Court name
Supreme Court of Zimbabwe
Case number
SC 55 of 2005
Civil Appeal 190 of 2003

Moyo v Macheka (90/03) (SC 55 of 2005, Civil Appeal 190 of 2003) [2005] ZWSC 55 (23 October 2005);

Law report citations
Media neutral citation
[2005] ZWSC 55



10


SC
55/05









DISTRIBUTABLE
(44)












Judgment No. SC 55/05


Civil
Appeal No. 190/03













LETINA TITITI MOYO v
ADOLF MACHEKA









SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ,CHEDA JA & ZIYAMBI JA


BULAWAYO,
JULY 25 & OCTOBER 24, 2005








M
Makonese
, for the
appellant





C
P Moyo
, for the
respondent









ZIYAMBI JA: On 23 May 2003,
the High Court sitting at Bulawayo granted an
ex
parte
order in favour
of the respondent against the appellant for the return of his goods
allegedly removed from his house by the appellant.
In terms of this
order the appellant was to return the said goods to the respondent
within 24 hours of service of the order upon
her. The order was
served on the appellant on 22 May 2003. There was no compliance
with the order and the respondent sought an
order committing the
appellant for contempt of court. This order was granted by the
High court relying on the principle that:



“ … a
judgment, as the one in
casu,
ordering the debtor to do or refrain from doing any act is
enforceable against the person of the debtor by way of committal for
contempt of court, not by execution against his property - See
Jeanes
&
Anor
1977 (2)SA 703 at 705 F-G and
Food
& Allied Workers Union

v
Sanrio Fruits CC &
Ors
1994 (2) SA 486
(T)”.






Against
this order the appellant now appeals.






The
main grounds of appeal advanced were:-


“1. that
the application should have been brought by court application yet it
was brought as a chamber application and that the court
erred in
entertaining the application which was by reason of the irregularity
referred to improperly before it;







2. that it had not been proved on
a balance of probabilities that the appellant had unlawfully refused
to comply with the Court order;






3. that the learned Judge erred
in holding that the issue of contempt had been established when there
was a real and substantial dispute
of fact which could not be
resolved on the papers.”







It is necessary to set out the
background facts.






The
respondent and the appellant lived together as husband and wife for a
period in excess of a year. Towards the end of the year
2002, the
relationship went sour and the respondent asked the appellant to
leave his house whereupon the appellant demanded payment
of two
million dollars. The respondent obtained a bank cheque in that
amount and gave it to the appellant but still the appellant
did not
leave saying she needed time to make proper arrangements for herself
and her daughter.







On the evening of 29 March 2003,
the respondent was driving near Bulawayo Central Police Station when
he noticed the appellant driving
behind him. The next moment the
appellant rammed her car into the rear of his motor vehicle. He
tried to move away but she chased
and caught up with him at the
intersection and again rammed into the rear of his vehicle. The
Police came onto the scene and shot
at his vehicle claiming that the
appellant had reported to them that the car which he was driving was
hers which had been stolen.







The respondent then instructed
his legal practitioners to take action to ensure the eviction of the
appellant from his house.







He returned home on 12 May 2003
to find that the appellant was moving her things out of the house.
When he told her not to remove
his property together with hers she
reacted violently and assaulted him using ‘all manner of weapons
including bottles’. The
altercation continued throughout the
night until the respondent fled for safety to his neighbour’s house
where he spent the rest
of the night. The doctor’s report which
forms part of the record shows that there were lacerations on the
respondent’s forehead,
cuts on his upper lip, bite marks on both
hands, small stab wound on the left side of the chest; loss of lower
incisor. A statement
from Sergeant Mhlanga of the ZRP Bulawayo, to
the effect that he observed lacerations on the forehead and upper lip
of the respondent
while he observed no visible injuries on the
appellant, also forms part of the record.







After the respondent fled, the
appellant looted the house and took with her property belonging to
the respondent and valued at some
US$1400. The matter was reported
to the Police and the respondent sought and obtained, on these facts,
the
ex parte
order referred to above.







On 13 May 2003, the day on which
the appellant allegedly removed the property, the parties met at
Donnington Police Station where,
in the presence of senior police
officers, the appellant admitted to taking the respondent’s
property and as confirmation of that
fact produced and handed to the
police, the respondent’s Motorola cellular phone which forms part
of the property listed by the
respondent as removed, by the
appellant, from his house.







In her opposing papers the
appellant denied taking or being in possession of the property in
question. She gave no explanation for
the disappearance of the
property. However, in the supporting affidavit of Ms Charlene McKop
(‘McKop’), the parties’ neighbour,
which affidavit was annexed
to the application, McKop confirmed that the respondent had come to
her house on the morning of 13 May
2003, bleeding from cuts on his
face and lips. After he had been at her house for some time he
expressed the desire to return to
his house in order to wash and
change. Before he left, McKop decided to check whether the
appellant was still at the house. She
went out of her house and
looked into the respondent’s yard. There she saw three men
loading furniture from the respondent’s
house into a Mazda pick up
truck which was parked in the yard. The appellant’s motor vehicle
was also parked in the yard. After
a while, the white Mazda van was
driven off followed shortly by the appellant driving her vehicle and
accompanied by her daughter.
She stopped the appellant who informed
her that she had assaulted the respondent with a bottle. She
observed that there was property
on the back seat of the vehicle
which included a cellular phone and a heater.







The learned judge accepted the
evidence of McKop as being the only explanation for the disappearance
of the property. Indeed it
was common cause that the appellant
later handed the cellular phone which formed part of the missing
property, to the respondent
in the presence of the police at
Donnington Police Station.







It seems to me that the evidence
clearly established that the appellant was responsible for the
removal of the property. At p 5
of the judgment the learned Judge
said:-







“Bearing
in mind that the property included a fridge, sound system, 34 inch
television set, a table and chairs, microwave oven
,
car fridge etc. one requires at least a truck to transport the same.
She remained in the house. This property went missing. She
cannot
explain how it went missing. She is adamant that there was no Mazda
truck/van in the yard. She can only be sure if she was
present. It
is apparent that the property was taken in her presence. She is not
being candid in this regard when she ventured some
attempt at
explanation. Her explanation is generally unsatisfactory and does
not withstand scrutiny……. In the circumstances,
the wilfulness
of the (appellant) is, in my view, indisputable. If her
protestations of good faith were true then her explanation
would have
clearly and factually shown where she was when the property was taken
and why she is not aware who took such bulky property
in broad
daylight without people noticing. The (appellant), who had the
benefit of professional legal advice throughout, understood
the order
granted by CHIWESHE J. She deliberately and knowingly disregarded
it”.











The first ground of appeal raised
on the appellant’s behalf is without substance. Order 42 of the
rules of the High Court does
provide that proceedings for contempt of
court should be by way of court application. This is so because of
the need to ensure that
the respondent is notified of such
proceedings. However, Order 32 Rule 229C provides that the fact
that an applicant has instituted
–



“(a)………



(b) a chamber application when
he should have proceeded by way of court application, shall not in
itself be a ground for dismissing
the application unless the court or
judge, as the case may be, considers that







(i) some interested party has or
may have been prejudiced by the applicant’s failure to institute
the application in the proper
form; and






(ii) such
prejudice cannot be remedied by directions for the service of the
application on that party, with or without an appropriate
order of
costs.”









Further, Rule 4C allows the Judge
to condone a departure from the rules if satisfied that the departure
is required in the interest
of justice.







In casu
the appellant was served personally with the application and, having
filed opposing papers, she was heard by the learned Judge, albeit
in
chambers. The appellant was legally represented and was given the
opportunity to present her opposition to the application.
Accordingly, no prejudice was caused to the appellant by reason of
the fact that the application was not instituted in the proper
form.




The
appellant contended, secondly, that it had not been proved on a
balance of probabilities that she had unlawfully refused to comply
with the Court order. That the order requiring the appellant to
return the property was served upon her personally on 22 May 2003,
is
clear from the return of service of the Deputy Sheriff. Indeed this
much was common cause at the hearing. The learned Judge
was
conscious of the need in cases like the present one where the court
is asked to hold a respondent in contempt of court, for
him 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 299 B. By the time this application was
launched, the appellant had not complied with the order nor had
she
taken any steps to have the order set aside. The learned Judge was
satisfied on both counts.







From the passage quoted above, I
can find no fault with the conclusion reached by the learned Judge
that the non-compliance was wilful
on the appellant’s part. In
Haddow & Haddow
supra,
GOLDIN J had this to say:-







“In
my respectful view, whenever an applicant proves that the respondent
has disobeyed an order of
court
which was brought to his notice, then both willfulness and mala fides
will be inferred. The onus is then on the respondent
to rebut the
inference of mala fides or willfulness on a balance of probabilities.
Thus, if a respondent proves that while he was
in breach of the
order his conduct was
bona
fide
, he will not be
held to have been in contempt of court because disobedience must not
only be willful but also
mala
fide
. (See Clement
v Clement
, 1961 (3)
S.A. 861 (T) at pp 865-6).







The object of proceedings for
contempt is to punish disobedience so as to enforce an order of court
and in particular an order
ad
factum praestandum,

that is to say, orders to do or abstain from doing a particular act.
Failure to comply with such order may render the other party
without
a suitable or any remedy, and at the same time constitute disrespect
for the court which granted the order.”







On the question of mala
fides
, the learned
judge said:







“From
her opposing papers, the respondent is relying on the inability to
comply with the order in that she does not have the goods
she was
ordered to return. In my view, proven inability to comply with the
court’s order affords a respondent protection against
a committal
for contempt –
Campbell
v Herbert
(1980) 18
CTR 22. From what I highlighted above, the respondent has failed to
discharge the
onus
on her. She has failed to establish that she is unable to comply
with (the) court order. The evidence shows she was instrumental
in
the removal of the property. She is in a position to comply with
the order and it is expected of her to do so. She should
not be
allowed to defy the law. In this regard GREENLAND J, in
Sabawu
v Harare West Rural Council (supra)
at
51B-D stated-






‘To
my mind the fact that the applicant has succeeded in defying the law
and the High Court over a period … does prejudice justice
in an
insidious way. It tends to subvert the psychological bond that
exists between the law giver and the subjects of the realm.
People
in general accept the law and submit to its dictates and
circumscriptions in the knowledge that such submission ensures
peace
and good order. What they do demand is equality before the law as
being the guarantee of sacred human rights. Actions such
as those
by the applicant in which a subject sets himself outside or above the
law prejudices this relationship if only for the reason
that other
persons are then entitled to question why they should be expected to
be law abiding. He is demonstrating to the world
his ability not
only to defy the law but to emasculate the court’s power to enforce
its orders. Success in this stance makes
a mockery of the law and
tends to bring the administration of justice into disrepute. It
also subverts the state’s power over
its subjects to ensure
compliance with its laws via the court which is the state’s
constitutional vehicle for enforcement’.







I am, therefore, satisfied that
the respondent’s disobedience of the order of this court is not
only wilful but also
mala
fide.
”







The third and fourth grounds of
appeal are related in that they can be stated as one issue which is
whether the contempt was proved
on a balance of probabilities in the
light of alleged factual disputes on the papers which could not be
resolved without the calling
of oral evidence.







The alleged factual dispute
pointed out in the appellant’s heads of argument is that the
respondent says he went to McKop’s house
on the night of May 12-13
whereas McKop says she saw him on the morning of 13 May. The actual
time is not given. In the absence
of actual times the discrepancies
are not material. The night of May 12-13 could in certain instances
easily be described as the
morning of May 13 (which would begin at
midnight). This discrepancy, if it can be said to be one, is not
material and it neither
advances the appellant’s case nor detracts
from the respondent’s case.







As pointed out above, the
appellant’s bare denial in the light of the evidence of the
respondent and McKop that she took the property
away, was
insufficient to discharge the
onus
upon her to rebut the inference of wilfulness and
mala
fides
on her part on a
balance of probabilities.







Accordingly I can find no fault
with the judgment of the court
a
quo
.







The appeal is therefore dismissed
with costs.










CHIDYAUSIKU CJ: I agree.











CHEDA
JA: I agree.







Makonese & Partners,
appellant's legal practitioners



Majoko & Majoko,
respondent's legal practitioners