CASE NO.: A 224/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

Heard on:      12 November 2010 Delivered on: 21 January 2011

JUDGMENT MULLER J
[1] In this matter the court was confronted with 3 separate court files with 3 different case numbers, namely:

b)	Case number A 224/2009, also dated 25 June 2009, in respect of an application on Notice of Motion for a Rule Nisi to interdict the respondents from infringing various rights of the applicants pending the outcome of an action to be instituted by the applicants; and
c)	Case number I 2738/2009 regarding the combined summons issued by the applicants against the respondents and the latter's exception to the applicants' particulars of claim, amplified by further particulars, as well as amended particulars of claim and amended further particulars.
[2] Because it was very confusing what the court had to consider, it is necessary to refer briefly to what occurred previously in respect of all these matters. For the purpose of this judgment, I shall refer to all the applicants and respondents as such and not e.g. as first, second or third applicant or the first, second and third respondent. Although in the application for leave to appeal, the respondents are the applicants, I shall continue to refer them as respondents and vice versa. In the contempt of court application only the first respondent is the single respondent.

[4] In the meantime, the applicants (as plaintiffs), issued summons against the respondents (as defendants) on 30 July 2009. Further particulars were requested on 4 September 2009 and, after an application to compel, were provided on 25 November 2009. The respondents (as defendants) then excepted to the particulars of claim as amplified by further particulars on 31 March 2010. The applicants (as plaintiffs) amended their particulars of claim and further particulars on 28 June 2010. Without filing a new exception to these amended pleadings, the respondents (as defendants) pursued their original exception.
[5] From the letters written by the respondents and attached to the affidavits it is evident that the respondents never accepted any of the judgments by Hinrichsen AJ. This attitude led to the contempt issue, which I shall soon deal with, as well as the respondents' subsequent steps to appeal, which will also be dealt with. The respondents also filed a record of the attachment proceedings in this court in the Supreme Court.

[6] On 22 July 2009 the respondents filed a Notice of Appeal against the whole of the judgment of Hinrichsen AJ, in regard to the attachment order in case A220/2009 in the Supreme Court of Namibia.

[7] On 23 July 2009 the respondents applied to this court for leave to appeal against the interdict granted by Hinrichsen AJ in case A224/2009. On 3 September 2009 the first and third respondents also filed a Notice of Appeal in the Supreme Court against the interdict granted by Hinrichsen AJ in case A 224/2009. This application and notice of appeal was met by a Rule 30 application by the applicants craving a declaration that both the application for leave to appeal against the interdict order and the Notice of Appeal of 3 September 2009 are irregular steps that fall to be struck out.

[8] The conduct of the respondents to continue as if no court order existed, despite the fact that this court did issue an interdict on 16 June 2009, caused the applicants to launch an urgent application against the first respondent, Sebata, for committal for contempt of court on 20
August 2009. The next day Tomassi J granted a Rule Nisi, with a return day of 9 October 2009. The respondents opposed that Rule Nisi and answering and replying affidavits were filed. The respondent also filed a counter-application against the applicants. The return day of the Rule nisi had been extended on several occasions, the last extension to 12 November 2010.

[9] On 12 November 2010 the entire matter was set down for arguments. The hearing commenced with the court obtaining clarification on all the issues contained in the various court files which had been heard by different judges. There are 4 issues that were argued. They
are:
a) The exception;
b) The application for leave to appeal against the interdict;
c) The Rule 30 application; and
d) The Rule Nisi in respect of committal for contempt of court and counter-application.
Separate sets of heads of arguments were filed by both parties dealing with individual issues or more than one issue. The appellants were represented by Mr Coleman, assisted by Mr Dicks, and the respondents by Mr Corbett, assisted by Mr Silver, respectively. Oral submissions were made by Mr Coleman and Mr Corbett, respectively.

[10] Before arguments commenced, the court expressed its concern about the procedure to be followed to deal with all these issues and the sequence in which they should be argued. The court's main concern was that in the light of the prosecution of the respondents' appeal in respect of the attachment order, all the other issues might fall away if the Supreme Court should regard the above-mentioned order appealable and if the respondents should succeed on appeal. The court expressed its reservation and reluctance to make findings on issues that fall to be decided by the Supreme Court and which may at this stage be purely academic. The parties, however, insisted to argue all the issues, with Mr Corbett submitting that a finding on the respondents' exception may dissolve all the other issues, while Mr Coleman persisted that the respondents remained in contempt of the interdict granted by Hinrichsen AJ, even if the Supreme Court should find in favour of the respondents.

[11] At the conclusion of counsels' submissions the court reserved judgment on the first three issues and extended the Rule Nisi in respect of the contempt of court order to 21 January

2011.

[12] What is not in dispute is that a Notice of Appeal to the Supreme Court against the attachment order granted by Hinrichsen AJ had been filed. Whether the Supreme Court would regard that as an order that is appealable is of not a concern of this court. The respondents have prosecuted this appeal and a record of the proceedings in this court has been filed. Copy of that record was handed to the court during argument by Mr Coleman, without objection from Mr Corbett.

[13] As mentioned, a Notice of Appeal to the Supreme Court in respect of the interdict order was filed on 3 September 2009. However, this was done in addition to their application for leave to appeal in respect of the interdict order. This is the first issue that Mr Coleman argued on the basis of irregularity in terms of the Rule 30 application. Mr Corbett's explanation for this double-barrel action is that the respondents' wanted to make sure that their appeal will be heard by the Supreme Court and to avoid that the Supreme Court may refuse to hear the appeal without leave being granted by this court, they also applied for leave. Mr Coleman submitted that this argument holds no water. According to him the respondents knew they needed leave to appeal, which he submits cannot be granted, and that they never had any intention to prosecute the appeal that they noted on 3 September 2009. He submitted that the record that had been submitted to the Supreme Court was only in respect of the other appeal, namely against the attachment order and no similar record had been filed in time in respect of the interdict. According to him that proves that the respondents had no intention to prosecute that appeal and only took these steps as part of a design to frustrate the applicants.

[14] I have considered the arguments by both counsel in respect of the application for leave to appeal against the interdict order and the subsequent Rule 30 application of the applicants. I shall first deal with the application for leave to appeal.

Application for leave to appeal against the interdict order

[15]    In his judgment in respect of the attachment order Hinrichsen AJ said the following at

p2, [5]:

a) The decision must be final;
b) The decision must be definitive of the rights of the parties,
c) The decision must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

[18] The interdict was granted pending the finalisation of the action instituted by the appellants. It is not a permanent interdict and is not final. It is clearly an interim interdict by nature. The interdict does not comply with the requirements for an appealable order. In my opinion another court will not arrive at any other decision than the one of Hinrichsen AJ when he confirmed the Rule Nisi in respect of the interdict.

[19] Consequently, leave to appeal against the order of Hinrichsen AJ in case A224/2009, namely the interdict is refused. The applicants in this application for leave to appeal (the respondents) are responsible for the costs of the applicants (respondents in the application for leave to appeal).

Rule 30 application
[20] The applicants want the court to strike out the application for leave to appeal, alternatively the notice of appeal, or both. Their Rule 30 notice reads as follows:

[21] I have already attended to the application for leave to appeal as argued and declined to grant leave to appeal. Consequently, there is no need deal with it in terms of Rule 30. In respect of the notice of appeal this court has no authority to struck it or deal with it otherwise. It is a notice to the Supreme Court and only that court can attend to it. An application in terms of
Rule 30 of this Court's Rule is bad in law in respect of proceedings in and before the Supreme Court.

[22] The appellants' contention concerning the motive of the respondents in bringing an application for leave to appeal and thereafter filing a notice of appeal in the Supreme Court, as well as that it is evident that the respondents have no intention to proceed with he latter, may have merit. However, in the light of what has been stated above, regarding this court's jurisdiction in respect of a notice of appeal to the Supreme Court, the application for leave is not an irregular step. This court has already dealt with it and has refused to grant such leave.

[23] The application in terms of Rule 30 is therefore refused. In the light of my decision to grant leave, no order of costs is made in respect of the Rule 30 application.

[24] The court has to consider whether to confirm or discharge the Rule Nisi in the contempt application granted on 21 August 2009 and extended until November 2010. Although there is only one respondent in this matter, Sebata, I shall refer to the parties as applicants and respondent.

[25] It is common cause that the applicants obtained a Rule Nisi in respect of the interdict against all respondents in that application, including the respondent Sebata, on 2 July 2009.
That Rule Nisi was confirmed on 16 July 2009. There can also be no doubt that the respondent and its legal representatives were aware of these court orders. That Rule Nisi is an order of this court and has not been set aside.

[27] Despite the interdict and objections contained in several letters written by the applicants to the respondents, the latter persisted to contravene the interdict and continued to infringe the rights of the applicants. There is no doubt that it did so not only with the knowledge of the respondents' legal representatives, but also with the latter's' active participation. Examples of the respondents conduct are contained in annexures to the applicants' founding affidavit. There were also active approaches by the respondent through its employees to clients of the applicants. The applicants also averred that the respondent misrepresented the factual and legal positions to certain clients (local authorities and municipalities).

[29] As a result of the respondent's conduct the applicants applied for the committal of the respondent for contempt of court on 20 August 2009. The respondent was apparently legally represented in court on 21 August 2009 when the order was granted. The following order was granted:

1. That the forms and service provided for in the Rules of Court is dispensed and that this matter is heard as urgent application as contemplated in Rule 6 (12) of the Rules of Court.

2.1. Declaring that the respondent is in contempt of the order of this Honourable Court handed down on 16 July 2009;
2.2. Convicting the respondent of contempt of Court;
2.3. Sentencing the respondent to a fine of N$1 million or such other punishment as the Court may deem fit;
2.4. ordering the respondent to pay the costs of this application on a scale as between legal practitioner and client.
3.       That prayer 2.1 operates as an interim order with immediate effect."

[31] Before dealing with the factual situation it is necessary to look at the applicable law pertaining to proceeding pertaining to a committal for contempt of court.

"[41] Finally, as pointed out earlier (in para [23]), this development of the common law does not require the applicant to lead evidence as to the respondent's state of mind or motive: Once the applicant proves the three requisites (order, service and non-compliance), unless the respondent provides evidence raising a reasonable doubt as to whether non-compliance was wilful and mala fide, the requisites of contempt will have been established. The sole change is that the respondent no longer bears a legal burden to disprove wilfulness and mala fides on a balance of probabilities, but need only lead evidence that establishes a reasonable doubt. It follows, in my view, that Froneman J was correct in observing in Burchell (in para [24]) that, in most cases, the change in the incidence and nature of the onus will not make cases of this kind any more difficult for the applicant to prove. In those cases where it will make a difference, it seems to me right that the alleged contemnor should have to raise only a reasonable doubt.

[42] To sum up:
a) The civil contempt procedure is a valuation and important mechanism for securing compliance with court orders, and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements.
b) The respondent in such proceedings is not an 'accused person', but is entitled to analogous protections as are appropriate to motion proceedings.
c) In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and mala fides) beyond reasonable doubt.
d) But, once the applicant has proved the order, service or notice and non-compliance, the respondent bears an evidential burden in relation to wilfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond reasonable doubt.
e) A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities."

"They argue that the law is invalid, but unless and until these courts declare it to be so, they must obey it. They cannot stipulate for an undertaking as the price of their obedience. They must obey and argue afterwards." 

"In pressing the point in limine on behalf of the respondent, Mr Boesak reminded the court of the dire consequences to the administration of justice and the maintenance of order in society of orders of court are disregarded with impunity. Recognising the considerations of public policy which underline the need to respect and comply with orders of that kind, the court said in Sikunda v Government of the Republic of Namibia and Another 2001 (2) NR 86 (HC) at 92D-E:
'Judgments, orders, are but what the courts are all about. The effectiveness of a court lies in execution of its judgments and orders. You frustrate or disobey a court order you strike at one of the foundations which established and founded the State of Namibia. The collapse of a rule of law in any country is the birth to anarchy. A rule of law is a cornerstone of the existence of any democratic government and should be proudly guarded.'

Authority for this approach is also to be found in a case both parties drew the court's

attention to. In Kotze v Kotze 1953 (2) SA 184 (C) Herbstein J said at 187F:
'The matter is one of public policy which requires that there shall be obedience to orders of court and that people should not be allowed to take the law into their own hands.'

It is for these reasons that Froneman J pointed out in Bezuidenhout v Patensie Sitrus

Beherend Bpk 2001 (2) SA 224 (E) at 229B-D:

These propositions apply with equal force to orders relating to the custody and control of minor children. This much was recognised by Herbstein J in Kotze's case supra at 187D-E: 'A similar question has recently been dealt with in England in the of Hadkinson v Hadkinson 1952 (2) All ER 567 Romer LJ gave the main judgment and inter alia said: "It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it, unless and until that order is discharged." He went on to say that two consequences flow from that obligation:
"The first is that anyone who disobeys an order of court is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to court by such person will be entertained unless he has purged himself of his contempt."

[37] This court confirmed a Rule Nisi on 16 July 2009 in terms whereof the respondents (and others) were interdicted to refrain from certain acts. They did not despite several warnings by the applicants that they were in contempt of court and continued with the conduct that the court order forbids. This led to the applicants' application for committal for contempt of court and the Rule Nisi that was issued in that regard on 21 August 2009. However, despite that order the respondent still continued with the same contempt and as pointed out before, the respondents' legal representatives purported to put the record straight on 16 September 2009, but withheld important information, i.e. the order of 21 August 2009.
[38] The respondent attempted to hide behind the guise of legal advice for its conduct. That excuse is seems very lame to me. Even before the Rule Nisi in the contempt application and
rd

2009.

[42] Returning to the first stage, namely the period between 16 July and 21 August 2009, the defence of bona fides, because of respondent's reliance on legal advice might have had some merit, was it not for persistence with the same attitude as was revealed in second stage. That conduct indicates in my view that the respondent was wilful and mala fide during the first stage also. The respondent's attempt to hide behind the so called "legal advice" is merely a guise. The respondent did not intend to abide by the court's order. It never had the intention to comply with the interdict and its clear disregard of the Rule Nisi in respect of contempt is an illustration of this attitude that was disclosed by its letters to the clients of the applicants.

[44]    In the circumstances the Rule Nisi granted on 21 August, as extended, is confirmed.
[45] Simultaneously with its answering affidavit the respondent also filed a counter-application based on the cancelation of the contract between the parties. The respondent prays for a declaratory order to the effect that the contract had been cancelled. It is obvious that the court cannot make such an order at this stage as it would require a decision on the merits of the litigation instituted after the attachment order was made. No decision will consequently be made in respect of the counter-application, which appears to be nothing more than a smoke screen in the light of the respondent's contempt of the orders of this court.

Exception
[46] In the light of the court's decision to confirm the Rule Nisi issued on 21 August 2009, the respondent is in contempt of court. As long as that order is not complied with the respondent's hands are dirty and no legal proceedings can be conducted by the respondent in this court. The respondent is either a crucial or only relevant defendant in the exception. The exception can therefore also not be entertained by this court at this stage.

[47] Even if the court is wrong in respect of the aforegoing, the exception cannot be entertained because it is purely academic at this stage in the light of the respondents' (who are the exciplints in the main action) notice of appeal against the attachment order.

[48] Although I refused to grant leave to appeal against the interdict, there is still a pending appeal against the order of Hinrichsen AJ regarding the attachment. If that appeal should succeed and the judgment of Hinrichsen AJ in case A220/2009 is set aside, the effect is that applicants did not have jurisdiction to sue the respondents and the litigation instituted by the applicants (as plaintiffs) against the respondents (as defendants) will also be set aside (or withdrawn) because of lack of jurisdiction. Consequently, the exception also falls away.

[49]    In my opinion a decision on the exception would be purely academical at this stage.

[50] Consequently, no decision is made at this stage in respect of the respondents' (defendants') exception to the applicants' (plaintiffs') particulars of claim, supported by further particulars, including costs. The exception will be struck from the roll.

[50]    In the result the following orders are made:
1. The application for leave to appeal against the order of Hinrichsen AJ in case A224/2009 is refused with costs, such costs, including the costs of one intructing and two instructed counsel, have to be paid by the respondents, jointly and separately, the one paying the other to be absolved;
2. The Rule 30 application is dismissed and no order of costs is made;

4. The exception by the respondents (as defendants) against the applicants' (as plaintiffs') amended particulars of claim, as amplified by amended further particulars, in case I2738/2009 is struck from the roll and no order as to costs is made.

MULLER J

ON BEHALF OF THE APPLICANTS: 						Adv. Coleman 					

Assisted by: 									Adv. Dicks 

Instructed by:								ELLIS & PARTNERS

ON BEHALF OF THE RESPONDENTS:					Adv. Corbett 

Assisted by: 									Mr. Silver

Instructed by:						FISHER, QUARMBY & PFEIFER