Nokel Security (Pvt) Ltd v United Bulawayo Hospitals and Nonhlanhla Veronica Ndlovu

In 2014, a tender was floated for provision of security services to United Bulawayo Hospitals. The applicant participated but lost the tender to Cobra Security (Pvt) Ltd. Applicant appealed to the Administrative Court which ruled in its favour and awarded the tender to applicant. Cobra Security then appealed to the Supreme Court, suspending enforcement of the Administrative Court judgment. The Supreme Court appeal was withdrawn on 12 May 2016. Applicant then requested the second respondent (the CEO of United Bulawayo Hospitals) to conclude a procurement contract as directed by the Administrative Court. The second respondent refused, stating she needed instruction from the State Procurement Board. The original tender was for security services from 1 December 2014 to 30 November 2015. In September 2015, pending the Supreme Court appeal, the parties entered into interim monthly renewable contracts which ended in November 2015 when first respondent chose not to renew. By June 2016, when applicant sought to enforce the Administrative Court order, the tender period had elapsed and first respondent cited financial constraints for not engaging external security guards.

• Whether the second respondent was in contempt of court for failing to comply with the Administrative Court order awarding the tender to applicant
• Whether the failure to comply with the court order was wilful and mala fide
• Whether supervening events overtook the Administrative Court order making it unenforceable
• Whether the onus was discharged by respondents to rebut the inference of wilfulness in contempt proceedings

The application for contempt of court was dismissed. Each party was ordered to meet its own costs.

For a person to be found guilty of contempt of court, the disobedience of the court order must be both wilful and mala fide. Once failure to comply with a court order is established, wilfulness is normally inferred, but the onus is on the person who failed to comply to rebut the inference of wilfulness on a balance of probabilities. Supervening events and changed circumstances that render compliance with a court order impossible or impractical can constitute a valid defence to contempt proceedings, as such failure to comply cannot be considered wilful or mala fide.

The court's observation that the Administrative Court order was "overtaken by events" suggests a broader principle that courts should consider the practical utility and enforceability of orders in light of changed circumstances, even when technically valid orders remain extant. The court's acceptance of financial constraints as a supervening event indicates sympathy for the practical realities facing public institutions, though this was not developed into a detailed legal principle.

This case illustrates the strict requirements for establishing contempt of court in Zimbabwe, particularly that non-compliance with a court order must be both wilful and mala fide. It demonstrates that supervening events and changed circumstances may provide a valid defence to contempt proceedings, and that courts will not enforce orders where practical implementation has been rendered impossible or moot by the passage of time and changed circumstances. The case also clarifies the burden of proof in contempt proceedings - while wilfulness may be inferred from non-compliance, the alleged contemnor can rebut this inference by showing legitimate reasons for non-compliance.