Pedzisayi Miriam Lillieth Garwe v Daniel Garwe

The applicant and respondent were involved in matrimonial dispute and divorce proceedings. On 15 June 2018, Mushore J granted an order in HC 4882/18 interdicting the respondent from removing or disposing of family assets and requiring him to return certain assets removed from various properties including farm equipment from Sebakwe Range farm and construction equipment from a Greendale property. The respondent failed to comply with paragraphs 2 and 4 of the order requiring return of the specified assets. He noted an appeal on 28 June 2018, but on 11 July 2018, Chitakunye J granted leave to execute the original order. The respondent continued to fail to comply, claiming the assets were subject to commercial arrangements and that he was campaigning for a parliamentary seat. The applicant then brought this contempt of court application.

• Whether the respondent was in contempt of the court order in HC 4882/18
• Whether the respondent's failure to comply with the court order was wilful and mala fide
• Whether the respondent's explanations for non-compliance (commercial arrangements and political campaigning) constituted reasonable grounds for disobedience
• What sanctions are appropriate for civil contempt of court
• Whether costs on a higher scale are appropriate

1. The respondent is found to be in contempt of the order dated 15 June 2018 in HC 4882/18. 2. The respondent is sentenced to 60 days imprisonment wholly suspended on condition that he complies with paragraphs 2 and 4 of HC 4882/18 forthwith. 3. In the event of continued non-compliance, the applicant may lodge a complaint on oath with the Registrar who shall issue a warrant of committal. 4. The respondent shall pay costs on a legal practitioner to client scale.

For civil contempt of court to be established: (1) there must be a valid court order; (2) the respondent must have been served or informed of the order; and (3) the respondent must have disobeyed or neglected to comply with it. Once failure to comply is established, wilfulness is inferred and the onus shifts to the respondent to prove on a balance of probabilities that the failure was not both wilful and mala fide. Disobedience must be both deliberate and mala fide - mere unreasonable non-compliance that is bona fide does not constitute contempt. However, bare assertions without supporting evidence are insufficient to discharge this onus. The primary objective of contempt proceedings is to compel compliance with court orders, and imprisonment should generally be suspended to provide inducement to comply. Parties may not prescribe sanctions in contempt applications as this usurps the court's discretion under Order 43 rules 391-392.

The court made important observations about respect for the rule of law, stating that "The authority, dignity and respect of courts of law should never be demeaned, prejudiced or undermined. It behoves the subject to bow to the decision of the court and, where there exists a remedy, to then pursue that remedy elsewhere." The court noted that allowing political campaigning to excuse non-compliance "would be tantamount to throwing spanners in the rule of law." The court also observed that "If the court's authority is not respected there can be no fostering of respect for the rule of law" and that contempt of court "is regarded as an act of disrespect and insult to the court and an obstruction to justice." These statements emphasize the broader constitutional and systemic importance of compliance with court orders beyond the individual case.

This case is significant for reinforcing the principle that court orders must be obeyed regardless of personal disagreement or circumstances. It clarifies that: (1) political activities (such as election campaigning) do not excuse contempt of court; (2) bare assertions about commercial arrangements without supporting evidence are insufficient to rebut the inference of wilful and mala fide conduct; (3) noting an appeal does not automatically suspend an order unless specifically provided; (4) the court, not the applicant, prescribes appropriate sanctions in contempt proceedings; and (5) costs on a higher scale are appropriate where a party shows disdain for court orders. The judgment emphasizes constitutional values under s 3 of the Constitution regarding respect for the rule of law and the importance of maintaining judicial authority.