The High Court has dismissed an application by the Zion Apostolic Sect which was suing Chirumanzu Rural District Council (RDC) for contempt of court following a US$900,000 property deal gone wrong.
Sitting at the Masvingo High Court, Justice Jester Charewa threw out the application, ruling that there is no evidence.
The judge said that while it is true that the pace of compliance with a court order by the RDC has been painfully slow, there has, nevertheless, been substantial compliance.
"Accordingly, as at the time of the hearing, the burden of the required full compliance, which forms the basis of this application rests heavily on the applicant itself: to first fulfil the transfer requirements.
"On balance, therefore, I cannot, in the circumstances, find that the respondent can be held to be in contempt as there is no evidence of a failure to disobey a clear and unambiguous court order, but rather, evidence of tardy compliance coupled by applicant itself failing to fulfil transfer requirements.
"Consequently, wilfulness and mala fides being presumed from a failure to comply with a court order, I am of the view that the respondent has discharged the onus that it did comply with the court order," said the judge before she threw the application.
The background is that on 2 October 2017, the parties entered into a deed of settlement in HC1245/17, wherein the church had sued the respondent for payment of US$900,000.00.
The settlement was to the effect that in lieu of the monetary claim, and in full and final settlement of any claims between the parties, the respondent would allocate and, within a reasonable time, transfer (at applicant's cost) two institutional stands to applicant.
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Further, Chirumanzu RDC would fence off its sewer ponds within the applicant's farm within six months of the date of the deed of settlement.
Zion Apostolic Church said the RDC failed to adhere to the terms of the deed of settlement.
The church was, accordingly and upon suing for specific performance on the deed of settlement, granted an order on 19 April 2023.
The order required the RDC to allocate and transfer two institutional stands within 14 days of the grant of the order.
It was also supposed to fence off, with a fence appropriate to keep wild animals and the applicant's livestock from consuming sewer pond water, sewer ponds located in the applicant's farm within 30 days of the grant of the order.
It is this order that the church wanted the RDC to be held in contempt of.
Chirumanzu RDC argued that the order it was alleged to be in contempt of was not served upon it.
The RDC also said it was not in contempt as it was actually complying with the court order, having allocated stand number 2861 as ordered, and stand number 4434 in lieu of Stand 2356, to the applicant; erected the fence around the sewer ponds as ordered and settled costs of suit.
Chirumanzu RDC also said it was only now awaiting the church's applicant's compliance with transfer requirements (which include meeting minimum construction requirements) in order to effect transfer, an argument which was accepted by the judge.
