Robert Ncube v Petros Moyo and Messenger of Court N.O.

The parties were involved in a long-running land dispute since 2012 concerning boundaries at Helenvale M, Umguza District under the A2 land resettlement scheme. The applicant (Robert Ncube) was allocated plot 13 measuring 40 hectares but was occupying 50 hectares. The 1st respondent (Petros Moyo) was allocated plot 12 measuring 40 hectares but was occupying 142 hectares. The Lands Resettlement Officer recommended that both parties revert to their original boundaries as pegged by DDF so that the applicant's homestead would be wholly in plot 13. A Magistrates' Court order under case number MC 6187/12 directed the applicant to vacate a portion of the 1st respondent's plot. In case HB 237/16, this court found the applicant guilty of contempt for refusing to comply with that order and fined him US$500 (wholly suspended) on condition he vacate by 30 October 2016. The applicant failed to comply, evaded service of the warrant of committal, and spirited away cattle that had been attached by the messenger of court. On 13 December 2017, the applicant filed an urgent application seeking suspension of the warrant of committal and writ of execution. The application under HC 3084/16 had been deemed abandoned on 5 September 2017 in terms of Practice Direction 3 of 2013 for failure to set down within 3 months.

• Whether the urgent application should be granted to stay the warrant of committal and writ of execution
• Whether the applicant had made full and proper disclosure of material facts in the urgent application
• Whether the court should assist a litigant who has persistently failed to comply with court orders and is in contempt of court
• The duty of candour and full disclosure by parties seeking urgent relief

The urgent application was dismissed with costs on 15 December 2017. Written reasons were provided on 1 March 2018.

1. Litigants seeking urgent relief have a duty not only to be truthful but to be candid to the extent that they must state their case precisely and accurately, disclosing all material averments pertinent to their applications. Material non-disclosure may result in dismissal of the application. 2. A court will not assist a litigant in subverting the enforcement of lawful court orders. 3. Where a litigant has been found in contempt of court, has failed to comply with court orders, evaded service of process, and filed applications to frustrate execution, the court will dismiss applications that appear to be further attempts to delay enforcement. 4. Under Practice Direction 3 of 2013, failure to set down a matter within the prescribed timeframe results in deemed abandonment, and a party cannot then seek to revive the matter through an urgent application months later without proper justification.

MAKONESE J made general observations about the undesirability of applications where the background facts are not apparent from the application itself and require the court to scan through opposing papers to understand the nature of the dispute. The court also noted with disapproval the proliferation of cases filed between the parties (MC 6187/12, HCA 101/15, HC 3084/16, HC 3246/17, HC 3237/17) and the applicant's pattern of filing baseless applications meant to prevent enforcement of lawfully obtained orders. The court approvingly cited the remarks of MATHONSI J in the earlier judgment (HB-237-16) that 'A person who disobeys a court order is in contempt of court. Where a court order is carried into execution by the eviction of the respondent and the respondent returns to the property from where he was evicted there can be no ambiguity. He is simply in contempt and no amount of argument over imagined boundary disputes can change his disdain of a court order.'

This case reinforces important principles in Zimbabwean law regarding the duty of full disclosure in urgent applications, the consequences of non-compliance with court orders, and the court's refusal to assist litigants who abuse court processes to frustrate the execution of lawful orders. It demonstrates the court's intolerance for contempt of court and attempts to evade enforcement of judgments. The case also illustrates the application of Practice Direction 3 of 2013 regarding deemed abandonment of matters not set down timeously. It serves as a warning to litigants who repeatedly file applications to delay enforcement of court orders without merit.