MANGWIRO v CHOMBO NO

HIGH COURT, HARARE

[Opposed Application HH 710-16]

November 16, 2016

TSANGA J

Constitutional law – Constitution of Zimbabwe, 2013 – Rule of law – Primacy and meaning of – Undermining of by government official failing to comply with court order.

Court – Contempt – Application for committal – Need for application to be served personally.

Practice and procedure – Application – For committal for contempt of court – Need for application to be served personally.

Practice and procedure – Process – Service of – Proof of service – Sheriff’s return of service as prima facie proof – What party must show if alleging lack of service.

The applicant had obtained a default judgment against the respondent in the latter’s official capacity as the Minister for Home Affairs. The respondent and his co-defendants had lodged an application for rescission, but this was not pursued to finality, resulting in the applicant filing an application for dismissal for want of prosecution. This application was granted following the respondent’s lack of action. Subsequently, the applicant obtained an order directing the respondent to exercise his powers under s 5 (2) of the State Liabilities Act [Chapter 8:14] to pay, from the Consolidated Revenue Fund, the money awarded to the applicant in terms of the default judgment. The order directed him to comply within 14 days of service of the order, failing which he would be declared to be in contempt of court. The order was sent directly to the respondent three days later. This was followed by another letter from the applicant’s legal practitioners, reminding the respondent of the time limit. No compliance with the order having been shown, an application for committal for contempt was served personally on the respondent by the Additional Sheriff. The application was also served on the Attorney-General a few months later. No action was taken by the respondent or the Attorney-General. The application was accordingly set down for hearing.

The day before the hearing date, the respondent filed an affidavit stating that he had not been personally served, as required by the High Court Rules, 1971 (RGN 1047 of 1971).

Held, that, besides the factual realities, the legal basis for granting the order for contempt was fundamentally constitutionally rooted. One of the founding values of the Constitution of Zimbabwe, 2013 is respect for the rule of law. The concept of the 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, the rule of law represents the supremacy of law. 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. 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.

Held, further, that there was evidence of a valid court order; that the order to comply with his statutory obligation had been brought to the respondent’s attention; and there had been no compliance with that order.

Held, further, that where a return of service clearly indicates that proper service has been effected, that is accepted as prima facie proof of what is stated. The onus is then on the person alleging otherwise to prove his or her assertion by clear and satisfactory evidence, which was lacking in this matter.

Cases cited:

Gundani v Kanyemba 1988 (1) ZLR 226 (S), referred to

Karnec Investments (Pvt) Ltd & Anor v Econet Wireless (Pvt) Ltd 2016 (1) ZLR 502 (H), referred to

Mutyambizi v Goncalves & Anor 2013 (2) ZLR 375 (H), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 3 (1), (1) (a), (b), 56, 164 (1)-(3)

State Liabilities Act [Chapter 8:14], s 5 (2)

High Court Rules, 1971 (RGN 1047 of 1971), O 5 r 39 (1)

Article referred to:

Bazezew M “Constitutionalism” 3 Mizan L Rev 358 (2009)

ET Mhlekiwa, for the applicant

J Mumbengegwi, for the respondent

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 HC 4766/13 on 18 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 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 1 April 2015 under HC 3001/15. 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.

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