Godfrey Mukwena Mpofu v Tapson Mlilo

The applicant (Mpofu) entered into an agreement of sale with Charity Moyo, the lease holder of stand 13424 Nkulumane, Bulawayo. Subsequently, Charity Moyo entered into another agreement of sale with the respondent (Mlilo) for the same property, which was eventually transferred into Mlilo's name. Mpofu refused to vacate the premises, leading to an eviction order granted in favor of Mlilo on 16 February 2001, requiring Mpofu to vacate within 14 days. The Deputy Sheriff evicted Mpofu on 23 April 2001, but immediately after eviction, Mpofu's wife brought in Alderman Sidanile, a councillor of Bulawayo City Council, who prevented Mlilo from taking occupation, claiming authority to stop the eviction. On 10 August 2001, Mpofu issued summons claiming the agreement between Mlilo and Charity Moyo be declared invalid and seeking transfer of the property into his name. On 17 August 2001, Mpofu applied for a stay of execution of the eviction order. The respondent raised a point in limine that Mpofu was in contempt of court for not complying with the eviction order and should not be heard.

• Whether the applicant was in contempt of court for failure to comply with the eviction order
• Whether a person in contempt of court can be granted audience by the court
• Whether the actions of third parties (the councillor) summoned by the applicant to prevent eviction could be attributed to the applicant
• Whether non-compliance with the eviction order was willful

The application for stay of execution was dismissed with costs. The court found the applicant to be in contempt of court and ruled that he could not be heard.

A person who fails to comply with a court order is in contempt of court, and such contempt continues until purged by compliance. A court has discretion to refuse to hear a party who is in contempt of its orders, particularly where the contempt impedes the course of justice and there is no other effective means of securing compliance. The obligation to obey a court order is unqualified and extends even to cases where the person believes the order to be irregular or void. A court order remains in force until it is complied with or set aside on appeal. Actions of third parties summoned by a litigant for the purpose of frustrating a court order will be attributed to that litigant, particularly where the order extends to 'all those claiming through' the party. For contempt to be established, it must be shown both that the order was not complied with and that non-compliance was willful.

The court observed that subsequent summons and applications based on the same facts as a matter already adjudicated, when made by a party subject to an unfavorable order, may be viewed as a ploy to frustrate the court order. The court noted that it is a strong thing for a court to refuse to hear a party and is only justified by grave considerations of public policy, specifically where the contempt impedes the cause of justice and there is no other effective means of securing compliance. The court emphasized that courts take a serious view of anybody who disobeys court orders, and that matters before courts should reach a conclusion and cannot continue in perpetuity. The court stated that a litigant with unclean hands (having ignored the court's authority) cannot expect the court to hear or sympathize with them.

This case reinforces fundamental principles of South African and Zimbabwean civil procedure regarding contempt of court. It establishes that: (1) contempt is against the court order itself, not merely against the party who obtained the order; (2) a court has discretion to refuse audience to a party who is in contempt of its orders; (3) actions of third parties summoned by a litigant to frustrate a court order can be attributed to that litigant; (4) subsequent litigation based on the same facts as an existing order will not be entertained where it is designed to frustrate the original order; and (5) the obligation to comply with court orders is absolute and unqualified, even where the party believes the order to be irregular. The case emphasizes the importance of upholding the dignity and authority of the court by ensuring compliance with its orders.