Megalithic Marketing (Pvt) Ltd v City of Bulawayo and Christopher Dube N.O and Sikhangele Zhou

### Preamble
1
HB 101-19
HC 113/18
XREF HC 1814/12
XREF HC 430/15
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MEGALITHIC MARKETING (PVT) LTD

versus

CITY OF BULAWAYO

and

CHRISTOPHER DUBE N.O

and

SIKHANGELE ZHOU

HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 30 OCTOBER 2018 AND 27 JUNE 2019

Opposed Matter

S Siziba and H Moyo for the applicant

P Ncube for the respondents

MABHIKWA J:	On 18 January 2018, applicant filed with this Honourable Court, an application for contempt of court against the three respondents.  The applicant implored this Honourable court to declare that 1st, 2nd, and 3rd respondents are in contempt of its order as a result of their perceived “deliberate refusal” to comply with an order of this court under cover of case number HC 1814/12 per Honourable KAMOCHA J.

In effect, the applicant complains that the respondents have actually disobeyed two (2) orders of this Honourable Court, both by Honourable JUSTICE KAMOCHA.  It is pertinent to highlight the operative parts of the two judgments below.  However surfices to first highlight in brief the circumstances leading to the allegedly disobeyed court orders.

In 2011, first respondent flighted a tender in the media for the “Parking Management System” for the council for a 5 year period meant to commence in January 2012.

Applicant, together with other bidders responded to the advertisement, placed its application and participated in the tender process.

It is the applicant’s contention, which in any event is not denied by the 1st respondent, that the adjudicating committee resolved that applicant had scored the highest marks against the other bidders and made a recommendation to 1st respondent’s Procurement Board, that applicant’s proposal be acceded to ahead of the others.

As already stated above, 1st respondent does not dispute this fact.  Surfices however to note at this stage that 1st respondent explains that at the time, it had an internal ad hoc body called the “adjudicating committee.”  It was not a statutory body but an internal body for 1st respondent’s convenience and meant to carry out adjudication of all tender processes.  It would then make recommendations to a statutory body called the “Municipal Procurement Board.”

The “Municipal Procurement Board”, after doing its own part would in turn make recommendations to the full council which then makes a decision.

It appears clear therefore that there are three (3) rungs in the process, the first and second rungs merely recommend and it is the third (the full council) that makes the decisions and this must be borne in mind at all times.  I have emphasized the above and intend to refer to the arguments about the adjudication and decision making processes very briefly and in passing because this application really is about contempt of court proceedings and not the propriety of the adjudication and decision making processes.

It is applicant’s further contention that it was surprised to learn of a fresh advert in the newspaper for the same tender and upon further enquiry, learnt that the Procurement Board Councilors had rejected the recommendation by the tender adjudicating committee.  It was after that discovery that applicant filed an application against first respondent in case number HC 1814/12 leading to judgment number 8/15 whose operative part reads:

“In the light of the above findings, it admits of no doubt that the respondent’s decision to re-tender is reviewable.  In the result the decision of the council to order a re-tender is hereby set aside.

City of Bulawayo is hereby ordered to carry out the tender process to completion and to carry on with the processes that were still to be completed to their final conclusions.”(underlining is mine)

Applicant argues that the Municipal Procurement Board councilors “unfairly rejected” the recommendation by the tender adjudicating committee.  Save to say that that the adjudicating committee had recommend the applicant for the tender, it has not been fully explained what is meant by “unfairly rejected.”

At best, the applicant submitted, as was held in Arafas Mtausi Gwaradzimba (NO) and v AG Gurta–SC 10/15 that there is an exception to the general rule that a court in exercising its review powers, will not interfere with the discretion of the decision making body, but that it may in fact interfere where it suspects there is bias and lack of transparency.

What is important however and what applicant perhaps missed is the nature and extent of the court’s interference.  The court cannot go on to usurp the powers of the decision making body.  It cannot replace the decision made by a body statutorily mandated to make that decision, by its (court’s) own decision.

JUSTICE KAMOCHA clearly had this fact in mind in his judgment in HB 8/15.  This is so because applicant in case number HC 1814/12 had sought an order literally awarding it the tender.  JUSTICE KAMOCHA even repeated the prayer verbatim at the very beginning of his judgment, of which prayer number 2 thereof, read as follows:

“The respondent be and is hereby grants (sic) the applicant the contract for the Parking Management System for the City of Bulawayo within 14 days of service of this order, or such other time as the court may deem fit.”

It is clear therefore that JUSTICE KAMOCHA was very much aware of what applicant wanted and prayed for, as the main prayer in HC 1814/12 to be awarded the tender in the form of the contract for the Parking Management System.  But KAMOCHA J in his wisdom, did not make that award in his order precisely because the court cannot make such an order.  It would be usurping the powers of the decision making body which in this case is the full council of the Bulawayo Municipality.  The court simply set aside the council’s decision to re-tender and referred the disputed tender process back to the municipality for the tender processes to be carried on to “their final conclusions.”

It is clear therefore that the court did not award the tender to the applicant neither did it direct 1st respondent (municipality) to do so.

It has been argued by Advocate Siziba that because the applicant is said to have scored the highest marks ahead of the other tenders and further because the adjudicating committee had recommended that it be contracted by 1st respondent, then completing the processes “to their final conclusions” meant that the 1st respondent was left with no choice but simply to write to the applicant and advise him that he had won the tender.  In effect Siziba argues that the only remaining step in the tender process was to award the tender contract to the applicant.

It is the court’s finding that this was not necessarily so and KAMOCHA J knew this.  In fact, it is an assumption too dangerous to make as it derives from, in the court’s view, too narrow and too simplistic an interpretation of JUSTICE KAMOCHA’s judgment.

The court will therefore agree with Mr P Ncube for the respondents and also with 1st respondent’s affidavit deposed to by Sikhangele Zhou that the filling of the application in case number HC 430/15 was not a defiance or “brazen” contempt of the court order under number HB 8/15 as alleged by the applicant.  This is so because the court had not granted the order in favour of the applicant.  It had not awarded the applicant the contract and there was therefore noting to disobey.

In effect and in fact, 1st respondent had proposed exactly what ultimately was ordered by KAMOCHA J.  In paragraph 17 of the opposing affidavit in case number 1814/12, the then  respondent had proposed that:

“The remedy for this Honourable Court, would be to set aside the decision of the respondent and refer it back to the respondent for the consideration of the matter after correcting any wrongs, that would have been committed.” (The underlying is mine)

That proposal by the then respondent and now 1st respondent, has the same effect and meaning as the order of KAMOCHA J.  and so 1st respondent had no reason to be contemptuous of an order whose effect it had proposed in the first place.

Further, both in case number HC 1814/12 and in this application 1st respondent admits that the process went wrong at the stage of the Procurement Board.  After the recommendation by the adjudicating committee, the Procurement Board considered the recommendation and the facts.  The board felt that the whole tender process had been marred by controversy.  Without considering the matter on the merits, it recommended to council that the whole tender be re-advertised.  To that extend, the Procurement Board had not done its job as mandated by the Urban Councils Act, [Chapter 29:15] section 211 (5).

The council in turn acceded to the said recommendations and ordered a re-tender at short notice without considering the matter on the merits.  To that extent, the council too failed to act in terms of the Urban Councils Act, [Chapter 29:15], section 211 (6).  So, that irregularity has always been admitted by 1st respondent itself and hence perhaps the order by KAMOCHA J which, as already shown above, was consistent with the 1st respondent’s proposal as the possible remedy or way forward.

It appears reasonable and logical therefore to this court as explained by the 1st respondent that the only reason why the application in case number HC 430/15 was made was the quandary to the council created by the Promulgation thereafter of Statutory Instrument 160/2012, that is, the Procurement (amendment) Regulations 2012 (No. 17) together with the rest of the supervening challenges outlined in paragraph 8 (1) (a) to (e) of 1st respondent’s current opposing affidavit.

It has already been shown above, that it would therefore be erroneous to hold that 1st respondent contemptuously avoided carrying out the only step remaining in the tender process, that is to award the applicant the tender.  In any case section 211 (6) and its Proviso thereof read as follows:

6	“The council shall accept wholly or partly, the tender which in all the circumstances appears to it to be the most advantageous:

Provided that;

(i)	nothing contained in this subsection shall prevent the council from rejecting all

tenders.” (The underlying is mine)

And subsection 7 reads

7	“If any tender, other than the lowest is accepted the council shall cause the reasons to be recorded in the minutes of its proceedings.”

So, in completing the processes to their final conclusions, the 1st respondent could even reject all tenders without even recording any reasons for the rejection as long as all the steps in the tender process had been properly and completely followed to their final conclusion.  In fact, rejecting all the tenders could be a final conclusion as was ultimately done in this case.

Subsection 7 shows that in fact, not necessarily the highest scoring tenderer but even the lowest could be awarded the contract by the council.  However, where a tender other than the lowest tender is accepted, then the council simply needs to record its reasons in the minutes of its proceedings.

Coming back to the issue of contempt, the applicant has sought an order in the following terms:

It is ordered that

1	The 1st, 2nd and the 3rd respondents should comply with the judgment of this Honourable court No. HB 8/15 handed down by KAMOCHA J by carrying out the tender process to its completion in implementing the processes that were still to be completed in the following respects:

(a)	By issuing a letter of award of the tender to the applicant as the highest bidder or proposer in the tender process within seven (7) days of service of this order upon them.

(b)	By entering into or executing a Memorandum of Agreement with the applicant for the implementation of the project within fourteen days of service of this order upon them.

2.	In the event that the 1st, 2nd and 3rd respondents fail to comply with the terms of paragraph 1 above, then 1st, 2nd and 3rd respondents be and are hereby:

(a)	Declared to be in contempt of court.

(b)	The 1st respondent shall be ordered to pay a fine in the sum of US$2 000-0 per

day until such time that it complies with the order or judgment of this Honourable court in HB 8/15 as aforestated.

(c)	The 2nd and 3rd respondents shall be committed to custody for a period of 90 days.

3.	The respondents shall pay the costs of this application on an attorney and client scale.

It is clear from the onset that the 2nd and 3rd respondents are not in the original judgment by KAMOCHA J.  They are an addition by the applicant.

Secondly, it is clear that the order now sought is completely different from the order by KAMOCHA J.  It is true that applicant now seeks what was not in the judgment of KAMOCHA J by re-drafting the order making new distinct and crucial obligations with new and distinct and crucial constraints, all of which are not in the original order.  These are found in the current prayer 1 (a) and (b) of the draft order.

In effect, applicant has sought to and is asking this Honourable Court to vary an order by another Judge, removing a perceived ambiguity in KAMOCHA J’s order, under the guise of contempt of court proceedings.

Applicant goes on in prayer number 2 to seek an order that should the respondents then fail to comply with the terms, they should be held to be in contempt of court.

It becomes clear therefore that applicant in its prayer is not asking the court to find the respondents’ to be in contempt of KAMOCHA J’s court order but that they should in future be found to be in contempt should they fail to comply with the terms as varied in the new Draft order.	Such a prayer is incompetent and the order would equally be incompetent as it is tantamount to asking the judge to revisit, review, and vary an order by another judge of the same court.

In the addition in the draft order in 1 (a) and (b) applicant prays that it be granted the tender and have a memorandum of agreement signed for the Parking Management System. This, the court cannot do, not only for the reason stated above, but also for the reason that the court is being asked to usurp the powers of 1st respondent granted to it by section 210 of the Urban Councils Act.

Finally, applicant knows but clandestinely seeks to resurrect and smuggle the very same prayer that JUSTICE KAMOCHA declined to grant to it in HB 8/15.    Now what applicant is seeking is order protecting it from an anticipated breach of the “amended” order of KAMOCHA J.

This is exactly what lawyers were warned to desist from doing in the case of John Strong (Pvt) Ltd and Another –v- Wachemuka and Another (2) -2010 (1) ZLR 429 (H) per GOWORA J (as she then was).

The applicants were the owner and lessee respectively, of a farm which had been expropriated by the state.  The 1st defendant had been given an offer letter in respect of part of the farm and began to interfere with the applicant’s operations on the rest of the farm.  The applicants sought a spoliation order.  In addition, they sought an order that, should the 1st respondent breach the spoliation order, the police be authorized to arrest him.

“It was held that the spoliation order be granted, but the order for the arrest of the first respondent in the event that he was in breach of the spoliation order could not be granted.  Firstly, the first respondent was not before court and had made no submissions on that subject.  Secondly, the court could not order the police to arrest a person for an alleged breach of a court order before finding that such person was in fact in breach of the court order.  What the applicants were seeking was an order protecting them from an anticipated breach of the spoliation order.  This was not the correct manner to approach a court for an order of contempt of court.  Before an arrest can be ordered by the court on allegations of a party being in breach of a court order, it is necessary for the respondent to be arraigned before the court for a finding that he had deliberately flouted a court order served on him personally.  This is done by the institution of proceedings for contempt of court proceedings against such party.  Time and time again legal practitioners insert in their draft orders a paragraph or the arrest of a party in the event of breach of paragraphs in the order.

This is irregular and contrary to any person’s right to be heard before an order is granted against such person.  Legal practitioners should therefore desist from drafting orders in this fashion.”

The principles of Law and the requirements to be satisfied in contempt of court proceedings are well known and clear that they, being criminal in nature are strict, and require proof beyond reasonable doubt.  In my view, this is moreso because the liberty of an individual or individuals may be at stake due to a possible committal to prison.

As a result, am applicant for committal needs to show—

a)	That an order was granted against the respondent; and

b)	That the respondent was served personally with the order against him, and

c)	That the respondent has either disobeyed the order or has neglected to comply with it.

The essential elements of the contempt of court are therefore—

i)	That the person charged had knowledge of the court order, that he was aware of the constraints placed upon him by the court order and that he disobeyed the order willfully.

See  	a) Consolidate Fish (Pvt) Ltd –v- Zive and Others 1968 (2) SA 517 (CPD) at 522 E-G.

b) Fuyana v Moyo -2005 (1) ZLR 302 H

c) J C Connolly & Sons (PVt) Ltd v Ndlukula and another HB 43/15 per TAKUVA J and

d) Zellco Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd and others – 2012 (1) ZLR 164

(H) per GOWORA J at page -170 A – C.

e) Mpofu v Tevestrand Investments (Pvt) Ltd & Others – 2012 (2) ZLR 329 (H).

The second order by KAMOCHA J allegedly disobeyed was the dismissal of the

application by now the 1st respondent in case number HB 41/17.  It is clear from the foregoing that the court needs not further waste its time it as it was not disobeyed.

In casu, it is common cause that 2nd and 3rd respondents were not even party to the proceedings in HC 1814/12.  There was no order against them, whether the judgment in HB 8/15 was served on them or not is therefore immaterial in the circumstances.  In any event, there is no evidence or proof that they were personally served with that order.  In the same vein, that they are officials of the 1st respondent, whether termed the “Foot soldiers” or “mind and will” of the 1st respondent is of no consequence.  It attaches no obligation on them.”

In any case and as shown above, the purported contempt, subject of these proceedings is an anticipatory one where this court is being asked to vary and or, amend KAMOCHA J’s order and then grant an order protecting the applicant from an anticipated breach of that varied order.

This, it appears to me, to be an application which applicant made well aware that it is improperly before the court but nonetheless made and argued it.

Accordingly, the application is dismissed with costs of suit on an attorney and client scale.

Joel Pincus, Konson & Wolhuter, applicant’s legal practitioners

Messrs Coghlan and Welsh, 1st respondent’s legal practitioners