Taurai Dorcas Mathemba and 5 Others v Zimbabwe Power Company

The applicants were widows and pensioners (or spouses of former employees) of Zimbabwe Power Company who occupied the respondent's property. Multiple disputes arose concerning their right to remain in occupation. On 1 December 2011, after a pre-trial conference, a consent order was granted whereby the applicants agreed to vacate the premises by 31 January 2012, with the respondent providing transport to their respective destinations. Two months later, on 31 January 2012, the applicants filed an urgent application seeking a stay of execution, alleging that: (1) the consent order was granted without them signing the consent paper and their legal practitioners misrepresented them, and (2) they had no other places to go upon eviction. Some applicants had already vacated the premises after the two-month grace period with transport provided by the respondent.

• Whether the applicants were in contempt of court by failing to comply with the consent order
• Whether the application for stay of execution was urgent
• Whether there was good and sufficient cause to set aside the consent judgment under Rule 56 of the High Court Rules, 1971
• Whether the applicants' legal practitioner had misrepresented them in entering into the consent order
• Whether costs at a higher scale (attorney and client scale) should be awarded

The application was dismissed. Applicants were ordered to pay costs on an attorney and client scale jointly and severally, the one paying the others to be absolved.

A party subject to a court order must obey it unless and until it is discharged, regardless of whether they believe it to be null, void, or irregular - failure to do so constitutes contempt of court. To set aside a consent judgment under Rule 56, an applicant must demonstrate: (1) a reasonable explanation of the circumstances in which the consent judgment was entered; (2) bona fides of the application for rescission; and (3) a bona fide defence on the merits with prima facie prospects of success. A matter is not urgent merely because the day of reckoning is imminent; it must be shown that the matter cannot wait at the time the need to act arises. Delay in bringing an urgent application negates urgency.

The court exercised discretion to hear the applicants despite their being in contempt, citing Lord Denning in Hadkinson's case that refusing to hear a party is justified only by grave considerations of public policy when contempt impedes the course of justice and there are no other effective means of securing compliance. The court noted this was done in the interests of justice given the numerous cases before the court on this issue. The court also observed that legal practitioners do not create facts as facts remain with the client, and if a legal practitioner had a problem with their client they would renounce agency. One applicant (Norman Amini) was found to have no locus standi as he was not party to the original proceedings.

This case reinforces important principles in Zimbabwean civil procedure regarding: (1) the sanctity of consent orders and the obligation to comply with court orders regardless of personal views about their validity; (2) the strict test for contempt of court; (3) the requirements for establishing urgency in applications (that a matter is urgent not merely because the day of reckoning is imminent, but because it cannot wait); (4) the three-part test from Georgias v Standard Chartered Bank for setting aside consent judgments; and (5) the circumstances justifying costs at a higher scale, particularly where litigants act dishonestly. The judgment emphasizes that parties cannot unilaterally decide to disobey court orders but must seek their variation or discharge through proper legal channels.