Ricky Nelson Mawere and David Nyabando v The Director Administration - Central Intelligence Organisation and Others

The applicants were former members of the Central Intelligence Organisation (CIO) who were unlawfully suspended from employment in October 1998. On 14 December 2011, BERE J declared their suspension null and void and ordered their reinstatement with payment of all salary and benefits from the date they were withheld. The respondents reinstated the applicants on 3 February 2012 and paid salaries and benefits from February 2009 to December 2011, and continued monthly payments. However, the respondents did not pay salaries for the period September 1998 to January 2009 (the Zimbabwe dollar component), claiming the Ministry of Finance had not provided a conversion formula. The applicants retired in October 2012 (though they only accepted retirement in May 2013), after which the respondents stopped paying salaries. The applicants then brought contempt of court proceedings seeking payment of the Zimbabwe dollar component and salaries from October 2012 to May 2013.

• Whether the respondents were in contempt of the court order of 14 December 2011 for failing to pay the Zimbabwe dollar component of back pay from 1998 to 2009
• Whether the respondents were in contempt for not paying salaries from October 2012 to May 2013
• Whether the respondents had discharged the onus of proving their non-compliance was neither wilful nor mala fide
• Whether the claim for payment after retirement in October 2012 constituted a fresh cause of action outside the scope of the original court order

The application for contempt of court was dismissed with costs.

Once a failure to comply with a court order is proven, a presumption arises that the failure was wilful and mala fide, and the onus shifts to that party to prove otherwise. However, a party will not be in contempt where they have substantially complied with the order and provide reasonable explanation for any non-compliance. A party cannot execute elements of a court order that require conversion formulas or other determinations not specified in the order itself. Claims arising from events occurring after the date of a court order (such as retirement) constitute fresh causes of action and cannot form the basis of contempt proceedings for breach of the original order.

The court observed that it did not matter whether the applicants' retirement was governed by the Public Service Regulations SI 1 of 2000 or not - if they were aggrieved by the decision to retire them, they had a right to contest that decision, but that right did not derive from the court order of 14 December 2011. The court also noted that the applicants could not choose to accept retirement only as at May 2013 when they were retired in October 2012, regardless of whether that retirement was rightful or wrongful.

This case clarifies important principles regarding contempt of court proceedings in Zimbabwe, particularly: (1) the requirements for establishing contempt where a party has substantially complied with a court order; (2) the limitations on executing court orders where conversion formulas or other determinations are required but not specified in the order itself; (3) the distinction between breaches of original court orders and fresh causes of action arising from subsequent events; and (4) the onus on a party alleged to be in contempt to prove their non-compliance was neither wilful nor mala fide, and what constitutes reasonable explanation for non-compliance. The case is also significant in the context of Zimbabwe's currency transition and the challenges of enforcing payment obligations that span the Zimbabwe dollar and multi-currency eras.