Court name
High Court Main Division
Case number
APPEAL 144 of 2012
Title

Zwiggelaar and Others v Church and Others (APPEAL 144 of 2012) [2015] NAHCMD 8 (23 January 2015);

Media neutral citation
[2015] NAHCMD 8
Coram
Kauta AJ










REPUBLIC OF NAMIBIA




HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: A 144/2012





DATE: 23 JANUARY 2015





NOT REPORTABLE





In the matter between:





JOHN PATRICK
ZWIGGELAAR......................................................FIRST
APPLICANT





SEAWAY INVESTMENTS
CC........................................................SECOND
APPLICANT





TABLE MOUNTAIN GRANITE (NAMIBIA)
CC..............................THIRD
APPLICANT





MAKAKATA FUNERAL HOME
CC..............................................FOURTH
APPLICANT





And





JANE
CHURCH.............................................................................FIRST
RESPONDENT





JONATHAN
CHURCH..............................................................SECOND
RESPONDENT





MAKAKATA STONE PROCESSING
CC......................................THIRD
RESPONDENT





Neutral citation: Zwiggelaar v
Church (A 144/2012) [2015] NAHCMD 03 (23 January 2015)





Coram: KAUTA, AJ





Heard: 12 July 2012





Delivered: 23 January 2015








ORDER








The application is accordingly
dismissed with costs.








JUDGMENT








KAUTA, AJ:





The applicants, launched an urgent
application on motion proceedings on 12 July 2012, for an order in
the following terms:





[1] That the non-compliance with the
Rules be condoned and that the matter be heard as urgent in terms of
Rule 6(12)(a).



[2] Declaring the First, Second and
Third Respondents to be in contempt of the provisions of paragraphs
3,4,5 and 7 of the Settlement Agreement made an Order of Court under
case number A90/2012 on 8 May 2012.





[3] Committing the First and Second
Respondents to jail for a period of thirty (30) days, or such period
as this Honourable Court deems just and equitable, such term of
imprisonment to be suspended until close of business, 9 July 2012, on
condition that the First and/or Second Respondent complies with the
order granted on 8 May 2012, or on such further and/or alternative
conditions as the Honourable Court may direct.





[4] That should the First, Second and
Third Respondents fail to comply with this Court order, the Applicant
be granted leave to approach the above Honourable Court for an order
for the First and Second Respondent’s committal to prison, on
the same papers, supplemented as necessary.





[5] An order directing the First,
Second and Third Respondents jointly and severally to pay the
Applicant’s costs herein on a scale as between attorney and own
client.





[6] Further and/or alternative relief.





[7] It is clear from paragraph 2 that
the dispute has its origin in a settlement agreement made an order of
this Court by agreement between the parties on 10th May 2012.





[8] It is necessary to quote fully the
terms of the settlement agreement. It provides that:





8.1 Applicants shall withdraw their
urgent application under the aforesaid Case Number and shall
furthermore relinguish in favour of RESPONDENTS their right to the
premises and all assets belonging to Makakata Stone Processing CC,
including those referred to in the Founding Affidavit of FIRST
APPLICANT and marked “JP22”





8.2 RESPONDENTS to effect payment of
N$302 000.00 (THREE HUNDRED AND TWO THOUSAND NAMIBIAN DOLLAR) into
the bank account of MAKAKATA MARBLE & GRANITE SOUCH AFRICA CC
upon signature of this agreement by the parties.


MAKAKATA MARBLE & GRANITE SOUTH
AFRICA CC


ABSA BANK


ACCOUNT NUMBER: 924 923 75 78


BRANCH CODE: 632 005


8.3 APPLICANTS to retain the right,
title, interest and mark of the name of ‘MAKAKATA’.





8.4 RESPONDENTS to furnish applicants
with a full version of the vinyl cutting software, and ancillary
designs including generic and common place designs.





8.5 RESPONDENTS are prepared to assist
APPLICANTS to have APPLICANTS assets/stock removed from RESPONDENTS
premises which assets/stock shall so be removed with 14 calendar days
as of date of signature of this agreement.





8.5.1 It is understood that the
RESPONDENTS shall not render any assistance for the removal form the
premises of any assets/stock which are under judicial attachment.





8.5.2 RESPONDENTS shall furthermore
make available RESPONDENTS forklift and a driver to assist with the
removal of the said assets/stock.





8.6 APPLICANTS shall make arrangements
to ensure that RESPONDENTS rights to the business, premises and
assets of Makakata Stone Processing CC be returned to RESPONDENTS
upon date of signature of this agreement.





8.6.1 The Parties further agree that
the sale agreement between them sall be of no further force and
effect and shall upon signature of this agreement be regarded as null
and void.





8.7 APPLICANTS shall take full
responsibility for all their Namibian clients including clients
generated by Table Mountain Granite (Namibia) CC and client’s
oeded to Table Mountain Granite (Namibia) CC by Makakata Stone
Processing CC.





[9] The applicants seeks a declarator
that the respondents are in contempt of the settlement agreement on
the following grounds:





9.1 In respect of paragraph 8.3 the
applicants alleged that the respondents at the time of the
application were using the name Makakata, in trade. As prove of this
averment the applicants attached photographs of the business premises
of the respondents. Theses photographs clearly shows that the
premises were still marked Makakata at the time the application was
served.





9.2 As for paragraph 8.4 the applicants
contend that even though the settlement agreement is silent on when
the respondents were to comply with this term what was meant was that
they would do so as soon as possible or alternatively within a
reasonable time. On the 14th May 2012, the applicant’s legal
practitioners requested the respondents legal practitioners to
transmit by electronic mail the required software and designs. The
respondents answered that their computer crashed and offered to avail
the software and design on a computer disk which they would hand over
to the first applicant personally at their business premises, but
failed to do so when first applicant availed himself to pick up the
disk.





9.3 With respect to paragraph 8.5, the
first applicant attached a list of assets he claim he was entitled to
and contend that on 24th May 2012, he arrived in Omaruru to give
effect to this term. He was frustrated by the first respondent,
especially when she failed to give him access to the premises but
rather left a bag containing his personal belongings and a few other
small items of nominal value outside the premises on the road for
collection.





9.4 As for paragraph 8.7, the
applicants alleged that respondents refused to hand over applicants
client, invoice and order books. This refusal makes it impossible
for the applicant to comply with paragraph 8.7.





[10] The respondents answered as
follows to the applicants contentions in paragraph 9:





10.1 Firstly the respondents admit the
terms in the settlement agreement, especially paragraph 8.3.
However, they allege that the applicants were aware at the time the
agreement was entered into that first and second respondent were busy
with a sales transaction to Mr Medusalem. And that upon the
successful completion of the sales transaction a name change will
take place, as agreed. The respondents denied that they were using
the name Makakata. As for the photographs attached the respondent
argued that they are hearsay and in any event depict old signs and in
any event they do not trade or use the name Makakata, in trade.





10.2 As for the software and designs
the respondent answer is that is available for the applicants
collection. The respondents avers that they were not available to
hand it over to the first applicant because the arrangements were
made through email which they did not receive, because their server
had crashed. As a result they were unaware of the arrangements made.
On the 28th May 2012, they invited the first applicant to come to
the premises at 16:50. The first applicant came to the premises
contrary to the arrangement, late morning with the police. And the
list of applicants assets was given to the police because the first
applicant decided to wait outside. The first applicant refused to
take any of the assets that belonged to him. It is clear to me that
there is a serious dispute of fact with respect to the assets which
the first applicant was entitled to take and those he was not because
they were judicially attached. The respondents though pertinently
allege that the first applicant took the disk which had the software
and designs on the 29th May 2012, as it was in the bag which he admit
to having taken.





10.3 As for the client, invoice and
stock books the respondents allege that they were with the police due
to pending criminal investigation against the first applicant.





[11] The full bench of this Court in
Sikunda v Government of the Republic of Namibia (2) 2001 NR 86 at
page 95 C relating to the incidence of proof in applications of this
nature relying on Uncedo Taxi Service Association v Maniniyjiwa and
others 1998(3)SA 417 (E) at 428 B held that:


‘in motion proceedings the guilt
of the offender must be proved beyond reasonable doubts….’





[12] It is a crime unlawfully and
intentionally to disobey a court order. This type of contempt of
court is part of a broader offence, which can take many forms, but
the essence of which lies in violating the dignity, repute or
authority of the court. The offence has in general terms received a
constitutional, stamp of approval, since the rule of law a founding
value of the Constitution requires that the dignity and authority of
the courts, as well as their capacity to carry out their functions,
should always be maintained.





[13] The form or proceeding the
applicants invoked appears to have been received into our law from
English law and is most valuable mechanism. It permits a private
litigant who has obtained a court order requiring an opponent to do
or not do something to approach the court again, in the event of
non-compliance, for a further order declaring the non-compliant party
in contempt of court, and imposing a sanction. The sanction usually,
though not invariably, has the object of inducing the non-complier to
fulfill the terms of the previous order.





[14] In the hands of a private party,
the application for committal for contempt is a peculiar amalgam, for
it is a civil proceeding that invokes a criminal sanction or its
threat. And while the litigant seeking enforcement has a manifest
private interest in securing compliance, the court grants enforcement
also because of the broader public interest in obedience to its
orders, since disregard sullies the authority of courts and detracts
from the rule of law.





[15] 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
disregards 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).





[16] These requirements that the
refusal to obey should be both willful and mala fide, and that
unreasonable non-compliance, provided it is bona fide, does not
constitute contempt accord with the broader definition of the crime,
of which non-compliance with civil orders is a manifestation. They
show that the offence is committed not by mere disregard of a court
order, but by the deliberate and intentional violation of the court
dignity, repute or authority that this evinces. Honest belief that
non-compliance is justified or proper is incompatible with that
intent.





[17] These observations bear directly
on the main question of principle in this matter, on which my
approach to the facts it presents must depend. This is whether civil
contempt can be established when reasonable doubt exist as to any of
the requisites of the crime. The pre-constitutional approach to
proof was that once the enforcer established that the order had been
granted, and served on or brought to the respondents notice, an
inference was drawn that non-compliance was wilful and mala fide,
unless the non-complier established the contrary. The alleged
contemnor bore the full legal burden of showing on balance of
probabilities that failure to comply was not wilful and male fide.





[18] The full court of the Eastern
Cape has subsequently upheld and elaborated on the reasoning on
Uncedo and Victoria Park. In Burchell v Burchell, [2006] JOC 16722
(E) Froneman J (Sandi and Dambuza JJ concurring) held that civil
contempt remains a criminal offence under the Constitution, and that
a respondent in such proceedings is inevitably an accused person
under s 35 of the Bill of Rights. Froneman J pointed out that
committal for contempt of court orders raises no conflict with
freedom of speech or other fundamental rights, but that, on the
contrary, compliance with court orders is of fundamental concern to a
society that bases itself on rule of law. The full court thus held
that while the applicant has to prove the elements of civil contempt
beyond reasonable doubt, the application procedure is
constitutionally competent to accommodate the altered onus. The full
court also found that since there is a purely civil aspect to the
proceedings, a court may issue a declaratory that a respondent is in
contempt of court, established only on balance of probabilities,
together with associated civil relief (such as not suspending the
order pending appeal, and barring the contemnor from access to civil
courts until the contempt is purged).





Application to facts did the applicants
show beyond reasonable doubt that the respondents no-compliance was
willful and mala fide?





[19] I now turn to whether the
applicants have proved beyond reasonable doubt that the
non-compliance by the respondents of the court order of the 10th May
2012, was willful and mala fide. The ordinary meaning of the word
‘trade’ is the act of buying and selling goods and
services. On the papers before me there is no prove that the
respondents were buying, selling or rendering services in the name
Makakata. The reliance on the photographs, even though hearsay is
misplaced because the trading signs seems to have been erected before
the dispute which led to the settlement agreement relied on.
Moreover, it is clear from the papers that the name Makakata, was in
previous use as the citation of the parties proves. They certainly do
not show that the respondents are trading at all. And the
explanation of the respondents is that they are not trading and have
sold the business and third respondent to a third party. The latter
allegation stands undisputed.





[20] As for the non-compliance with
paragraph 9.2 there is a dispute of fact whether the disk was in the
bag which the first applicant took on the 29th May 2012. The
applicants did not request that the matter be referred to an oral
hearing. And the settlement agreement is silent at paragraph 8.4,
and makes no provision on how and when the software and designs were
to be furnish to applicants. It is true through that the respondents
version is not very clear on this score but I am unable to rule that
it is not true without a hearing. The issue relating to the assets
is similarly disputed. In my view the full picture emerge on the
respondents version which seems to cataloque clearly that the
applicant was seeking to force the respondents to hand over some
assets which were judicially attached and they were consequently not
entitled to. The assertions by the applicants about which assets
they were entitled to appears to have been an after thought as the
list it now relies on was never given to the respondents prior to the
launching of these proceedings. The allegation of a lack of
assistance is frivolous if the assets on which assistance is sought
are unknown.





[21] That conflicting affidavits are
not a suitable means for determining disputes of fact is trite. Yet
motion proceedings are quicker and cheaper than trial proceedings.
Our courts though do not allow a respondent to raise fictitious
disputes of fact to delay the hearing of the matter or to deny the
applicant an order. There must be bona fide dispute of fact on a
material matter. This means that an uncreditworthy denial, or a
palpably implausible version, can be rejected out of hand, without
recourse to oral evidence. In Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd, 1984(3) SA 623 (A) at 634 -635 the court
extended the ambit of uncreditworthy denials. They now encompassed
not merely those that fail to raise a real, genuine or bona fide
dispute of fact, but also allegations or denials that are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers.





[22] Practice in this regard has become
considerably more robust, and rightly so. If it were otherwise,
motion courts might cease functioning. But the limits remain, and
however robust a court may be inclined to be, a respondent version
can be rejected in motion proceedings only if it is fictitious or so
far-fetched and clearly untenable that it can confidently be said, on
the papers alone, that it is demonstrably and clearly unworthy of
credence.





[23] On the affidavits alone there
certainly appear to be gaps and insufficiencies in the account
tendered. Despite this, I do not think that the assertions of the
respondents can be rejected as fictitious or as so implausible as to
warrant dismissal without recourse to oral evidence or palpably
uncreditworthy, without it being afforded an oral hearing.





[24] In the light of the proper
approach to deciding factual disputes in motion proceedings, I should
add that on the particular form of process the parties committed
themselves to in this case I do not think that it would make any
difference had the onus been only proof on balance of probabilities.
The accepted approach requires that, subject to robust elimination of
denials and fictitious disputes, the court must decide the matter on
the facts stated by the respondent, together with those the applicant
avers and the respondent does not deny. On that approach, the
respondents factual assertions, including those regarding their state
of mind, must be accepted as established. The proven facts thus
establish more than just a reasonable doubt, but a factual picture
that entails acceptance of the respondents version; though that is
incidental to the form of the proceedings before us.





[25] To summarise: On the accepted
test for fact-finding in motion proceedings, it is impossible to
reject the respondents version as fictitious or as clearly
uncreditworthy. There is a real possibility that if a court heard
oral evidence on the factual disputes between the parties, it might
accept the respondents version, or at least find that there was
reasonable doubt as to whether the delay in complying with the order
of 10 May 2012 was willful and mala fide. The applicant therefore
failed to prove that the default was willful and mala fide.





[25] The application is accordingly
dismissed with costs.








P Kauta





Acting Judge





Appearances:





For applicants: Adv. Visser





Instructed by HD Bossau





For respondents: Adv. Wylie





Instructed by Theunissen & Louw