Court name
High Court Main Division
Case number
APPEAL 52 of 2010
Title

Hailulu v Prosecutor General and Others (APPEAL 52 of 2010) [2014] NAHCMD 151 (30 April 2014);

Media neutral citation
[2014] NAHCMD 151
Coram
Van Niekerk J










REPUBLIC OF
NAMIBIA





HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
No A 52/2010





DATE:
30 APRIL 2014





NOT
REPORTABLE





In the matter
between:





VINSON
HAILULU.........................................................................................APPLICANT





And





THE
PROSECUTOR-GENERAL..................................................FIRST
RESPONDENT





THE
ANTI-CORRUPTION COMMISSION..........................SECOND
RESPONDENT





THE DIRECTOR:
ANTI-CORRUPTION


COMMISSION............................................................................THIRD
RESPONDENT





THE REGIONAL
COURT MAGISTRATE,


WINDHOEK.............................................................................FOURTH
RESPONDENT





THE MINISTER OF
SAFETY AND SECURITY.......................FIFTH
RESPONDENT





Neutral citation:
Hailulu v The Prosecutor-General (A52-2010) [2014] NAHCMD 151 (30
April 2014)





Coram: VAN
NIEKERK J





Heard: 3 March
2010





Delivered: 30
April 2014





Flynote: Contempt
of court – Alleged disobedience to court order – If
contempt continuing the hearing of an application in contempt
proceedings may be rendered urgent – Correct approach is to
analyse affidavits to consider whether respondents are in fact
continuing to commit contempt of court – In casu no case for
contempt made out – Other relief claimed also not urgent –
Application struck with costs.











ORDER








The application
is struck from the roll with costs.





JUDGMENT





VAN NIEKERK J:





Introduction





[1] During 2007 –
2008 the second respondent, the Anti-Corruption Commission
(hereinafter ‘the ACC’) initiated and pursued an
investigation against the applicant on 12 charges under the
Anti-Corruption Act, 2003 (Act 8 of 2003). As a result of this
investigation the ACC arrested the applicant during November 2008 and
initiated criminal proceedings against him. The applicant was
released on stringent bail conditions pending the finalization of the
investigation.





[2] During February
2009 the applicant launched an application in this Court (in Case No
A383/2008) in which he cited the following parties: the Director of
the ACC (as the first respondent) (‘the Director’), the
ACC (as the second respondent), the National Union of Namibian
Workers (as the third respondent) and the magistrate of Windhoek (as
the fourth respondent). The applicant sought, inter alia, (i) the
review of certain decisions by the Director and the ACC in Case No
A383/2008; (ii) a declaration that his arrest had been unlawful;
(iii) a declaration that section 43(2) of Act 8 of 2003 is
unconstitutional; and (iv) a declaration that the criminal
proceedings instituted against him in November 2008 were invalid.





[3] On 9 February
2009 Swanepoel AJ (as he then was) on an urgent basis granted certain
interim relief as set out in prayers 2, 3, 4, and 6 of Part A of the
notice of motion with immediate effect, pending the finalization of
the main application for the relief mentioned in paragraphs (i) –
(iv) above. The effect is that the interim relief granted reads as
follows (some obvious typing errors in the notice of motion have been
corrected):





‘2. Reviewing
and setting aside the decision in terms of section 18(1)(b) of the
Anti-Corruption Act, No 8 of 2003 (“the Act”) to conduct
an investigation of the allegations against applicant, on grounds,
each such ground being an independent basis for the relief sought by
applicant on this prayer, that:





2.1 The Director of
the Anti-Corruption Commission (such Commission hereinafter referred
to as “the ACC”), or the party within the ACC responsible
for such decision, failed to take the provisions of section 18(2) of
the Act, in particular section 18(2)(a), (b) and (d), into
consideration prior to coming to its decision;





2.2 The allegations
against applicant did not amount to evidence of any involvement in
any “corrupt practice” as contemplated by sections 33 to
48 of the Act, as a consequence whereof the decision to investigate
the allegations against the applicant was ultra vires the powers and
duties of the ACC as circumscribed by section 3(a), or any of the
other subsections of section 3 of the Act;





2.3 The decision was
prompted by ulterior motives, and was taken in bad faith and for
purposes of achieving the unlawful aim of undoing or reversing the
retrenchment of former employees of the National Housing Enterprise
(hereinafter “the NHE”) outside the scope of the legal
remedies available to achieve such objective, and/or the unlawful aim
of removing the applicant from his position as chief executive
officer of the NHE;





2.4 No rational and
legitimate connection existed between the decision to investigate
applicant, purportedly taken in terms of the provisions of section
18(1)(b), and the evidence presented to the ACC;





2.5 The decision was
not “warranted on reasonable grounds ”, as required by
the provisions of section 18(1)(b) of the Act.





3. Reviewing and
setting aside the decision of the first and/or second respondent in
terms of section 18(3) of the Act, that the investigation permitted
by the decision taken in terms of section 18(1)(b) was to be
conducted by the ACC, upon the grounds, each such ground being an
independent basis for the relief sought by applicant under this
prayer 3, that:





3.1 The threshold
requirement of a proper prior decision taken in terms of section
18(1)(b), for a valid decision in terms of section 18(3), was not
complied with;





3.2 The decision in
terms of section 18(3) was prompted by ulterior motives, and was
taken in bad faith and for purposes of achieving the unlawful aim of
undoing or reversing the retrenchment of former employees of the NHE,
and/or the unlawful aim of removing the applicant from his position
as chief executive officer of NHE;





3.3 No rational and
legitimate connection existed between such decision and the evidence
presented to the ACC;





3.4 Such decision
was not warranted on “reasonable grounds” as required by
section 18(3) of the Act.





4. Declaring the
Applicant’s arrest affected on 27 November 2008, to have been
unlawful, and setting any process issued by court as a result of the
Applicant’s arrest, the arrest effected on such date and the
bail conditions imposed upon applicant, aside, upon the grounds that,
each such ground being an independent basis for the relief sought by
applicant under this prayer 4:





4.1 The ACC, or any
party acting in terms of a purported delegation under the Act, or in
terms of a delegated power deriving from the Prosecutor-General, has
no powers to effect any arrest prior to any decision by the
Prosecutor-General taken in terms of the provisions of section 13(2)
of the Act, other than for purposes of arresting a person who is
found to have perpetrated a recent or contemporaneous offence in
terms of section 28 of the Act;





4.2 At the time of
the arrest on 27 November 2008, the Prosecutor-General had not taken
any decision as contemplated by section 31(2), and the applicant was
not found perpetrating a recent or contemporaneous offence as
contemplated by section 28 of the Act;





4.3 The decision to
arrest applicant, and the arrest itself, was prompted by the
considerations set out in prayer 2.3 above;





4.4 The arrest was
not intended to and could not serve the purposes of an arrest, namely
the arraigning of an accused person for trial on specific charges, as
no prior decision to prosecute applicant had been taken as at the
time of his arrest;





4.5 The ACC ignored,
in bad faith and prompted by the considerations set out in prayer 2.3
above, other measures not as severely infringing applicant’s
constitutionally entrenched right to liberty, that could have
achieved applicant’s presence in court, such as a summons, or a
warning to appear in court;





4.6 The contents of
the warrant of detention falsely stated that applicant was “arraigned
for trial on a charge of ... Count 1... contravening section 43(1) of
the Anti-Corruption Act...”, whilst no decision to prosecute
had been made;





4.7 None of the
charges investigated by the ACC amounted to an offence in terms of
section 43(1) of the Act, which section was falsely stated by the
warrant of detention to represent the offence with which the
applicant was charged;





4.8 In the absence
of any proper or lawful or legitimate decisions taken in terms of the
provisions of section 18(1)(b) and 18(3) of the Act, the threshold
requirements for the authority of the ACC to effect an arrest, namely
a validly established investigation, was absent, and the purported
arrest was ultra vires the powers of the ACC.





5.
...................................





6. Declaring invalid
the criminal proceedings instituted against the applicant in the
Magistrates Court, Windhoek.’





[4] It is common
cause in the application before me that, as a result of the
above-mentioned interim order, the criminal proceedings against the
applicant in the Windhoek magistrate’s court were withdrawn on
the instructions of the first respondent in the instant application,
the Prosecutor-General (‘the PG’), on 27 February 2009.





The relief sought





[5] On 15 February
2010, while the main application in Case No. A383/2008 was still
pending, a summons was served on the applicant to appear in the
regional court on 5 March 2010 on thirteen criminal charges which
were, except for the first count, by and large the same charges as
formed the subject matter of the criminal case that was withdrawn on
27 February 2009.





[6] This led to the
application before me in which the applicant seeks on an urgent
basis, inter alia, the following relief (the omissions and insertion
are mine):





‘2. Declaring
the first, second and third respondent to be in contempt of the order
of this Honourable Court dated 6 February 2009 ................, in
that:





2.1 first respondent
authorised and directed a criminal prosecution of applicant, as
evidenced by the summons annexed to applicant’s founding
affidavit as Annexure “V3”, contrary to the provisions
and in violation of the Court order dated 6 February 2009;





2.2 second and third
respondents conducted investigations and laid charges against
applicant in violation of such order, as reflected by the summons
referred to in paragraph 2.1 above.





3. Directing and
ordering first, second and third respondents to purge their contempt
of court on or before 5 March 2010, failing which applicant may apply
on the papers of this application, supplemented and/or amplified to
the extent necessary, for an order imposing such penalty(-ies), that
may include an order of punitive constitutional damages in favour of
the applicant, on each of the first to third respondents, as this
Honourable Court may deem fit;





4. Directing and
ordering that the summons reflected in annexure “V3” to
applicant’s supporting affidavit be set aside, and declared to
be of no effect whatsoever pending the finalisation of the
applicant’s review application launched under case A383/2008;





5. Directing and
ordering the criminal proceedings initiated by the above summons to
be invalid, and ordering that such criminal proceedings be set aside;





6. Restraining and
interdicting the respondents from taking any further action of
whatsoever nature, or from initiating any further proceedings of
whatsoever nature, based on the evidentiary matrix of any of the
investigations or charges contemplated by either case number
A383/2008, or by this application, or any of the counts set out in
annexure “V3” to applicant’s founding affidavit,
pending the finalisation of [the] review application ...... [under]
case A383/2008;’








[7] The PG, the ACC
and the Director oppose the application and filed answering
affidavits. The applicant filed no reply.





Urgency





[8] Before me
counsel for the respondents raised a point in limine that the
application is not urgent. In this regard the PG acknowledged in her
answering affidavit that matters involving contempt of court could,
in principle, be inherently urgent, particularly when the alleged
contempt is ongoing. However, the PG stated further, this matter is
not urgent because, in short, she has since the applicant’s
lawyers first corresponded with her about the matter before the
application was launched, offered to stay the criminal prosecution
pending the outcome of the review proceedings in an effort to resolve
the dispute. Despite an undertaking to revert, the applicant did
not. After the application was served, the applicant made certain
counter-proposals which were not acceptable to her. However, the PG
re-iterated her offer of a stay, to which there was no response. As
I understand it, the offer remained open during the hearing of the
application. Mr Geier submitted on her behalf that the offer of stay
can, in the context of the matter, mean nothing other than a
withdrawal of the case. (I pause to note that at the close of
arguments in this matter, I confirmed with the parties in Chambers
that the PG was still willing to withdraw the criminal case, an
undertaking that was given and accepted, pending the outcome of this
judgment and the review application). He further submitted that these
facts clearly undo any possible basis for urgency on which the
applicant might rely.





[9] Mr Namandje on
behalf of the applicant pointed to the fact that the notice of motion
was already signed on 23 February 2010 before the PG made the first
offer on 24 February 2010. The applicant’s affidavit was
commissioned on 24 February 2010 and steps had already been taken to
serve the application. He also submitted that the applicant was
entitled to an unconditional withdrawal of the criminal prosecution
and to require the PG to comply with certain conditions which he did
not disclose. As such, he submitted, the PG’s offer was not
acceptable and his client was entitled not to accept it. He
submitted that the matter was clearly urgent.





[10] In Protea
Holdings Ltd v Wriwt 1978 (3) SA 865 (W) it was stated (at 868H and
869A-B) that if it could be shown that the respondents in contempt
proceedings were continuing to commit contempt of court, the hearing
of the application on an urgent basis would be justified in order to
attempt to get the respondents by way of the penalty imposed to
desist from their continuing contempt. That case also concerned
alleged disobedience to a court order. In that case the court, in
dealing with the issue of whether the matter was urgent or not,
proceeded to analyse the affidavits in order to consider whether it
has been shown that the respondents are in fact continuing to commit
contempt of court (at 869A-B). In my respectful view this is the
correct approach.





[11] It is clear
that the PG was never a party to the application in Case No.
A383/2008. It is common cause that at the time that the application
in Case No. A383/2008 was heard, the ACC’s file containing the
statements concerning the investigation had already been submitted to
the PG for her consideration and decision. A copy of the application
in Case No. A383/2008 was served on the PG, although she was not a
party to the proceedings. It is further common cause that the ACC
and/or its Director raised a point in limine on the basis that the
application in Case No. A383/2008 was defective for lack of joinder
of the PG in that application. The applicant opposed the point taken
on the basis that the PG had no direct and substantial interest in
the outcome of that application as she had not taken a decision on
the ACC’s investigation and was therefore not seized with the
matter. Attention was further drawn to the fact that she had not
intervened and the inference was drawn that she was not in agreement
with the point taken about her non-joinder. Swanepoel AJ did not make
any express finding on this point, but the point clearly failed,
because he granted the interim relief without ordering that the PG be
joined. It is common cause that no reasons were provided by the
Honourable Judge for the order made.





[12] The
requirements for contempt of court in a matter like this one were set
out in Consolidated Fish Distributors (Pty) Ltd v Zive 1968 (2) SA
517 (C) at 522E-H as follows:





‘An applicant
for committal needs to show -





(a) that an order
was granted against respondent; and





(b) that respondent
was either served with the order (Godefroy v. The State, (1890) 3
S.A.R. 113; Eaton Robins & Co v Voges, 19 C.T.R. 140; Resident
Magistrate, Humansdorp v Kosana and Another, 1915 E.D.L. 4); or was
informed of the grant of the order against him and could have no
reasonable ground for disbelieving the information (Burgers v Fraser,
1907 T.S. 318; Scholtz' Estate v Carroll, 23 S.C. 430; Botha v
Dreyer, 1 E.D.C. 74; In re Cousins and Another, 1911 CPD 463 at pp.
470 - 471; In re The Corinbatore, 18 N.L.R. 179); and





(c) that respondent
has either disobeyed it or has neglected to comply with it.





(In this instance it
is undisputed that the order was duly served).





Once it is shown
that an order was granted and that respondent has disobeyed or
neglected to comply with it, wilfulness will normally be inferred (R
v Mcunu, 1928 NPD 237; R v Rosenstein, 1943 T.P.D. 65 at p. 70;
Wickee v Wickee, 1929 W.L.D. 145 at p. 148) and the onus will then be
on respondent to rebut the inference of wilfulness on a balance of
probabilities (Waterston v Waterston, 1946 W.L.D. 334; R v Van der
Merwe, 1952 (1) SA 647 (O) at p. 650; Jacobs v Jacobs, 1911 T.P.D.
768 at pp. 770 - 771; Wickee v Wickee, supra; Reed v Reed, 1911
E.D.L. 157; see also Traut v Rex, 1931 S.W.A. 29 at p. 32).’





[13] In the matter
before me it is clear that the PG was never a party to the earlier
proceedings and that the interim order was not granted against her.
Clearly she does not meet the requirements as set out above in
Consolidated Fish Distributors (Pty) Ltd v Zive and as such cannot be
held to be in contempt of the interim court order.





[14] As far as the
ACC and its Director are concerned, it was conceded on behalf of the
applicant that they had taken no further action or failed to do
anything after the interim order of 6 February 2009 which indicates
in any way that they disobeyed the order or neglected to comply with
it. It was certainly not evident from the papers before me that the
ACC or its Director had done anything to bring themselves within the
ambit of the grounds for contempt of court as set out in prayer 2.2
of the instant application, which charges them that they ‘conducted
investigations and laid charges against applicant in violation of’
the interim order.





[15] There is
therefore, as far as the contempt proceedings are concerned, no basis
on which the applicant is justified in launching the application on
an urgent basis.





[16] Mr Namandje
drew attention to the relief sought in prayers 4, 5, and 6 of the
notice of motion and submitted that this relief is urgent on a
different basis. However, no basis was laid in the papers for
urgency on this score. In any event, the PG’s tender to stay
the proceedings pending the outcome of the review proceedings renders
the relief sought in prayers 4 and 5 not urgent.





[17] As far as
prayer 6 is concerned, there is no basis laid in the papers from
which it may be assumed that any further action or proceedings based
on ‘the evidentiary matrix of any of the investigations or
charges contemplated by either case number A383/2008, or by this
application, or any of the counts set out in annexure “V3”
to applicants founding affidavit’ is to be anticipated or
feared in the immediate future which is such as to render the
application urgent.





Costs





[18] In respect of
the first respondent her counsel prayed for a costs order on the
ordinary scale. However, in respect of the second and third
respondents he submitted that the application was exposed to be
without any basis in its entirety and that their costs should be
awarded on an attorney-and-own-client-scale.





[19] While I agree
that there was no basis on which the second and third, or, for that
matter, the first respondent, could have been charged with the
allegation of contempt of court in this case, it is so that, in
principle, the claim for the interdictory relief against them
remains. As I propose to strike the application for lack of urgency
only, I think that it would be more prudent at this stage to award
costs against the applicant on the ordinary scale.





Order





[20] The result is
that the application is struck from the roll with costs.







K van Niekerk





Judge








APPEARANCE





For the
applicant: Mr S Namandje


of Sisa Namandje
& Co





For the
respondents: Adv H Geier


Instr. by
Government Attorney