Chemaden Resources (Pvt) Ltd v Edison Kadzombe and Others

Chemaden Resources (Pvt) Ltd was the registered owner of mining claims on Lot 6 of the Remaining Extent of Eskbank in Mazowe District. The first respondent, Edison Kadzombe, was the lawful occupier of the land on which the claims lay. A previous court order (HC 8406/15) dated 8 September 2015 had ordered the applicant to restore land to the first respondent and ordered the first respondent to preserve the area of the applicant's mining claims against any mining activity. On 12 January 2017, an incident occurred where a person fell into an 80-metre deep shaft on one of the applicant's claims. The applicant alleged this revealed illegal gold mining was occurring on its claims with the first respondent's knowledge and involvement. Evidence suggested the first respondent had workers mining gold, equipment at his house, and more than ten tons of ore stockpiled. The applicant brought contempt of court proceedings alleging the first respondent wilfully violated HC 8406/15 by engaging in or allowing mining on the claims.

• Whether the first respondent was in wilful contempt of the court order HC 8406/15
• Whether service of contempt proceedings on legal practitioners rather than personally was proper
• Whether there were material disputes of fact precluding determination on the papers
• Whether evidence adduced constituted inadmissible hearsay
• What sanction is appropriate for civil contempt of court
• Whether parties may prescribe sanctions in draft orders in contempt proceedings

The court struck out paragraph 2 of the draft order (which prescribed imprisonment). The first respondent was ordered to pay a fine of $1,000 within 30 days or, in default, face 50 days imprisonment. The application was otherwise granted as per paragraphs 1, 3, 4 and 5 of the draft order. The first respondent was found to be in contempt of court.

The binding legal principles established are: (1) In civil contempt of court proceedings under Order 33, parties must not prescribe sanctions in their draft orders as this usurps the court's discretion under Rules 391 and 392 of the High Court Rules 1971; (2) The purpose of contempt proceedings is to restore the authority and dignity of the court, not to punish at the instance of a party; (3) Service of contempt applications on legal practitioners is proper at the initial stage; personal service is only required if the court decides to proceed under Rule 392 (committal to prison); (4) To establish contempt, the applicant must prove: (i) the order is extant, (ii) it was not complied with or was violated, and (iii) the violation was wilful; (5) Court orders must be obeyed by all who are bound by them, and wilful disobedience undermines the dignity of the court and warrants sanction; (6) The court has discretion under Rule 391 to impose a fine or under Rule 392 to commit to prison, and may choose the sanction appropriate to the circumstances.

The court made several non-binding observations: It noted with concern the growing practice of parties prescribing sanctions in contempt applications and strongly discouraged this, stating it serves little purpose and amounts to parties arrogating the roles of policeman, prosecutor and judge. The court observed that if persons who flout court orders were allowed to go scot free, the court would lose its teeth and cease to be an instrument of maintaining discipline, law and order. The court commented that in an unbridled state, crafty persons would trample upon the efforts of the weak and law-abiding citizens. Mangota J expressed the view that the current proceedings were in themselves a real lesson to the first respondent, and suggested he was possibly a first offender who needed to be curbed from such unbecoming conduct. The court also observed that the first respondent's conduct was thoroughly reprehensible and that he took advantage of the court order to line his pocket with ill-gotten goods.

This case establishes important principles regarding civil contempt of court proceedings in Zimbabwe. It clarifies the proper procedure for contempt applications under Order 33 of the High Court Rules 1971, emphasizing that the court retains discretion regarding sanctions and that parties should not prescribe penalties in their draft orders. The judgment reinforces that contempt proceedings aim to vindicate the court's authority rather than punish at the behest of a party. It demonstrates the court's willingness to enforce compliance with court orders, particularly in the mining and land context, while exercising appropriate judicial discretion in determining sanctions. The case also provides guidance on preliminary objections commonly raised in contempt proceedings, including service requirements, material disputes of fact, hearsay evidence, and demonstrates the court's scrutiny of manufactured exculpatory evidence.