Gertrude Sophia Hazvinei Makani (nee Zimondi) v Charles Makani

The applicant and respondent were married until their marriage was dissolved on 22 April 2010 in case HH 74/2010. In the divorce proceedings, the court distributed the marital assets and awarded the applicant Stand Number 1120 Prospect Township, Harare. The court order required the respondent to transfer the property to the applicant within 60 days, failing which the Deputy Sheriff was authorized to sign the necessary transfer documents. The applicant was to meet the cost of transfer. However, the transfer was never effected within the 60 days or thereafter. The property was encumbered with a mortgage bond registered on 7 August 2009 to secure a loan of USD 30,000 obtained by the respondent's company from Interfin Bank. The respondent defaulted on the loan repayments and the bank obtained judgment, leading to the property being sold. The applicant filed this application on 5 May 2015 seeking to hold the respondent in contempt of court, alleging he fraudulently tendered a bonded property without disclosure and deliberately failed to pay the loan. The applicant claimed she was unaware of the encumbrance. The respondent denied this and stated that the applicant knew about the bond, and that she had evicted the tenant whose rental payments were being used to service the debt, thereby depriving him of income to pay the loan.

• Whether the application for contempt of court was properly constituted in terms of Order 43 r 389 of the High Court Rules, 1971
• Whether the applicant's draft order and founding affidavit disclosed grounds for contempt of court or were instead seeking damages/compensation
• Whether the respondent's failure to transfer the property was wilful and mala fide so as to constitute contempt of court
• Whether proved inability to comply with a court order affords protection against committal for contempt
• Whether an amended draft order filed with the answering affidavit can cure defects in the founding papers

The application for contempt of court was dismissed with costs on the general scale.

The binding legal principles established are: (1) An application for contempt of court must seek to compel the respondent to purge his contempt by performing the act required by the court order, not to obtain compensation or damages; (2) The draft order in application proceedings must be based on the case pleaded in the founding affidavit and must properly reflect the relief being sought; (3) To succeed in contempt proceedings, the applicant must prove: (a) a court order was granted by a competent court, (b) the respondent was served with or had knowledge of the order, and (c) the respondent disobeyed or failed to comply with it; (4) Once these elements are established, wilfulness and mala fides are inferred, and the onus shifts to the respondent to rebut this inference on a balance of probabilities; (5) Proved inability to comply with a court order affords protection against committal for contempt; (6) Disobedience is not wilful and mala fide where the party was genuinely unable to comply due to circumstances including those contributed to by the applicant's own actions.

The court observed that the applicant could pursue a claim for compensation for the loss of the property she had been awarded through proper legal proceedings (presumably an action for damages) rather than attempting to obtain such relief under the guise of contempt of court proceedings. The court also made observations about the importance of truthfulness in affidavits, noting that the applicant had been untruthful about several material facts including when the property was allegedly offered to her, whether it was offered at all (the court found it was awarded by the judge, not offered by the respondent), and the timing and purpose of the family trust creation. The court further noted that where an applicant fails to respond to contentions in an opposing affidavit, it may be assumed that the applicant admits those contentions.

This case reinforces important principles regarding contempt of court proceedings in Zimbabwean law (applicable to South African jurisprudence given similar legal traditions): (1) contempt applications must be properly constituted and seek to compel compliance with court orders, not to obtain damages or compensation; (2) the draft order must align with the case pleaded in the founding papers and cannot be a mere formality; (3) defects in founding papers cannot be cured by filing amended draft orders with answering affidavits; (4) for contempt to be established, disobedience must be wilful and mala fide; (5) proved inability to comply with a court order provides a defense to contempt; and (6) a party's own conduct that contributes to the other party's inability to comply may defeat a contempt application. The case also emphasizes the importance of credibility in affidavit evidence and the consequences of failing to respond to allegations in opposing papers.