Elizabeth Khaka v Peter Frederick Rennie

The applicant sued the respondent in 2007 for specific performance and transfer of property known as Lot 5 of the remainder of Subdivision "A" of Lichfied of Wilksden Farm, alternatively claiming damages for breach of contract. On 4 July 2008, the parties entered into a deed of settlement which was made an order of court under HC 5000/08B on 29 November 2012. The order required the respondent to: (1) purchase and transfer Old Mutual Limited shares to the applicant within 14 working days from 4 July 2008, and (2) have the property valued by Tony West Real Estate and Fox and Carney Estate Agents within 5 days of 4 July 2008. The applicant alleged that the respondent breached the court order by failing to comply with these requirements and brought contempt of court proceedings. The respondent opposed, arguing that the order was impossible to comply with as it was granted in 2012 but required compliance from dates in 2008, and that he was unaware of the order.

• Whether the respondent was in contempt of court for failing to comply with the order in HC 5000/08B
• Whether a party can be held in contempt for non-compliance with an order that is impossible to comply with
• What are the requirements for establishing civil contempt of court
• Whether service of the court order was properly effected on the respondent
• Whether non-compliance was wilful and mala fide

The application for contempt of court was dismissed with each party bearing its own costs.

A party cannot be held in contempt of court for failure to comply with an order that is impossible to comply with. Civil contempt requires proof that: (1) an order was granted by a competent court, (2) the order was served on or brought to the attention of the respondent, and (3) the respondent wilfully and mala fide disobeyed or neglected to comply with the order. The requirement of wilfulness and mala fides cannot be satisfied where the order itself is incapable of compliance due to defects in its formulation. The principle lex non cogit ad impossibilia applies - the law does not punish that which is impossible to perform. Where a court order contains temporal impossibilities (such as requiring compliance within a timeframe that has already passed when the order was made), contempt proceedings for non-compliance must fail.

The court observed that the defective order could have been corrected or amended via the mechanism of Rule 449 of the old High Court Rules, but this was not done. The court also noted that the order contained ambiguities beyond the temporal impossibility - specifically, the confusion created by referencing "today's date (4 July 2008)" when the order was actually issued on 29 November 2012. The court suggested that the date in brackets was likely included ex abundante cautela (out of an abundance of caution) but created confusion rather than clarity. The judgment also reiterates the general principle that the purpose of civil contempt is to enforce court orders through the threat of committal to prison, characterizing it as a form of execution to coerce compliance.

This case is significant in Zimbabwean civil procedure for clarifying that contempt of court proceedings cannot succeed where a court order is impossible to comply with due to defects in its formulation. It reinforces the principle that civil contempt requires not merely non-compliance with an order, but wilful and mala fide failure to comply with an order that is capable of compliance. The judgment emphasizes the ancient legal maxim lex non cogit ad impossibilia and demonstrates the court's discretion to refuse committal where failure to comply is not the result of deliberate disdain for the court's authority. It also highlights the importance of proper drafting of court orders to ensure they are capable of enforcement, and suggests that defective orders should be corrected through appropriate procedural mechanisms rather than attempting enforcement through contempt proceedings.