Tony Renato Sarpo v Regis Maburutse and Wayne Williams and Matebeleland Engineering (Private) Limited

The applicant sought to enforce a court order granted by Mhuri J on 17 August 2023 in Case No. HC 1324/17, which confirmed a provisional order interdicting the respondents from interfering with the applicant's collection of assets from the third respondent company and interdicting the second respondent (first respondent in this case) from issuing threats and preventing the applicant from carrying out his functions as director of the company. The applicant alleged that the first respondent, aided by the second respondent, wilfully defied the court order by continuing to hold himself out as director, interfering with company operations, attempting to open bank accounts, changing signage, harassing employees, and stripping company assets. The first respondent's opposing affidavit was improperly commissioned as the commissioner of oaths stamp did not identify the capacity in which the oath was administered. The second respondent denied contempt, stating the order had been complied with when the Sheriff collected the applicant's property.

• Whether the first respondent's opposing affidavit was properly commissioned and valid
• Whether the requirements for civil contempt of court were satisfied against the first respondent
• Whether the requirements for civil contempt of court were satisfied against the second respondent
• Whether paragraph 3 of the court order imposed any obligations on the second respondent that could be the subject of contempt proceedings

1. The application against the first respondent was granted. 2. The first respondent was found to be in contempt of the court order in Case No. HC 1324/17. 3. The first respondent was committed to Chikurubi Maximum Prison for six months, entirely suspended on condition that he immediately comply fully with the court order in Case No. HC 1324/17, particularly paragraph 3 thereof. 4. The first respondent was ordered to pay costs on a legal practitioner and client scale. 5. The application against the second respondent was dismissed with costs.

1. An affidavit is invalid and a nullity if the commissioner of oaths stamp does not clearly identify both the person administering the oath and the office or capacity in which they act as commissioner of oaths. Nothing can flow from such an invalid affidavit. 2. Before a party can be found in contempt of a court order, the order must clearly and unambiguously specify what the party is required to do or abstain from doing. The obligations cannot be implied or require inference. 3. To establish civil contempt of court, an applicant must prove: (i) an extant court order exists; (ii) the order was served on the individual who knows what it requires; (iii) the order was not complied with; and (iv) the non-compliance was wilful and mala fide. 4. Where a court order imposes specific obligations on one party but not another, contempt proceedings cannot succeed against the party upon whom no clear obligation was imposed.

The court noted that it is settled law that a point of law can be raised at any stage of proceedings if it goes to the root of the matter and involves no unfairness to the party against whom it is directed, following Muchakata v Netherburn Mine 1996 (1) ZLR 153. The court observed that where opposing affidavits contain untruthful statements, the whole of such evidence should be disbelieved following Leader Trade Zimbabwe (Pvt) Ltd v Smith HH 131/03. The court also noted that decisions of the Supreme Court bind the High Court and that a decision of two High Court judges has binding precedential value on single judges of the High Court.

This case reinforces the strict formal requirements for affidavits in Zimbabwean civil procedure, particularly that commissioner of oaths stamps must clearly identify both the person and the office/capacity in which they act. It confirms that an improperly commissioned affidavit is a nullity and cannot support opposition to an application. The judgment also clarifies the requirements for civil contempt of court, emphasizing that court orders must clearly and unambiguously specify what a party is required to do or not do before contempt can be established. A party cannot be held in contempt of obligations that are not expressly stated in the court order or must be inferred. The decision demonstrates the application of binding Supreme Court precedent on affidavit formalities and the principle that court orders must be sufficiently clear and precise to avoid ambiguity about compliance requirements.