Sam Karombodza and Zimbabwe National Network for PLHIV (ZNNP+) v [Respondent name not clearly identified in caption]

The applicant obtained a court order registering an arbitral award in June 2017 in case HC 1017/16 for US$12,919.32. In July 2017, a writ of execution was issued and the Additional Sheriff attached the respondent's property, including a Toyota Hilux motor vehicle (registration ACC9515). The respondent unsuccessfully attempted to reclaim the attached property through interpleader proceedings in case HC 9966/17, which was dismissed on 19 March 2018. When the Additional Sheriff attempted to remove the attached property after the dismissal, he discovered that the Toyota Hilux had been removed to an unknown destination. A police report was made but no arrests or prosecutions followed. The respondent claimed the vehicle was registered in the name of the Government and had been donated to them for specific projects, and that the owners retrieved the vehicle after the projects ended.

• Whether the respondent was in contempt of court by removing property under judicial attachment
• Whether the removal of the judicially attached vehicle constituted wilful and mala fide disobedience of a court order
• Whether the draft order sought by the applicant was fatally defective in seeking to bar the respondent from accessing courts in unrelated matters
• Whether registration of a vehicle in the name of a third party (the Government) was conclusive proof of ownership
• Whether the claimed donation and revocation thereof was properly established

1. The application succeeded. 2. The respondent and all those in possession or control of the Toyota Hilux Registration Number ACC 9515 were found to be in contempt of court. 3. The respondent was directed to repossess and return the vehicle within two weeks to the Sheriff in compliance with the writ issued on 7 July 2017 in case HC 1017/16. 4. The respondent was ordered to pay costs of suit at ordinary scale.

The binding legal principles established are: (1) By virtue of judicial attachment by the Sheriff, attached property becomes incorporated into the court order, and a writ of execution must be read together with the underlying court order. (2) Removal of property under judicial attachment constitutes disobedience of a court order. (3) Contempt of court requires both wilful and mala fide disobedience of a court order. (4) Third parties claiming an interest in judicially attached property must follow interpleader proceedings under the court rules; failure to do so when the procedure is known may evidence mala fides. (5) Registration of a vehicle in a particular name is prima facie but not conclusive proof of ownership. (6) A draft order containing provisions that are unconstitutional or ultra vires may be cured through severance if the offensive part is separable and the remaining relief is valid and reflects what was proved.

The court made several obiter observations: (1) On the law of donation and the circumstances under which donations may be revoked, referencing cases on formalities of donation including fraud, ingratitude, and threats as grounds for revocation, though noting this was not properly established on the evidence. (2) That an order barring parties from accessing courts in unrelated matters would infringe both individual and constitutional rights to access to justice. (3) That courts have inherent jurisdiction to amend draft orders. (4) That costs ordinarily follow the cause, justifying an award of costs at ordinary scale rather than the higher attorney-client scale originally sought.

This case is significant in Zimbabwean jurisprudence for clarifying several important principles: (1) that property under judicial attachment by the Sheriff becomes part of the court order and its removal constitutes contempt of court; (2) that a writ of execution cannot be viewed in isolation from the underlying court order; (3) that registration of property (whether movable or immovable) is prima facie but not conclusive proof of ownership and can be challenged; (4) that third parties claiming judicially attached property must follow prescribed interpleader proceedings; (5) that draft orders containing unconstitutional provisions may be saved through severance if the defect is curable and does not go to the root of the relief sought; and (6) the principles for establishing contempt of court, requiring both wilful and mala fide conduct.