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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3. Dismissal for want of prosecution - The application for dismissal of defendants' application for rescission had been served on 1 June at the Attorney-General's Office, Civil Division. Again, the lawyer handling the matter remained in slumber and no response was received to the application for dismissal. Accordingly, the order dismissing the application for rescission for want of prosecution was granted under HC 4942/15 on 30 June 2015.

4. Order to comply with statutory duty to effect payment - On 16 May 2016 under HC 4261/16 the respondent, as Minister of Home Affairs, was ordered to comply with the statutory duty cast upon him in terms of s 5 (2) of the State Liabilities Act [Chapter 8:14] to pay from the Consolidated Revenue Fund, the money awarded to the applicant by the court on 18 February 2016. In particular, the order also stated as follows:

"The respondent is ordered and directed to comply with the order in the above para (1) within 14 days of this order having been served on him, or his (permanent) secretary or any responsible person in his Ministry, failing which, the respondent be and is hereby declared to be in contempt of this order."

The order was sent directly to the Minister with a letter on 19 May 2016. It is endorsed as having been received by Madakufa T on behalf of the Minister. Another letter was written on 7 June, again directly to the Minister, following up the letter of 19 May and reminding him that the court order would lapse on 9 June. It is date stamped as having been received by one G Mahlunge on his behalf on 7 June. There was no compliance by the Minister and a court application for contempt was filed on 13 June 2016.

5. The court application for contempt - Having initially attempted personal service of the order for contempt on 15 June without success, the record shows through the return of service that the application for contempt being HC 5970/16 was finally served successfully and personally on the Minister on 24 June 2016 by Mr Benhura, the Additional Sheriff of the High Court.

6. Motion court directive to further serve the Attorney-General's Office, Civil Division - On 20 July 2016, the judge sitting in motion court further directed that the application for contempt of court be served on the Attorney-General, Civil Division. This was done on 13 October, with the application being received by Ms E Manjokoto of the Attorney-General's Office. The accompanying letter clearly stated that, upon expiry of the prescribed period, the matter would be set down again in motion court as the Minister remained barred, having taken no action. Again, there was no action on their part.

Having complied fully with the requirement to serve the Minister personally as well as on the Attorney-General, Civil Division, the applicant then reset this matter for contempt on 9 November 2016.

What emerges from a reading of the files leading to the application for contempt is an underlying lackadaisical approach to court processes and orders on the part of the Minister's counsel handling the matter and ultimately by the Minister himself. It was against the above background that the matter for contempt was on the unopposed roll on 9 November 2016.

On 8 November 2016, the Minister had filed an "opposing" affidavit in which he raised a point in limine that he was never served personally nor were any of his officers. Personal service is indeed required by O 5 r 39 (1) of the High Court Rules, 1971 (RGN 1047 of 1971) in any application which affects a person's freedom - see Mutyambizi v Goncalves & Anor 2013 (2) ZLR 375 (H).

Mr Mumbengegwi from Civil Division appeared to oppose the matter in motion court on the day and he was given audience in light of the assertion by the Minister that he had not been served personally. In other words, the court did not stand resolute on the ground that the Minister was barred but accorded his counsel a hearing. Mr Mumbengegwi spoke to the content of the affidavit, the gist of his point being that the order for contempt would be improper in view of lack of personal service.

However, as the court pointed out to him, there were fundamental problems with the Minister's affidavit which was before the court regarding his averment. In his affidavit Minister was categorically clear that the application he had not been served with was HC 4942/16. The Minister's point in limine in his sworn affidavit was couched as follows:

"1. It is my humble submission that I was never served personally or any of my officers with the court application HC 4942/16 for contempt of court.

2. Notwithstanding the above, I am willing to respond to the applicant's founding affidavit if I am served with it.

3. Wherefore I pray that the court be pleased to postpone this application with costs pending the applicant's founding affidavit being properly served to me."

First of all, there was no application HC 4942/16. There was court application HC 4942/15. Materially, HC 4942/15 was not a court application for contempt of court but for dismissal for want of prosecution. It was rightly served on the Attorney-General's Office, Civil Division and not on the Minister personally because Civil Division were the ones representing him and others in the application for rescission.

The application for contempt is HC 5970/16. It was not the Minister's assertion in his affidavit that he had not been served with this particular application. If the file reference was an error, there was no application to amend. Furthermore, the assertion of non-receipt of the court application for contempt was a bare denial. If all a party opposing an application for contempt has to do in order to stay proceedings, is to allege without any substantiation whatsoever that they never received the application personally, in the face of a return of service to the contrary, then justice would be hampered. Where a return of service clearly indicates that proper service has been effected, then the onus is on the person alleging otherwise to prove their assertion. To counter Mr Mumbengegwi's assertion that there was no service despite the return of service clearly indicating that there was, the applicant's counsel, Mr Mhlekiwa, drew attention to the Supreme Court case of Gundani v Kanyemba 1988 (1) ZLR 226 (S). It was stated therein that the return of service by an officer of court be they the Sheriff, Deputy Sheriff or Messenger, is to be accepted as prima facie proof of what is stated therein, albeit it can be rebutted by clear and satisfactory evidence. In casu, there was nothing remotely equating to clear or satisfactory evidence rebutting the Additional Sheriff's return of service that he had served the court application for contempt in HC 5970/16 personally on the Minister, Dr Ignatius Chombo, himself. Having read the Minister's affidavit and having heard his counsel, the court's conclusion was that there was no averment that the relevant application had not been served, and, equally there was lack of proof to substantiate the claim on non-service that had been made.

The Minister, Dr Ignatius Chombo, is a well-known public figure who is unlikely to be mistaken. The Additional Sheriff would have no reason as an officer of the court to lie that he had served him personally. I therefore had no reason to disbelieve his return of service which indicated that he had served him personally at his offices at 11th Floor Mukwati Building in 4th Street on 24 June 2016. The application had been served on him personally for the reason that the court order compelling him to pay within 14 days under HC 4261/16 had been unequivocal that failure to pay would render him personally,
Dr Ignatius Chombo, as being in contempt of the order of court.

I was equally content that there was a valid court order entitling the applicant to the sum paid which the respondent was fully aware of. I was also satisfied from the record that the order under HC 4261/16 for
Dr Ignatius Chombo as Minister of Home Affairs to comply with his statutory duty to pay had been brought to his attention. I was further satisfied that there had been non-compliance with that order leading to the application for contempt under HC 5970/16 which had been served personally on
Dr Ignatious Chombo.

Besides the factual realities, the legal basis for granting the order for contempt was fundamentally constitutionally rooted. Regarding the applicable constitutional provisions, in Karnec Investments (Pvt) Ltd & Anor v Econet Wireless (Pvt) Ltd 2016 (1) ZLR 502 (H) at 505F-G, I emphasised that:

"In terms of s 3 of the Constitution... one of the founding values and principles upon which Zimbabwe is founded is respect for the rule of law... If the court's authority is not respected there can be no fostering of respect for the rule of law. Furthermore, in terms of s 164 (3) an order of a court binds the State and all persons and governmental institutions and agencies to which it applies and must be obeyed by them. Contempt of court has clear bearings on legal proceedings in that if it is not addressed, the jurisdictional power of the courts would be illusionary. It is regarded as an act of disrespect and insult to the court and an obstruction to justice".

Section 3 (1)(a) and (b) of the Constitution of Zimbabwe, 2013 ("the Constitution") states as follows:

"3 Founding values and principles

(1) Zimbabwe is founded on respect for the following values and principles –

(a) supremacy of the Constitution;

(b) the rule of law..."

In simple terms, the rule of law has been defined as follows:

"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, rule of law represents the supremacy of law." See M Bazezew "Constitutionalism" 3 Mizan L Rev 358 (2009).

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 - see s 56 of the Constitution as regards equality and non-discrimination.

Accordingly, the courts play a vital role in protecting the rights of all individuals. Effectiveness of the courts is central to the rule of law and democratic governance. Section 164 (1)-(3) which, deals with independence of the judiciary, provides as follows:

"164 Independence of judiciary

(1) The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice.

(2) The independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance, and therefore –

(a) neither the State nor any institution or agency of the government at any level, and no other person, may interfere with the functioning of the courts;

(b) the State, through legislative and other measures, must assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness and to ensure that they comply with the principles set out in section 165.

(3) An order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies, and must be obeyed by them.

(4) ..."

In summary, the Constitution is clear that the courts are subject only to the Constitution and to the law. However, this does not mean that constitutional principles are applied using abstract rationality. Proper interpretation of constitutional principles is never divorced from the facts. Additionally, courts are enjoined to apply the law without fear or favour. Furthermore, an order or decision of the court is binding on the State and all persons and institutions to which it applies.

The facts herein, as captured in the various court applications regarding this matter which I have outlined, spoke for themselves in terms of equities that underlay the application for contempt. 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. For the avoidance of doubt, what the Minister was directed to do in HC 4261/16 was as follows:

"1. The respondent is ordered and directed to comply with statutory duty cast upon him in terms of s 5 (2) of the State Liabilities Act that is to cause to be paid out of the consolidated revenue fund, the sums of money awarded to the applicant by order of this Honourable Court dated 18 February 2015 in case number HC 4766/13, judgment number HH 147-15 (my emphasis).

2. The respondent is ordered and directed to comply with the order in the above paragraph (1) within 14 days of this order having been served on him, or his (permanent) secretary or any responsible person in his Ministry, failing which, the respondent be and is hereby declared to be in contempt of this order.

3. The respondent is to pay the applicant's costs of suit on a legal practitioner and client scale."

In terms of s 5 (2) of the State Liabilities Act, his duty, in his nominal capacity, is to cause payment to be made out of the Consolidated Revenue Fund. This is what he had seemingly failed to direct up to the time that application for contempt was made. In order to facilitate the process of payment, he must give the directive, or authority to pay as the catalyst for payment. That is his role. In other words, the order sought was that he be declared to be in contempt until he had taken the necessary measures to cause payment to be made. He evidently does not make the actual payment himself as there are government channels that ultimately make the payment upon his request or directive that payment be made. (my emphasis)

Section 5 (2) of the Act provides as follows:

"(2) Subject to this section, no execution or attachment or process in the nature thereof shall be issued against the defendant or respondent in any action or proceedings referred to in section 2 or against any property of the State, but the nominal defendant or respondent may cause to be paid out of the Consolidated Revenue Fund such sum of money as may, by a judgment or order of the court, be awarded to the plaintiff, the applicant or the petitioner, as the case may be."

Having been satisfied from the return of service that the relevant Minister was served personally with the application for contempt, the finding of contempt of court against Dr Ignatious Chombo as Minister of Home Affairs was accordingly made in this context.

Mahuni & Matatu, applicant's legal practitioners

Civil Division, Attorney General's Office, respondent's legal practitioners

 

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