Two consolidated matters arose from a dispute within the Gospel of God Church International. In the original matter HC 4101/09, the Church sought an interdict preventing respondents from using the church name and entering church property. The first respondent filed opposing papers which included a purported counter-application seeking a peace order and declaration regarding church leadership. The counter-application was set down on the unopposed roll without the applicant's knowledge, and an order was granted on 28 October 2009. In HC 5403/09, the Church sought rescission of that order. In HC 976/10, the respondents in the original matter sought to have various parties held in contempt for allegedly violating the 28 October 2009 order, claiming they were prevented from entering the shrine at Gandanzara on 3 February 2010.
HC 5403/09: (1) The order granted on 28 October 2009 in HC 4101/09 is set aside. (2) The applicant is granted leave to file an answering affidavit within 7 days. (3) Respondents to pay applicant's costs. HC 976/10: Application dismissed with costs.
A counter-application filed under Rule 229(1) must comply with the form requirements for a court application as set out in Rule 230, namely being in Form No. 29 and supported by affidavits. A counter-application that merely appears as part of an opposing affidavit without proper form is fatally defective and any order granted pursuant to such defective counter-application is liable to be set aside on rescission. In contempt proceedings affecting a person's liberty, Rule 39(1) requires personal service of the process on each respondent. Service by leaving papers "on the ground" does not constitute proper service. Before holding a person in contempt of court, the court must be satisfied both that the order was not complied with and that the non-compliance was willful on the part of the defaulting party.
The court observed that had the purported counter-application been dealt with at the same time as the principal application as stipulated in Rule 229(2), the non-compliance with the rules would in all probability have been exposed or brought to the court's attention by the applicant's legal practitioner. The court also noted that the Deputy Sheriff could have invoked section 22 of the High Court Act to call for police assistance to enable him to effect service of the order on the intended individuals, but he appears not to have done so.
This case is significant for establishing important principles regarding civil procedure in Zimbabwe, particularly: (1) the strict requirements for filing a valid counter-application under Rule 229; (2) the necessity for proper form and compliance with procedural rules; (3) the requirements for proper service in contempt proceedings, especially the requirement of personal service under Rule 39(1) when liberty is at stake; and (4) the need to prove both non-compliance with an order and willfulness before contempt can be established. The case emphasizes that procedural irregularities, particularly in counter-applications, can result in orders being set aside on rescission.