MACHEKA V MOYO 2003 (2) ZLR 49 (H)

Practice and procedure — judgment — enforcement — committal for contempt of court — when committal procedure appropriate — what applicant must show

Headnote

▷ A judgment ordering a debtor to do or to refrain from doing any act is enforceable against the person of the debtor by way of committal for contempt of court, not by execution against his property. Civil contempt is the wilful and mala fide refusal or failure to comply with an order of court. The principal object of civil contempt proceedings is to compel, by means of personal attachment and committal to gaol, the performance of the court's order. The imprisonment imposed is very often suspended pending fulfilment by the defaulter of his obligations. The court is loath to restrict the personal liberty of the individual in matters of this kind: committal to gaol is a very severe and rigorous way of achieving performance in respect of a civil order of the court and should not lightly be resorted to. When resorted to, committal achieves two objectives: (1) enforcing compliance and (2) protecting and upholding the dignity and respect of the court. In respect of latter objective, the applicant acts an informer who brings the contempt to the attention of the court. Before holding the respondent to have been in contempt of court, it is necessary for the court to be satisfied both that the order was not complied with and that the non—compliance was wilful on the respondent's part. The onus is on the applicant to show a disobedience of the court's order. Once this is shown, wilfulness is, in such circumstances, inferred and the onus moves to the respondent to rebut the inference of wilfulness on a balance of probabilities. The court should not lightly deprive the offending party of the right to be heard in this regard. Proven inability to comply with the court's order affords a respondent protection against a committal for contempt.

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