Cubs Den Consolidated (Pvt) Ltd v Tawoneyi Nyazema & 3 Ors and The Sheriff, High Court Harare N.O. and Officer in Charge, ZRP Magunje N.O.

### Preamble
1
HH 566 - 25
HCH 4552/25
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CUBS DEN CONSOLIDATED (PVT) LTD

versus

TAWONEYI NYAZEMA

and

STEPHEN MUTAMBA

and

MARIAN CHOMBO

and

THE SHERIFF, HIGH COURT HARARE N.O

and

OFFICER IN CHARGE, ZRP MAGUNJE N.O

HIGH COURT OF ZIMBABWE

MAMBARA J

HARARE 17 & 25 September 2025

Urgent chamber application for contempt of court

M.D Hungwe, for the applicant

A. Zikiti with T. Serengwa, for the 1st, 2nd, 3rd and 5th respondents

MAMBARA J:    The applicant seeks committal of the first to third respondents for contempt of a provisional court order granted on 22 August 2025. That order (an urgent interim interdict) directed the respondents to permit the applicant to operate on its leased premises and authorised the Deputy Sheriff to evict them and recover the property if they failed to comply. The applicants now allege that the respondents ignored this order and seek imprisonment for contempt. The respondents oppose on two preliminary points. First, they argue that the contempt application is fatally defective for want of personal service on the respondents, contrary to Rule 15(12) of the High Court Rules, 2021. Second, they contend that no cause of action for contempt has even crystallized, since the provisional order envisaged enforcement by the Deputy Sheriff and there is no return of service to show that enforcement was attempted.

Factual Background

On 22 August 2025 this Court granted an urgent provisional order in favour of the applicant. The operative terms of that order required the respondents to withdraw from the applicant’s premises and to cooperate with the Deputy Sheriff in any necessary eviction, failing which the Sheriff was authorised to execute the order. The relief sought in this contempt application is an order declaring the respondents in contempt and committing them to prison for wilful disobedience of the interim order. The respondents, through their opposing papers, raise the two points in limine set out above, which I now consider.

(1) Lack of Personal Service

Rule 15(12) of the High Court Rules, 2021 explicitly provides that “process in relation to a claim for an order affecting the liberty of a person or his or her status shall be served by delivery of a copy thereof to that person personally.”. An application for civil imprisonment or committal for contempt plainly involves the possible deprivation of personal liberty, so Rule 15(12) mandates personal service of the application and all supporting documents. In this case, the papers show that the applicants did not personally serve the provisional order or the contempt application on the respondents. The provisional order itself had a clause granting leave to the Deputy Sheriff to serve it on the respondents if necessary, but no such service was effected. Indeed no return of personal service was filed with the Registrar.

Our courts have long insisted on strict compliance with the personal-service requirement in contempt proceedings. It is peremptory. Failure to serve an order affecting liberty personally renders the proceedings defective. As Makoni J observed in a similar context in Matanda (Pvt) Ltd v Onias Gotore HH 94/09, even if a party’s lawyer was present when the order was granted, that does not dispense with the need for personal service. The rationale is fundamental: the person who may be sent to prison must have clear, formal notice of exactly what order he is accused of breaching. In Scheelite King Mining Co. (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (HC), Gillespie J emphasised that before one is held in contempt “it is necessary to be satisfied both that the order was not complied with and that the non-compliance was wilful”. Without personal service, no notice of the order’s terms can be proved, and no wilful disobedience established.

In the present case the applicants concede that the provisional order was not served on any of the individual respondents. In their heads of argument, they rely on the fact that counsel were present when the order was granted, but that cannot cure the defect. As the court held in Matanda (Pvt) Ltd v Gotore (supra), “the provisional order had to be served on the respondent” even if counsel attended. Here there is no proof of any service at all – not by sheriff, messenger, or any other means. The only material on record is the applicant’s own untested assertion that the order exists. This is plainly insufficient.

In fact, the High Court Rules require a return of service by the Sheriff or his deputy when service is effected. No return was filed here. The law is settled that, in contempt proceedings, service “on the ground” or by leaving papers at premises without personal delivery is not acceptable. The authorities consistently hold that contempt applications must be served on the person accused of contempt, even if it delays proceedings. In short, the applicants have completely failed to comply with Rule 15(12).

Because the respondents were never personally served with the order of 22 August 2025 (or with the committal application), this application is procedurally defective. There is no evidence that the respondents had the requisite notice of the order. The decision in Matanda (Pvt) Ltd is instructive: the court noted an alarming trend of contempt applications where the order had not been served, and reiterated the “elementary requirement” that a contemnor must have notice of the order’s terms. On these facts, the respondents’ serious allegation is not even that they deliberately defied an order they knew, but rather that they simply never received it. Having not been put on notice by proper service, they cannot be held to have wilfully breached the court’s command.

Accordingly, on this ground alone the contempt application cannot proceed. There was no service at all. The application is therefore fatally defective under Rule 15(12).

(2) No Crystallised Cause of Action for Contempt

I turn to the second preliminary point. The respondents argue that, even apart from the service issue, the cause of action for contempt has not arisen. The terms of the provisional order clearly envisaged that if the respondents failed to comply, the Deputy Sheriff would be authorised to evict them. Until the Sheriff undertakes to enforce the order, there can be no finding that the respondents themselves disobeyed it. In other words, the respondents say there is nothing to disobey – compliance must be forced via the Sheriff’s mandate, which has not yet occurred.

This contention has force. As noted, contempt requires proof that the order was breached and that the breach was wilful. Here the applicants have tendered no evidence that any breach occurred. The draft provisional order they obtained granted execution rights to the Sheriff, but there is no return of any attempted execution. No affidavit from the Deputy Sheriff is before the Court confirming service or refusal of entry. In fact, the applicants admit that no service took place. Thus, there is no proof that the respondents even knew the order or violated it.

In Matanda (Pvt) Ltd v Gotore (Makoni J), the court confronted a nearly identical point. There the provisional order explicitly granted leave for the Deputy Sheriff to serve it, and the respondent had not been served. The court found that without personal service, “the respondent’s conduct cannot be said to be unlawful, intentional, and wilful”. It dismissed the contempt application on that basis. Similarly, in casu, the respondents were not given formal notice and cannot be imputed with wilful contempt of the interim order.

Put another way, the applicants have not shown a complete cause of action. The cause of action for contempt arises only when a party knowingly and wilfully disobeys an extant order. Here no such disobedience is established. The respondents did nothing; rather, the enforcement mechanism lay with the Sheriff, who was never engaged.  The return of service is absent, so there is no proof of a breach. Without proof of a breached obligation, no contempt can be found. Indeed, it is well recognised that one cannot be found in contempt of an order that was never served on them.

In sum, the respondents’ second point is well taken. On the applicants’ own version, the Deputy Sheriff should have been instructed to effect service and execution first. Having omitted to do so, the applicants cannot complain of the respondents’ “non-compliance”. No effort to enforce means no evidence of non-compliance and no wilful breach. Thus, even if the Court were to overlook the service defect, which it cannot, the substance of the claim fails for want of a cause of action.

Conclusion

In light of the above, both preliminary objections must succeed. The contempt application was not served in accordance with Rule 15(12) and is therefore incompetent. Furthermore, without any attempted enforcement by the Sheriff there is no established breach of the court’s order. On these grounds the application cannot stand. It is not necessary to delve into the merits of the alleged contempt.

In the result, the urgent application for contempt is dismissed on the preliminary grounds. I make no order on the merits. The applicant shall pay the costs of this application on the ordinary scale.

As a result, it is ordered as follows;

The application struck off the roll with costs on the ordinary scale.

Mambara J: ………………………………………………….

MD Hungwe Attorneys, applicant’s legal practitioners

Civil Divison, 1st 2nd 3rd and 5th respondents’ legal practitioners