Sharpstone Garande and Others v Eastboy Fashions (Pvt) Ltd and Others

The applicants purchased undeveloped stands on Lot 98 of Meyrick Park Marlbereign from the first and second respondents. The stands could not be transferred due to non-compliance with subdivision and development procedures. The parties entered into a deed of settlement on 26 September 2017, which was made a court order by consent on 8 November 2017 by Chatukuta J in Case No. HC 3185/17. The court order required the respondents to: (1) complete requirements to create shares within 90 days, and (2) transfer specified shares to the applicants within 120 days. The order also incorporated provisions requiring the sale of Unit 15 to raise funds for development work, with proceeds to be paid into the applicants' lawyers' trust account. More than a year after the consent order, the respondents failed to comply. They had not created the shares, registered the Notarial Deed, obtained certificates of compliance, or completed infrastructure development (roads, water, sewer, drainage, electricity). The respondents paid proceeds from Unit 15 into their own lawyers' trust account instead of the applicants', sold Unit 7 but refused to commit proceeds to development, and failed to meet any of the specified timelines.

• Whether the first and second respondents failed to comply with the court order of 8 November 2017
• Whether the failure to comply with the court order was wilful and mala fide
• Whether substantial compliance with a court order can excuse a party from full compliance
• What penalty is appropriate for contempt of court by a corporate entity versus a natural person
• Whether supervening factors such as financial difficulties and weather conditions can excuse non-compliance with a consent order

1. The 1st and 2nd respondents were held in contempt of the court order issued on 8 November 2017. 2. The 1st respondent was fined $1,000, of which $600 was suspended on condition of full compliance within 60 days. 3. The 2nd respondent was committed to prison for 90 days, wholly suspended on condition of full compliance within 60 days. 4. The 1st and 2nd respondents were ordered to pay costs on a legal practitioner and client scale, jointly and severally.

1. A court order means what it says, and where unambiguous, no evidence is admissible to contradict, alter or add to its contents. 2. To establish contempt of court, the court must be satisfied that: (a) the court order was not complied with, and (b) the failure to comply was wilful. 3. Once failure to comply with a court order is proven, there is a presumption that the failure was wilful and mala fide, and the onus shifts to the defaulting party to prove that the failure was not wilful and mala fide. 4. Substantial compliance with a court order is not a defence to contempt of court proceedings; only proof of lack of wilfulness and mala fides can excuse non-compliance. 5. For corporate entities, a fine is the appropriate penalty for contempt as imprisonment is not possible. 6. Orders of committal to prison for contempt should generally be suspended to afford the defaulting party an inducement to comply, reflecting the primary purpose of contempt proceedings being to compel compliance with court orders. 7. Contempt proceedings serve the dual purpose of securing compliance with court orders and protecting the dignity and authority of the court. 8. Parties who consent to court orders with specific timelines cannot later rely on foreseeable circumstances or supervening factors that were not pleaded to excuse non-compliance.

The court observed that the respondents' moral blameworthiness was particularly high given that they had consented to the court order which they subsequently disregarded. The court noted that "we cannot have a situation where orders of the court remain unsatisfied because those that are their subject do not take them seriously and believe they should channel their resources to other needs at the expense of the court order." The court also commented that the respondents had not put the court into confidence regarding what they had actually done to comply, and that their excuses regarding financial difficulties were self-serving, particularly as they had made money from the sale of other land but chose not to apply it to satisfy the court order. The court indicated that while coercive contempt (aimed at securing compliance) is the main purpose of committal, it is not necessarily the only purpose—there remains an interest in protecting and upholding the dignity and respect of the court.

This case reinforces several important principles in South African and Zimbabwean law regarding contempt of court and enforcement of court orders: (1) it confirms that substantial compliance is not a defence to contempt of court proceedings; (2) it clarifies the evidentiary burden in contempt proceedings—once non-compliance is proven, wilfulness is presumed and the defaulting party must prove lack of wilfulness and mala fides; (3) it demonstrates how courts deal with contempt by corporate entities through the imposition of fines; (4) it emphasizes that consent orders carry the same weight as contested orders and parties who consent to timelines cannot later rely on foreseeable circumstances (like weather) to excuse non-compliance; (5) it confirms that contempt proceedings serve the dual purpose of compelling compliance and protecting the dignity of the court; and (6) it illustrates when punitive costs on a legal practitioner-client scale are appropriate in contempt proceedings. The case is particularly significant for property transactions and development projects where parties enter consent orders with specific timelines.