Ronald Borges v Prosper Shumba

On 7 November 2017, the court granted a consent order in case HC 3454/17 requiring the respondent to deliver a Land Rover Discovery 3 (engine number 0264803276 DT, grey in colour) valued at US$20,000 to the applicant before 10 November 2017. The vehicle had been given to the applicant to test drive prior to the consent order being agreed at a pre-trial conference. After the order was granted, the respondent failed to deliver the vehicle despite correspondence and attempts at execution through a writ of delivery. The vehicle could not be found at the respondent's place of residence. The respondent offered an alternative vehicle but demanded more money and claimed the original vehicle was outside Zimbabwe. The applicant brought a contempt of court application in terms of Rule 388 of the High Court Rules, 1971.

• Whether the respondent was in contempt of the court order dated 7 November 2017
• Whether the legal requirements for contempt of court were satisfied
• Whether the respondent's claimed inability to comply with the order due to vis major (the vehicle being outside Zimbabwe) was proven
• Whether committal to prison was an appropriate sanction for the contempt

1. The respondent was held to be in contempt of paragraph 2 of the order granted in HC 3454/17. 2. The respondent was committed to gaol for a period of thirty days, or until such time as he complied with paragraph 2 of the court order in HC 3454/17. 3. The Sheriff of Zimbabwe or his lawful deputy was directed and ordered to take the respondent, if found in Zimbabwe, and deliver him to the keeper of a gaol to be safely kept there in terms of paragraph 2 of the order.

For a finding of contempt of court, the following requirements must be satisfied: (1) there must be an extant order of court; (2) the order must have been served on the respondent who knows what is required; and (3) knowing what is required, the respondent must have deliberately and consciously disobeyed the order. Where a party claims vis major or impossibility of performance as a defence to contempt, they bear the burden of providing concrete evidence to support such claims. Mere assertions in affidavits without supporting documentation are insufficient. A party cannot unilaterally vary the terms of a court order by offering alternative performance (such as payment of money or delivery of a different item) - such variations require court approval. Committal to prison is appropriate where the contempt is malafide, demonstrated by circumstances showing the contemnor never intended to comply with the order.

The court observed that issues raised for the first time in heads of argument that are not contained in the affidavits deposed to will be ignored by the court, as the other party will have had no opportunity to respond to such claims (citing Mutasa v Telecel International HH 431/14). The court also noted that a respondent facing an order of contempt cannot simply take the court for granted by expecting that his mere say so without any proof should be believed. The court further observed that it is not every act of contempt that warrants committal to prison (citing Batezat v Permassan Pvt Ltd S 49/09), but the presence of malafides justifies such a sanction.

This case reinforces important principles regarding contempt of court proceedings in Zimbabwe: (1) the strict evidentiary burden on a party claiming inability to comply with a court order; (2) that mere assertions without supporting documentation will not discharge the burden of proof when facing contempt proceedings; (3) that issues raised for the first time in heads of argument that do not appear in affidavits will be ignored; (4) that malafide disobedience of court orders can warrant committal to prison; and (5) that parties cannot unilaterally vary the terms of court orders by offering alternatives (such as money or a different vehicle) without court approval.