Ors v The Gospel of God Church International supra). 4 HCMSC 227-24 HMA 13-25 4 HCMSC 227-24 HMA 13-25 ZION APOSTOLIC CHURCH versus CHIRUMHANZI RURAL DISTRICT COUNCIL HIGH COURT OF ZIMBABWE CHAREWA J MASVINGO, 22 October 2024 & 8 April 2025 Opposed application: contempt of court Mr N Mugiya, for applicant Mr H Mutasa, for respondent CHAREWA J: This is an opposed application for contempt of court brought on the basis of failure to fully comply with an order of court ordering respondent to allocate and transfer stand number 2861 measuring 2035 square metres and stand number 2356 measuring 1969 square, to applicant within 14 days of the granting of the order wherein the applicant seeks the following relief: “1. The respondent be and is hereby held to be in contempt of court in particular to the order in CAPP29/23. The respondent is ordered to pay costs of suit on a client - attorney scale” Factual background On 2 October 2017, the parties entered into a deed of settlement in HC1245/17, wherein the applicant had sued the respondent for payment of USD900, 000.00. The settlement was to the effect that in lieu of the monetary claim, and in full and final settlement of any claims between the parties, the respondent would allocate and, within a reasonable time, transfer (at applicant’s cost) two institutional stands numbered 2861 and 2356 and measuring 2035 square metres and 1969 square metres respectively, to applicant. Further, respondent would fence off its sewer ponds within applicant’s farm within 6 months of the date of the deed of settlement. Respondent failed to adhere to the terms of the deed of settlement. Applicant was, accordingly and upon suing for specific performance on the deed of settlement, granted an order on 19 April 2023, and in CAPP29/23, requiring respondent to: Allocate and transfer two institutional stands numbered 2861 and 2356 measuring 2035 square metres and 1969 square metres respectively within 14 days of the grant of the order. Fence off, with fence appropriate to keep wild animals and applicant’s livestock from consuming sewer pond water, sewer ponds located in applicant’s farm within 30 days of the grant of the order. Pay costs of suit on attorney client scale. It is this order that the applicant wishes the respondent to be held in contempt of. It is common cause that as at 15 January 2024, respondent had only complied with the order for costs, but had taken no steps to comply with the rest of the order. It was only on 20 February 2024 that assurance was given that paragraph 2 of the order would be complied with before the end of that month. Further, as at 2 April 2024, almost a year after the order was granted, there was still no compliance with paragraph 1 of the court order. Therefore, on 23 May 2024, applicant filed this application. Parties’ submissions In limine, respondent raised two points in its opposing papers. The first was that in view of the fact that the resolution which clothes him with power to act was passed before the cause of action arose, applicant’s deponent had no authority to act, either in instituting the proceedings or in deposing to the founding affidavit, and in any event, such founding affidavit was improperly commissioned and therefore invalid. The second was that the order which respondent is alleged to be in contempt of was not served upon it, and accordingly, it cannot be held in contempt of what it was unaware of. On the merits, the respondent submits that it is in fact not in contempt of court as it is actually complying with the court order, having allocated stand number 2861 as ordered, and stand number 4434 in lieu of Stand 2356, to applicant; erected the fence around the sewer ponds as ordered and settled costs of suit. It is only now awaiting applicant’s compliance with transfer requirements (which include meeting minimum construction requirements) in order to effect transfer. In any event, if there is any failure to comply with the order it is neither a deliberate or conscious decision not to comply, nor is it mala fide. On the other hand, applicant submits that the points in limine lack merit and should be dismissed. The Board resolution authorising the deponent to act is not, as a matter of law, defective, and the founding affidavit is properly commissioned. Further, respondent was well aware of the court order given that it complied with the third paragraph with respect to payment of costs between August and September 2023. On the merits, the applicant’s case is brief: that respondent was ordered to perform certain acts within certain time frames. It was aware of the order but did not perform as ordered despite being put on notice by applicant. Ultimately respondent has not discharged the onus to show that it had indeed fully complied with the court order. Therefore, it is in contempt. In limine Whether the applicant’s deponent had no authority to institute proceedings or depose to the founding affidavit. This point is, in my view, ill taken and shall not detain me. On 2 April 2023, the deponent was given general power to institute proceedings on behalf of applicant. The presumption is that the applicant trusted its deponent to institute proceedings in its best interests and therefore gave him carte blanche to do so. That the authority pre-dates the cause of action is neither here nor there. Further, and in any event, the record shows that the current proceedings are a continuation of litigation on a dispute dating back to 2017 and wherein the deponent has represented applicant. In fact, respondent itself acknowledges that when it negotiated with applicant for the substitution of the stands mentioned in CAPP29/23, the applicant was represented by the same deponent. Whether the founding affidavit is properly attested. I also make short shrift of this point: the deponent swore to the veracity of the contents of the founding affidavit before a legal practitioner. While the typing on the affidavit referred to a commissioner of oaths, it is clear that it is sworn before a named legal practitioner. By virtue of registration as a legal practitioner and notary public, an individual is entitled to perform the functions of a commissioner of oaths. No submission was made by respondent that in casu, the particular legal practitioner had an impediment preventing him to so act. Whether respondent was not served with and was accordingly unaware of the court order This final point also fails to find favour with me. While it is true that no proof of service of the court order is on the record, the fact remains that: The court order itself does not require that it be formally served before compliance may be made therewith. Secondly, respondent admits that it was aware of the order and sought to comply with it. This is borne out by the fact that respondent complied with the order of costs, though belatedly; and also after being nudged, complied with the order to fence its sewer ponds. However, its reluctance to comply with the order to allocate and transfer property led to the current situation. The law requires that either the order must be served or it must have come to the notice of the contemnor. On that basis, I am inclined, in the interests of justice and finality to litigation, to depart from the requirements of the rules regarding service of court orders. Accordingly, despite apparent lack of formal service of the court order, respondent was sufficiently aware thereof to enable it to comply therewith. In the circumstances, the points in limine are dismissed and the matter must be decided on the merits. The Issues I glean the issues on the merits of this matter to be: Whether or not there was a deliberate and/or mala fide breach of a clear and unambiguous court order Whether or not the respondent has discharged the onus that it did comply with the court order. The law The goal of contempt proceedings is to uphold court orders and penalize noncompliance. This is predicated from the duty by all persons to respect and abide by the law and the principle that disregard of court orders is an attack on the very fabric of the rule of law. Contempt of court is therefore committed where one wilfully and with mala fides refuses to comply with an order of court1. It follows therefore that in order to succeed in proceedings for contempt of court one must prove a direct and significant interest in the matter, a factual violation of a clear and unambiguous court order or undertaking, and that the disobedience was committed maliciously. Consequently, the test for contempt is that: That there is a court order which is extant That the order has been either served on the individual(s) concerned, or has come to their personal notice, That the individual(s) in question know what it requires them to do or not to do, and Knowing what that order dictates, the individuals concerned deliberately and consciously disobeyed the order.2 The requirements for contempt of court are now trite, in that an applicant who alleges contempt must establish that: an order was granted against the alleged contemnor; the alleged contemnor was served with the order or had knowledge of it; and the alleged contemnor failed to comply with the order. Once these elements are established, wilfulness and mala fides are presumed and the respondent bears an evidentiary burden to establish, on a balance of probabilities, a reasonable doubt. Should the respondent fail to discharge this burden, contempt will have been established3. Analysis At the commencement of the hearing I enquired of the parties whether it was really necessary for this matter to have been brought before the court in the manner it was and whether a compelling order would not have been more appropriate. This is because the relief sought itself, being a mere finding of the presence of contempt, does not take the matter further, and is not executable. Further, I wondered whether, given the steps that have since been taken to comply with the order in CAPP29/23, the present application or even an application to compel was still called for or had been overtaken by events; it being common cause as at the date of hearing that: The order for costs was complied with between August and September 2023. The order for fencing of sewer ponds was complied with in February 2024. The order for allocation of stands was complied with by the allocation of stand number 2861 as ordered in CAPP29/23 and stand number 4434 in lieu of stand number 2356 after a compromise agreement was negotiated as stand number 2356 was no longer available. However the applicant in particular insisted on proceeding with the application, seeking contempt of court for failure by respondent to fully comply with the court order as transfer of the stands had not yet been done. In relating the facts of this case to the test for contempt, it is common cause that: An order was granted against the respondent and such order is extant. While there is no proof that respondent was served with the order, there is no doubt that respondent had knowledge of the order and its contents, otherwise, it would not have complied with the order of costs therein or eventually the order to fence off its sewer ponds. And as already stated above, the law does not require that there must be formal service of the order before contempt proceedings may be instituted. It is enough that the order came to a respondent’s notice, but respondent did not comply therewith. There is no doubt that despite being aware of the order respondent has dragged its feet over the years such that full compliance with the order made in April 2023 as transfer of the stands was yet to be done as at 22 October 2024. Respondent thus has an evidentiary burden to discharge in order to raise doubt of any contempt of court. It is this last requirement that led me to inquire of the parties whether the application was still necessary as at the time it finally came before the court. The application itself acknowledges that compliance had been done but not to the full extent of the court order in that transfer of the properties involved was still outstanding. However, the court takes judicial notice that transfer, particularly of land under charge of local government authorities, is not done merely because a party demands it, but that such party must comply with the laws, regulations and conditions for such transfer. Applicant has not shown that it did so. In fact, its reply inferred that it was waiting to be advised of the transfer requirements by respondent but did not think it fit to stir itself to take proactive action to find out the requirements and meet them. While it is true that the pace of compliance with a court order by respondent has been painfully slow, there has, nevertheless been substantial compliance. Accordingly, as at the time of the hearing, the burden of the required full compliance which forms the basis of this application rests heavily on the applicant itself: to first fulfil the transfer requirements. On balance therefore, I cannot, in the circumstances find that the respondent can be held to be in contempt as there is no evidence of a failure to disobey a clear and unambiguous court order, but rather, evidence of tardy compliance coupled by applicant itself failing to fulfil transfer requirements. Consequently, wilfulness and mala fides being presumed from a failure to comply with a court order, I am of the view that the respondent has discharged the onus that it did comply with the court order. Costs The applicant sought costs on an attorney client scale as against the respondent. Its application having failed, applicant cannot obtain those costs as they normally follow the cause. In any event, even if I had found respondent to be in contempt, I would have been loath to grant higher costs, as this matter ought not to have been persisted with given the situation between the parties on the ground. The matter of contempt had become moot given the state of compliance and the relief sought itself, made the application an academic exercise. For its part, respondent also claimed costs on the higher scale in its opposing affidavit. However, in its heads of argument it only sought ordinary costs and did not motivate for higher costs. Further, and in any event, had respondent diligently and promptly complied with the order for specific performance, this application, clearly borne out of frustration by the applicant at the length of time respondent has taken to ensure finalisation of the matter, would not have been necessary. In the circumstances, this is a matter where, costs being in the court’s discretion, it is just and equitable that I depart from the default position and let each party bear its own costs. DISPOSITION Accordingly, IT IS ORDERED THAT The application for contempt of court is dismissed. Each party shall bear its own costs. Mugiya Law Chambers, applicant’s legal practitioners Messrs Gill Godlonton & Gerrans, respondent’s legal practitioners 1See Madzimbamuto v Musamadiya (235 of 2024) [2024] ZWHHC 235 (6 June 2024) 1See Madzimbamuto v Musamadiya (235 of 2024) [2024] ZWHHC 235 (6 June 2024) 2 See Borges v Shumba HH 403/21, Simba Mukambirwa & 7 Ors v The Gospel of God Church International SC 8/2014, Batezat v Permassan (Pvt) Ltd SC 49/09. 2 See Borges v Shumba HH 403/21, Simba Mukambirwa & 7 Ors v The Gospel of God Church International SC 8/2014, Batezat v Permassan (Pvt) Ltd SC 49/09. 3 See Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others [2021] ZACC 18; 2021 (5) SA 327 (CC) para 37; Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S); Moyo v Macheka SC 55/05; Mukambirwa & Ors v The Gospel of God Church International supra). 3 See Secretary, Judicial Commission of Inquiry into Allegations of State Capture v Zuma and Others [2021] ZACC 18; 2021 (5) SA 327 (CC) para 37; Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S); Moyo v Macheka SC 55/05; Mukambirwa & Ors v The Gospel of God Church International supra).