Placide Masengesho v Chief Immigration Officer and Minister of Home Affairs and Cultural Heritage

The applicant, a Rwandan national, entered Zimbabwe in 2007 at age 12 with his family fleeing violence in Rwanda. They were granted refugee status under the Refugees Act [Chapter 4.03] and registered at Tongogara Refugee Camp. In 2009, he returned from school to find his family missing and ended up in Harare. He was subsequently convicted of contravening the Immigration Act and sentenced to a fine of $500 with deportation to Rwanda. On 18 October 2019, the Minister of Public Service, Labour and Social Welfare issued an expulsion notice expelling him from Tongogara Refugee Camp under section 15(1) of the Refugees Act for harbouring undesirable Rwandan elements, identity fraud, and possessing counterfeit national registration documents. On 18 December 2019, Justice Foroma set aside the Magistrate's deportation order and ordered the applicant be released and referred to Tongogara Refugee Camp. The respondents refused to comply with the order to refer him to Tongogara, citing the extant expulsion order. The applicant then brought this contempt of court application.

• Whether the respondents were in contempt of court for failing to comply with Justice Foroma's order
• Whether non-compliance with a court order that cannot be enforced due to an extant conflicting administrative order constitutes willful and mala fide contempt
• Whether a court order requiring referral to Tongogara Refugee Camp can be enforced when there is an unchallenged ministerial expulsion order preventing such referral

The application for contempt of court was dismissed. The applicant was ordered to pay costs.

For contempt of court to be established, the disobedience of a court order must be both willful and mala fide. Where a court order cannot practically be enforced due to the existence of an unchallenged conflicting administrative order, non-compliance with such order does not constitute willful and mala fide contempt. A court order that is unenforceable in the circumstances (brutum fulmen) cannot be the basis for a finding of contempt of court.

The court observed that the applicant was not candid with the court in his founding affidavit as he failed to explain the circumstances that led him to leave Tongogara Refugee Camp, namely that he had been expelled. The court noted that it was only the Minister of Public Service, Labour and Social Welfare who had the mandate to reverse the expulsion order and accept the applicant back into Tongogara Refugee Camp, and that the respondents were in a predicament as they could neither refer him to Tongogara Refugee Camp nor just release him into the streets.

This case is significant in Zimbabwean law for clarifying the requirements for civil contempt of court, particularly that non-compliance with a court order must be both willful and mala fide. It demonstrates the principle that a court order which is impossible to enforce due to an unchallenged conflicting administrative order (brutum fulmen) cannot form the basis for a finding of contempt. The case also highlights the importance of full and frank disclosure by applicants to the court, and the interaction between judicial orders and administrative decisions in immigration and refugee matters. It reinforces that parties must challenge administrative decisions that conflict with the relief they seek from courts.