KARNEC INVESTMENTS (PVT) LTD & ANOR v ECONET WIRELESS (PVT) LTD

HIGH COURT, HARARE

[Opposed Application HH 261-16]

March 15 and April 27, 2016

TSANGA J

Court  –  Contempt of court  –  Order fully obeyed and new developments arising later  –  Effect of.

An order had been granted by consent precluding respondent from continuing with certain construction works that were considered to be a nuisance and at variance with planning laws. The relief afforded inter alia related to the sealing of the perimeter wall that had been brought down by respondent. That order had been fully complied with. Three years after the grant of the order, respondent had knocked down part of the wall to make way for the delivery of a generator. Applicants took the view that respondent was in the process of conducting commercial and industrial operations contrary to law and in defiance of the order of the court. It was argued on behalf of the applicants that the knocking down of the wall was an act proscribed by the earlier court order.

Held, that once an applicant in contempt proceedings proves three requisites namely, the existence of the order, its service or notice, and non-compliance, it is the respondent who then has the evidentiary burden to establish whether the non-compliance was wilful or mala fide. The respondent need only adduce evidence that establishes a reasonable doubt in order to starve off an application for contempt of court.

Held, further, that the order of the court had been fully obeyed. In this matter, what was complained of, more than three years later, arose from an entirely new set of facts which must of necessity be examined in context. The breaking down of the wall in the same spot as the previous one could not in itself be used as an indicator of disobedience, and should not be looked at in isolation of the facts that gave rise to respondent’s need to act as it did. The intention to hold the authority of the court in defiance could not be established.

Cases cited:

Bruce v Econet Wireless (Pvt) Ltd & Anor 2009 (1) ZLR 284 (H), referred to

Consolidated Fish Distributors (Pty) Ltd v Zive and Ors 1968 (2) SA 517 (C), referred to

Ex parte Mushambi 1989 (2) ZLR 191 (H), referred to

Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), followed

Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A), referred to

Gold v Gold 1975 (4) SA 237 (D), referred to

John Strong (Pvt) Ltd & Anor v Wachenuka (1) 2010 (1) ZLR 151 (H), referred to

Nzara & Ors v Kashumba & Ors HH 151-16, referred to

Pheko and Others v Ekurhuleni Metropolitan Municipality [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 3 (1)(b), 164 (3)

Regional Town and Country Planning Act [Chapter 29:12], s 27, Part V

High Court Rules, 1971 (RGN 1047 of 1971), O 40 r 324

JB Wood, for the applicants

T Mpofu, for the respondent

TSANGA J:

This is an opposed application in which the applicants seek that the respondent Econet Wireless (Pvt) Ltd (“Econet”), be fined for contempt of an order of Court granted on 4 February 2011 by consent of both parties. In terms of the order that was granted, Econet was to desist forthwith from carrying out building operations on its property. The property is located in a certain upmarket neighbourhood in the suburb of Highlands. The applicants’ residential home is directly opposite a property owned by Econet. The allegations that gave rise to the court order granted on 4 February 2011 were that at the time, starting in November 2010, Econet was carrying out building operations without complying with the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”). The acts complained of included the level of noise on a daily basis arising from the said operations and the intensity of building operations both inside and outside the house. The operations were said to have caused a heightened nuisance and a danger to the public as the road was narrow and heavy vehicles were blocking the road. The entrance that had been created from knocking down a wall was said at the time to have facilitated the movement of earth moving equipment, construction equipment and materials, 30 ton trucks and large dumper trucks. Hundreds of tonnes of building materials were also said to have been delivered. Econet also owned another adjacent property nearby where it was carrying out legitimate renovations.

An urgent application had been filed and an order had been granted by consent at the time. It was worded as follows:

1. That first respondent (having been Econet in that case) concedes that building operations/developments were being conducted at 75 Orange Grove Drive, Highlands.

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