Delant Chasaya v Mark E. Dzobo

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HMT 63-19
CIV ‘A’ 20/19
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DELANT CHASAYA

versus

MARK E. DZOBO

HIGH COURT OF ZIMBABWE

MWAYERA and MUZENDA JJ

MUTARE, 24 July and 1 August 2019

Civil Appeal

V Chinzamba, for the Appellant

B Mungure, for the Respondent

MUZENDA J: On 16 May 2019 the appellant noted an appeal against the whole judgment of the Magistrate’s Court handed down on 23 April 2019 at Mutare laying out the grounds of appeal as well as relief sought as follows:

“A.	GROUNDS OF APPEAL

The Learned Magistrate erred at law by making a finding based on the papers that the appellant was in defiance of a court order without holding a proper enquiry.

The Learned Magistrate thus erred by refusing to hear the appellant on the merits.

The Learned Magistrate also erred at law by ordering the incarceration of the appellant when there were no proof beyond doubt that he was in contempt of Court.

The Learned Magistrate erred by giving an order for the incarceration of the appellant which order infringes on the applicant’s right to liberty.

The Learned Magistrate erred at law by making a finding that the appellant removed the rims and tyres of the truck to defy a court order when the appellant properly explained how and when the wheels were removed and the explanation was never properly challenged by the respondent.

WHEREFORE appellant prays for:

An order allowing appeal.

An order setting aside the decision to refuse to hear him on the merits and a remittal of the matter to the court a quo for a determination on the merits.

Setting aside of the order for his incarceration for contempt of court.”

BACKGROUND

On 27 November 2018, the respondent Mark E. Dzobo made an ex-parte Chamber application at Mutare Magistrate’s Court praying for an order crafted as follows:

“IT IS HEREBY ORDERED THAT:-

A rule nisi is hereby granted returnable on the……day of…………..2018 before this Honourable Court at 0830 hours or soon thereafter as the matter may be heard calling upon the Respondents to show cause, if any, why a final order should not be made with the following terms.

TERMS OF THE FINAL ORDER SOUGHT

The Respondents be and are hereby ordered to surrender to the Applicant his Mitsubishi Canter Reg No. AAH 1267 and the Registration book for a freight liner Horse Reg No. AAZ 4872.

The Respondents be and are hereby ordered to pay to the Applicant $9 204-00 being the money they unjustly and unlawfully collected from the Applicant.

Respondent pay costs at an attorney-client scale.

INTERIM RELIEF GRANTED

Pending the return date, the Respondents be and are hereby ordered to release and or surrender the Mitsubishi Canter Reg No. AAH 1267 to the Applicant failure of which the Messenger of Court and or any member of the Zimbabwe Republic Police is hereby authorised and directed to recover the vehicle from the Respondents and deliver it to the Applicant. If any of the Respondents breach any term of this interim order, any member of the Zimbabwe Republic Police be and is hereby authorised to arrest him for contempt of court for which this will be their warrant.”

On the same date, 26 November 2018, the Learned Senior Magistrate granted the provisional order.

On 29 November 2018, the appellant made a court application for discharge of the provisional order in terms of Order 22 Rule 7 (3) of the Magistrates Rules, anticipating the return date which was 19 December 2019. The anticipation was set for 3 December 2018. The respondent opposed the application for discharge and raised in his opposing papers preliminary point to the effect that the appellant had not complied with the interim court order where the appellant had been ordered to surrender the Mitsubishi Canter, after receiving the court order, appellant allegedly avoided service of the order on him by locking his gate when the first attempt was made. The appellant had vandalised, destroyed and stripped the motor vehicle to the extent that it was then grounded. The respondent contended that the appellant by anticipating the return date was doing so with dirty hands.

On 23 April 2019, the court a quo decided that the appellant was in contempt of court and dismissed his application for the discharge of the rule nisi with costs on legal practitioner-client scale. It further ordered that the appellant complies with the terms of the interim order within 48 hours of service of the order on him failure of which he will be committed to prison for 60 days for contempt of court. It is this order outlined above which triggered the appeal before us.

ARGUMENTS BY COUNSEL

Mr Chinzamba for the appellant submitted that the court a quo did not afford the appellant an opportunity to be heard more particularly where his liberty was at stake. Appellant ought to have been afforded a chance to explain his position before an order for his incarceration was granted. Appellant, Mr Chinzamba, added, explained to what happened to the vehicle. His explanation was not challenged, nor illogical unreasonable nor proved to be improbable. The respondent needed to prove that the defence raised by the appellant on a case of contempt was not only improbable but false. The Constitution of Zimbabwe provides that a person has a right to a fair and public trial and every offence has to be proved and that every person has a right not to be detained without trial and not to be deprived of the liberty arbitrarily or without just cause.

On the other hand, Mr B Mungure argued the court a quo properly upheld respondent’s preliminary points when it dismissed the appellant’s application for discharge of the interim order. The decision of the court a quo is sound and cannot be faulted. He emphasised on the integrity of the judiciary and the sanctity of the court orders. He insists that the appellant was in contempt of court and came to court with dirty hands. He ought to have complied with the order of the court a quo before being heard and until he purged the contempt he should not be heard by the court.

THE LAW

Section 69 (1) of the Constitution of Zimbabwe Amendment (No.20) provides as follows:

“S 69 Right to a fair hearing

Every person accused of an offence has the right to a fair hearing and public trial within a reasonable time before an independent and impartial tribunal.”

Section 70 (1) (a) of the same Constitution provides this:

“(1)	Any person accused of an offence has the following rights:

To be presumed innocent until proven guilty.”

Section 70 (1) (c) “to be given adequate time and facilities to prepare a defence.”

Further it is noted that s 49 (1) (a) of the Constitution provides that:

“(1) Every person has the right to personal liberty which includes the right-

Not to be detained without trial.”

These are fundamental rights and where the appellant was found guilty of contempt of court. Summarily; these sections of the Constitution are applicable and peremptory. The appellant had a Constitutional right to be informed by the court that his conduct is deemed to be in contempt and that he should explain or proffer the basics of his defence and that explanation entails a process where evidence is led or established and appellant afforded an opportunity to cross examine or challenge such evidence in an open court. In the matter of Mukamburwa & Others v Gospel of God Church Intl 1932 S-8-14 it was held that:

“The crime of contempt of Court is committed intentionally and in relation to administration of justice in the courts. The object of proceedings for contempt is to punish disobedience so as to enforce an order of court and in particular an order ad factum praestandum, that is to say, orders to do or abstain from doing a particular act. Failure to comply with such order may render the other party without a suitable or any, remedy, and at the same time constitute disrespect for the court which granted the order. Before holding a party to be in contempt of a court order, a court must be satisfied that the order has been served on the individuals concerned and that the individuals in question know what it requires them to do or not to do, that knowing what the order dictates, the individuals concerned deliberately and consciously disobeyed the order. In addition to that, the court must be satisfied that not only was the order not complied with, but also that the non-compliance on the part of the defaulting party was wilful and mala fide. An applicant seeking such an order must set out clearly in his application such grounds as will enable the court to conclude that the onus resting up on the applicant of proving the contempt has been discharged. The applicant must also prove that the respondent has failed to comply with the order. Before seeking to enforce an order through contempt proceedings, it is necessary to prove that the judgment or order which is alleged to have been disobeyed has been properly served. The applicant must also show that the order with which the respondent has failed to comply has either been served upon him personally or has come to his personal notice. The general rule is that no judgment or court order will be enforced by process of contempt unless a copy of the order has been served personally on the person required to do or abstain from doing the act in question.” (per gowora ja).

On the aspect of dirty hands doctrine in the case of Associated Newspapers of Zimbabwe (Pty) Ltd v Minister of State for Information and Publicity & Others 2004 (1) ZLR 538 it was held that:

“This court is a court of law as such cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards. For the avoidance of doubt the applicant is not being barred from approaching this court. All that the applicant is required to do is to submit itself to the law and approach this court with clean hands on the same papers.”

See also Naval Phrase Farming (Pvt) Ltd and Ors v Ministry of Lands and Rural Resettlement and Ors HH 768/15.

In casu, the respondent did not make an application for contempt proceedings it opposed an application filed by the appellant to discharge a provisional order. In its opposing papers it raised a point in limine, premised upon the doctrine of dirty hands. The respondent ought to have initiated proceedings for contempt of court by an application outlining the basis of such an application and bore the onus to prove that the conduct of the appellant was contemptuous. It did not. The court a quo’s order on contempt was not requested by the respondent at all and was not supported by evidence. In granting the order for contempt against the appellant, where there was no application, where the appellant was not heard and where there were dispute of facts on what happened leading to failure by appellant to deliver the motor vehicle, the court a quo misdirected itself.

Assuming the doctrine of dirty hands was well placed, the court a quo should have postponed the application to discharge the rule nisi until the appellant had complied with the provisional order, and not to dismiss the appellant’s application on merits. That was an error. It simply shows that the Learned Magistrate was not going to hear the appellant forever even if he was going to comply and attain “clean hands”. The doctrine of dirty hands ensures compliance with an order and then encourages a litigant to pursue its intended action not to totally ban him from being heard, worse to dismiss his application before hearing him.

Order 22 (7) (3) of the repealed Magistrate Court Rules, SI 280 of 1980 provided an alternative to the respondent served with a provisional order granted exparte. He anticipates the return date, in other words he tells the court why he cannot abide by the temporary order and in principle the application to discharge forestalls the provisional order. The temporary order in my view ceases to be extant until the application for discharge is dismissed. A party against whom the interim order was granted cannot be held to be in contempt nor he be said to be coming to court with dirty hands in these circumstances.

Where the appellant had anticipated the rule nisi and received a notice of set down, the court misdirected itself in holding that the appellant was in contempt of court. In any case he explained himself adequately and his explanation cannot be said to be false. See S v Makanyanga 1996 (2) ZLR 23, S v Mupatsi 2010 (1) ZLR 529 (H).

The Learned Magistrate ought to have heard the appellant on the merits. Once he would have heard him he would have then decided the application for discharge of the rule nisi on the merits of both parties’ arguments. Moreso where the liberty of a person is at stake there is need for full enquiry and the intention of the offending party fully probed before finding such a party guilty of contempt. The other issues raised by the appellant on the propriety of the order is but supplementary. In any case, had a full hearing been carried that issue could have been resolved.

The appellant did not make any submission relating to costs. I will assume that he wanted them to be in the cause. The respondent equally did not pursue them.

DISPOSAL

IT IS ORDERED THAT:

The appeal be and is hereby upheld.

The decision by the court a quo to refuse to hear respondent’s application to discharge

the provisional order is set aside and substituted by the following:

“the points in limine are dismissed.”

The order for first respondent’s incarceration for contempt of court be and is hereby set aside.

Costs to be in the cause.

MWAYERA J agrees_____________________

Mugadza Chinzamba & Partners, Appellant’s legal practitioners

Makombe & Associates, Respondent’s legal practitioners