Marimba Residential Properties v Beable Investments (Pvt) Ltd and Lin Weilan

### Preamble
1
HH 490 - 25
HCH 3483/25
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MARIMBA RESIDENTIAL PROPERTIES

versus

BEABLE INVESTMENTS (PVT) LTD

and

LIN WEILAN

HIGH COURT OF ZIMBABWE

MANDAZA J

HARARE; 13 August & 1 September 2025

Opposed Application

K. Kachambwa, for the applicant

L. Madhuku, for the 1st and 2nd respondents

MANDAZA J:    This is an urgent chamber application for Contempt of Court Proceedings in terms of r79 (1) of the High Court Rules, 2021. I granted this application on 13 August 2025. Before then, I had met the parties on 18 July 2025, 5 August 2025 and on 8 August 2025. The parties were unable to find each other. These are the reasons for my granting of the application;

FACTUAL BACKGROUND

On 13 August 2025, the parties appeared again in chambers. Mr. Madhuku submitted that they needed more time to find each other and that his clients were insisting that they were not in contempt of court. He also requested the court to determine the case based on the papers filed of record. Mr. Kachambwa advised the court that no attempt at all had been made to contact the applicant by the respondents. There was no intention at all on the part of the respondents to find the applicant. As a matter of fact, no meeting had taken place at all. In that session, the applicants requested an additional three (3) months to wind up their operations. That proposal was rejected by Mr. Kachambwa, who submitted that the applicant should find an alternative place to continue with their business. He urged the court to decide on the matter as they continued to discuss amongst themselves. Mr. Madhuku also submitted that the court should go ahead and decide the case on the papers filed of record.

The applicant, Marimba Residential Properties Limited, is a limited liability company. It is the duly registered owner of a piece of land known as Subdivision B, portion of the Springs Farm, measuring 671.6177 hectares. It holds a title deed to the said piece of land. The 1st respondent is Beable Investments (Pvt) Ltd, a company which is in the business of clay extraction and moulding bricks. The 2nd respondent is Lin Weilan, a female adult and a director of the company.

The court issued an order in favour of the applicant under HCH 3483/25. The order is dated 13 August 2025. It is couched in the following terms:

The application for contempt of contempt of court be and is hereby granted.

The 1st and 2nd Respondents be and are hereby held to be in contempt of the Provisional Order issued in HCH 2969/25.

The 1st Respondent shall pay a fine of US$20 000 (Twenty Thousand United States Dollars) within three (3) ordinary days of granting this order. Such fine shall be payable at the office of the Registrar of this Court or into an account directed by the Registrar of this court, failing which, the Registrar be and is hereby ordered to issue a writ of execution for contempt of court which shall be executed by the Sheriff of the High Court.

The 2nd Respondent be and is hereby sentenced to thirty (30) days imprisonment wholly suspended on condition that she will cause the 1st Respondent to comply with the Provisional Order issued under HCH 2969/25, failing which, the Registrar be and is hereby ordered to issue a writ for personal attachment and committal to prison which shall be executed by the Sheriff of the High Court or any other peace officer.

The 1st and 2nd Respondents shall pay the costs of the Applicant jointly and severally, the one paying the other to be absolved, on an attorney and client scale.

It is in the context of the above order in HCH 2969/25 that the applicant filed this application. They moved me to declare that the respondents are in contempt of court for failure to abide by the order which the court issued under HCH 2969/25. That order granted an interim relief and ordered the respondents to stop their clay extraction and brick moulding activities on subdivision B of the Springs Farm, measuring 671.6177 hectares, pending the return date.

SUBMISSIONS BEFORE THIS COURT

Mr. Kachambwa submitted that the respondents are in contempt of court because the Provisional Order in HCH 2969/25 was physically served on the applicant at its place of business on 1 July 2025. As of the 3rd of July 2025, the 2nd respondent knew about the Provisional Order because she deposed to a founding affidavit on behalf of the 1st respondent in a Chamber Application for Leave to Appeal under HCH 3231/25. That application could only have been filed after their lawyers had explained to them the import of the Provisional Order.

Mr. Kachambwa further submitted that, despite knowledge of the court order, the respondents have continued with their clay extraction and brick moulding activities. Evidence in the form of videos and photographs taken attests to the continuing activities on the farm in clear disregard of the court order handed down under HCH 2969/25. The photographs and videos were taken by Roy Leliard, who deposed to an affidavit filed of record. He is a holder of a Remotely Piloted Aircraft System (RPAS) Licence with VLOS Rating and is qualified to fly a drone. He took aerial videos of Springs Farm. His videos show activity reminiscent of brick moulding taking place on the farm.

The respondents are opposed to the application. The 2nd respondent raised several points in limine.  In her opposing affidavit, the 2nd respondent averred that the application is improperly before the court because she was not properly served. She also averred that she cannot be a party to civil contempt proceedings. She also averred that the application is not and cannot be urgent. She disputed the allegations of fact and submitted that the applicant will not suffer any irreparable harm if the matter is dealt with on the ordinary roll. She also queried the admissibility of video evidence, which was submitted by an expert. On the merits, she submitted that representatives of the applicant have been coming to the respondent’s company and harassing them. The company has also stopped moulding the bricks and digging clay. She also denied disobeying the provisional court order. She also disputed the video evidence and submitted that her company has shown respect for the law at all times.

In his answering affidavit, the applicant submitted that disregard of court orders is an attack on the very fabric of the rule of law. I cannot agree more with the applicant. On the issue of service, it was submitted that where the respondent has not been personally served but has received the application, that should count as adequate service. The court was referred to the case of Zion Apostolic Faith Mission Church v Pedzisai HH 495-19. In that case, the respondent had picked up the application and responded to it. He had gone on to respond to the application. The court held that he had seen the application.

Mr. Kachambwa also submitted that the 2nd respondent cannot claim to be unaware of the application or not having been served personally when she deposed to the opposing affidavit on her behalf and on behalf of the 1st respondent opposing the application for contempt of court.

On the issue of the 2nd respondent not being a party to a court order, it was submitted that a director of a company can be held to be in contempt of a court order granted against the company if the director, with knowledge of the court order, fails to ensure that the company complies with the order. The court was referred to the case of Twentieth Century Fox Film Corporation v Playboy Films 1978(3) SA 202, where a director who had knowledge of a court but had chosen to disobey it was found guilty of contempt. The court was also referred to the case of Zellco Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd and Ors HH 32-12, where it was held that directors can be held in contempt as a corporation can only comply with a court order through its officers. It was also submitted that she had been made aware of the disobedience of the court order through papers she filed in the Chamber Application for Leave to Appeal.

On the merits, Mr. Kachambwa submitted that the matter is urgent because the court made a finding that the continued clay extraction and brick moulding activities would cause irreparable harm if not stopped. Urgency is manifested by either a time or consequence dimension. With regard to time, the court considers whether the applicant acted promptly when the need to act arose.  It was submitted that the applicant did not sit on its laurels since; after obtaining the order, it served it and went on to gather evidence of defiance of the court order. The clay which is being removed cannot be replaced, even reclamation cannot suffice since the clay is being carried away.

Mr. Kachambwa also submitted that where an activity is being conducted in breach of the law or defiance of a court order, the courts will treat such matters as urgent. The court was referred to the case of Victoria Park Ratepayers’ Association v Greyvenouw CC and Other [2004] 3 All SA 623, where it was held that the legal point is that the ongoing contempt of a court order, by its very nature, is urgent.

It was submitted by the applicant that the contempt of court by the respondents is ongoing. It was also disputed that the application is fatally defective. Since the matter is an urgent chamber application, dies induciae is not necessary as it can be set down anytime by the Judge seized with the matter. On the inadmissibility of video evidence, it was submitted that the pictures alone provide overwhelming evidence of clay extraction and brick moulding taking place. Further, evidence is only relevant if it can assist the court to prove or disprove a fact.

Mr. Kachambwa submitted that they have proved that the respondents are in contempt of court. Defiance of court orders brings the administration of justice into disrepute and diminishes the public’s confidence in the judicial arm of government. It is not disputed that the court is extant. In casu, the respondents have disobeyed the court order. The respondents have failed to set out any plausible defence to the clay extraction and brick moulding that is taking place.

ANALYSIS

Points in limine

On the issue of service, the court holds that the 2nd respondent was aware of the proceedings. To that end, she deposed to an affidavit for the application for leave to appeal to the Supreme Court. She cannot claim to have been unaware of the proceedings. If her lawyers did not advise her properly, she cannot hold that against anyone, as one chooses his or her own lawyers. See Saloojee and Another, NNO v Minister of Community Development 1965 (2) SA 135 (A). She is a party to the proceedings because she is a director of the 1st respondent. She has stated so in various affidavits that are before the court. Therefore, there is no merit in this point in limine and is accordingly dismissed.

On whether the 2nd respondent can be a party to civil contempt proceedings, it is trite that if a director is a named party in the court order and knowingly breaches its terms, they can be held directly liable for contempt. The position held in Zellco Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd and Ors HH 32-12 is clear on this position. The court therein held as follows at p. 8:

“I am not aware of any principle that would seek to hold liable an officer of a company for acts done by the company unless the person is a member of the board of directors. Clearly no liability attaches to the fourth respondent herein. As for the second and third respondents, it is clear that as directors, they constitute the physical arm of the first respondent. A corporation can only comply with a court order through its officers. Thus, it can be convicted of contempt if its officers have refused or neglected to comply with the court order. A person who also contributes to the commission of the offence, can, without being a principal, be punishable as an accomplice. Consequently, a director who has knowledge of the order and causes the company to refuse to obey the order is guilty of contempt. In Twentieth Century Fox Film Corporation v Playboy Films 1978 (3) SA 202 King Aj opined as follows:

“A director of a company, who with knowledge of an order of Court against the company, causes the company to disobey the order is himself guilty of contempt of Court. By his act or omission such director aids and abets the company to be in breach of the order of Court against the company. If it were not so a court would have difficulty in ensuring that an order ad factum praestandum against a company is enforced by a punitive order. Vide Halsbury 4th ed vol 9 at 75. Consequently, Jagger who had knowledge of the order of Court is guilty of contempt of an order of this Court. An order ad factum praestandum against a company should also be served on its directors if a punitive order is sought against the directors in order to establish knowledge of the order of Court.”

Thus, the 2nd respondent, as the director of a company that is in contempt, cannot run away from liability and claim that she cannot be cited as a party to civil contempt proceedings. Accordingly, this point in limine has no merit.

The third point in limine is on the urgency of the matter. The court holds the view that the applicant will suffer irreparable harm if the activities on the farm are not stopped. The resources being removed from the farm are finite. The matter is urgent because continuation of the clay extraction and brick moulding activities will deprive the applicant of his rights. This point in limine is therefore dismissed.

Lastly, the admissibility of the photographic evidence was also challenged by the 2nd respondent. However, the objection is without merit when examined in light of both procedural and evidentiary standards. The photographs in question were taken by a duly qualified expert, whose credentials and experience in the relevant field have not been meaningfully contested. Accordingly, the photographs cannot be regarded as mere hearsay or speculative material; rather, they constitute expert-generated visual evidence intended to depict the factual circumstances on the ground, namely, the ongoing activity on the farm in contravention of the court order. Just like the other points in limine, this point is accordingly dismissed.

The merits of the application

Civil contempt, in simple terms, refers to a situation where the plaintiff or the applicant obtains a court order against the defendant or the respondent, which the latter becomes aware of and refuses or neglects to obey or comply with for no apparent reason other than that he has decided to defy the court order. It places the court and the administration of justice into disrepute. It renders the court a toothless bulldog, if a comparison may be made. See Stanley Farms (Pvt) Ltd v Chidongo and 20 Others HH 27-22. Contempt of court is committed where one willfully and mala fide refuses to comply with an order of court. The essentials are the following:

That there is a court order which is extant.

That the order has been either served on the individual/s concerned or has come to their personal notice.

That the individual(s) in question know what it requires them to do or not to do, and

Knowing what that order dictates, the individuals concerned deliberately and consciously disobeyed the order. See: Borges v Shamba HH403/21, Batezat v Permassan (Pvt) Ltd SC 49/09.

In the case of Hadkinson v Hadkinson (1952) 2 ALL R 567 (CA), the court held that:

“Contempt of court is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged…the fact is that anyone who disobeys an order of the court is in contempt and may be punished by committal or attachment or otherwise.”

In John Strong (Pvt) Ltd v Wachenuka HH 44-10, it was stated that;

“…civil contempt is the willful and mala fide refusal or failure to comply with an order of court. Before holding the respondent to have been in contempt of court, it is necessary for the court to be satisfied both that the order was not complied with and the non-compliance was willful on the respondent’s part…once the applicant has established that the respondent has failed to comply with the order, the onus shifts to the respondent to establish that he or she was not willful and malafide.”

Mathonsi J (as he then was) eloquently stated the position in the case of Mapfumo v Housing Community Services Director and Ors HC 6942-13 in the following terms:

“There can be no doubt that every citizen of this country is obliged to obey the orders of the courts. That is the whole essence of the rule of law, a commodity which the state sells to the citizens as a reward for his allegiance, taxes and personal services. It is a commodity which our courts have always upheld and will not compromise on.”

All orders of court, whether correctly or incorrectly granted, have to be obeyed until they are properly set aside. See Wachenuka v Moyo HB 78-03. In casu, the applicant was able to show that it obtained a court order, and the same is extant. It showed that the order was issued against the respondents and that they continued to carry out activities which were prohibited by the court. It, accordingly, discharged the onus which rested upon it to prove disobedience of the order of the court. That being the case, willfulness is, in such circumstances, inferred, and the onus shifts to the respondents who should rebut, on a balance of probabilities, the inference of willfulness. In casu, the respondents became aware of the court order, hence their filing of the leave to appeal. They would not have filed that application if they were not aware of the provisional order.

It does not make sense for the respondents to claim that they are not in contempt when the evidence points to a thriving activity on the farm. The pictures clearly point to brick moulding and brick making activities taking place on the farm.

The respondents cannot escape the consequences of their unlawful action. They became aware of the court order that they sought to disrespect. They have not complied with the court order from its date of issue to date. They have no valid reason for unlawfully disobeying it. Instead of engaging the applicants, they proposed to carry on the unlawful activity for a further three (3) months. They have brought the administration of justice into disrepute. They have no defence at all for disobeying the court order.

As held in the case of Moyo v Machera SC 55-05, the object of proceedings of contempt is to punish disobedience to enforce an order of court and, in particular, an order adfactum praestandum, that is to say, orders to do or abstain from doing a particular act. Failure to comply with such an 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. In casu, the applicant approached the court to enforce an order they obtained from this court, which the respondents have disregarded.

Having looked at all the surrounding circumstances in this case, I remain satisfied that the requisite for granting of an order of contempt exists in this case. Firstly, an order to stop clay extraction and brick moulding activities was granted against the respondents. Secondly, the respondents became aware of the order, hence they filed an application for leave to appeal to the Supreme Court. Thirdly, the respondents disobeyed the court order as they continued with the activities which the court had directed them to stop.

It is clearly a lie that there is no activity going on at the farm. It is also a lie that they are finishing orders, as that activity can be done at any location. The pictures, which were taken by an expert, clearly prove that the court order to stop activities has not been complied with. The 2nd respondent claimed that they are being harassed by representatives of the applicant. If that is the case, they should report to the police or, in the alternative, approach the courts for relief. The points in limine were raised out of fashion. They have no merit at all. The issue is about the extant court order, which has not been complied with.

It appears the respondents have a knack for defying authority. They were ordered by the Environmental Management Agency (EMA) in a letter dated 3 February 2025 to seize activities at the farm. Despite that order, they continued with their activities. They were advised to appeal to the Minister of Environment, Climate and Wildlife Management. They chose not to appeal but to continue with their activities.

On 16 April 2024, the Minister of Lands, Agriculture, Fisheries, Water and Rural Development, Dr. Masuku, wrote a letter to the then Minister of Local Government and Public Works, Mr. W. Chitando. It stated:

“RE: COMPENSATION OF LAND TO MARIMBA RESIDENTIAL PROPERTIES LIMITED

Hon Minister, reference the directive by the President, His Excellency Dr E.D. Mnangagwa for our two Ministries to identify land to compensate Marimba Residential Properties Limited for Stand 48 Aspindale Park Township…..

The Ministry of Lands, Agriculture, Fisheries, Water and Rural Development has identified the following land to compensate the company:

Subdivision B portion of the Springs, measuring 671.7604 ha

…..

I now handover these properties for full and final settlement to Marimba Properties.”

In a memorandum to the Acting Chief Director, Department of Valuations and Estates Management, dated 24 August 2024, the Honourable Minister of Local Government and Public Works, D. Garwe, wrote:

“SUBJECT: Approval of Allocation to and Development of Subdivision B Portion of the Springs and Lot 2 of 2 of Stuhm by Marimba Properties

This memo serves to advise that His Excellency, the President of the Republic of Zimbabwe, Dr E.D. Mnangagwa, has approved the allocation of Subdivision B portion of the Springs and Lots 2 of Lot 2 of Stuhm to Marimba Properties, for mixed urban development. This allocation was made in compensation for land occupied by settlers on Stand 48 Aspindale Park and the remaining extent of Salisbury Park of Lochinvar.

You are hereby authorised to process the offer letter and title promptly, so that servicing and development commence.”

On the 17th of October 2024, the Secretary for Mines and Mining Development, one P. Kunaka, wrote to the respondents revoking the certificate of registration which had been issued on 30 June 2024. In that same letter, the respondents were advised of other issues that had been raised by various Government departments which they had ignored. They were further directed to stop operations forthwith. On 25 July 2024, the Secretary for the Ministry of Lands, Agriculture, Fisheries, Water and Rural Development Professor Jiri, also wrote to the respondents advising them that their application to lease state land at subdivision 1 of Springs Farm (the area the order applies to) could not be processed because the said farm had been handed over to the Ministry of Local Government and Public Works for urban development. On 12 June 2025, the applicant’s lawyers wrote to the respondents confirming their ownership of the land and even went to the extent of attaching a copy of the Deed of Transfer, but they were not moved. Fast forward to August 2025, they are still on the site, continuing with their activities.

The applicant asked for costs on a higher scale against the respondent. I agree, because the extent of the contempt justifies such an order. In my view, it is at any rate mala fide and an abuse of process to condemn an order of court. In casu, a punitive admonitory costs order is warranted. An extant order is not set aside by simply defying it.

The applicant urged the court to commit the 2nd respondent to prison for a period of thirty (30) days wholly suspended on condition that she will cause the 1st respondent to comply with the provisional order issued under HCH 2969/25. I intend to proceed along those lines, bearing in mind the many dicta to the effect that the primary object of contempt procedure is to compel compliance with the court’s order. Any order of committal to the goal is suspended to afford the intransigent party a powerful inducement to fulfil his obligations in terms of the order. See Harare West Rural Council v Sabawu 1985 (1) ZLR 179 (H). I am also alive to the dicta in Cape Times v Union Trades Directories and Ors 1956 (1) SA 105 (N) where it was held that punishment by way of fine or imprisonment for civil contempt of an order of court in civil proceedings is only imposed where it is inherent in the order made that compliance with it can be enforced only by means of such punishment. I take the view that committal to prison is warranted in this case, bearing in mind the several incidents of disobedience the respondents have exhibited as highlighted above. They have defied directives from senior Government officers, including Ministers and Permanent Secretaries.

The applicant managed to prove its case on a balance of probabilities. For the above reasons, the application was accordingly granted as prayed for.

Mandaza J: …………………………………………………

Ahmed and Ziyambi, applicant’s legal practitioners

Mugiya Law Chambers, 1st and 2nd respondents’ legal practitioners