H.J. Voster (Pvt) Ltd v Parks and Wildlife Management Authority

### Preamble
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HB 259/20
HB 2664/18
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H.J. VOSTER (PVT) LTD

Versus

PARKS AND WILDLIFE MANAGEMENT AUTHORITY

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 13 & 19 NOVEMBER 2020

C. S. Ncube, for the applicant

V. Bhebhe, for the respondent

Opposed court application

DUBE-BANDA J: This is an application for contempt of court. The applicant seeks an order couched in the following terms:

The respondent be and is hereby declared to be in contempt of court of High Court cases HC 3183/17 and HC 2031/18 and accordingly respondent is ordered a sum of $10 000.00 for contempt.

The respondent be ordered to immediately comply with court orders HC 3183/17 and HC 2031/18 and stop interfering with the applicant’s use, occupation and possession of the Mapari / Devuli Ranch.

The respondent is to pay costs of suit.

The application is opposed.

Background

In case HC 3183/17, applicant (as plaintiff) sued out court proceedings against Parks and Wildlife Management Authority (as 1st defendant) and the Minister of Lands Agriculture and Rural Resettlement (as 2nd defendant). On the 16 January 2017, respondent (as 1st defendant) filed a notice of appearance to defend, and a detailed plea wherein it prayed for the dismissal of the action with costs on a legal practitioner and client scale. On the 13 April 2018, applicant (as plaintiff) withdrew case No. HC 3183/17 in respect of the respondent, and proceeded with litigation against the Minister of Lands Agriculture and Rural Resettlement, who did not defend the action. On the 19 April 2018, applicant obtained from this a default judgment against the Minister; whose order is worded as follows:

An order that 2nd defendant (Minister of Lands Agriculture and Rural Resettlement) or his office be permanently interdicted from giving any rights to a third party (whether lease or sale) in violation of the plaintiff’s title of the Mapari Ranch under Deed of Transfer 4152/92.

An order declaring null and void any land acquisitions, encumbrance by the Government or 2nd defendant’s office over Mapari Ranch held under Deed of Transfer 4152/92 on account of, it being indigenously owned or not necessary for resettlement.

There be no order as to costs.

On the 24 July 2018, this court granted an order in case number HC 2031/18 against the Minister of Lands Agriculture and Rural Resettlement, the order is couched as follows:

The order under HC 3183/17 granted on the 19th of April 2018 by the Honourable MATHONSI J be varied or amended to read as follows:-

An order that 2nd defendant (Minister of Lands Agriculture and Rural Resettlement) or his office be permanently interdicted from giving any rights to a third party (whether lease or sale) in violation of the plaintiff’s title of the Mapari Ranch under Deed of Transfer 4152/92.

An order declaring null and void any land acquisitions, encumbrance by the Government or 2nd defendant’s office over Mapari Ranch held under Deed of Transfer 4152/92 on account of, it being indigenously owned or not necessary for resettlement.

There be no order as to costs.

There be no order as to costs for this application.

Applicant seeks respondent to be held in contempt of court of these two court orders HC 3183/17 and HC 2031/18.

The law and the facts

When a person unlawfully and intentionally disobeys a court order that person commits the offence of contempt of court.See S v Beyers 1968 (3) SA 70 (A). The essence of the offence of contempt of court lies in the violation of the dignity, repute or authority of the court.See Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA). In the matter of Coetzee v Government of the Republic of South Africa; Matiso v Commanding Officer, Port Elizabeth Prison1995 (4) SA 631 (CC) (1995 (10) BCLR 1382) in para [61], Justice SACHS remarked that, the institution of contempt of court has an ancient and honourable, if at times abused, history. If we are truly dealing with contempt of court, then the need to keep the committal proceedings alive would be strong because the rule of law requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained.

The rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld.  This is crucial, as the capacity of the courts to carry out their functions depends upon the respect for the dignity and authority of the courts.  As the Constitution commands, orders and decisions issued by a court bind all persons and organs of State to whom they apply.  It follows from this, that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery.  The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced. See Ndemuweda v The Government of the Republic of Namibia (Minister of Health and Social Services) (HC-MD-CIV-MOT-GEN-2017/00336) [2018] NAHCMD 67 (23 March 2018).

Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of State.  In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, act as guardians of the Constitution, asserting their authority in the public interest.

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 orders 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. See Moyo v Macheka SC 55/05 at p 7; Whata v Whata 1994 (2) ZLR 277 (S), Sheetlite Mining Company Ltd v Mahachi 1998 (1) ZLR 173 (H); Simba     Mukambirwa     (2)     Marko     Ncube     (3)     Musarurwa Hombarume     (4)     John     Kanjera     (5)     Vendisani Mungweru     (6)     Kembo Moyo     (7)     Casper     Chinaka     (8)     Ford    Matambaneshiri v The     Gospel     Of     God      Church     International 1932SC 8/14.

Before holding a party to be in contempt of a court order, a court must be satisfied that there is a court order which is extant, 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 do, that knowing what the order dictates, the individuals concerned deliberately and consciously disobeyed the order.

In addition to the above, 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.  See Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S). 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 upon the applicant of proving the contempt has been discharged.  The applicant must also prove that the respondent has failed to comply with the order.  It is trite that 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 with 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. See Simba     Mukambirwa     (2)     Marko     Ncube     (3)     Musarurwa Hombarume     (4)     John     Kanjera     (5)     Vendisani Mungweru     (6)     Kembo Moyo     (7)     Casper     Chinaka     (8)     Ford    Matambaneshiri v The   Gospel    of     God      Church     International 1932 (supra).

Applicant seeks respondent to be held in contempt of court of these two court orders HC 3183/17 and HC 2031/18. First case HC 3183/17, was withdrawn in respect of the respondent. Second, respondent is not a party to case HC 2031/18. I raised this with Mr Ncube, counsel for the applicant, and asked him whether a party can be held in contempt of an order that was not granted against it. He gave a long and winding answer. He submitted and insisted that indeed it is possible to hold a party in contempt of an order that was not granted against it. It was contended for the applicant, that on the facts of this case, respondent has a duty to comply with the order granted against the Minister of Lands Agriculture and Rural Resettlement.

Applicant argues that it withdrew the case HC 3183/17 against the respondent because it realized that the issues for the trial had nothing to do with the respondent. If a realization was made that HC 3183/17 and HC 2031/18 had nothing to do with respondent, why seek to compel respondent to comply with such orders by means of contempt of court proceedings? No cogent submission was made by the applicant to this question. Applicant argued that the orders operate against the respondent despite the fact that it was not cited in cases resulting in those orders. It is contended that it is irrelevant whether the hunts are conducted by the respondent or by third parties, the issue is that such hunts are conducted on the authority of the respondent, and therefore it is in contempt of the orders. I do not agree. This is just over simplification of issues.

Respondent is criticised for not having filed an application to be joined in HC 3183/17 and HC 2031/18 to protect its interests. Our system of justice does not operate that way. He who seeks an order against a party, must bring that party to litigation, not the other way round. Put differently, it was not for the respondent to apply to be joined in HC 3183/17 and HC 2031/18, it was for the applicant to sue it. It is disingenuous to criticise respondent for not making an application for a joinder when after it filed a plea the matter was withdrawn against it.

Applicant contends that respondent cannot issue hunting quotas on privately owned land without the authorisation of such owner. Respondent denies that it conducts hunts on applicant’s land. It contends that the hunts are conducted by third parties who have permits to conduct such hunts. It is contended that no court process has been filed against such third parties. Again, the permits for the said hunts were issued when there was no pending court cases or court orders against respondent. No eviction litigation has been issued against the respondent from Mapari Ranch. These are the defences pleaded in HC 3138/17, by withdrawing the case against it, respondent was denied the right to defend itself.

It is an understatement to say the orders in HC 3138/17 and HC 2031/18 were not granted against the respondent. Case HC 3138/17 was positively withdrawn against the respondent, and respondent was not cited in HC 2931/18. A litigant cannot be permitted to withdraw court proceedings against a party that is defending the action, proceed against a party that is not defending the action, obtain default judgment against the latter, and then seek to enforce it against the former.This would be incongruous to the elementary principles of natural justice. Such cannot be countenanced, cause if permitted it would breed dishonest and underhand practices in litigation. A litigant may refrain from suing an interested party, and sue some party with no interests to defend the action, obtain a default judgment and then seek to enforce such order against the interested party that was not sued. To permit an order obtained in such circumstances to be enforced against respondent would be anathema to the values of a fair hearing and contrary to law.

If applicant is aggrieved by the conduct of the respondent at Mapari Farm, it must like any aggrieved person institute legal proceedings to seek to end that conduct it perceives as wrong and unlawful. It cannot start by just issuing contempt of court proceedings without a court order to support it. I take the view that without a court order against the respondent, applicant has no leg to stand on in this case.  My view is that this is a text book case of abuse of court process.

It is trite before holding a party to be in contempt of a court order, a court must be satisfied that there is a court order which is extant, and that it is against the respondent whom the order of contempt is sought. A party cannot be held in contempt of a court order that has not been granted against it. This must be elementary.

Costs

More than 100 years ago, INNES CJ stated the principle that costs on an attorney and client scale are awarded when a court wishes to mark its disapproval of the conduct of a litigant. See Orr v Solomon 1907 TS 281. Since then this principle has been endorsed and applied in a long line of cases and remains applicable. Over the years, courts have awarded costs on an attorney and client scale to mark their disapproval of fraudulent, dishonest or mala fides (bad faith) conduct; vexatious conduct; and conduct that amounts to an abuse of the process of court.  See Public Protector v South African Reserve Bank [2019] ZACC 29.

The scale of attorney and client is an extraordinary one which should be reserved for cases where it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible manner. Such an award is exceptional and is intended to be very punitive and indicative of extreme opprobrium. It should only be in relation to conduct that is clearly and extremely scandalous or objectionable that these exceptional costs are awarded. See Plastic Converters Association of South Africa on behalf of Members v National Union of Metalworkers of SA [2016] ZALAC 39; [2016] 37 ILJ 2815 (LAC).

To mulct a litigant in punitive costs requires a proper explanation grounded in our law. All of the above said, these are costs that are meant to be penal in character and are therefore supposed to be ordered only when it is necessary to inflict some financial pain to deter wholly unacceptable behaviour and instil respect for the court and its processes. The punitive costs mechanism exists to counteract reprehensible behaviour on the part of a litigant. The question whether a party should bear the full brunt of a costs order on an attorney and client scale must be answered with reference to what would be just and equitable in the circumstances of a particular case. See De Lacy v South African Post Office [2011] ZACC 17; 2011 JDR 0504 (CC); 2011 (9) BCLR 905 (CC) at paras 116-7 and 123 A court is bound to secure a just and fair outcome. A punitive costs order is justified where the conduct concerned is “extraordinary” and worthy of a court’s rebuke.

In its heads of argument, respondent submits that this application amounts to an abuse of court process. If applicant has a case for the eviction of the respondent – then that should be a case before the court. To allege criminal conduct where none has been committed is malicious and motivated by a frivolous and vexatious intent. This should be discouraged by an order of costs on a higher scale. I agree.

Case number HC 3183/17, was withdrawn against the respondent. In case HC 2031/18 respondent was not cited as a party. Respondent filed a detailed plea in case HC 3183/17, denied liability and prayed that the action be dismissed with cost on a legal practitioner and client scale. Applicant then withdrew the case against respondent. Applicant now seeks respondent to comply with orders obtained in cases where it was not a party. Applicant has the temerity to apply for contempt of court on the basis of such orders, obtained behind respondent’s back. This is unattainable and unacceptable. Parties must litigate fairly. The conduct of applicant falls far below the acceptable standard of fair litigation. It is the kind of conduct that deserves the court’s rebuke by way of costs.

I take the view that this is a border line case between costs debones propris and costs on a legal practitioner and client scale. I raised this issue with Mr Ncube, he argued against costs debones propris. I will spare him such costs, with a warning that litigants are entitled to effective and competent legal representation, and that it is the duty and obligation of counsel to give representation of such quality and nature. On the facts of this case, applicant cannot escape costs on a punitive scale. This case epitomises an unacceptable abuse of the process of this court.

Disposition

In the result, I order as follows:

This application is dismissed with costs on a legal practitioner and client scale.

Mabundu and Ndlovu Law Chambers, applicant’s legal practitioners

Chinogwenya and Zhangazha, respondent’s legal practitioners