R REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: I 3956/2009
In the matter between:
STANDARD BANK NAMIBIA LIMITED JUDGMENT CREDITOR/APPLICANT
and
AUGUST MALETZKY JUDGMENT DEBTOR/RESPONDENT
Neutral citation: Standard Bank Namibia Limited v Maletzky (I 3956/2009) [2013] NAHCMD 68 (12 March 2013)
Coram: PARKER AJ
Heard: 12 February 2013
Delivered: 12 March 2013
Flynote: Contempt of court – Civil contempt of court – Civil contempt of court is proved where act complained of is done willfully and is done in derogation of the court’s dignity or due administration of justice.
Summary: Contempt of court – An act done in derogation of the court’s dignity or in derogation of due administrative of justice is civil contempt if done willfully – In instant case respondent/judgment debtor refused or failed to obey a court order – General principle underlying civil contempt in The Minister of Education and the Government of the Republic of Namibia v The Interim Khomas Teachers Strategic Committee and All Persons Forming Part of the Collective Body of First Respondent and Others Case No. LC 166/2012 (Unreported) applied – Upon applying the general principle court found that the respondent/judgment debtor’s refusal or failure to obey the 31 July 2012 is contempt of court – Accordingly, respondent/judgment debtor found guilty of contempt of court.
ORDER
The respondent/judgment debtor is found guilty of contempt of court.
Imposition of sentence is to stand over until I have heard evidence or statements in mitigation of sentence.
JUDGMENT
PARKER AJ:
[1] The provenance of the present proceedings lies in an order granted on 31 July 2012 by my Brother Kauta AJ (‘the 31 July 2012 order’) in the following terms:
‘1. The Rule 45(12)(h)(i) and (j) application is postponed for a full financial enquiry on the 27 SEPTEMBER 2012 at 10H00; the Respondent is warned to appear in this court on that date.
2. The Respondent is ordered to provide to the Applicant the following documents on or before the 29 AUGUST 2012:
(a) His monthly pay slips for the past year;
(b) His bank statement for the past year;
(c) His monthly income and expenses for the past year.
3. The Respondent is ordered to pay the costs of this application, such costs to include one instructed and one instructing counsel.’
[2] The aforementioned proceedings before my Brother Kauta AJ were rule 45 (of the rules of court) proceedings. The rule 45 proceedings were fully argued. Judgment was granted in that regard culminating in the 31 July 2012 order. It is important to note that a fully reasoned judgment was delivered in the proceeding on 31 July 2012. The present contempt proceedings arise from the failure or refusal of the respondent/judgment debtor to obey the 31 July 2012 order.
[3] In the course of events, on 17 January 2013 in proceedings presided over by my Brother Damaseb JP, Mr Van Vuuren, counsel for the applicant/judgment creditor, and the respondent/judgment debtor, acting in person, appeared. After hearing Mr Van Vuuren and the respondent/judgment debtor, my Brother Damaseb JP came to the following conclusion:
‘Mr Maletzky prima facie I am satisfied you are in contempt of Court, you did not comply with a Court Order and that is a very, very serious matter. It is not a question of whether you have informed the other side about what you intend or did not do, the Court is entitled to know why you are not complying with its Order.’
The learned Judge President continued:
‘I want a transcript of these proceedings produced and I want to have full argument on this issue because Mr Maletzky I am and I mentioned it, prima facie satisfied that you are in contempt of a Court Order and I want you to take that seriously. [---- Yes My Lord.]
And I want you to address me properly on all those issues. You know what the concern is that I have expressed?’
[4] It follows – as a matter of course – that the purpose of today’s proceeding (ie 12 February 2013) is for Mr Van Vuuren and the respondent/judgment debtor to address this court ‘on all those issues’. Thus the burden of this court in the present proceedings is to hear sufficient explanation which the respondent/judgment debtor may put forth for not obeying the 31 July2012 order so as to persuade this court not to hold that the aforementioned prima facie view of my Brother Damaseb JP should become conclusive. It follows that I am not interested in, and I should not concern myself with, what happened or did not happen to the respondent/judgment debtor on any other day, eg 8 November or 22 November 2012 which the respondent/judgment debtor as the respondent/judgment debtor submitted before this court. Indeed, the Warrant of Arrest issued by the court on 27 September 2012 speaks for itself. It commanded the Deputy Sheriff for the District of Windhoek ‘to apprehend’ the respondent/judgment debtor –
‘and bring him before this Court at 10h00 in the forenoon on 25th day of October 2012 to answer to a charge of Contempt of Court for failure to appear in Court on 27th day of September 2012 as set out in the Applicant’s Rule 45 Notice, the Respondent/Judgment Debtor was warned on the 31st day of July 2012 to appear in Court, and to abide the judgment of this Court thereon: …. ’
[5] From the papers filed of record, including the transcript of the hearing on 17 January 2013, and submissions by Mr Van Vuuren and the respondent/judgment debtor, it is beyond all doubt that the respondent/judgment debtor, as Mr Van Vuuren submitted, has refused or failed to obey the 31 July 2012 order; and that constitutes contempt of court. The respondent/judgment debtor does not controvert Mr Van Vuuren’s submission. I did not hear the respondent/judgment debtor that, pace Mr Van Vuuren, he did obey the 31 July 2012 order.
[6] I applied the general principle of civil contempt of court in the recent case of The Minister of Education and The Government of the Republic of Namibia v The Interim Khomas Teachers Strategic Committee and All Persons Forming Part of the Collective Body of the First Respondent and Others Case No. LC 166/2012 (judgment on 5 December 2012) (Unreported). There, I stated:
‘[6] The general principle is that a party to a civil case against whom a court has given an order and who intentionally refuses to comply with the order commits contempt of court. And in this regard it has been said that contempt of court procedure is a means of enforcing performance of a judgment. See Cape Times Ltd v Union Trades Directories (Pty) Ltd and Others 1956 (1) SA 105 (N). Thus, punishment for civil contempt per se must always be for the purpose of coercing the offender to do or refrain from doing something in accordance with an order obtained against him or her, and not be merely punitive.’
[7] In the instant proceeding it is my firm view that the respondent/judgment debtor’s failure or refusal to obey the 31 July 2012 order is willful (see The Minister of Education and The Government of the Republic of Namibia); and no acceptable and sufficient facts have been placed before the court by the respondent/judgment debtor to explain the willful failure and refusal to obey the 31 July 2012 order. Thus, I find that the respondent/judgment debtor’s act is done in derogation of the court’s dignity or in derogation of due administration of just, and the act is done willfully.
[8] What the respondent/judgment debtor placed before this court relating to the events bearing on 8 and 22 November 2012 (or any other dates) are irrelevant in the present proceedings: they may (and I emphasize ‘may’) be relevant when an appropriate sentence is being considered for the respondent’s/judgment debtor’s contempt of court. It needs hardly saying that the 31 July 2012 order was granted before those dates: those dates do not relate to the 31 July 2012 order.
[9] Thus, the irrefragable fact, as I have said previously, is that the respondent/judgment debtor has not obeyed the 31 July 2012 order: he has, therefore, willfully set at naught and treated with contempt the 31 July 2012 order made by the court. In sum, the 31 July 2012 order has been contumaciously set at naught and the offender (the respondent/judgment debtor) cannot square it with the applicant/judgment creditor who has obtained the order and save himself from the consequences of his contumacious act. (See The Minister of Education and Another v The Interim Khomas Teachers Strategic Committee and All Persons Forming Part of the Collective Body of the First Respondent and Others para 10.)
[10] For all the aforegoing reasoning and conclusions I conclude that the conduct of the respondent/judgment debtor must be condemned as contumacious of the 31 July 2012 order by finding him guilty of contempt of court. His conduct is clearly willful, as I have found previously.
[11] Accordingly, I find that a case has been made out for the prima facie view of my Brother Damaseb JP to become conclusive. I, therefore, find the respondent/judgment debtor guilty of contempt of court, and so I commit him for contempt. What remains is the imposition of an appropriate sentence; and sentence will be imposed after hearing evidence or statements in mitigation of sentence.
[12] In the result, I make the following order:
The respondent/judgment debtor is found guilty of contempt of court.
Imposition of sentence is to stand over until I have heard evidence or statements in mitigation of sentence.
----------------------------
C Parker
Acting Judge
APPEARANCES
PLAINTIFF : A Van Vuuren
Instructed by Behrens & Pfeiffer, Windhoek
DEFENDANT: In person