Mbakile and Another v Urayeneza (HC-MD-CIV-MOT-GEN-2023/00062) [2024] NAHCMD 217 (8 May 2024)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
Case number: HC-MD-CIV-MOT-GEN-2023/00062
In the matter between:
ARCHIE MBAKILE			FIRST APPLICANT
ZIBO MBAKILE			SECOND APPLICANT
and
PATRICE URAYENEZA			RESPONDENT
Neutral citation:		Mbakile v Urayeneza (HC-MD-CIV-MOT-GEN-2023/00062) [2024] NAHCMD 217 (8 May 2024)
Coram:	DE JAGER AJ
Heard:	12 March 2024
Delivered:	8 May 2024

Flynote: Contempt of court – Unlawful and intentional disobedience of a court order is a crime that violates the dignity, repute and authority of the court which the rule of law, a founding value of the Constitution of the Republic of Namibia, requires to be maintained together with the court’s capacity to carry out its functions – Elements to be proved beyond reasonable doubt if a criminal sanction is sought – The order, service or notice, non-compliance, willfulness and mala fides – If the first three elements are proved, the respondent bears an evidential burden to the fourth element and should he fail to establish a reasonable doubt therein, contempt of court is established beyond reasonable doubt – Civil remedies’ standard of proof is a balance of probabilities.

Court orders – Stand until set aside by a court of competent jurisdiction – Until then, they must be obeyed even if they may be wrong and notwithstanding the effect they may have on others’ interests.

Summary: The applicants seek an order directing and compelling the respondent to comply with a certain court order within ten calendar days, that the respondent be found to be in contempt of that court order and committed to prison for 90 days suspended for one year provided the respondent complies with the court order within ten calendar days and, if the respondent fails to comply with the order sought, that the applicants be allowed to approach the court, on the same papers, supplemented as necessary, for an order committing the respondent to prison. The court order was issued on 20 July 2020. The respondent knows about the court order. According to the applicants, the respondent, without valid reason, failed to comply with the court order. The respondent says there are valid reasons why it became impossible to comply with the court order as events overtook it and holds the position that the applicants failed to establish the requisites for civil contempt, they did not meet the burden of proof required to demonstrate that contempt exists and that it was willful and mala fide. The respondent, as a point in limine, raises the defence of non-joinder of a company and private individual who were parties to the proceedings which resulted in the court order but who were not joined as parties to the current proceedings and who he says have a direct and substantial interest in the matter. The court order was only made against the respondent, not the company or the private individual.

Held that the unlawful and intentional disobedience of a court order is a crime that violates the dignity, repute and authority of the court, and the rule of law, a founding value of the Constitution of the Republic of Namibia, requires that the dignity and authority of the courts and their capacity to carry out their functions should be maintained.

Held that the elements for contempt of court, which an applicant must prove beyond reasonable doubt if a criminal sanction is sought, are the order, service or notice, non-compliance, and willfulness and mala fides. However, when an applicant proved the order, service or notice and non-compliance, the respondent bears an evidential burden to the willfulness and mala fides component, and should he fail to advance evidence that establishes a reasonable doubt as to whether the non-compliance was willful and mala fide, contempt of court is established beyond reasonable doubt. For civil remedies, the standard of proof is a balance of probabilities.

Held that the court order, which was made against the respondent while the company and the private individual were parties to those proceedings, stands until set aside by a court of competent jurisdiction, and until that is done, the court order must be obeyed even if it may be wrong and notwithstanding the effect it may have on the company’s interests or that of the private individual even if they may have a direct and substantial interest in the subject matter of the application before the court. The application before the court does not concern the private individual, and based on the respondent’s papers, the company knows about the application. The non-joinder defence is not upheld.

Held that the court order issued on 20 July 2020, which the respondent knows about, was not complied with, the applicants established the first three elements for contempt of court beyond reasonable doubt, and the respondent bears the evidential burden for the requirement of willfulness and mala fides and, should he fail to advance evidence establishing a reasonable doubt as to that requirement, contempt of court will be established beyond reasonable doubt.

Held that the respondent’s statements, coupled with his understanding of the law of property and the effect of the company’s resolution of 17 August 2020, indicate a possibility that he misunderstands the court order and or that he genuinely, albeit mistakenly or unreasonably, believes he is entitled to act the way he does and that raises doubt whether his conduct is willful and mala fide. As a result, the contempt of court prayer and the attached criminal sanction sought cannot succeed.

Held that the respondent must nevertheless comply with the court order, the directory orders sought succeed, and the respondent is given a stern message.

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ORDER

_______________________________________________________________

1. The respondent is directed and compelled to comply with the court order dated 20 July 2020 under case number HC-MD-CIV-MOT-GEN-2020/00169 within ten calendar days of the date of this order and to notify the first applicant in writing immediately upon having done so.

2. If the respondent fails to comply with the court order dated 20 July 2020 within ten calendar days of the date of this order, the applicants may approach the court on the same papers, supplemented as necessary, for a declarator that the respondent is in contempt of court and for an order, suspended or otherwise, that he be committed to prison.

3. The respondent shall pay the costs of this application but while the applicants did not have legal representation, those costs are limited to the applicants’ disbursements.

4. The matter is finalised and removed from the roll.

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JUDGMENT

_______________________________________________________________

DE JAGER AJ:

Introduction

[1] The applicants, in their notice of motion, seek an order directing and compelling the respondent to comply with a court order dated 20 July 2020 within ten calendar days and to notify the applicants’ legal practitioners of record in writing immediately upon having done so, and that the respondent be found to be in contempt of that court order and committed to prison for 90 days which committal is suspended for one year provided the respondent complies with the court order within ten days and, if the respondent fails to comply with the order sought, that the applicants be allowed to approach the court, on the same papers, supplemented as necessary, for an order committing the respondent to prison. The applicants also seek costs from the respondent. The respondent raises the defence of non-joinder and opposes the application on the basis that the applicants failed to establish the requirements for contempt of court.

[2] After the application was set down for hearing but before the hearing date, the applicants’ legal practitioners of record withdrew as their legal practitioners of record.

[3] On the hearing date and after the court alerted the first applicant that under prayer one of the notice of motion, the applicants pray that the written notification that the court order was complied with be directed to the applicants’ legal practitioners of record, the first applicant orally moved for an amendment to prayer one so that the written notification be directed to the first applicant instead of the applicants’ legal practitioners of record. The respondent had no objection to the amendment sought. The amendment sought is granted.

[4] The first applicant appeared in person and indicated that he would be representing the applicants. The second applicant did not appear. The court explained to the first applicant that since he is not a legal practitioner, he would not be able to make submissions on behalf of the second applicant. He understood and continued to argue the application on his own behalf. The respondent always had legal representation since the application was opposed.

The facts

[5] The application before the court was instituted in February 2023, and the facts thereto are as follows.

[6] The two applicants, Archie Mbakile and Zibo Mbakile, are spouses and business partners. They both were the applicants in civil proceedings launched in June 2020 on an urgent basis under HC-MD-CIV-MOT-GEN-2020/00169 (the spoliation application), which resulted in the court order dated 20 July 2020 forming the subject matter of the application now before the court. The respondent, Patrice Urayeneza, was the first respondent in the spoliation application, while the second respondent was Joel Mwatongwe, the third respondent was Native Bricks (Pty) Ltd (the company), and the fourth respondent was Standard Bank of Namibia. The applicants and the respondent hold shares in the company, and they are directors of the company. Joel Mwatongwe is an employee of the company.

[7] Under the court order dated 20 July 2020 (the court order), the respondent was:

(a) ordered to forthwith restore possession and control of the company’s premises (the premises) to the applicants.

(b) ordered to forthwith restore possession of the keys to a certain tipper truck and front loader with its keys to the applicants.

(c) ordered to allow the applicants access to a certain business account of the company at the Okahandja branch.

(d) interdicted and restrained from interfering with the involvement of the applicants in the operations and management of the company, including its bank accounts.

(e) interdicted from paying out money from the company’s account held with Standard Bank without the applicants’ involvement.

(f) ordered to pay the costs of the application.

[8] The respondent, Joel Mwatongwe and the company appealed against the court order, but the appeal was withdrawn on 1 September 2022. Surprisingly, the respondent says the applicants are disingenuous in enforcing the court order without acknowledging the appeal and its effect on the proceedings, and they omitted to mention the appeal in their application. The first applicant replies that the withdrawal of the appeal meant that as of that day, 1 September 2022, the respondent exhausted all channels to overturn the court order, and he flagrantly and persistently disregarded the court order for the past eight months (when the replying affidavit was deposed to in May 2023) since the appeal was withdrawn. The first applicant says the court order remains in force and effect.

[9] It is undisputed that the court order was made and that the respondent is aware of it. The deputy sheriff further served the court order on the respondent himself on 11 October 2022.

[10] According to the applicants, the respondent, without valid reason, failed and/or refused and continues to refuse to comply with and disobeys the court order, and he does so despite having been approached and requested by the first applicant to cooperate and comply with it. Save for the respondent’s statement in paragraph [10](c) below on the subject, which does not raise a genuine factual dispute, the respondent did not displace the applicants’ allegation that the court order was not complied with, and the respondent’s own papers are evidence of the non-compliance with the court order. The respondent, however, denies that he failed or refused to comply with the court order without valid reason. He says there are valid reasons why it became impossible to comply with the court order as events overtook it. The respondent claims:

(a) the court order was aimed at ensuring both parties could exercise their rights as directors without undue interference. It was not to grant the applicants exclusive possession and control of the premises and vehicles, and the respondent’s ‘legitimate interest and right to participate in the operations and management’ of the company cannot be denied based on the applicants’ wishes.

(b) he was unable to restore possession of the keys because the vehicles belong to the company and are critical assets for the company’s operations, not for the applicants’ sole or personal use. The respondent has no issue with the applicants using the vehicles for official purposes. He says if, through a properly constituted meeting of the company, it is resolved that the applicants should be given the keys to undertake any works of the company, there would be no problem handing the keys over to them.

(c) at a special board meeting of the company held on 17 August 2020, wherein the applicants were suspended from their duties pending an investigation involving the use of company property for personal benefit, it was resolved that an investigation be carried out to determine the full extent of the malpractice and it would be in everybody’s interest that the applicants be barred from any involvement in the management of the company until the investigation is over. As a result, so the respondent says, non-compliance with the court order cannot be attributed to him, and he is not able to ensure compliance with the court order as the applicants were suspended from their duties and barred from any involvement in the company’s management, which decision is unchallenged and extant. He further explains the applicants’ suspension and barring were done in good faith and for the company’s best interest and constitute reasonable and bona fide grounds for non-compliance with the court order. The respondent says he cannot be held in contempt of court for actions taken by the company’s board in the best interest of the company and its shareholders. He concludes the applicants’ conduct was so grave that it rendered the company inoperative, making it impossible to comply with certain aspects of the court order. The respondent does not identify those aspects, but he says the order interdicting and restraining him from interfering with the applicants’ involvement in the operations and management of the company was complied with as there was no interference by him since the court order was issued. The applicants deny that. They say the court order was not complied with as the respondent refuses to return possession of the premises, and he continues to make baseless allegations of illegal actions by the applicants. The respondent says the company has not been operating since an action was brought against the applicants under HC-MC-CIV-ACT-CON-2021/0046. The applicants point out that the action was instituted long after the court order was issued and has no bearing on it.

(d) to restore possession of the vehicles to the applicants alone would be unfairly prejudicial to the company and its operations and would not be in the best interest of the company and its stakeholders.

[11] According to the respondent, he attempted to resolve the issue and made genuine efforts to comply with the court order where possible and he did not act in a contemptuous manner. The respondent did not provide details on the efforts made to comply with the court order, but he nevertheless says his ‘inability to comply with it is not due to any refusal or disobedience, but rather due to the unavoidable circumstances previously outlined’, ‘genuine challenges and circumstances beyond his control’ and the applicants’ own conduct, and the court order being overtaken by ‘perfectly legal events’ in the company law ‘realm’. He also says he demonstrated a willingness to cooperate and actively engaged the applicants to resolve the issues and his transparency and openness to dialogue underscores his good faith and dedication to uphold the court’s directives. The respondent says the applicants’ lack of willingness to engage in discussion and find a mutually agreeable solution, which demonstrates a lack of good faith, should be considered when evaluating their claims of contempt and assessing the merits of their application.

[12] The respondent says that after the court order, the applicants visited the premises on various occasions, but the visits were disruptive and detrimental to the company’s operations. He says the applicants’ conduct during those visits demonstrates their lack of respect for the court order, the company and himself. He further says they interfered with the company’s operations by disrupting work and harassing employees and directors. As an example, he says the applicants opened a criminal case against Joel Mwatongwe and himself regarding the ‘very same issue’ and sought to have him arrested, which conduct is contrary to the spirit of the court order and inimical to the company’s interests and that of its stakeholders.

[13] According to the respondent, the applicants’ attempts to enforce the court order through the contempt of court application while simultaneously engaging in conduct that undermines the court order and the company’s operations is opportunistic and disingenuous. He says they should not be permitted to benefit from their own misconduct by seeking to hold him in contempt while disregarding the spirit and intent of the court order.

[14] The first applicant says the deputy sheriff could not execute the court order because the respondent refused and continues to blatantly refuse to cooperate with the deputy sheriff’s office.

[15] According to the applicants, the respondent willfully and mala fide persists in his failure and/or refusal to comply with the court order, and the respondent’s conduct is contemptuous and derogatory of the court’s dignity and the administration of justice. They say it is in the interest of the administration of justice and the rule of law that court orders are obeyed. They further say the respondent’s disobedience of the court order is a gross violation of the rule of law, and the court should not entertain any explanation or excuse for non-compliance until the respondent purges his contempt as all court orders, whether granted correctly or incorrectly, must be complied with until set aside.

[16] The applicants say they are prejudiced because the respondent is willfully depriving the applicants from exercising their rights, obligations, operations and management of the company and it is furthermore prejudicial to the company’s business.

[17] According to the respondent, the relief sought is inappropriate and unwarranted as the reasons for ‘any possible’ non-compliance are valid, bona fide and in the best interest of the company and its shareholders and contempt proceedings are not the appropriate forum to resolve the underlying disputes. The respondent refers to ongoing legal action under a different case number against the applicants, which is the appropriate forum to resolve the parties’ disputes, so he says. He further says the application is without merit and should be dismissed. According to the respondent, the applicants seek to circumvent the legal process through the contempt of court application to gain an unfair advantage in the pending legal proceedings.

The law on contempt of court proceedings

[18] The unlawful and intentional disobedience of a court order is a crime. It violates the dignity, repute and authority of the court. The rule of law, a founding value of the Constitution of the Republic of Namibia, requires that the dignity and authority of the courts and their capacity to carry out their functions should be maintained.¹

[19] The law on contempt of court proceedings is clear. The elements for contempt of court, which an applicant must prove beyond reasonable doubt if a criminal sanction is sought, are the order, service or notice, non-compliance, and willfulness and mala fides. However, when an applicant proves the order, service or notice and non-compliance, the respondent bears an evidential burden to the willfulness and mala fides component, and should he fail to advance evidence that establishes a reasonable doubt as to whether the non-compliance was willful and mala fide, contempt of court is established beyond reasonable doubt. For civil remedies, the standard of proof is a balance of probabilities.²

The determination

[20] As a point in limine, the respondent raises the first applicant’s omission to confirm the veracity of the contents of the founding affidavit and says it has a significant and detrimental impact. He says the founding affidavit cannot be relied on, and the omission warrants striking out the founding affidavit, dismissing the application, and imposing an adverse cost order. After the court, on the hearing date, referred the respondent’s legal practitioner to the certification by the commissioner of oaths, which clearly states that the deponent, in the presence of the commissioner of oaths, uttered the words ‘I swear that the contents of this Affidavit are true and correct, so help me God’, the respondent, wisely so, abandoned the first point in limine.

[21] The respondent raises a second point in limine that there is a non-joinder of the company and Joel Mwatongwe and labels it as a fatal defect to the application. He says both those parties have a direct and substantial interest in the matter and were part of the proceedings from which the court order emanated. He argues the company’s assets and management are central to the contempt allegations and relief sought by the applicants, and Joel Mwatongwe, as the company’s head of technical services and procurement and the sole employee who had access to the company’s accounts, has a vested interest in its operations and management and would be directly affected by the outcome of the application. The respondent says, in their absence, there is a risk that any order granted by the court may not be binding on them or may lead to inconsistent judgments in separate proceedings involving the same subject matter. On the defence of non-joinder, the respondent prays that the application be dismissed with costs.

[22] Before the court is an application for contempt of court by the respondent against the respondent. High Court r 74(1) provides that an application of the nature before the court must be made by way of application on notice of motion to the person against whom contempt of court is alleged. Even though there were four respondents in the spoliation application, the court order was only made against the respondent and only the respondent was ordered to do certain things and interdicted from doing certain things. The court made that order against the respondent in circumstances where Joel Mwatongwe and the company were parties to those proceedings. The court order stands until set aside by a court of competent jurisdiction, and until that is done, the court order must be obeyed, even if it may be wrong.³ The court order must be complied with by the respondent notwithstanding the effect it may have on the company’s interests or that of Joel Mwatongwe, and that is so even if they may have a direct and substantial interest in the subject matter of the application before the court, being the test for necessary parties to be joined to proceedings.

[23] The court proceeds to point out the following in respect of the parties who the respondent says must be joined to the proceedings.

[24] In reply, the first applicant states that Joel Mwatongwe is not a shareholder or director of the company. He says he is only an employee of the company, and the contempt application does not concern him. The court agrees with the first applicant in that regard.

[25] According to the respondent’s papers, in particular, the memorandum of a ‘duly constituted’ special board meeting of the company dated 17 August 2020, all the company’s directors and shareholders are parties to the application before the court. As such, the company knows about the application.

[26] The second point in limine is not upheld.

[27] The court now considers the merits of the application.

[28] The applicants first seek an order that the respondent be directed and compelled to comply with the court order. Secondly, they seek an order that the respondent be found to be in contempt of the court order. Thirdly, the applicants seek a criminal sanction in the form of the respondent’s committal to prison, albeit suspended. Provided the applicants prove the order, service or notice, and non-compliance beyond reasonable doubt, the second and third orders can only be granted if the respondent fails to advance evidence establishing a reasonable doubt whether the non-compliance was willful and mala fide because, for those orders, the standard of proof is beyond reasonable doubt.⁴

[29] It is common cause that the court order was indeed made, and the respondent knows about it. Regarding the third element that the court order was not complied with, the respondent repeatedly refers to an alleged non-compliance, but, as stated in paragraph [10] above, the respondent’s own papers are evidence of the non-compliance with the court order. The facts stated by the respondent, together with those averred by the applicant, which the respondent does not deny, point to the conclusion that the court order was not complied with. The court finds that the court order was not complied with, and the applicants established the first three elements for contempt of court beyond reasonable doubt.

[30] The respondent now bears the evidential burden for the requirement of willfulness and mala fides, and should he fail to advance evidence establishing a reasonable doubt as to that requirement, contempt of court will be established beyond reasonable doubt.

[31] The respondent submits the applicants failed to establish the requisites for civil contempt and they did not meet the burden of proof required to demonstrate that contempt exists and that it was willful and mala fide. He argues there was no intention to disobey the court order, and there is no willfulness or mala fides. The respondent contends the reasons for non-compliance illustrate the respondent did not intentionally or willfully disobey the court order and the non-compliance is reasonably explained by factors outside the respondent’s control. The respondent submits he genuinely and in good faith believes he is entitled to act as he does.

[32] The court, in various cases,⁵ referred to Fakie NO v CCII Systems (Pty) Ltd where it was stated that (footnotes omitted):⁶

‘The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed 'deliberately and mala fide'. A deliberate disregard is not enough, since the non-complier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith).’

[33] The facts set out in the affidavits must be considered on the accepted fact-finding test in motion proceedings as set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd.⁷ Bare denials and fictitious disputes aside, the matter must be decided on the facts stated by the respondent together with those the applicants aver which the respondent does not deny.⁸

[34] The following statements by the respondent, coupled with his understanding of the law of property and the effect of the company’s resolution of 17 August 2020 set out in paragraph [34](e) below, indicate a possibility that he misunderstands the court order and or that he genuinely, albeit mistakenly or unreasonably, believes he is entitled to act the way he does:

(a) The court order was not to grant the applicants exclusive possession and control of the premises and vehicles. It was to ensure that both parties could exercise their rights as directors. The respondent’s position appears to be that if he complies with the court order, he would be giving the applicants exclusive possession and control of the premises and vehicles, and that is not what the court order intended, and thereby, it appears he misunderstands the court order.

(b) As director and shareholder of the company, the respondent has a legitimate interest and right to participate in the company’s operations and management. The company’s memorandum of incorporation protects the respondent’s rights, and he is entitled to exercise those rights for the company’s benefit. The respondent’s position appears to be that if he complies with the court order, he would be giving away those rights, and thereby, it appears he misunderstands the court order.

(c) The respondent is unable to restore possession of the keys to the tipper truck and the front loader because they belong to the company for its operations. He does not say that he does not have the keys. The respondent’s position appears to be that he cannot restore possession to the applicants because the assets belong to the company for its operations. He says if the company resolves that the applicants be given the keys to undertake the company's works, handing them the keys would be no problem.

(d) The respondent instituted a civil suit against the applicants, which matter is pending, and which matter the respondent believes is the appropriate forum to resolve the disputes between the parties.

(e) The applicants’ suspension from their duties, which emanates from the company’s resolution of 17 August 2020, demonstrates that ‘any alleged non-compliance’ with the court order cannot be attributed to him. He says he is not able to ensure compliance with the court order, as the applicants were suspended from their duties and barred from any involvement in the company’s management. The respondent’s position appears to be that because of the 17 August 2020 resolution, he cannot comply with the court order.

[35] On the other hand, the following indicates a possibility that the respondent’s conduct is willful and mala fide:

(a) Notwithstanding the benefit of legal representation, the respondent overlooks the purpose of contempt of court proceedings (which is to enforce a court order), continues to disobey the court order, and accuses the applicants of circumventing the legal process to gain an unfair advantage in the pending civil suit, of being disingenuous in enforcing the court order without acknowledging the appeal and its effect on the proceedings (which appeal was withdrawn in September 2022 already), and of being unwilling to engage in discussion and find a mutually agreeable solution.

(b) The respondent took the resolution of 17 August 2020 after the applicants decided not to participate in the meeting of 17 August 2020. After the court order was issued, the respondent created the excuses put up for non-compliance with the court order. The respondent says the applicants’ suspension and barring from the company’s management was done in good faith and in the company’s best interest, but the board, which represents 55 per cent of the company’s shareholding, which, according to the respondent’s papers, is the respondent himself, deemed it necessary to protect the company from potential further harm and financial loss. The respondent says he cannot be held in contempt of court for actions taken by the company’s board, who is the respondent himself. The respondent himself created the events and unavoidable circumstances beyond the respondent’s control, which he says overtook the court order.

(c) From the respondent’s papers, the court gathers that the only efforts made by the respondent to comply with the court order were requests to meet, discuss the challenges and seek an amicable resolution.

[36] The court expresses its displeasure with the respondent’s conduct, but what the respondent says, rightly or wrongly, shows that, in his mind, he is entitled to act the way he does, and that raises doubt whether his conduct is willful and mala fide. As a result, the prayers that the respondent is in contempt of court and the criminal sanction attached thereto cannot succeed.

[37] However, that does not mean that the respondent is off the hook, that he need not comply with the court order, or that the non-compliance may continue. The respondent must comply with the court order. A case is made for the directory orders sought, and they should succeed. What follows is a stern message to the respondent to be carefully noted and acted upon. Dr Patrice Urayeneza:

(a) A court order was issued on 20 July 2020. You were ordered to forthwith restore possession and control of the premises of Native Bricks (Pty) Ltd to the applicants. You were ordered to forthwith restore possession of the keys to the tipper truck and the front loader with its keys to the applicants. You were ordered to allow the applicants access to the business account 6000220141 of Native Bricks (Pty) Ltd at the Okahandja branch. You were interdicted and restrained from interfering with the involvement of the applicants in the operations and management of Native Bricks (Pty) Ltd, including its bank accounts. You were interdicted from paying out money from the Native Bricks (Pty) Ltd account held at Standard Bank without the applicants’ involvement. Lastly, you were ordered to pay the costs of that application.

(b) You know about the court order.

(c) You did not comply with the court order.

(d) The reasons set out in your answering affidavit do not entitle you to disregard the court order.

(e) Notwithstanding the reasons set out in your answering affidavit, you must comply with the court order dated 20 July 2020 under HC-MD-CIV-MOT-GEN-2020/00169 within ten calendar days of the date of this order and judgment and notify the first applicant in writing immediately upon having done so.

(f) If you fail to do so, the applicants may approach the court for a declarator that you are in contempt of court and an order that you be committed to prison, suspended or otherwise.

(g) Your disregard of the court order is unacceptable.

(h) The court will not tolerate non-compliance with the court order.

(i) Any further non-compliance with the court order may result in a declarator that you are in contempt of court and that you be imprisoned, suspended or otherwise.

[38] The applicants should not have needed to approach the court to enforce the court order through contempt of court proceedings. The respondent should pay the costs of the application. While the applicants did not have legal representation, those costs should be limited to the applicant’s disbursements.

Conclusion

[39] In conclusion, it is ordered:

1. The respondent is directed and compelled to comply with the court order dated 20 July 2020 under case number HC-MD-CIV-MOT-GEN-2020/00169 within ten calendar days of the date of this order and to notify the first applicant in writing immediately upon having done so.

2. If the respondent fails to comply with the court order dated 20 July 2020 within ten calendar days of the date of this order, the applicants may approach the court on the same papers, supplemented as necessary, for a declarator that the respondent is in contempt of court and for an order, suspended or otherwise, that he be committed to prison.

3. The respondent shall pay the costs of this application but while the applicants did not have legal representation, those costs are limited to the applicants’ disbursements.

4. The matter is finalised and removed from the roll.

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B de Jager

Acting Judge

APPEARANCES
FIRST APPLICANT:	A Mbakile The first applicant in person
RESPONDENT:	N Mhata Of Nambili Mhata Legal Practitioners, Windhoek