Gordon Thomas Dutton v The Minister of Water Resources Development and Management & The City of Harare

### Preamble
Judgment No. SC 61/20
Civil Appeal No. SC 802/18
1
REPORTABLE: (156)
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REPORTABLE:       (156)

GORDON     THOMAS     DUTTON

v

THE     MINISTER     OF     WATER     RESOURCES     DEVELOPMENT     AND     MANAGEMENT     (2)     THE     CITY     OF     HARARE

SUPREME COURT OF ZIMBABWE

GARWE JA, MAVANGIRA JA & MAKONI JA

HARARE, THURSDAY 11 JULY, 2019 AND 24 NOVEMBER, 2020

P.C. Paul, for the appellant

T. Zhuwarara, for the second respondent

No appearance for the first respondent

MAVANGIRA JA:	 This is an appeal against the whole judgment of the High Court in which the court dismissed the appellant’s application wherein he sought to obtain an order against the respondents for contempt of court coupled with a fine of “$10 000 each per week for each week that they continued to be in contempt of the said court order.” (sic)

FACTUAL BACKGROUND

On 26 May 2011, the appellant obtained an order by consent under HC 5469/10 against the first and second respondents in terms of which the respondents were to supply water to the appellant’s premises. The terms of the order were as follows:

“IT IS ORDERED BY CONSENT THAT:

Respondents shall take all necessary steps to ensure that there is a supply of water to Applicant’s property being 15 Dulwich Road Greendale for a minimum period of 2 days a week or such lesser period as may be agreed between Applicant and Respondent (sic) with leave being granted to Respondents to apply to this Honourable Court for the variation of this order in the event that they maintain that Respondent (sic) (Applicant) is unreasonably refusing to consent to any such variation.

(b)	The Respondents pay the costs of this application.”

The observation must be made that the reference in para (a) of the order to the respondent unreasonably refusing to consent to the variation of the order is clearly a typographical error and was meant to be a reference to the applicant (the appellant herein).

On 12 November 2012 the respondents were found guilty of contempt of court under Case Number HC 10994/11, for failure to comply with the consent order. In that case the court granted the following order:

“IT IS ORDERED THAT:

Respondents be found guilty of contempt of court by virtue of their failure to comply with the order of this Honourable Court dated the 26th of May 2011 in case number HC 5469/10 and ordered to pay jointly and severally the one paying the other to be absolved a fine of $10 000.00 unless they purge their default within 30 days of service of this order.

2.	Respondents pay the costs of suit jointly and severally the one paying the other to be absolved.”

THE APPELLANT’S CASE BEFORE THE HIGH COURT

On 24 May 2017, the appellant filed an application with the High Court in Case No. HC 4657/17 seeking an order in the following terms:

“IT IS ORDERED THAT:-

That 1st and 2nd Respondents be found guilty of contempt of court by virtue of their failure to comply with an order of this Honourable court dated the 26th of May 2011 in Case No. HC 5469/10.

That 1st and 2nd Respondents each pay a fine of $10 000 each per week for each week that they continued to be in contempt of the said order of court.

That Respondents shall pay the costs of suit.”

The appellant averred that a meeting had been held on 21 October 2014 to resolve the problem of the non-supply of water to his premises as well as the difficulties that the second respondent had claimed to be facing which related only to the supply of water to the ground reservoir and not to the elevated reservoir. The appellant further averred that since the granting of the order in HC 5469/10 there had been numerous occasions when there was water in the ground reservoir but the water was not being pumped to the elevated reservoir. The appellant also contended that he had seen huge quantities of water leaking from pipes near his property and that his neighbours, who were at a lower elevation, frequently received water. It was the appellant’s argument that the second respondent was not bothering to pump water from the ground reservoir to the elevated reservoir in order to enable the flow of water to the appellant’s premises, this being, in fact, a failure to comply with the court order previously granted. He thus sought to obtain an order against the respondents for contempt of court.

THE SECOND RESPONDENT’S CASE BEFORE THE HIGH COURT

The application was opposed by the second respondent only, who averred that the order sought by the appellant was res judicata in that the order obtained in HC 10994/11 was decided by a competent court, between the same parties, concerning the same subject matter. The second respondent argued that the appellant ought to have sought enforcement of the order he obtained in Case No. HC 10994/11, as opposed to instituting a fresh application for an order for contempt of court. The second respondent also alleged that the requirements for an order of contempt of court had not been satisfied.

The second respondent disputed the appellant’s averments claiming that they were unsubstantiated. It argued that the appellant ought to have attached a bills and rates account to show that no water was supplied. The second respondent also stated that it took several initiatives to ensure the supply of water at the appellant’s residence continuously for two or three days a week. Thus it sought to have the application dismissed by the court a quo.

The first respondent did not file any opposing papers and at the hearing before the court a quo Mr Paul for the applicant (appellant in casu) indicated that the applicant was no longer persisting with its case against the first respondent.

THE JUDGMENT OF THE HIGH COURT

The court a quo dismissed the appellant’s application with costs. In summary its reasons were the following. The court held that the sole legal consideration was whether or not a litigant could apply for contempt of court twice in respect of the same order.  The court noted that the order sought by the appellant in the court a quo was similar to the order that he sought in HC 10994/11 and that the causes of action were similar in that in both instances the appellant sought the second respondent to comply with the original order in HC 5469/10.  The court was of the view that whilst contempt of court proceedings are meant to enforce compliance, it would be “an abuse of court process if applicants are allowed to come to court at every turn to seek further contempt of court orders in respect of alleged breach of the same court order.”

The court also stated that the appellant had failed to explain why he had not sought compliance with the order in HC 10994/11 in the face of the alleged continued breach by the second respondent.

I find it compelling to quote the following excerpt from pp 3 – 4 of the court’s judgment:

“… A scrutiny of the order sought by the applicant in casu reveals that it is similarly worded with the one in HC 10994/11 except that the fine sought is now $10 000,00 per week whereas in the former it is a fine of $10 000 unless the respondents purge their default. The ‘cause of action’ in the first contempt application was essentially that the respondents had failed to comply with the court order in HC 5469/10. A sanction was imposed. The ‘cause of action’ in the present matter is the same that the respondents have failed to comply with the court order in HC 5469/10. In my view, the sneaking in of the second part of the order in casu which seeks payment of a fine of $10 000,00 per every week that the respondents continue to be in contempt is an attempt by the applicant to ‘vary’ the order in HC 10994/11. The order in HC 10994/11 could have been worded better.

Granting the order sought is tantamount to ‘double        jeopardy’. I am aware that the court of appeal of Ontario in Canada has held that a litigant who is in contempt of court can be punished twice for the same contempt – see Doobay v Diamond, ONCA 580. The appellant in that matter had submitted that he had already been sentenced for contempt of court by another judge and he could not be punished for the same contempt twice. He placed reliance on a decision of the Alberta Court of Appeal in Re Braun, 2006 ABCA, 23, 262, D.L.R. (4th) 611, that if contempt is not purged, ‘continued disobedience is neither an aggravating factor nor a fresh transgression.’ (at para 27). The court rejecting the reasoning in the Braun case cited and endorsed the obiter dictum in Chiang (Trustee of) v Chiang, 2009 ONCA 3, 93 O.R (3d) 483. It held that;

‘To permit only one penal sanction for the ongoing breach of an order deprives the court of the ability to impose measured, but incremental, sanctions to obtain compliance with that order. In other words, if the court can impose only one period of incarceration for a civil contempt, then it cannot address, in any meaningful way, a contemnor’s defiance.’

To note however that is in the Doobay case, the court was  seized with all the details regarding what can be termed as the ‘first’ contempt order and the continued non-compliance by the appellant. It is trite that an application falls or stands on its founding affidavit. The applicant has failed to explain why he has not sought compliance with HC 10994/11 in the face of what he terms continued breach by the second respondent. Contempt of court proceedings are meant to enforce compliance but in my view, it is an abuse of court process if applicants are allowed to come to court at every turn to seek further contempt of court orders in respect of alleged breach of the same court order.

The applicant ought to have looked at all the angles before seeking a contempt of court order in HC 10994/11.” (the underlining is mine for emphasis)

Aggrieved by this decision, the appellant noted the present appeal.

GROUNDS OF APPEAL TO THIS COURT

The appellant’s grounds of appeal to this Court are:-

“1.	The learned judge erred, in holding that the application could not be granted as the matter had already been disposed of in Case No. HC 1099/11 and was therefore res judicata.

2.           The learned judge should have found that the order of contempt granted in Case No. 10994/11 was only concerned with 2nd respondent’s failure to comply with the order of the High Court in Case. No HC 5469/10 as at the date of that contempt of court order and could not possibly relate to subsequent failures by the 2nd respondent to supply water to appellant premises on a weekly basis.”

The appellant’s prayer reads:

RELIEF SOUGHT

“WHEREFORE Appellant prays that his appeal maybe upheld with costs and that the order of the High Court be set aside and substituted with the following order ‘2nd respondent’s point in limine that the judgment in Case Number HC 10994/11 precludes Applicant, from proceeding with the present application on the basis of res judicata be dismissed with costs.’

Appellant further prays that the matter be remitted to the High Court for a determination on the merits.”

APPELLANT’S CASE BEFORE THIS COURT

The submission was made on behalf of the appellant that the court a quo misdirected itself in the following manner. Firstly, by dismissing the application on the basis that it could not be granted as the matter had already been disposed of in HC 10994/11.  It was submitted that the order of contempt granted in HC 10994/11 was only concerned with the second respondent’s failure to comply with the order of the High Court in Case No. HC 5469/10 as at the date of that court order.  It was further argued that the order could therefore not possibly relate to subsequent failures by the second respondent to supply water to the appellant’s premises. The contention was that the new application for an order of contempt of court was in relation to a subsequent period that is separate and different from the period covered by the earlier order.

In his oral submissions Mr Paul, for the appellant, said that the court a quo misdirected itself by failing to decipher the effect of the first order of contempt of court and the “timeless timeline” within which it was meant to operate and thus by so doing, the court had defeated the purpose meant to be served by contempt proceedings.

Mr Paul also submitted that the order in HC 5469/10 was meant to operate permanently or in perpetuity and created an ongoing obligation until set aside by court. It was not a once-off obligation. The court brought to his attention the case of Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S) where two prison terms were imposed for contempt of court relating to one order of court, albeit in a maintenance matter. He quickly likened the situation therein to the instant matter.

He prayed for the appeal to be allowed and for the decision of the court a quo to be set aside and substituted with an order in favour of the appellant with costs

SECOND RESPONDENT’S CASE BEFORE THIS COURT

The second respondent’s stance both in its heads of argument and in oral submissions was that the court a quo’s decision was sound in all material respects. Furthermore, that the court a quo had also justifiably found that the appellant’s application was res judicata.

Mr Zhuwarara, for the second respondent, submitted that the second paragraph of the order sought in the court a quo covers all periods during which the second respondent was in contempt of court in respect of the original court order in HC 5469/10. He submitted that the respondent having been given an opportunity in HC 10994/11 to purge its contempt and having thereafter done so, the order sought a quo would be incompetent for providing for punishment covering a period during which appropriate steps were taken and resulted in the contempt being purged. The second paragraph would thus cover punishment for a period for which there would be no justification for the same, the contempt having been purged. He submitted that by the order that it sought and obtained in HC 10994/11 the appellant unfortunately restricted itself as it did not seek a structural order or interdict. It ought to have sought an order that catered for a situation of further contempt thereby enabling it to only seek enforcement thereof as opposed to seeking another order for contempt of court as in casu.

It was also his submission that when a party brings contempt of court proceedings, it does not merely seek a declaratur but it also seeks appropriate relief. Such a party cannot come back later seeking additional punishments to be levied. Thus, a structural interdict ought to have been sought in casu. The order in HC 5469/10 had timelines in that if necessary steps were taken then that would extinguish the obligation of the respondents. The taking of such necessary steps would equate to compliance with the order. He submitted that the order in HC 5469/10 did not provide for the supply of water 2 days a week in perpetuity.

Mr Zhuwarara argued that the appellant could not seek to obtain more than one order for contempt of court based on non-compliance with the same initial court order, being HC 5469/10 in this case. He submitted that the alleged defiance by the appellant cannot possibly be solved by obtaining a series of court orders of contempt of court.

Regarding the possibility of the parties seeking variation of the order in HC 5469/10, Mr Zhuwarara submitted that once the second respondent took necessary steps it would have purged its contempt and there could be no need for the order to be varied. Once the contempt was purged as happened in casu, a new set of circumstances arose. He reiterated that the appellant ought to have sought a structural order in HC 10994/11 to cater for a situation where there is further contempt as alleged in casu. The appellant would thus only be seeking enforcement thereof as opposed to the current proceedings wherein an order of contempt of court is sought and in which there seems to be a variation of the first order of contempt of court by adding new or different punishment to that in the first order.

The second respondent also contended that the order obtained by the appellant in HC 10994/11 was on all fours with the order which he sought to obtain before the court a quo.  It contends that the matter was therefore res judicata and, as such, there was no misdirection on the part of the court a quo in dismissing the application. It urged the Court to dismiss the appeal and uphold the decision of the court a quo.

THE ISSUE FOR DETERMINATION ON APPEAL

The issue for the court to determine is whether the court a quo erred by dismissing the appellant’s application on the basis that it was res judicata and would amount to double jeopardy on the part of the second respondent.

The pertinent question is whether an application for an order for contempt is the appropriate remedy to prevent successive or competitive orders of contempt of court in respect of the same claim.

THE LAW AND ITS APPLICATION

The law on contempt of court orders is settled, that a party who intentionally refuses or fails to comply with a court order may be found in contempt of court. This was aptly stated in the case of Artkinson vs Artkinson [1952] 2 All ER 567 (CA) wherein the court held that:-

“It is a plain and unqualified obligation of every person against, or in respect of whom the order is made by the court of competent jurisdiction to obey it, unless and until that order is discharged; and that two (2) consequences flow from that obligation.  The first is that anyone who disobeys an order of court is in contempt and may be punished by committal or attachment or otherwise.  The second is that no application to court by such a person will be entertained unless he has purged himself of his contempt” (the underlining is added)

Similarly, Herbstein and van Winsen in The Civil Practice of the Superior Courts in South Africa 5th ed at p 1099 state that:

When a litigant has obtained a court order requiring an opponent to do or not to do something (ad factum praestandum) and there is non-compliance, he can approach the court again for a further order declaring the non-compliant party in contempt of court and for the imposition of a sanction which usually, but not invariably, has the object of inducing the non-complier to fulfil the terms of the previous order.” (the underlining is added)

The effect of such orders was noted in the case of Haddow v Haddow 1974 (1) RLR 5 at 8 A-C:

“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.”

Notably also, the learned authors Herbstein & van Winsen in The Civil Practice of the High Courts of South Africa, op. cit. at p 1100 state that the object of proceedings that are concerned with the unlawful and intentional refusal or failure to comply with an order of court is the imposition of a penalty in order to vindicate the court’s honour consequent upon the disregard of its order and/or to compel performance in accordance with the order.

In An Introduction To Zimbabwean Law, FES & Lovemore Madhuku, 2010, the learned author states at pp112 – 113:

“Civil contempt of court proceedings are designed to compel performance of the court order through the device of committing the defaulting party to prison. The imprisonment imposed is, in most cases, suspended pending performance by the defaulting party. Contempt of court becomes a way of enforcement of judgment in that the person seeking compliance with the order applies to court to have the defaulter found guilty of, and to be subsequently jailed for, contempt of court. The imprisonment of the court is thus utilized as a way of exerting pressure for compliance with the court order.

In order to hold a person in contempt of court, two requirements must be satisfied, namely, that:

The order was not complied with.

Non-compliance was willful on the part of the defaulting party. (See Lindsay v Lindsay (2), p.299B; Scheelite King Mining Co (Pvt) Ltd v Mahachi 1998 (1) ZLR 173 (H))

Once it is proven that the order has not been complied with, there is a rebuttable inference that the non-compliance was willful. The onus is on the defaulting party to rebut the inference on a balance of probabilities.

The difference in purpose between civil imprisonment and imprisonment for contempt of court leads to an important consequence regarding the period of committal to prison. Whereas with civil imprisonment, a person cannot be imprisoned more than once for the same failure to pay a debt, imprisonment for contempt can be repeated for the same contempt as long as non-compliance with the court order continues.” (See Lindsay v Lindsay (2)) (the underlining is mine)

In casu, it is common cause that the second respondent complied with the order in HC 10994/11 within the thirty days stipulated therein. The current litigation was triggered by the conduct of the second respondent in thereafter ceasing to supply water to the appellant’s premises as required by the order. Compliance with the order meant the supply of water by the second respondent to the appellant’s premises “for a minimum period of 2 days a week or such lesser period as may be agreed between” the parties.

The second respondent contends that because it complied within thirty days as stated in the order, the seeking of a variation of the order could not and did not arise. It states that as the compliance was done within the period of thirty days, albeit spanning an unstated but limited period, it purged its contempt and the order in HC 5469/10 was thereby discharged.

The second respondent further contends that, if it is not supplying water to the appellant as alleged, then the appellant has to seek and obtain another order for it to supply water to his premises. It would, in my view, make a mockery of justice and of the court if, on the facts of this matter, the second respondent’s stance was to carry the day with the appellant having to seek and obtain another order for the supply of water to his premises. Periodic supply of water in compliance with each order so obtained would have to be followed by another application to obtain an order in the same terms with that already obtained in HC 5469/10.

By its nature, the order to supply water (in HC 5469/10) does not have a date by which the second respondent may stop providing such supply. The allegation against the second respondent is, that after having started supplying the water as ordered, it thereafter unilaterally stopped doing so thereby placing itself in a position of being guilty of contempt again.

The order provides for the supply of water for a minimum period of 2 days a week. There is no limited duration that is stipulated as to when such supply of water must be done. What is stipulated is the frequency of the supply. Put differently, the order created an ongoing or continuing obligation on the part of the second respondent and this accords with common sense when regard is had to the purpose and need for water at a residential premises. It must also be understood that there could potentially be supply for a maximum period of 7 days a week. The order made provision for agreement between the parties for a less frequent supply of water or, should such agreement fail, by the second respondent applying to court for a variation.

It is my view that, the order in HC 5469/10 having created an obligation of a continuing nature, there was no bar to the court a quo determining the merits of the application that was before it. The “initial” compliance ought not to have availed any relief to the second respondent as it did in the court a quo. In my view, any “resumed” defiance of the order ought, on the facts of the matter, to have laid the second respondent open to a further order of contempt of court as sought by the appellant a quo. I would venture further to say that by its initial compliance the second respondent only purged its non-compliance as at the date when the order was sought. The alleged subsequent non-compliance thereafter would, if proved, constitute renewed contempt of the order in HC 5469/10. That being so, the issue of res judicata could not and ought not to have arisen. The renewed contempt would relate to a different period to that covered by the order in HC 10994/11. The fresh non-compliance would still be contempt of the order in HC 5469/10 for which, if proved, the second respondent could still be found guilty.

It is common cause that the court a quo did not deal with the matter on the merits but dealt with the preliminary question of whether a litigant can seek a further contempt of court order in respect of alleged breach of the same court order for which a contempt of court order has already previously been granted. The appellant, therefore, had to establish before this Court whether the finding made by the court a quo was afflicted by a misdirection which warrants interference by this Court.

It appears that the Zimbabwean authority of Lindsay v Lindsay (2) (supra) was not brought to the attention of the court a quo. Note may be taken that there are two Supreme Court judgments involving these same parties; these being Lindsay v Lindsay 1993 (1) ZLR 195 (S) (per KORSAH JA) and Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S) (per GUBBAY CJ). The appeals emanated from a judgment of the High Court per GARWE J (as he then was).

The pertinent facts pertaining to the Lindsay cases are stated in some detail in Lindsay v Lindsay (2). The appellant had been ordered by the court to pay maintenance pendente lite to his wife from whom he was separated and to contribute towards her costs of the action. He failed to comply. This resulted in the respondent instituting proceedings for an order that he be committed to prison for an indefinite term until he paid or secured payment. He opposed the relief sought by the respondent. After hearing the matter the High Court in its judgment (HH 205 93, not reported) issued an order that in the event of the appellant failing to pay or to secure payment to her within the next thirty days, he was to be imprisoned for a period of twenty-one days. There was a proviso added to the effect that should he make payment while serving such imprisonment, he would be entitled to an immediate release.

The appellant failed to make payment and was committed to prison where he remained for the stated period. After his discharge from prison his non-compliance with the order of the Court continued. The respondent again instituted proceedings for the indefinite committal of the appellant to prison until such time as she was paid the amount due. In its determination the High Court considered that the situation which led to the previous committal of the appellant had not altered. The court held that since the appellant’s contempt of the order continued, there was no legal impediment to committing him to prison for the second time. However, the court was of the view that an indefinite committal was undesirable and thus limited the period to thirty days.

Both parties were dissatisfied with the order and an appeal and a cross-appeal were filed. The appellant contended that he ought not to have been committed to prison at all. The respondent on the other hand contended that he ought to have been committed for an indefinite period. The appellant’s plea of absolute impossibility to maintain the respondent had been raised and rejected in earlier proceedings reported in Lindsay v Lindsay (1993 (1) ZLR 195 (S))

Commenting on the issue GUBBAY CJ in Lindsay v Lindsay (2) (supra) stated at 299A:

“The finding was res judicata. In none of the subsequent proceedings was any new or different circumstances revealed; nor could they have been. I entertain no doubt that GARWE J was correct in concluding that the appellant remained bound by the order and had failed to comply with it.”

He proceeded at 299B-G:

“Once it was shown that the order had not been met, which of course was common cause, willfulness and mala fides on the part of the appellant was properly inferred, with the onus upon him to rebut the inference on a balance of probabilities. See Haddow v Haddow 1974 (1) ZLR 5 (G) at 6A; Gold v Gold 1975 (4) SA 237 (D) at 239F-G. It may be, as indicated by BAKER AJ (as he then was) in Consolidated Fish Distributors (Pty) Ltd v Zive & Ors 1968 (2) SA 517 (C) at 521A-522A that willfulness and mala fides are identical in direct contempt cases, whereas mala fides is an essential element in “constructive” contempt. However that may be, I agree with the learned judge that the appellant failed completely to discharge the requisite onus.

A maintenance order providing for periodical payments, under an obligation arising by operation of law, and an order to make a contribution towards the costs of a matrimonial action … are each an order ad factum praestandum, that is, an order to do or abstain from doing a particular act. Failure to comply renders the defaulter liable to imprisonment for contempt. …

The purpose of this criminal sanction is not punishment of the disobedience for punishment’s sake, but rather to coerce the defaulter to comply with the order in the future.

…

To my mind, the learned judge correctly appreciated that the real issues to be determined were (i) whether it was competent to recommit the appellant to prison for his continued contempt of the order; and, if so, (ii) whether the term of his committal should be fixed or indefinite.” (the underlining is added)

More significantly for the purposes of the matter at hand, the following is stated at 300D-F:

“The contempt of the order of this court continues until it is purged by compliance. It is not purged by the appellant serving a single period of committal to prison. To hold that there can be only one committal would result, inevitably, in the imposition of an indefinite committal in the first instance. For otherwise there would be little inducement to obey the order. The contemnor might well choose to undergo the hardship and humiliation of a short period of incarceration, content in the knowledge that no further criminal sanction could be visited upon him for his obduracy. Section 23 (3) of the Maintenance Act [Chapter 35] appears to be consistent with this view. Under that provision, a person remains liable to prosecution for a failure to pay arrear maintenance, despite his previous convictions. See S v Kelder 1980 ZLR 331 (G) at 333B” (the underlining is added)

More importantly, before dismissing the appeal that was before it, the court finally stated:

“The respondent’s counsel agreed that, in the circumstances pertaining, there was no rational basis for GARWE J to have committed the appellant to prison for anything less than an indefinite term. It would seem that the learned judge had little faith that a committal for thirty days was likely to achieve compliance with the order of this court. I am convinced it will prove to be ineffective.  For this court to leave the period undisturbed will result in the respondent being forced to have recourse to yet further proceedings in pursuance of her rights.

Daunting and distressing as it is to have to commit the appellant, an elderly and sick person, to prison for an indefinite term, it must not be overlooked for a moment that the remedy lies in his hands. Compliance with the order is all that is sought. The decision to terminate what unquestionably will be extreme suffering in prison, is his alone. I can only hope that wiser counsel than in the past prevails. To that end, I propose to allow the appellant, as did the learned judge, a period of thirty days from the date of this judgment, to purge his contempt, failing which the committal order is to be put into effect.” (the underlining is added)

In HC 5469/10 the respondents were ordered on 26 May 2011 to take all necessary steps to ensure the supply of water to the appellant’s property for a minimum period of two days a week or such lesser period as may be agreed between the parties. Leave was granted to the respondents to apply to the court for variation of the order in the event of the appellant unreasonably refusing to consent to such variation. There appears on record no evidence of such consent to variation. It is a fact that the respondents did not comply with the order culminating in their being found guilty of contempt of court in November 2012 in HC 10994/11. They were fined $10 000.00 unless they purged their default within thirty days of the service of the order. It is also undisputed that the payment of the fine was avoided by the second respondent’s compliance with the order as water was for some unspecified period of time availed to the appellant’s property. Thereafter, there was further non-compliance resulting in the appellant filing the application in HC4657/17 in the court a quo seeking against the respondents an order of contempt of court as well as a sanction of a fine of $10 000.00 each per week for each week that they continued to be in contempt of the order in HC 5469/10.

It appears to be the second respondent’s belief that its “initial” or earlier compliance with the order suffices to exonerate it from any further conviction for contempt of the same court order. The second respondent seeks to avoid any consequences for subsequent non-compliance, if proved, by arguing that the matter is res judicata as it has already been found guilty of contempt of court after which it “temporarily” purged its contempt. It is the second respondent’s stance that the appellant must first seek and obtain another or a fresh order for the supply of water to his property, the order in HC 5469/10 having been automatically discharged by the temporary compliance.

Such an approach would lead to the undesirable situation referred to by GUBBAY CJ in Lindsay v Lindsay (2) (supra) of the appellant “being forced to have recourse to yet further proceedings in pursuance of (his) rights”, in this case a fresh order for the supply of water to his premises. By stating that the remedy lies in the contemnor’s hands GUBBAY CJ could not have meant the raising of technical objections as has happened in casu. He clearly stated that “compliance with the order is all that is sought.”  In this regard I make specific reference to the statement at 300D-F quoted earlier at p 16.

Before the court a quo the second respondent claimed, as recorded in the court’s judgment, “that the appellant was receiving water at least twice or three times a week.” The appellant on the other hand contended that despite earlier or initial compliance by the second respondent there had thereafter been no supply of water to his residence for more than three years. Meetings that were allegedly held at the instance of the appellant’s legal practitioners to discuss the non-supply of water to his premises did not produce the desired result. Applications allegedly made by the respondents to vary the terms of the order were not diligently prosecuted and were eventually dismissed by the courts.

I am aware that the court a quo placed reliance on some Canadian authorities. I believe however that, had the attention of the court a quo been brought to the Lindsay authorities (supra), the court would have adopted a different approach to the matter. Lindsay v Lindsay (2) (supra) seems to be in line with one Canadian Authority, Doobay v Diamond ONCA 580 that the court a quo decided not to follow.

I appreciate that the matter in Lindsay v Lindsay (2) (supra) involved the payment of maintenance. In my view, the principles enunciated therein apply equally in matters of contempt of court including, as in casu, further contempt of a court order. The earlier compliance of the order in HC 5469/10 does not create a pre-requisite of another order of exactly the same nature and effect before the second respondent can be met with further criminal sanction. I also appreciate that Lindsay v Lindsay (2) involved the issue of punishment and not the seeking or obtaining of another or a subsequent order of contempt based on the same “original” order of court. However, on a consideration of the principles discussed therein and a consideration of the facts of this case, it is my view that the order sought a quo by the appellant was properly sought.

Paragraph 2 of the order that was sought a quo relates to the imposition of a criminal sanction for such contempt in the event that the second respondent is found guilty. If the second respondent should be found to be in contempt of the order, there would be no justification for it to not face criminal sanction. There would be no impediment to the imposition of a criminal sanction. The purpose thereof as stated in Lindsay v Lindsay (2) “is not punishment for the disobedience for punishment’s sake, but rather to coerce the defaulter to comply with the order in the future.”

Had the Lindsay case authority been brought to the attention of the court a quo it would, in my view, in all probability, have adopted a different approach. It would have proceeded to hear and determine the matter on the merits.

On the basis of the above observations the appeal will succeed. The matter will therefore be remitted to the court a quo for it to relate to the merits of the application before it. Costs will follow the cause.

Accordingly, it is ordered as follows:

The appeal is allowed with costs.

The judgment of the court a quo be and is hereby set aside.

The matter is hereby remitted to the court a quo for a determination of the application on the merits.

GARWE JA:	 		I agree

MAKONI JA:		I agree

Wintertons, appellant’s legal practitioners.

Chihambakwe Mutizwa & Partners, 2nd respondent’s legal practitioners