Tony Renato Sarpo v Regis Maburutse (1) and Wayne Williams (2) and Matebeleland Engineering (Private) Limited (3)

### Preamble
1
HH 475-25
HCH 2415/25
---------


TONY RENATO SARPO

versus

REGIS MABURUTSE (1)

and

WAYNE WILLIAMS (2)

and

MATEBELELAND ENGINEERING (PRIVATE) LIMITED (3)

HIGH COURT OF ZIMBABWE

DEMBURE J

HARARE: 1 & 14 August 2025

Opposed Application

R T Mutero, for the applicant

F G Gijima, for the respondents

DEMBURE J:

INTRODUCTION

[1]	This is a chamber application for contempt of court filed in terms of rule 79(1) of the High Court Rules, 2021. The applicant seeks to enforce the order of this court handed down by MHURI J in Case No. HC 1324/17 on 17 August 2023 (reference judgment number HH 493/23) against the first and second respondents. The applicant seeks the following relief:

“1. 	The application be and is hereby granted.

2. 	1st and 2nd Respondents be and are hereby found to be in contempt of court order of the High Court granted under case number HCH 1324/17.

3. 	The court accordingly orders that: -

(i) 	1st and 2nd Respondents be hereby committed to Chikurubi Maximum Prison for a period of six (6) months all of which is suspended on the grounds that 1st and 2nd Respondents shall immediately upon the grant of this order comply fully with the court order in Case No HCH 1324/17.

4. 	The 1st and 2nd Respondents shall pay costs of this application on Attorney and Client scale.”

[2]	The application was opposed by the respondents. On 1 August 2025, the court, after hearing oral arguments from the parties’ legal practitioners, reserved judgment sine die.

THE PARTIES

[3]	The applicant is Tony Renato Sarpo, a male adult. The first respondent is Regis Maburutse, a male adult. The second respondent is Wayne Williams, also a male adult. The third respondent is Matebeleland Engineering (Private) Limited (“the company”), a company duly registered in accordance with the laws of Zimbabwe.

FACTUAL BACKGROUND

[4]	It is common cause that on 17 August 2023, this court, before Mhuri J, handed down a judgment in Case No. HC 1324/17 confirming the Provisional Order that had been issued on 1 March 2017. The operative part of the said judgment or the terms of the court order read as follows:

“The Provisional Order granted on 1st March 2017 be and is hereby confirmed.

Respondents and any persons acting through them be and are hereby interdicted from interfering with or otherwise disrupting applicant from collecting his assets as listed hereunder from 3rd respondent’s premises, or from the possession of any of the respondents at any given time. (The full list of the property is recorded in the order)

2nd respondent be and is hereby interdicted from issuing threats of harm to applicant and from preventing or disrupting applicant from carrying out his activities and discharging his functions at 3rd respondent.

1st and 2nd respondents shall pay costs of suit on a legal practitioner and client scale.”

[5]	In the said matter in Case No. HC 1324/17, in respect of which the above order was issued, the applicant was also the applicant in the matter. The first respondent in this case was then the second respondent. The second respondent herein was the first respondent, and the company, the third respondent herein, was also the third respondent.

[6]	It is also not in dispute that the first and second respondents are fully aware of the said court order handed down by mhuri J, as the Sheriff duly executed the part of the order relating to the collection by the applicant of his assets from the company’s premises. The respondents further sought the rescission of the said judgment in Case No. HC 5514/23. On 30 August 2024, the said court application for rescission of judgment was dismissed with costs on a legal practitioner and client scale before mhuri J. The respondents also filed an appeal against the dismissal of their application for rescission of judgment in the matter in Case No. HC 5514/23. The appeal was struck off the roll with costs by the Supreme Court on 4 February 2025 in the matter in Case No. SC 553/24.

[7]	The applicant averred that he is a director and shareholder of the company, a position confirmed in the judgment by mhuri J. It was further pleaded that the first respondent, aided and facilitated by the second respondent, wilfully defied the court order issued before mhuri J in Case No. HC 1324/17. In particular, the applicant averred that the first respondent had made it impossible for him to discharge his functions as a director and shareholder of the company, as the first respondent claimed to have replaced him as a director. He further averred that the first respondent had also represented that he was the person running the affairs of the company at its Harare and Bulawayo branches.

[8]	It was further stated that the first respondent had presented a fake register of directors to the company’s clients, banks and to the courts to substantiate his false claim to directorship. In para 22 of the applicant’s founding affidavit, the following averments are also made:

“22. 	Despite the fact that he is neither a shareholder nor a director of the 3rd Respondent, the 1st Respondent continues to hold himself out as such. The 1st Respondent, blatantly illegally, continues to usurp the functions of the board by, inter alia:

22.1.1 	insisting on being a signatory to the 3rd Respondent's bank accounts;

22.1.2 	purporting to manage and control the affairs of the 3rd Respondent and even occupying an office in the Bulawayo Branch of the 3rd Respondent;

22.1.3 	purporting to open new bank accounts for the 3rd Respondent to escape the consequences of the interdict issued under HC 7324/17; and

22.1.4 	purporting to transfer the business of the 3rd Respondent to a special purpose vehicle to defeat the operation of the interdict under HC 1324/17; and

22.1.5 generally, make the peaceful and unmolested operation of the 3rd Respondent by Applicant impossible thus rendering the interdict granted by this Honourable Court under HC 1324/17 against him nugatory, toothless and ineffectual.”

[9]	Further averments were made relating to the first respondent’s alleged contemptuous actions, including that he was transacting the company’s banking affairs; harassing the company’s employees and inciting criminal allegations against them in the name of the company; instituting civil proceedings in the name of the company in Case No. HC 5514/23; purporting to run the administrative affairs of the company and fraudulently altering of the company's signage and billboards. It was also averred that in a bid to render the order toothless the first and second respondents have changed the bill board at the company’s premises in Harare from its name to “Zimbo Mining and Engineering” and the bill board at its premises in Bulawayo from the company’s name to “Lone Bull Ventures (Pvt) Ltd”. That the first respondent, despite the order, has continued to claim to be a director of the company and names himself the Managing, Administrative and Finance Director. There were also further averments that he had stripped the company of its assets by transferring them to other entities.

[10]	It was argued, therefore, that the first and second respondents’ non-compliance with the court order they had full knowledge of was wilful. Further, despite the interdict barring them from interfering with his operations at the company, they had openly continued to do so. The applicant argued that to restore the court’s authority and integrity, the respondents must be held to be in contempt in terms of the draft order.

[11]	In opposing the application, the first respondent, despite several personal allegations raised against him by the applicant in the founding affidavit, did not directly deal with them in his affidavit.  He was very brief. He denied that he intentionally violated the court order in Case No HC 1324/17. He contended that the allegations against him were false, malicious and meant to harass him and the second respondent. He prayed that the application must be dismissed with costs on a punitive scale. He went on to associate himself with the averments made by the second respondent and, on a without prejudice, called for dialogue to resolve the dispute amicably.

[12]	The second respondent, who also stated that he deposed to the opposing affidavit on behalf of the company, also denied having defied the court order. He contended that they had complied with the court order as the Sheriff collected the applicant’s property and delivered it to his representative. He denied ever threatening, harassing or disrupting the applicant from carrying out his activities and discharging his functions at the company. He stated that he is the founder and director of the company. It was further averred that the applicant had not attached the CR 2 showing that he is a shareholder of the company. In any case, he further argued, maxwell J in the matter Case No. HCH 832/25 held that there are disputes of fact which could not be resolved on the papers.

[13]	The second respondent also contended that what the applicant complained about had nothing to do with the court order. He stated that the first respondent might have initially insisted, believing he was a director, but after the applicant closed the bank account, he had not persisted with the opening of the bank account. He further averred that the company was now a shell with no assets after the applicant caused the attachment of all its assets and also froze its bank account. It was also pleaded that the applicant even filed for the liquidation of the company in Case No. HC 9207/16 and the matter is still pending. He further contended that the change of bill boards was not contemptuous, as the applicant was never prevented from performing duties as a director. That the applicant had failed to demonstrate that he and the first respondent had acted in contempt of the court order in any way. The prayer was that the application ought to be dismissed with punitive costs.

[14]	Following the filing of the applicant’s answering affidavit, the parties further filed their heads of argument.

SUBMISSIONS MADE BEFORE THE COURT

[15]	Mr Mutero submitted that he would abide by the papers. He went to argue that the first and second respondents were aware of the court order. The court must protect its integrity. They have defied the court order. There are a number of personal allegations against Mr Maburutse. He did not substantially respond to these allegations against him. He simply did a supporting affidavit. The fact that he did not answer the allegations means that they are admitted. The second respondent cannot speak for the first respondent.

[16]	Counsel further argued that Mr Maburutse’s affidavit at p 84 was not properly commissioned. See Firstel Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd SC 1/15 at p 4. The commissioner of oaths did not identify the capacity in which he administered the oath. There was, therefore, no substantive response from Mr Maburutse. It is not known if the commissioner of oaths was a commissioner for a district or the whole of Zimbabwe. See also Prosecutor-General v Makarichi & Ors HH 502/23.

[17]	It was also submitted that part of the opposition was that the goods were collected, but the application was about the respondents interfering with the applicant’s duties. The respondents, especially the first respondent, had always been conducting himself in an unsavoury manner. The affidavit by the Registrar of Companies states that the directors are only the applicant and the second respondent. The judgment by tagu J at p 25 highlighted the forgery by the first respondent. The findings by tagu J are not denied. The respondents are not respecting the decisions of the court. The first respondent said he thought he was a director, but this is clearly dealt with by mhuri J. At p 47, she said he was not a director. The CR 14 at p 49, which states that the applicant is not a director of the company, had been disowned by the Registrar of Companies. The court found that there was no resignation by the applicant from the board. After they became aware of the judgment, they continued. They cannot argue a dispute of fact when mhuri J dealt with the issue.

[18]	Mr Mutero further argued that the status quo was restored by the court judgment, and the applicant should have assumed his role. Mr Maburutse was writing letters dismissing employees and creating new bank accounts to circumvent the order. At p 67, the first respondent calls himself a director notwithstanding the judgment. The second respondent is enabling the first respondent to defy the order. Paragraph 27 of the founding affidavit at p 15 was not controverted. The wilful defiance is amplified further by the lies the second respondent told the court. In para 15.1 of his affidavit, the second respondent said the third respondent was a shell. If it was a shell, he would not tell companies to pay into another company’s account. The company is trading. See p 160. The account is being credited for its operations.

[19]	Counsel also submitted that it was not denied that the email at p 160 was sent to the third respondent’s clients. He argued that the whole story of lies by the respondents should be disbelieved, and it should be taken as if they had not given evidence at all. See Leader Trade Zimbabwe (Pvt) Ltd v Smith HH 131/03. The untruth is also shown in para 12 of the opposing affidavit at p 87. The applicant complained about the harassment of workers, and the second respondent said in para 12 that this had nothing to do with the applicant. The applicant is a shareholder and director. There is an argument that the applicant did not acquire the 50% shares. There is no confirming affidavit from Gareth David Fury that the applicant did not acquire the shares, making that hearsay. The respondents have hindered him from performing his functions. To circumvent the order, they claimed that the named companies are operating at the company’s premises. The respondents are stripping the assets of the third respondent. There is no explanation of what happened to its assets. There is an attempt to allege that the applicant has been stripping the assets. The court found the assets that he took to be his. There is ample evidence of contempt.

[20]	On the other hand, Mr Gijima submitted that an application for contempt is very simple. In para A.2 of the respondents’ heads of argument, there is reference to the case of Kornec Investment (Pvt) Ltd & Anor v Econet Wireless (Pvt) Ltd 2016 (1) ZLR 504 (H), which outlines what the applicant in a contempt application must establish. The applicant is complaining that the respondents are not complying with the court order. The applicant must specify what acts the respondents are doing which constitute non-compliance with the order. The court order being complained of is a court order under Case No. HC 1324/17. The order has 3 para(s). The last paragraph deals with the issue of costs. The first paragraph deals with certain assets listed from 1-68, which the court ordered that the respondents are interdicted from disrupting the applicant from collecting. That paragraph is not the issue. It was complied with.

[21]	The subject of the complaint is the second paragraph of the order. It says the second respondent is interdicted from issuing threats of harm to the applicant and from preventing or disrupting the applicant from carrying out his activities and discharging his functions at the company. In that case the second respondent is the first respondent in this case. The applicant must inform the court as to how the first respondent has violated the court order. A look at the factual allegations of contempt made one notice that they have no nexus at all with para 2 of the order. All that he said was that the first respondent continues to hold himself out as a director. It is not about contempt of para 2 of the order. The applicant is aggrieved and irritated by the fact that the first respondent continues to call himself out as a director and to do the work for the third respondent as a director.

[22]	Counsel further argued that the first respondent admitted that at one stage he thought he had been appointed as a director, but since the CR 14 and his appointment were set aside, he stopped. He went to form his company called Lone Bull Ventures, and that is where he is operating from. The same premises do not belong to the third respondent. On the issue of complaints about employees, the first respondent said that it is a human resources matter. It has nothing to do with the directors. The company, the applicant said, is the third respondent no longer has any assets as all assets have been collected by him and executed against. See para 15 of the opposing affidavit at p 88. The applicant attached the assets and stripped the company. There is an inventory at pp 102-109 of different assets from those he was supposed to collect. The applicant has even applied for liquidation of the third respondent in HC 1207/16, which is still pending. The company now exists on paper only.

[23]	Mr Gijima also referred the court to the case of Harare West Rural Council v Sabawu 1985 (1) ZLR 179. He argued that all the respondent has to do is to show that even if there was a non-compliance with the order, the applicant must establish that the non-compliance was mala fide. The respondent does not have to show that, since they never breached para 2 of the order. The applicant has failed to show that the respondents or the first respondent acted contemptuously of the second paragraph of the order. The application must be dismissed with costs on a higher scale as the applicant is abusing the court process.

[24]	In reply, Mr Mutero submitted that the first respondent accepted that his appointment was later set aside. The first respondent knew as on 17 August 2023, when the judgment was issued, that he was no longer a director. Post that date, he instructed his lawyers that he was still a signatory to the company account. He emailed clients advising them of new bank accounts. At p 66, he caused the arrest as a director. See also the statement at pp 73-74. These acts were done post the court order. This was contempt. He intended that the applicant would not participate in the affairs of the third respondent. It was clearly mala fide and wilful, as he knew the applicant was now asserting his rights. The applicant particularised these actions in the founding affidavit in para(s) 12-14.

[25] 	Counsel further argued that the applicant never stripped the company of its assets. He got judgments in his favour. Those things belonged to him.  The application for liquidation was made because there were some shareholders loans given to the third respondent. That application was never persisted with. At p 56, the respondents are persisting with their point that the applicant should not be involved in the affairs of the company. The third respondent at p 160 was still receiving money. The averments were untruthful, and the applicant moved for an order in terms of the draft. There was no answer to the point that the first respondent’s affidavit was fatally irregular.

PRELIMINARY ISSUE

[26]	In his oral submissions before me, Mr Mutero raised a point of law that the opposing affidavit by the first respondent was fatally irregular. He argued that it was not properly commissioned as the commissioner of oaths did not identify the capacity in which he acted as such. Since that issue is a point of law which has the effect of making the first respondent non-suited, I must first determine the issue. It is a settled law that a point of law can be raised at any stage of the proceedings. In Muchakata v Netherburn Mine 1996 (1) ZLR 153 korsah JA (as he then was) stated as follows:

“It is proper to raise a point of law, which went to the root of the matter, at any time, even for the first time on appeal, if its consideration involved no unfairness to the party against whom it was directed. If the order was void ab initio, it was void at all times and for all purposes. And the question of its validity could be raised at any time.”

[27]	In casu, when the issue was raised and argued by Mr Mutero, there was no objection from Mr Gijima to the point of law he raised. To that extent, I took it that he had no issue with the point being raised at that stage, and that there was no unfairness on the respondents for it to be considered. He also had the chance to address the court on the point, but again he chose not to do so. I will, therefore, proceed to determine the issue as it was placed before me.

[28]	The law is very clear on what constitutes a valid affidavit, as this was settled by binding precedent. Thus, in Mandishayika v Sithole HH 798/15, the court authoritatively held that:

“An affidavit is a written statement made on oath before a commissioner of oaths or other person authorised to administer oaths. The deponent to the statement must take the oath in the presence of the commissioner of oaths and must append his or her signature to the document in the presence of such commissioner. Equally the commissioner must administer the oath in accordance with the law and thereafter must append his or her signature onto the statement in the presence of the deponent. The commissioner must also endorse the date on which the oath was so administered. These acts must occur contemporaneously.”

In Ariston Management Services v Econet Wireless Zimbabwe Limited SC 123/23 at p 3, the Supreme Court confirmed that this court is bound by the Mandishayika judgment as it is a judgment of two judges and that the judgment was correctly decided.

[29]	It is now settled that any stamp used by the person who administers an oath must clearly identify the person and the office or capacity he or she acts as the commissioner of oaths. In Firstel Cellular (Pvt) Ltd v Netone Cellular (Pvt) Ltd at p 4, patel JA (as he then was) aptly stated as follows:

“It is common cause that there is no specific legislation regulating the issue in this jurisdiction and that the matter is one that is governed by practice. In that regard, what is required is that any stamp that is used to designate a commissioner of oaths should clearly identify the person before whom an affidavit is deposed and the office or capacity in which he or she acts as a commissioner.”

It is also clear from the said case authority that non-compliance with the requirement that the person administering the oath as commissioner of oaths must be clearly identified renders the affidavit invalid. The court in the Firstel Cellular case thus concluded in the context of that case as follows:

“In casu, it is not disputed that Raymond Moyo is a legal practitioner and a notary public and, as such, a recognised commissioner of oaths. The respondent has therefore verified its cause of action in an affidavit, deposed by its functionary duly authorised thereto, before a clearly identified commissioner of oaths. That, in my view, suffices for the intended purpose of adducing evidence under oath and renders the validity of the respondent’s founding affidavit manifestly impervious to challenge.”

[30]	In this case, it is clear that the stamp used at p 84 of the record, which is the last page of the first respondent’s opposing affidavit, does not identify the capacity in which the commissioner of oaths administered the oath. There is an indication of the name stated as “DR N. NCUBE (PhD)” followed by his address and the endorsement of the date. Then the words “COMMISSIONER OF OATHS” appear last. There is no doubt that there is no clear identification of the office or capacity he or she acted as the commissioner of oaths. This made the affidavit improperly commissioned. Mr Gijima could not even make any submissions on this point. This is despite that Mr Mutero had dealt with the point of law at length and even cited case law authorities to support his argument. I took it that he may have accepted the fate of the first respondent, as the law is against him. This court restated the law in Prosecutor-General v Makarichi & Ors supra, in the following words:

“11. In this jurisdiction, a decision of the Supreme Court binds this court. Accordingly, in line with Firstel Cellular (supra) it follows that the person before whom the affidavit was signed (the Commissioner of Oaths) should be clearly identified as should be the office or capacity in which he or she acts as a Commissioner of Oaths.

12. To similar effect is this court’s decision in Muzanenhamo v Gadaga and Ors HH 65/2006. There, at p 3 of the cyclostyled judgment, GOWORA J (as she then was) said:

“The applicant contends that the document is an affidavit. An affidavit must be sworn before a person competent to administer an oath. The applicant in his affidavit makes the averment that the document was sworn to before a magistrate. The document bears the stamp of the magistrates court. The person who signed as Commissioner of oaths is not identified, nor is he described as commissioner of oaths. There is, in fact, no indication that the document was signed by a commissioner of oaths. In the circumstances the document is not an affidavit. What it is in fact a written statement not made on oath.”

13. That only documents satisfying the legal requirements as to their nature should be accepted into evidence and acted upon by the Court was underscored by the case of Tawanda v Ndebele 2006 (1) ZLR 426(H).”

[31]	It is also settled law that once an affidavit is found to have been improperly commissioned, it is a nullity. The opposing affidavit by the first respondent was invalid. Nothing can flow from it. This renders the opposition by the first respondent in this case a nullity. See Ariston Management Services v Econet Wireless supra at p 2. A pleading that is a nullity is void at all times and for all purposes.  It does not matter when and by whom the issue of its validity is raised; nothing can depend on it. See MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172 where LORD DENNING had this to say:

“If an act is void, then, it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

[32]	The purported opposing affidavit by the first respondent is accordingly struck out as it is a nullity. There being no valid opposition from the first respondent before the court, the application becomes unopposed as against the first respondent. The second respondent’s opposing affidavit cannot assist him at all. In para 1 of the second respondent’s opposing affidavit, he clearly stated as follows:

“I am the named 2nd Respondent herein and the facts I depose to hereunder are within my personal knowledge and are true and correct to the best of my information, belief and advice from my undersigned legal practitioners. I also depose to this affidavit on behalf of the 3rd Respondent as a co-director, together with the Applicant.”

In the second respondent’s affidavit, he did not speak for the first respondent. In any case, he could not competently do so in respect of allegations raised against the first respondent personally.  The averments made against the first respondent were, therefore, unchallenged. The court will accordingly proceed to deal with the application as unopposed in respect of the first respondent. In these circumstances, I am satisfied that the order sought ought to be granted against the first respondent as an unopposed application.

[33]	I will now turn to deal with the merits of the application as against the second respondent.

APPLICATION AGAINST THE SECOND RESPONDENT

WHETHER THE REQUIREMENTS FOR CONTEMPT OF COURT HAVE BEEN SATISFIED.

THE LAW ON CONTEMPT OF COURT

[34]	The law is settled that civil contempt relates to the wilful and mala fide non-compliance with an order of court. The procedure for civil contempt of court is provided for in terms of rule 79(1) of the High Court Rules, 2021. It is basically meant to enforce compliance with an order ad factum praestandum, meaning an order to do or refrain from doing a particular act. This position was fully captured in Mukambirwa & Ors v The Gospel of God Church International 1932 SC 8/24 at pp. 5 – 6, where the gowora JA (as she then was) stated that:

“The crime of contempt of court is committed intentionally and in relation to administration of justice in the courts. This was captured in lucid terms by ZIYAMBI JA in Moyo v Macheka SC 55/05 at p 7 of the cyclostyled judgment, quoting with approval GOLDIN J in Haddow v Haddow 1974 (1) RLR 5, at 8A-C thus;

“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.”

See also Whata v Whata 1994 (2) ZLR 277 (S), Sheetlite Mining Company Ltd v Mahachi 1998 (1) ZLR 173 (H).

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. In Lindsay v Lindsay (2) 1995 (1) ZLR 296 (S) gubbay CJ said:

“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. Judgment No. SC 8/2014 Civil Appeal No. SC 279/11 6 Once it was established that the order had not been met, which of course was common cause, wilfulness 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) RLR 5 (G) at 6; 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 wilfulness 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.”

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 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.” (emphasis added)

[35]	From the above case law, the requirements for contempt of court are that:

(i)	There must be an extant order of court;

(ii)	The order must have been served on the individual concerned and the individual concerned knows what it requires him or her to do or not do;

(iii)	The order was not complied with, and

(iv)	The individual concerned deliberately and consciously disobeyed the order, in other words, the non-compliance on the part of the defaulting party was wilful and mala fide.

The onus is on the applicant to prove all the requirements on a balance of probabilities. See also Moyo v Machera SC 55/05; Borges v Shumba HH 403/21 and Mafoshoro Farm (Pvt) Ltd v Nyanhongo HH 32-09.

EXAMINATION

[36]	In this case, the applicant’s case is founded on the complaint that the second respondent defied the court order by mhuri J in Case No. HC 1324/17, in particular, para 3 thereof. The said para 3 reads:

“2nd respondent be and is hereby interdicted from issuing threats of harm to applicant and from preventing or disrupting applicant from carrying out his activities and discharging his functions at 3rd respondent.” (emphasis added)

As regards para 2 of the order relating to the collection by the applicant of his property from the company’s premises, it is clear from the record that the respondents duly complied with that part of the order. The applicant attached the return from the Sheriff showing that the order was executed upon and the listed items were duly collected for the applicant. Mr Mutero confirmed that these contempt proceedings concern non-compliance with para 3 as stated above.

[37]	The second respondent referred to in the said para 3 of the order above is the first respondent in this case. The first requirement, that there is an extant court order, is common cause. There is also no dispute that the order was served on the second respondent. However, there is an issue that arises on the second requirement, which is whether, in para 3 of the said order, there is anything the second respondent is required to do or not to do. Under the second requirement for contempt of court, the individual concerned must know what the order requires him or her to do or not do. A reading of para 3 of the order, which the applicant alleged was wilfully breached by the second respondent in this case, who was then the first respondent in Case No. HC 1324/17, shows that the said part of the order did not order anything to be done or not to be done by the second respondent, herein. That paragraph of the order only interdicted the first respondent herein, who was the second respondent in Case No. HC 1324/17.

[38]	There was no specific obligation imposed in clear terms as against the second respondent herein in para 3 of the court order. In the absence of the terms of the court order creating any obligations against the second respondent herein in para 3 thereof, no contempt can arise. There can be no factual breach of the court order as against the second respondent to talk about. The court cannot find the second respondent to be in contempt where the order does not clearly set out the positive obligation of the second respondent. It is trite that a court order must be clear and should not leave any doubt as to what the respondent is required to do. What the respondent had to do cannot be implied, nor can it be speculative. One cannot be punished on speculation. The order must clearly state what the respondent is required to do or not to do. See Chimutanda v Buwu & Anor HH122/23 at p. 4.

[39]	The above legal position was enunciated in Minister of Lands & Ors v Commercial Farmers Union 2001 (2) ZLR 457 (S) at 465, where the Supreme Court stated as follows:

“C J Miller in his book Contempt of Court 2 ed at pp 423-424, has this to say on the issue of contempt of court:

“Before a finding of contempt of court can be made it is necessary to determine whether there has been factual breach of an order or an undertaking on the part of the person brought before the court. This necessarily demands that the terms of the order be expressed in clear and unambiguous language and in so far as possible, the person should know with complete precision what it is required to do or abstain from doing.”

Similarly, the following observations were made in the case of Collins v Wayne Iron Works 227 p 326, 76A 24, 25 (1910):

“It (the court order) should be definite, clear and precise in its terms as possible so that there can be no reason or excuse for misunderstanding it or disobeying it, and when practicable, it should plainly indicate to the defendant all the acts which he is restrained from doing without calling on him for inferences or conclusions about which persons may well differ.” (emphasis added)

[40]	Paragraph 3 of the court order by mhuri J in Case No. HC 1324/17 was an interdict against the first respondent, the then second respondent. It specified what he was required to do or not to do in clear terms. The order did not set out what the second respondent should do, nor can it be said that the said para 3 constitutes an interdict against him. The applicant cannot read into a court order an obligation not expressly and clearly stated or seek to supplant a court order. The court order must speak for itself. It has not, therefore, been proved that the second respondent failed to comply with the court order or breached the court order, in particular, para 3 thereof, as alleged. In the absence of an established breach of the order of court or that the second respondent failed to comply with the order of court, the last requirement for contempt of court, that the party concerned deliberately and consciously disobeyed the order, does not even arise. There is no contempt of court to talk about in these circumstances.

DISPOSITION

[41]	There was no valid opposition from the first respondent before me. The application was, therefore, unopposed by the first respondent. The applicant’s averments that the first respondent wilfully breached the court order were unchallenged. The relevant para 3 of the order interdicted him as the second respondent in the matter Case No. HC 1324/17. The application must succeed as against the first respondent.

[42]	As for the second respondent, the applicant failed to discharge the onus to prove the requirements for contempt of court. There was no factual breach of the court order that was established. Paragraph 3 of the court order did not direct the second respondent to do or not to do anything at all. It specifically interdicted only the first respondent before me. I am not, therefore, satisfied that the requirements for contempt of court have been satisfied as against the second respondent. The application against the second respondent must accordingly fail. Costs shall follow the cause. There are no exceptional circumstances warranting an order for punitive costs against the applicant in the circumstances.

[43]	In the result, it is ordered as follows:

1. 	The application against the first respondent be and is hereby granted.

2. 	The first respondent be and is hereby found to be in contempt of the court order of the High Court granted under Case No. HC 1324/17.

3. 	The court accordingly orders that:

(i) 	The first respondent be and is hereby committed to Chikurubi Maximum Prison for a period of six (6) months, all of which is suspended on the grounds that first respondent shall immediately, upon the grant of this order, comply fully with the court order in Case No HC 1324/17, in particular para 3 thereof.

4.	The first respondent shall pay the costs of this application on a legal practitioner and client scale.

5.	The application against the second respondent be and is hereby dismissed with costs.

DEMBURE J:   ………………………………………….

Mutamangira & Associates, applicant’s legal practitioners

F G Gijima & Associates, respondents’ legal practitioners