IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CIV. TRIAL NO.3310/09
In the matter between:
BERTRAM HENWOOD 1st Applicant
LAZARUS MABHENGU HLOPHE 2nd Applicant
NONHLANHLA FAKUDZE 3rd Applicant
THE SWAZILAND TOBACCO
CO-OPERATIVE COMPANY LTD 1st Respondent
THE SWAZILAND TOBACCO COMPANY
(PTY) LTD 2nd Respondent
MATHEW KHUMALO 3rd Respondent
BERNARD NXUMALO 4th Respondent
JANE NDZINISA 5th Respondent
TAKHONA MAVUSO 6th Respondent
Mr. Attorney B. Mndzebele for the Applicants
Adv. Mr. L.M. Maziya for the Respondents.
 The relations in a co-operative company, the 1st Respondent herein, have reached their nadir. This has resulted in serious tensions among the numbers of the co-operative company. As would be expected, the Courts have been, on occasions, approached to resolve the disputes that have arisen.
 The three applicants as well as the 3rd and 6th Respondents, are members of a co-operative company, bearing the name Swaziland Tobacco Co-operative Company Limited. The applicants have approached this Court seeking the relief that follow here under:
Dispensing with the normal provisions of the Rules of Court as relate to form, service and time limits and hearing this matter as an urgent one.
Committing the Respondents to prison for contempt of court for such period as this Honourable Court may find to be appropriate, for their failure to comply with the Court Orders annexed to the Founding Affidavit hereto as annexures “LM1” and “LM3”.
Directing the Respondents to forthwith handover to the 1st Respondent for joint control as envisaged in the aforesaid Court Orders all the proceeds received from the filling station business of the 1st Respondent operating at 1st Respondent’s Plot No.773, Nhlangano and the June, July and August 2009 rentals received from the various tenants of the 1st Respondent in the region of E86,000.00 per month.
Directing the 4th Respondent to forthwith handover to the 1st Respondent for joint control all the assets of the 1st Respondent which he is abusing and keeping in his possession for proper control and use particularly the following assets:-
4.1. Certain : Motor vehicle
Type : Toyota Hilux Van (white)
Registration : SD 636 FN
MODEL : 2000
4.2. Certain : Tractor
Type : FIAT (red/maroon)
Registration ; SD 401 ES
MODEL : 1988
Directing and authorizing the Deputy Sheriff for District of Shiselweni to forthwith seize, attach and handover to the 1st Respondent for joint and proper control, the motor vehicle and tractor referred to herein above as well as any other assets of the 1st Respondent that are currently being abused by the 4th Respondent.
Directing the 1st to 6th Respondents to forthwith give an account of all the proceeds received by the 1st Respondent for the period of July, August and September 2009 (to date of finality of this matter) including the records of all the income received from the businesses of the 1st Respondent as well as where all such monies have been banked.
Directing that prayers 2,3,4 and 5 herein above operate with immediate interim effect returnable on a date to be determined by this Honourable Court.
Directing 1st to 6th Respondents to avail applicants with all the banking details of and all accounts of all such other information as relates to the banking or assets owned by their relationship with the legitimate assets of the 1st Respondent to the 2nd Respondent.
Directing that the 1st to 6th Respondents pay the costs herein on the scale as between Attorney and client.
Granting Applicants and further or alternative.
 It will be seen that in the main, the Applicants seek an Order for the committal of the Respondents to gaol for contempt of an Order granted by this Court on 13 July, 2009. In the said Order, this Court interdicted the aforesaid, 3rd to 6th Respondents from unilaterally dealing with the assets of the 1st Respondent and in which the Applicants have a stake. The Order of 13 July, 2009, reads as follows:-
It is ordered that:
As concerns prayers 1,2 and 3 of the Notice of Motion dated the 13th July 2009:
1.1 The provisions of rules of this Honourable Court as
relate to form, service and time limits be and hereby
The Notice of Intention to Oppose in relation to these
Prayers is to be filed by 09:00am on Tuesday, the 14th July, 2009.
The 1st, 2nd 4th to 7th Respondents, be and are hereby interdicted and restrained from unilaterally dealing with the assets of the 1st Respondent in any manner whatsoever pending finalization of the proceedings before this Honourable Court under case number 1797/08 and 258/09;
The 3rd Respondent be and is hereby interdicted from entertaining the trading licence application for a filling Station Licence meant to proceed on the 14th July, 2009 at the Nhlangano Trading Licence Office pending the outcome of this Application;
Order 1.1, 1.2 and 1.3 herein are to operate as a rule nisi with immediate and interim effect returnable on the 24th July, 2009 with the Answering Affidavit having to be filed by noon on Thursday, the 16th July, 2009.
As concerns paragraphs 4,5 and 7 of the Notice of Motion dated the 13th July, 2009.
the Notice of Intention to Oppose in relation to these prayers is to be filed by noon on Thursday, the 16th July, 2009;
The Application for Review as sought in terms of prayers 4 and 5 of the said Notice of Motion is to be heard on the 31st July, 2009 at 9.30am;
The Respondents be and are hereby ordered the file their opposing affidavits in respect of the said prayers by noon on Thursday, the 23rd July, 2009.
 It is the applicants contention that the aforesaid respondents have, notwithstanding service of the aforesaid, Order upon them, neglected and/or refused to comply therewith. It is for that reason that the applicants seek the committal of the said respondents.
 The respondents approached this application from two different perspectives. In the first instance, they delivered a notice in terms of Rule 6 (12) (c) of this Court’s Rules. Second, they also filed opposing affidavits contesting the propriety of the Orders sought against them.
 In the Founding Affidavit and their supporting affidavits, read together with the annexures, the Applicants in the main contend that the Respondents particularly the 4th Respondent, in breach of the express terms of the Order, were guilty of “dealing unilaterally” with certain assets of the 1st Respondent, namely, a motor vehicle and a tractor.
 It is also alleged that the 3rd to 6th Respondent, in contravention of the aforesaid Order continue to “deal” with proceeds from 1st Respondent’s filling station unilaterally by collecting monies realized, from the sale of oils and fuels. In regard to the proceeds, it is alleged that said Respondents have refused to account to the Applicants. Similar allegations are made regarding the collection of rentals in respect of certain property allegedly belonging to the 1st Respondent.
 There are further allegations that when the Applicants’ erstwhile attorney Mr. N.J. Hlophe called the 1st Respondents’ Chairman regarding the monies in respect of the filling station and the rental collected, particularly asking him to render an account in relation thereto, the latter “arrogantly” told him that Orders captured above were not applicable to them and that Mr. Hlophe should take any action in relation thereto which he deemed appropriate. This attitude, which is regarded as contemptuous, it is further alleged, was repeated during a telephone conversation between Mr. Hlophe and the 1st Respondent’s Chairman.
 In their answering affidavits, the Respondents contest the correctness of the allegations leveled against them. In the first place, they allege that the Order of Court preventing them from “dealing unilaterally” with the 1st Respondent’s properly was unclear as the said Order makes no mention of any assets the Respondents are interdicted from unilaterally dealing with. They express some problem in complying with it and telling when one is in acting in contravention of it.
 The Respondents also deny the allegation that any information regarding banking arrangements was ever sought from them. They further deny in any way helping themselves to any of the 1st Respondent’s assets as alleged but in turn allege that the 1st and 2nd Applicants have refused to co-operate in the signature of certain cheques in relation to fuel and oils.
 Regarding the allegation of “dealing” in the motor vehicle the 4th Respondent contends that he uses the same mainly for the 1st Respondent’s business purposes, including ferrying its bricks and other materials. He goes on to allege that the 2nd Applicant had previously used the said vehicle virtually as his own for an unspecified number of years. He contends that he is not “unilaterally dealing” with the vehicle in breach of the Court Order. He appears willing, if ordered, to surrender the vehicle wherever called upon, the net result of which, he adds, would be to hamper the 1st Respondent’s business operations.
 Regarding the tractor, the 4th Respondent states that as a matter of fact, the tractor is in a state of disrepair and was dysfunctional at the launch of this application. It was due to be sold when it broke down. He shoots down the allegations that he uses certain parts of it in his own tractors, stating that he has two tractors whose parts are not the same as the 1st Respondent’s and denies using the latter’s tractor because he has his own tractors.
 In relation to the fuel and oils, the Respondents deny collecting any money. It is their contention that the outlet acts as an agent of the supplier who supplies the goods on credit and is paid from time to time. It is denied that any money collected is an asset of the 1st Respondent. Regarding the rental, it is claimed by the 4th Respondent that there is a bond repayment of E50,000.00 per month to the Swaziland Building Society and which is paid from the proceeds of the rental.
 I should mention that it is clear that there are serious misunderstandings between the parties; a lot of bad blood, suspicions, accusations and serious allegations, including those of fraud. The latter and there is no substance given to it in the papers, is made by the Applicants against their adversaries. As a result of these tensions, and the conflict in versions, there are issues which may, in the long run require the adduction of oral evidence e.g. the allegations involving Mr. Hlophe and the 4th Respondent. I shall say no more of those issues for present purposes.
 I do, however, find myself in duty bound to comment on the contents of the relief applied for and which is under scrutiny in this judgment. A cursory reading of the Notice of Motion clearly depicts that in the main, as earlier stated, the Applicants ask of the Court to commit the Respondents to gaol for contempt. Allegations of the contempt are stated in the affidavits and there are no qualms therewith. My difficulty arises in regard to the balance of the relief sought, including prayers 3,4, 4.1, 4.2, 5, 6, 7 and 8.
 A reading of the affidavits filed in support of the relief sought shows ineluctably that there are no facts or allegations in the papers upon which the Court can properly grant the relief set out in paragraphs 3 to 8. It is clear that the Order sought to be enforced on the pain of the contempt proceedings did not make provision in specific terms for any of the relief set out in 3 to 8. If anything , the Applicants’ if they wish to be granted the relief set out above, would have to make a separate application therefor, with proper allegations being made in support thereof.
 The approach adopted by the Applicants, it would seem to me, is a blatant attempt to use the contempt proceedings to obtain specific relief not properly advocated in the papers through the back door as it were, without a proper application for that relief, predicated as should always be the case, on proper facts and allegations. It appears to me to be totally improper to seek to make the additional prayers sought an appendage to what is otherwise a clear application for committal for contempt. Contempt proceedings, it would appear to me, must be confined to the alleged contemnor being forced, on the point of a committal, if need be, to the terms of a specific Order of which he aware.
 One cannot then include additional prayers to the Order in respect of which the alleged contemnor must comply with. I am of the opinion that the relief set out in paras 3 to 8 incorrectly sought and ought not to be granted. For example, the Order being sought to be enforced never made mention of the delivery of the tractor and the motor vehicle to the 1st Respondent nor did it make any reference to accounting in relation to the 1st Respondent’s proceeds. This is an untoward addition or enlargement of the scope of Court Order that should not be allowed.
 I presently turn to deal with the issue of the contempt. Before I do so though, it is necessary that owing to the real and substantive issues between the parties, I am disinclined to deal with legal point of urgency and lis pendens, which may in other circumstances, be issues of great moment. I do so in reverence to the judgment of the Court of Appeal in Shell Oil (Swd) Ltd v. Motor World (Pty) Ltd t/a Sir Motors Appeal Case No.23/2006 to the effect that this Court should avoid dismissing what may be important matters on purely technical matters apparently in a bid to avoid grappling with matters on their real merits.
 The question that requires an answer, at this juncture is one-have the Applicants satisfied all the requisites for the grant of an application for committal to gaol? The leading local case in this regard, is the judgment of Dunn J. inCraw & Another vs. Jarvis,1979 – 81, 218 where the learned Judge stated that the Applicant should satisfy three basic requirements being that (a) an Order was issued against the respondent by the Court; (b) the respondent was served with or is aware of the said Order and (c) he or she has willfully disobeyed or neglected to comply with the Order. See also Herbstein & Van Winsen, The Civil Practice of the Supreme Court of South Africa, 4th ed, Juta, 1997 at page 825.
 It would appear that the policy reason behind such applications for committal, is for the Courts to redeem or vindicate their honour, stature and authority because it is a serious matter for a person against whom an order has been issued, to refuse to comply therewith with impurity. This would lead to the breakdown in the rule of law and lawful and ordered behaviour in the society. The operation of this principle, was set out as follows in the locus classicus case of Hadkinson vs. Hadkinson  2 All ER 567 (C.A.) at 596, where Romer L.J. remarked:-
“It is the plain and unqualified obligation of any person against or in respect of whom an order is made by a competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.” See also Mpofu v. Mlilo 2002 (1) ZLR 160.”
 The first two elements mentioned in the Craw judgment do not appear to present any or serious difficulty. There is no contestation that this Court, which is one of unquestionable competent jurisdiction, on 13 July, 2009, issued an Order generally interdicting the Respondents from unilaterally dealing with the 1st Respondent’s assets “in any manner whatsoever” pending the finalization of proceedings under Case No.1797/08 and 258/09. There appears to be no dispute as well that the Respondents were served with and are aware of the Order in question.
 The crisp issue for determination, is whether the said Respondents have willfully and mala fide refused or failed to comply therewith, an allegation that they seriously challenge. In that process, they also attack the terms of the Order as being unclear, but not necessarily irregular. I must mention though, before answering this question, what Herbstein & Van-Winsen (op cit) say at p 826, namely:-
“Accordingly, once it shown that an order was granted and that the respondent has disobeyed it or neglected to comply with it wilfuness will normally be inferred and the onus will be on the respondent to rebut the inference of wilfulness on a balance of probabilities.”
 I first need to investigate the Respondents’ complaint about the wording of the Order dated 13 July, particularly that it was not clear and was not capable of easy comprehension and application, to paraphrase their contention. It is, in the first place, correct that the Order did not specify the assets in question and which the relevant Respondents were being interdicted from “dealing with unilaterally”. Orders of Court have to be precise in their terms and scope so as to leave the person upon whom they place an obligation, in no doubt as to what is required of them, particularly in this case where they stand to lose their liberty.
 The assets of the 1st Respondent, one can easily assume, are known to the Applicants. There is, in my view, no reason why the assets in question should not have been specifically identified in the Order of Court so that the relevant Respondents know what the exact assets in respect of which the prohibition applies are. This, I should repeat, should not be an issue of opinion, surmise or suspicion. It should be clear and not leave the alleged contemnor in this case, with some argument as to the assets referred to. To this extent, I am of the view that the Order was not sufficiently precise in its terms.
 Second, I also share the Respondents’ difficulty when it comes to the words “unilaterally dealing”. This becomes particularly so viewed against the Respondents’ contention that the Order in question was granted pursuant to an ex parte application and that had they participated in the hearing, the Court would not, in all probability, have issued the Order it did. This contention is not controverted by the Applicants.
 The words “dealing unilaterally with”, I agree, pose some difficulty. I say so because there was, as properly pointed out by the Respondents, no specific Order for the surrender of items in the Respondents’ possession or an arrangement recorded as to how the assets would be dealt with by both parties. Did it mean if the 4th Respondent needed to drive the motor vehicle to collect some items for the 1st Respondent’s bona fide business, he had to be with one of the Applicants or would have to seek the latter’s consent? The Court Order was silent on these matters, important as they appear to be to me.
 More importantly, as mentioned earlier, the Respondents deny that they acted in contempt of the Court Order in question relating to the assets mentioned. It therefore becomes difficult for this Court, without the aid of viva voce evidence, to deal decisively with this issues on the papers. This is particularly so, considering that the Order sought herein has the potential to interfere with the alleged contemnors’ liberty, a situation that requires the Court, as much as it has to vindicate its authority (if proved that there is a deliberate failure on neglect to comply), to deal therewith circumspectly.
 The contempt attributed to the 4th Respondent relating to Mr. Hlophe, in the form of words uttered by the 4th Respondent, is also denied by the Respondents. This therefore raises a dispute of fact which cannot, in my considered view, be dealt with in the present setting. Oral evidence would inevitably have to be led as it would be highly presumptuous for the Court to act on the ipse dixit of the Applicants when the Respondents contest that version as being inaccurate or untrue.
 In the premises and for the foregoing reasons, it proves difficult in the circumstances, to hold that the Respondents have neglected or refused to comply with the Court Order wiltfully and mala fide, this being a matter that cannot possibly be resolved on the papers.
 I am of the considered opinion that it would be desirable for the parties to put their daggers aside, even if temporarily and deal specifically with all the issues regarding the assets, beginning by identifying them. Then, an agreement as to how they should be handled and or dealt with can be reached. I say so considering that it would appear that the Applicants harbour an understandable anxiety regarding the financial operation relating in particular to the filling station and the landed property from which some rental accrues. These are issues that in my judgment can and should be finalized in a mature and sober manner with the lawyers playing a pivotal role without the need to drench each other in costly litigation.
 In any event, it would appear to me that what is of essence, is to hear the main application, which can hopefully serve to bring an end to what appears to presently be an intractable stand off between the parties. It is for that reason that I have found it unnecessary to deal specifically with the legal point relating to the lis alibi pendens.
 Before I make a final pronouncement in this matter, there is an issue that Mr. Maziya raised relating to prayer 7 of the Notice of Motion which required the issue of a rule nisi with immediate effect, including paragraph 2. Properly construed, this meant that the Court would have had to commit the Respondents to gaol pending the return date. The question is, if that prayer were to be granted, what would happen on the return date if the Respondents managed to show cause when they have already been committed to gaol in the interregnum. Would they, at that point be “uncommitted” to gaol? The answer is an obvious and resounding No!
 This is an indication the practitioners should, even in matters of urgency, ensure that they draft their papers with great circumspection and sensitivity to the rights of their clients vis a vis those of their protagonists. Orders sought should not exceed the necessary bounds of the harm that is sought to be forestalled. I had occasion to comment on this very issue as follows in the case of Jika Ndlangamandla vs. Zeiss Investments (Pty) Ltd t/a Zeiss Bearings In Re: Zeiss Investments (Pty) Ltd t/a Zeiss Bearings vs. Jika Ndlangamandla Civil Application 3289/08at page 17 para 28:-
“It is my considered view that there is generally an abuse of the rule nisi procedure by many practitioners in this Court and that there is a very rash and ready resort to apply for interim relief even when that is not necessarily called for. As a result, there are instances in which interim effect of a rule nisi is applied for and granted and which, however, prejudices the rights of the respondents in the interim and when there is strictly speaking, no necessity so to do. Extreme care should be taken in drafting notices of motion in urgent matters and where it is necessary to protect an applicant’s immediate interests in the interim. At the same time, the rights of a respondent must be given adequate attention and protection, particularly in ex parte applications.”
 In the premises, I am not satisfied that this is a proper case in which to commit the Respondents to gaol on the present papers. In this regard, the Applicants will have to make an election whether they wish to pursue this question based on viva voce evidence in which case they are to meet with the Respondents and within ten (10) calendar days reduce to writing:-
(A) (i) the particular issues on which evidence is proposed
to be led;
the identity and number of witnesses proposed to
prepare a summary of the evidence of the witnesses proposed to be led; and
exchange such summaries of evidence
The parties shall thereafter approach this Court with a
view to allocating a date during the coming session of the Court.
The parties be and are hereby ordered to appear before this Court on 24 May, 2010, for the roll call at which the main application shall be allocated a date of hearing.
Costs of this application are hereby reserved for future determination, depending on how the Applicants intend to proceed in relation to paragraph  (A) above.
DELIVERED IN OPEN COURT IN MBABANE ON THIS THE 10TH OF MAY. 2010.
JUSTICE OF THE HIGH COURT
Messrs. Magagula & Hlophe Attorneys for the Applicants
Messrs. Mlangeni & Company for the Respondents.