Mpofu v Doro and Others (HCBC 1452 /25) [2026] ZWHHC 552 (7 August 2026)

1 HB 117/26 HCBC 1452 /25 BATANDI MICHAEL MPOFU Versus CHIKOTI DORO AND THE MASTER OF HIGH COURT AND THE SHERIFF OF THE HIGH COURT OF ZIMBABWE AND THE REGISTRAR OF DEEDS IN THE HIGH COURT OF ZIMBABWE MOYO J 24 JULY 2026 TO 7 AUGUST 2026 Opposed application Applicant in person B Mathonsi, for the 1st respondent MOYO J: This is an application for rescission of judgment. 1 st respondent has opposed the application but has raised a preliminary point that applicant has approached the court with dirty hands. That applicant has an extant order of this court in HC 446/17, which expressly orders him to effect transfer of a certain immovable property but which order applicant has not honoured to date. 2 HB 117/26 HCBC 1452 /25 That applicant confirms his knowledge of the existence of the order but that he has not complied with it and will, at a future date, convenient to him, explain his flagrant breach of the court order. Applicant argues that he is justified in not having honoured the order. I find that respondent’s objection is well founded. The applicant seeks the court’s audience while remaining in deliberate non-compliance with an existing court order compelling him to transfer the property. A litigant who is in wilful contempt of a court order should not ordinarily be granted audience until the contempt has been purged. The order remains extant as he has not sought a stay pending the application for rescission of judgment. The court’s authority and administration of justice depends upon the obedience and respect to its orders. To permit a party to ignore a binding order while seeking relief from the same court would undermine the rule of law and diminish the integrity and dignity of the courts. Effectiveness of the judicial process and judicial authority depends on the honour and respect for the orders issued by the courts. A party seeking any form of relief from the courts should do so in good faith and with clean hands. An Applicant who remains in contempt has failed to demonstrate the respect for the court which respect is expected of him before he can seek any other relief from the same court. The latin maxim (Qui venit in aequitatem debeat esse purus in manibus) “he who comes to equity must come with clean hands” could not have been more relevant. The maxim means that a person seeking equitable relief must be free from wrong doing or unfair conduct related to the same subject matter of the claim. This principle prevents a party who has acted unethically from obtaining equitable relief, ensuring that equity is not used to reward wrongful conduct. Applicant’s own conduct defies the authority of the court from which he seeks relief. 3 HB 117/26 HCBC 1452 /25 Although the right of audience and access to the court is fundamental, it is not absolute and a court is entitled where appropriate, in the exercise of inherent jurisdiction to regulate its own processes and prevent its abuse by declining to hear an applicant who is continuing to be in contempt of an extant order of the court. In the case of Associated Newspapers vs Ministry of State for information and Publicity in the President’s Office and Others 2004 (1) ZLR 538 (5) the Supreme Court re-affirmed that a litigant who is himself in violation of the law cannot ordinarily invoke the court’s jurisdiction while at the same time persisting in that violation. The court emphasised that judicial processes exist to uphold and not condone, disregard for the law. A litigant who seeks the court’s assistance must first demonstrate his respect for the law by complying with existing legal obligations. Again in the case of Deputy Sheriff Harare vs Mahleza and Others 1997 (2) ZLR 425 (5) where the supreme court underscored that obedience to court orders is indispensable to the administration of justice. Court orders are binding until set aside by a competent court, and no litigant is entitled to choose which orders to obey and which ones to overlook, wilful disobedience of court orders strikes at the heart of the rule of law and the authority of the court. To entertain the application in these circumstances while the contempt persists would allow the applicant to benefit from his own defiance of the court’s authority and would undermine public confidence in the administration of justice. I accordingly uphold the point in limine that applicant should not be heard as his hands are dirty. 1st respondent also raised preliminary point on abuse of court process. I will however not deal with that point as a preliminary point as l hold the view that it is not dispositive of the matter but it is an issue on the merits more particular on the issue of costs. I cannot exhaust this point without dealing with the matter in full on the merits. It is my considered view that the question of whether applicant is abusing court process or not is not capable of determination as a preliminary objection. 4 HB 117/26 HCBC 1452 /25 A true point in limine is one which, if upheld, disposes of the proceedings without requiring the court to examine substantiveness of the application. Where the objection necessitates an inquiry into factual issues requiring the court to evaluate legal merits of the application itself, it loses the character of a preliminary objection in my view and falls to be determined together with the merits. Whether proceedings amount to an abuse of court process requires the court to examine in full the purpose for which they were instituted and whether they improperly seek to relitigate matters already determined. Such an enquiry inevitably involves an assessment of the factual matrix and the history of the matter in full detail and the substantive basis of the application. They cannot ordinarily be resolved without fully considering the merits. I will thus not deal with this preliminary point, it is incapable of resolution at this stage. 1st respondent asked for costs at a punitive scale. I will strike the application off the roll with costs at higher scale on the basis of the initial objection on applicant’s dirty hands. Approaching the court while glaringly disobeying its orders justifies punitive costs in my view. The application is struck off the roll with costs at a higher scale. Webb Law and Barry, 1st respondent’s legal practitioners