Rita Marque Mbatha v Messenger of Court

### Preamble
1
HH 562-18
HC 7997/18
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RITA MARQUE MBATHA

versus

MESSENGER OF COURT

HIGH COURT OF ZIMBABWE

MANGOTA J

HARARE, 5 September 2018 & 21 September 2018

Urgent Chamber Application

In person, applicant

E.T. Moyo, for the respondent

MANGOTA J: The applicant sued one Vincent Ncube and the respondent through the urgent chamber book. She did so under HC 7310/18. The order which the court granted to her on 9 August 2018 reads:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this honourable court why a final order should not be made in the following terms:

That respondents be and are hereby ordered not to interfere with the applicant’s control and occupation and possession of 126 Edgemore  Road, Park Meadowlands, Hatfield, Harare.

The first respondent pays the costs of suit.

INTERIM RELIEF GRANTED

That pending determination of this matter, the applicant is granted the following relief:

The first and second  respondents and all those acting through them shall facilitate the applicant to take occupation and possession of 126 Edgemore Road, Park Meadowlands, Hatfield, Harare without any let or hindrance.

The second respondent shall restore to the applicant’s possession the Kipor KDE Toot Diesel Generator, Capri – 2 door upright refrigerator, 3 grey LG televisions and the Hisense plasma color television that he disposed her of on 7 August 2016 (emphasis added)

The applicant does not state the circumstances under with she was evicted from, as well

as deprived occupation and possession of, 126 Edgemore Road, Park Meadowlands, Hatfield, Harare. Nor does she describe the circumstances under which she lost possession of her movable goods which are stated in para (2) of the interim relief which the court granted to her on

9 August 2018.

Annexure 1 which the respondent attached to his notice of opposition shows that one Banga, who is the deputy messenger of court, removed the applicant’s property from 126 Edgemore Road, Hatfield, Harare on 7 August 2018. He did so pursuant to the order of the magistrate’s court which was filed under case number 39520/16.  He took it to Ruby auctions.

Following her successful suit of the respondent and another, the applicant applied through the urgent chamber book, against the respondent. She filed the application on 27 August, 2018 and under HC 7809/18. She accused him of having been contemptuous of the court order of 9 July 2018.

The court dismissed HC 7809/18. The dismissed was grounded on the basis that the applicant had adopted a wrong procedure. Its view was that r 388 of the High Court Rules 1971 under which the urgent chamber application was filed did not/does not have any provision for that type of application.

The rule states that a suit for contempt of court shall be made through a court, and not through an urgent chamber, application. HC 7809/18 was, therefore, correctly dismissed.

Following the dismissal of HC 7809/18, the applicant filed HC 7946/18 against the respondent. She filed it on 30 August 2018 and in terms of r 388 of the rules of court. A day later, she filed the current application through the urgent chamber book. She is in casu moving the court to direct that HC 7946/18 be heard on an urgent basis. She insists that the respondent is in contempt of court. She states that he is refusing to comply with para (2) of the interim order which the court entered in her favour under HC 7310/18. She submits that the directions of the court would bring HC 7946/18 within the purview of a matter which must be heard on the basis of urgency so that the respondent is punished for his contempt of the court order (i.e. HC 7310/18.)

The respondent opposes the application. He states that, on his receipt of the court order which directed him to release the goods to the applicant, he issued a release note. He attached the release note to his opposing papers. He called it Annexure I. He submits that he made an effort to deliver the goods to the applicant on 15 August 2018. He avers that she refused to accept the goods. He attached to his papers Annexure II which he says supports his statement in the mentioned regard. He contends that his second effort to deliver the goods to the applicant was on 21 August 2018 when he notified her of his intention to deliver the goods. The applicant, he says, was not willing to co-operate with him. He states that he is ready to deliver the goods to her as soon as she is ready to receive them. He raises, as an in limine matter, that the applicant did not plead the relief which she is seeking. He insists that the averments which she made in her founding affidavit were not, in any way, related to the relief which she is seeking in the draft order. He states that the application is not urgent, is frivolous and vexatious. He moves the court to dismiss it with costs on a punitive scale.

At the close of the parties’ submissions, I placed the determination of this application in abeyance. I directed the applicant to file, and serve upon the respondent, HC 532/16 and HC 685/18 which she said supported her application for directions in motion proceedings.

The direction which l made emanated from the position which the respondent took of the application. He was of the view that an urgent chamber application which sought an order directing that a court application he heard on an urgent basis was not provided for in the rules of court. His view was based on HB 41/17 which l directed him to file and serve upon the applicant.

I am indebted to the parties for their compliance with my directive. I note that HC 685/17 is diametrically opposed to the view which the court enunciated in HB 41/17. It supports the position of the applicant.

I mention, in passing, that both HC 685/17 and HB 41/17 are judgments of this court. I am, therefore, at large to be persuaded by the one or the other of them.

All things being equal, therefore, HC 685/17 would have been more appealing to me than HB 41/17. It is, in my view, more in consonant with the attainment of real and substantial justice as between the parties than it is otherwise.

The applicant is a self-actor. She prosecuted HC 7809/18 unsuccessfully. She continues to prosecute all her applications which she placed before the court in person. She is commended for the effort which she is putting into the realization of her desired end-in-view. She gives the distinct impression of a litigant who is either reading law or has made some attempts at the attainment of that goal. Her knowledge of the substantive law, the procedural law, case law and the rules of court is not totally off the mark. I remain with little, if any, doubt that,—  on completion of her course in the stated discipline if she is reading law and with some bit of practice at the bar— she will rise up to be a legal mind of great repute.

This application is, without doubt, materially interconnected to the application for contempt of court. That fact notwithstanding, however, the two applications are not the same. They are separate and distinct from each other. Each exists for its own purpose which is separate from that of the other.

In the application for contempt of court, the applicant’s allegations, as contained in her founding affidavit, are that the respondent’s conduct is contemptuous of the court order. She narrates the manner in which she says he violated, and continues to violate, the law. Her aim and object are to have him found guilty as charged and punished for his misconduct, if such remains the finding of the court.

The aim and object of this application are to persuade the court to direct that the contempt of court application which the applicant filed under HC 7946/18 be heard on an urgent basis. The applicant should, therefore, advance reasons which will persuade the court to make the directions which she is moving it to do. She should narrate such reasons in her founding affidavit for this application.

Apart from the introductory part of each application, the applicant, it is observed, used the contents of the same founding affidavit for both applications. In doing so, she remains oblivious to the fact that the contempt of court application is not before me. What is before me is an application for directions. The founding affidavit of the same must, therefore, be separate and distinct from the one which she used to found her application for contempt of court. It must contain reasons which will persuade me to gravitate in the direction which she wants to achieve. It must, in other words, contain such reasons as will satisfy me that:

the application for contempt of court cannot wait – and/or

the same should be heard without any further ado.

The applicant’s founding affidavit for this application does not, as the respondent correctly states, support the draft order which she is moving the court to grant to her. The affidavit is totally divorced from the draft order. There is no nexus at all between the two.

It is trite that an application which is divorced from its draft order is as good as no application at all. Similarly, an application which, as in casu, has its foundation in the application for contempt of court when it is one for directions cannot stand. It misses the point in an inexcusable manner. It is misplaced.

The applicant displayed her candidness in a very impressive manner. She acknowledged the shortcomings of her papers. She tendered an apology in advance in the mentioned regard. She states, in paragraph 13 of her heads, as follows:

“…. The applicant who is not trained in law apologizes for the error which may be encountered in 	a bid for the Honourable (sic) to appreciate the merits of the instant (sic) and should not be dealt 	with by this court at the same level as lawyers and that any deficiencies evident in the papers 	should be viewed from that perspective….” (emphasis added).

The applicant went to the extent of referring the court to Xinwa and others v Volkswagon (Pvt) Ltd, 2003 ZACC, 2003 (6) BCLR 575 (CC) which exhorts courts to lean in favour of unrepresented litigants wherever they can.

The principle which was enunciated in the Xinwa case does, indeed, support the statement of the applicant. Courts more often than not do lean in favour of unrepresented litigants. They, however, are encouraged to do so without compromising the ends of justice. They should, in other words, not assume the position of counsel for one of the parties who are before them. There is, therefore, a degree to which the court will lean in favour of an unrepresented litigant. It will do so without compromising its dignity and decorum as well as the system of justice delivery.

Where, as in casu, the applicant makes a deliberate effort to use the affidavit she deposed to in one application to support other application, the court cannot lean in her favour without doing an injustice to her case. The justice of the case demands that such a serious deficiency as she caused her application to endure be pointed out to her. She should know the reasoning of the court for taking a particular position on the matter which is before it. Silence on the part of the court on such a serious shortcoming as is under consideration spells more doom to the country’s system of justice delivery than it works for the celebrated esteem of the same.

The application for directions cannot be considered in a vacuum. It is, as has already been stated, premised on the application for contempt of court. The court must, therefore, assess as well as determine if the application for contempt of court has merits. If it has, then the current application is well made and, therefore, worthy of the court’s favourable consideration. Where the opposite of the stated position is the case, however, it would be an exercise in futility for the court to direct that the application for contempt of court be heard on an urgent basis.

Directions which the applicant is seeking from the court must support a worthy cause. They must, in other words, show that the case for which they are being sought is not devoid of merit. Where the case for which they are sought lacks merit, the court’s making of directions would not only be meaningless. It would also be so redundant that no purpose would be served by the making of such.

The applicant states that the respondent and another complied with paragraph (1) of the provisional order which the court entered in her favour under HC 7310/18. She made mention of this fact in para 4 of her Heads which she filed on 5 September, 2018. The question which begs the answer, in so far as paragraph (2) of the same order is concerned, centres on whether or not it is the intention of the respondent to remain defiant of the second part of the provisional order. Put differently, the question would read: is the respondent’s non-compliance with para (2) of HC 7310/18 motivated by a desire on his part to remain in contempt of the court order.

Contempt of court, properly defined, consists in unlawfully and intentionally violating the dignity, repute or authority of a judicial body [see Jonathan Burnhell: Principles of Criminal Law, 4th edition, p 864]. The learned author states under the topic Disobeying court orders, p 873 of his textbook as follows:

“…..it is customary to classify contempt of court into two broad categories: Civil and 	Criminal.

The terminology is misleading in so far as it suggests that civil contempt is not a criminal 	offence. It is clear that in South African Law both civil and criminal contempt are species of 	the same criminal offence. Civil contempt is, accordingly, committed by failing to obey an 	order of court (provided the definition of the crime is satisfied) and it does not matter that the 	order that is disobeyed was made in a civil case.”

Herbestein and Van Winsen make further clarifications of the definition of contempt of court. They state in the Civil Practice of the Superior Courts in South Africa, 3rd ed p 657 that:

“The court will commit a person for contempt only where his disobedience of the order of 	court is due to his willfulness.” (emphasis added)

The case of Clement v Clement, 1961 (3) SA 861 makes further elucidations to the definition of the crime of contempt of court. It states that a person’s disobedience must not only be wilful, but mala fide.

It follows, from the foregoing, that contempt of court being a criminal offence must contain the two essential elements which exist in the majority of crimes. These are the unlawful aspect which is accompanied by the requisite guilty mental state. They are, in short, referred to as the actus reas and the mens rea.

Where one of the mentioned two elements is absent, the probabilities are that the alleged offender would go scot free unless his conduct falls under what is normally referred to as strict liability cases. These do not require the guilty mental state or the complainant to establish the mens rea of the offender or the alleged law-breaker. They look at the unlawful element only and, once it is proved, the offender is invariably convicted and punished.

Contempt of court, it is evident from its definition, does not fall under the strict liability category of cases. It is a crime of intent wherein the state through the complainant’s evidence, should establish the offender’s guilty state of mind. It should, in fact, do more than that. It must prove a bad motive (mala fide) on the part of the offender for it to succeed. It is for the mentioned reason, is far no other, that, in Girdleston v Saybrook (Pvt) Ltd, HH 488/84 the court held the respondent not guilty of contempt of court on the basis that there was no wilful disobedience of the court order.

Whether or not the respondent in casu is deliberately or willfully making an effort to disobey the order of court is debatable. It is improbable that he is acting with mala fide. His office exists for no purpose other than for the enforcement court orders. He took the applicant’s property in the spirit of enforcing the order of the magistrate’s court. There is, therefore, no tangible reason which would compel, or persuade, him not to enforce the order of this court.

The applicant does not give any reason for the respondent’s non-compliance with the court order. She does not state his intention in the mentioned gard. All she says is that he is in contempt of court without explaining the cause of the same, if he indeed is.

The respondent’s statement is that he made an effort to return the applicant’s goods to her home. He says he did so on three separate occasions.

Annexure 1 which he attached to his notice of opposition supports his statement in the mentioned regard. It emanates from his office. It is dated 15 August, 2018. It is addressed to his auctioneers, Ruby Auctions. It refers to case number 39520/16 which, in all probability, he was obeying when he removed the applicant’s property from the latter’s home and took it to Ruby Auctions.

The annexure, it is evident, is a release note. It instructs that the applicant’s goods which his deputy Farai Banga took from the applicant’s home on 7 August, 2018 and pursuant to the order of the court of the magistrate filed under case number 39520/16 be collected by Mr Banga and returned to the applicant’s home. The release, it states, is in compliance with the order which this court issued on 10 August, 2018.

Annexure II which the respondent attached to his opposing papers shows the effort which Mr Banga made to return the applicant’s goods to her home. It is dated 15 August, 2018 which is the date that the respondent authored the release note.

Mr Banga states that, in compliance with HC 7310/18, he retrieved the applicant’s goods from Ruby Auctions. He says he did so on 15 August, 2018. The most pertinent portion of his statement reads:

“On my way to applicant’s abode I called applicant to advise her of the return of her items and that someone had to be present at 126 Edgemore Road, Park Meadowlands, to inspect, receive and sign for the goods.

Applicant retorted  that she told Mr Kauswa she would not be present at her residence and that I was wasting fuel and her time by driving to her abode.

…… but applicant insisted no one was and would be at home and she cut off ….. I proceeded to the address where I arrived at 3 pm…. The worker refused to open the gate saying he had been told not to ……

At 15.20 after it was too palpably clear occupants had been instructed not to open the gate by applicant who had earlier refused to accept her property back, I returned the goods to the storage floors because the occupants had also refused to receive applicant’s property on her behalf ….” (emphasis added)

The applicant confirms the respondent’s attempt to deliver her goods to her. She

does so in the letter which she addressed to the respondent on 17 August, 2018. The relevant portion of the same reads:

“In your letter dated 9 August, 2018 and contrary to the intimations proferred over my telephone calls with Mr Farai Banga of the Messenger of Court a decision was unilaterally made by the Messenger of Court to attempt delivery when I had clearly stated that there was no one at the premises serve for the temporary gardener who was clearing the weeds …” (emphasis added).

The respondent’s second attempt to deliver the applicant’s goods to her is captured in

the letter which one I.K Matekenya of his office addressed to the applicant on 21 August, 2013. It reads:

“In response to the Restoration Order granted in your favour, the Office of the Messenger of Court sought to deliver the attached goods back to your residence but you were not willing to cooperate and as indicated in Deputy Banga’s reports attached, he was denied entry into the premises.

In this regard please inform us when you will be present at your residence to allow for the

delivery of your property. Also note that the goods continue to be held in storage and the office of the Messenger of Court will not be held liable for any depreciation of the goods seeing you refuse to comply with the order to collect your property.” (emphasis added).

The above cited correspondences of the parties evidence their serious misconstruction of

para 2 of the provisional order. One reads it to mean one thing and the other reads it to mean another.

The applicant would not, in my view, refuse to accept her goods back to her without a

reason. That would not make any sense at all. Her reasons the for refusal are contained in the letter which she addressed to the respondent on 17 August, 2018. She insists, in the same, that her goods be inspected and the electronic gadgets tested prior to the movement of the same from the respondent’s auctioneers.

The respondent whose office exists for purposes of enforcing court orders would not violate the court order just for the sake of it. He stated, through counsel and during submissions, that the provinsional order under HC 7310/18 does not extent to what the applicant is insisting upon. He understands the same to be telling him to return the applicant’s goods to her and not to have the same inspected and/or tested to ascertain their condition. He submits that what the applicant is insisting upon goes outside HC7310/18. It is for the mentioned reason, if for no other, that he stated, during submissions and on a without prejudice basis, that he is amenable to review and test the property. He cautions that the position which he takes of the matter should not be regarded as an obligation on his part.

It is clear, from the foregoing, that the parties’ minds are at cross purposes as to the import and meaning of the provisional order. The applicant understands it to mean one thing. The respondent, on the other hand, understands the same to mean another thing.

The issue revolves around the interpretation which must be placed on HC 7310/18. The applicant who is dominus litis in both applications has every right to seek clarification of the order from the court which made it. It is only when that has been sought and obtained that she can successfully sue for contempt of court if the respondent fails to comply with a clear and unambiguous order of court.

As matters stand currently, the applicant will face a huge hurdle to prove that the respondent’s conduct in refusing to go along with her views is in contempt of court. It would be difficult, if not impossible, for her to establish that he has the requisite mens ren, let alone mala fides, for the crime.

Because this application is based on the merits of HC 7946/18 the prospects of which, as has already been observed, are next to nothing, any directions which the court will make in casu would serve little , if any, purpose. Directions, I stated elsewhere in this judgment, must have a bearing on what the applicant intends to achieve. Where what she intends to accomplish remains unachievable, the directions which the court makes will be nothing else but an exercise in futility.

The correspondence which the parties engaged as between them should have drawn the applicant’s attention to the respondent’s interpretation of HC 7310/18. She is in the driving seat as regards both application. She would have done well, therefore, to seek clarification from the court, communicate the clarified position to the respondent and sue for contempt if he failed to comply with the clarified order of court. All the correspondence took place before she filed her application for contempt of court. That was, in my view, not necessary until the apparently difficult order had been clarified.

No court would exonerate the respondent for disobeying a clear and unambiguous order. He, on his part, I am satisfied, would not disobey such. His duty compels him to obey as well as enforce court orders.

For the reasons which I stated in this judgment, the directions which are being sought cannot be made. They cannot be made for two pertinent reasons. These are that:

‘(i)	the application is misplaced – and

(ii)	HC 7946/18 upon which this application is premised has no prospects of

success at all.

The applicant is condoned for her failure to appreciate the meaning and import of what she placed before the court. She is a self-actor whose aim and object are to attain justice for herself. The fact that she filed three urgent chamber applications in a stretch of only three consecutive weeks shows the zeal with which she wants to see the respondent being punished. She, however, failed to establish her case on a balance of probabilities. In the result, it is ordered that:

1.	The application be and is hereby dismissed.

2.	Each party pays its own costs.

Scanlen & Holderness, respondent’s legal practitioners