Sergeant Mande B 047375T and Others v The Trial Officer and The Commissioner General of Police

The applicants were former members of the Zimbabwe Police Service who were dismissed following conviction on charges of contravening para 24 of the Schedule to the Police Act. On 25 July 2019, Chikowore J successfully reviewed their dismissal under HC 5055/16 and directed the respondents to reinstate the applicants into the police service without loss of salary and benefits. Despite being served with the court order on 30 August 2019, the respondents failed to comply with the reinstatement order. The applicants then filed this application for civil contempt of court on 22 October 2019, seeking to compel the respondents to comply with the court order or face committal to prison.

• Whether the respondents were in civil contempt of court for failing to comply with the order granted under HC 5055/16
• What constitutes civil contempt of court and the requirements for proving it
• Whether the respondents had lawful excuse for non-compliance with the court order
• Whether filing an application for rescission suspends the operation of a court order
• Whether the respondents could avoid compliance by claiming that the Police Service Commission, rather than the Commissioner General, had the function of reinstatement

The application for civil contempt of court was granted as prayed. The respondents were directed to purge their contempt by complying with paragraphs 2, 3 and 4 of the court order under HC 5055/16 within seven days, failing which they would be committed to prison for a period of ninety days. The respondents were ordered to pay costs of suit on an attorney and client scale.

To succeed in an application for civil contempt of court, an applicant must prove on a balance of probabilities that: (i) the order which is sought to be complied with is extant; (ii) the respondent's attention has been drawn to the existence of the court order; and (iii) the respondent willfully or with mala fide intention failed to obey the order of court. An order or decision of a court binds the State and all persons and governmental institutions and agencies to which it applies and must be obeyed by them (section 164(3) of the Constitution of Zimbabwe). The filing of an application for rescission does not suspend the operation of a court order or excuse a party from complying with that order. Court orders exist until they are set aside and must be obeyed; parties cannot arrogate to themselves the power to review or sit in appeal over court orders. The primary purpose of contempt of court procedure is to compel compliance with the court's order and to protect and uphold the dignity and respect of the court and its processes.

The court made several important observations: (1) Court orders are an essential element of civilized society and cannot be disobeyed without society falling into utter chaos; they ensure peace, law and order, and development; (2) Litigants who deliberately refuse to comply with court orders pose a serious threat to the administration of justice and cannot seek protection of the very court whose orders they treat with contempt; (3) The principle "obey first and argue afterwards" applies - citizens are obliged to observe the law of the land and argue afterwards; there is no difference in principle between a litigant who is defiant of a court order and a litigant who is defiant of the law; (4) The court will not grant relief to a litigant with dirty hands until such defiance has been purged; (5) When the Commissioner General of Police, whose sworn duty is to obey the law and ensure it is obeyed by all, chooses to be a lawbreaker himself, this represents a serious recipe for utter chaos, disorder and disaster - "no one would keep the gate closed when the gate keeper himself chooses to allow it to remain open"; (6) The court invoked the wisdom of legal philosophers and cited with approval Lord Denning's observations about the imperative of obeying court orders.

This case is significant in Zimbabwean jurisprudence for several reasons: (1) It reinforces the constitutional imperative under section 164(3) of the Constitution of Zimbabwe that court orders bind the State and all governmental institutions and must be obeyed; (2) It demonstrates the court's willingness to use its contempt powers to compel State organs and senior officials to comply with court orders; (3) It establishes that filing an application for rescission does not suspend the operation of a court order or excuse non-compliance; (4) It holds senior law enforcement officials (the Commissioner General of Police) accountable for defying court orders, emphasizing that those charged with upholding the law cannot themselves be lawbreakers; (5) It articulates the requirements for proving civil contempt of court and the purpose of contempt proceedings in compelling compliance and protecting judicial authority; (6) It represents judicial commitment to the rule of law and separation of powers, particularly in circumstances where executive officials refuse to implement judicial decisions.