Court name
High Court
Case number
APPEAL 74 of 2001
Case name
Standard Bank of Namibia Ltd v Abrahams and Others
Media neutral citation
[2001] NAHC 19
















A.74/2001
A.95/2001



IN THE HIGH COURT OF NAMIBIA


















In
the matter between:















STANDARD BANK OF NAMIBIA
LTD
APPLICANT
and











G ABRAHAMS FIRST
RESPONDENT



K ASSER SECOND
RESPONDENT



A G BAARTMAN THIRD
RESPONDENT



















CORAM: Hannah,
J Heard on: 2001-05-21 Delivered on: 2001-07-02
JUDGMENT:



HANNAH, J: On
21
st
May
I heard
argument on the return day of a rule
nisi
calling
upon the first and second respondents to show cause why they should
not be committed for contempt of an order made on 28
th
March, 2001. The rule had not been served



personally
on the first respondent and I was therefore concerned only with the
second respondent. As a fairly fundamental question arose concerning
the procedure pertaining to contempt proceedings I reserved my
judgment.











The
background to the application is briefly as follows. In March, 2000
the first respondent purchased a Volkswagen Golf motor car ("the
VW") from the applicant for NS165 501-60, the purchase price to
be paid in installments over 5 years. Ownership of the VW remained
vested in the applicant until the purchase price was paid in full.
During 2000 the second respondent purchased a vehicle from Auto Toy
Store the proprietor of which was one Pretorius. He paid a deposit of
N$22 000. However, the vehicle was not delivered to him and when in
October, 2000 he decided to cancel the transaction Pretorius lent him
a vehicle. When that vehicle had to go in for repairs Pretorius gave
him the use of the VW. Presumably, Pretorius had some understanding
with the first respondent in this regard but whatever the position
may have been as between Pretorius and the first respondent the
latter was in breach of his agreement with the applicant by parting
with possession of the VW. Further, payment of the installment due on
5
th
March,
2001 was not forthcoming. On 13
th
of that month a meeting was held between a representative of the
applicant and the two respondents but the second respondent refused
to hand the VW over to the applicant. He said that he was retaining
it as security for the money owed to him by Pretorius. By this time
Pretorius had fled Namibia. The second respondent was given two days
within which to return the VW and when he failed to do so the
applicant applied on an urgent basis for its attachment pending an
action to be instituted by the applicant.








On
28"
1
March, 2001 this Court made an order authorizing the Deputy Sheriff
to attach the VW and interdicting the two respondents from
transferring, hypothecating, encumbering or removing it from the
premises where it was being kept. This order was served on both
respondents during the afternoon of 28
th
March by the Deputy Sheriff. Although the second respondent was in
possession of the VW he refused to disclose its whereabouts to the
Deputy Sheriff and threw the Court Order on the ground. He said that
Pretorius owed him N$22 000.











On
9
lh
April, 2001 the applicant applied successfully for an order
directing the Deputy Sheriff to attach the second respondent and,
once he had done so, for a court to be convened for the second
respondent to answer a charge of contempt of the order made on 28
lh
March, 2001. The second respondent was duly arrested and presented
to court on 10
th
April when the following order was made:















"That
accused purge himself today by immediately after adjournment
accompany the Deputy Sheriff and hand over the said Volkswagen Golf
1.6 to be kept in safe custody pursuant to the order of 28 March
2001, failing which he shall be detained in custody on a writ of
arrest at the Windhoek Central Prison until 23 April 2001.







Upon
handing the said vehicle to the Deputy Sheriff he shall be released
and shall either in person or represented by a legal practitioner
appear before the court on 23 April 2001 at 10:00 or soon thereafter
as his case may be heard to give an expla
nation
for his contempt of court.







The
matter is remanded to 23 April 2001 at 10:00"











tli


However,
the second respondent had handed the VW back to the first respondent
on 29 March, the day after the initial order was made. He maintains
that he thought that the first respondent would in turn return the
VW to the applicant.



During
the course of 10 April, 2001 the second respondent accompanied the
Deputy Sheriff in a search for the first respondent and the VW. The
first responded was located and he confirmed that the VW had been
handed over to him by the second respondent but said that it was now
in the safekeeping of his legal practitioner. An arrangement was
made to go to the legal practitioner's office but the first
respondent then absconded. When the legal practitioner was contacted
he said he had no knowledge of the whereabouts of either the first
respondent or the VW and that he had never received the latter for
safekeeping. The second respondent remained at large temporarily and
apparently tried to locate the first respondent or the VW but on
17
Ih
April, when no progress had been made, he sought legal advice and
was advised to report to the Deputy Sheriff. This he did and he was
incarcerated from that day until 23
rd
April in the Windhoek Central Prison pursuant to the order made on
10
th
April.











On
23
ld
April the matter was stood down until 25
th
April and on the latter date the applicant moved an urgent
application seeking an order against the first respondent similar in
terms to the one granted against the second respondent on 9
th
April. As I entertained doubts whether such an order could properly
be made I made an order consolidating the two applications and
issued a rule
nisi
calling
upon both respondents to show cause on 21
st
May why the first respondent should not be committed for contempt of
the order made on 28
th
March and why the second respondent should not be further committed
for contempt of that order. I also directed that the second
respondent be released from custody pending the return date.



On
21
st
May Mr Strydom, who appeared on behalf of the applicant, sought to
persuade me that the second respondent should be further committed
for contempt of the 28
th
March
order. Counsel pointed to the fact that the second respondent had
only been in custody from 17
th
April. Eight days imprisonment was, in the submission of Mr Strydom,
far too short a period of incarceration when measured against the
seriousness of the contempt which had been committed. However, I was
more concerned with the question whether the Court had any power to
make a further order for committal and brief argument was addressed
to this point. As stated earlier, judgment was then reserved and
counsel were given the opportunity to fde additional heads of
argument which they have now done.











The
first question to be addressed is the meaning to be given to, and
the effect of, the order made on 10
th
April. Mr Strydom submitted that the order should not be construed
as amounting to, or containing, a finding that the second respondent
was guilty of contempt. Although counsel accepted that the language
used was "unfortunate', he submitted that the order was more
concerned with the retrieval by the applicant of the VW than with
the issue of the second respondent's contempt.











With
all due respect to counsel, I fail to see the distinction which he
seeks to make. LAWS A (1
st
Reissue) Vol. 6 deals with a failure to comply with a court order in
the context of contempt at para. 202 in the following way:















"A
party to a civil case against whom a court has given an order, and
who intentionally refuses to comply with it, commits contempt. Such
contempt is, however, hardly ever charged as a criminal offence by
the attorney-general, and it is left to the party in whose favour
the order has been given to apply to court, if he so wishes, to
convict the defaulting party. Such an application is merely a way of
enforcing the court order, because if the application is successful,
the sentence, such as imprisonment, is almost always suspended on
condition that the defaulting party complies with the order in the
manner prescribed by the court."







1
respectfully
agree with this summary of the position and it shows that the
distinction which Mr Strydom seeks to make is an illusory one.











The
order commences by requiring the second respondent to "purge
himself and concludes by requiring him to give at a later date "an
explanation for his contempt of Court". What is clearly
implicit in both these requirements is a finding that contempt had
been committed even though such finding was not actually expressed.
Otherwise, there could have been nothing to purge or explain.











Further,
the order made provision for the second respondent to be detained in
custody should he fail to hand over the VW to the Deputy Sheriff.
Such provision could only have been made if there was a finding of
contempt.











As
for the effect of the order, it seems reasonably clear from the
transcript of the hearing which took place on 10
th
April that there was a general assumption that the second respondent
would hand over the VW to the Deputy Sheriff on that day and that he
would therefore avoid being detained in custody. However, as we now
know he did not because he could not. As a result he was detained in
custody pursuant to the Court order albeit only for eight days. He
served the sentence which had been imposed.



What
it comes to, in my opinion, is that the order made on 10
th
April contained not only a finding that the second respondent was
guilty of contempt of Court but also a conditionally suspended
sentence of imprisonment which was to become operative should the
second respondent fail to comply with the condition. It therefore
becomes unnecessary to deal with Mr Strydom's alternative submission
that the judge who made the order should be approached in order to
vary the order in terms of Rule 44(1) of the Rules of the High
Court. Although the order can, in certain respects, be said to have
put the cart before the horse it does not, in my view, contain an
ambiguity.











The
second question to be addressed is whether the Court now has the
power to impose an additional punishment for the same contempt? The
subject of civil contempt proceedings is described in the following
words in Herbstein & Van Winsen,
The
Civil Practice of the Supreme Court of South Africa
(4l
ed.) at 817:















"The
object of proceedings that are concerned with the wilful refusal or
failure to comply with an order of court is the imposition of a
penalty in order to vindicate the court's honour consequent upon the
disregard of its order and to compel performance in accordance with
the order. The penalty may take the form of committal to gaol or the
imposition of a fine. In less serious cases the court may caution
and discharge the respondent."






There
was a time when it was the practice of the Courts of England when
committing for contempt to commit for an indefinite period. See, for
example,
In
the 'MmtsrofaSp'ecial" Reference from the Bahama Islands
1893
AC 138;
Halsbury's
Laws
of England, (2
nd
Ed.)
at p 30. However, that practice was discontinued. In
Attorney-general
v James & Others
1962
2 QB 637 Lord Parker C.J. said at 641:



"It
is accordingly, in my judgment, settled law that in the case of
criminal contempt the period of imprisonment should be for a fixed
term as for punishment for a criminal offence."







If
the learned Lord Chief Justice was drawing a distinction between
"criminal" contempt and "civil" contempt then
the matter was put beyond all doubt by section 14 of the Contempt of
Court Act, 1981 which provides:















"14(1)
In any case where a court has power to commit a person to
prison
for contempt of court and (apart from this provision) no
limitation
applies to the period of committal, the committal shall
(without
prejudice to the power of the court to order his earlier
discharge)
be for a fixed term "







See
also
The
Supreme Court Practice
Vol.
2, part 2, App. A, Form No. 85, para82 which requires that the
period of imprisonment in a committal order be stated.











I
have taken the trouble to refer to the position in England for two
reasons. Courts applying Roman-Dutch law have been enjoined to
follow the procedure of the English Courts when dealing with cases
of contempt. See
Attorney-General
v Crockett
1911
TPD 893 at 917. It occurred to me during the course of argument that
if the English Courts have jurisdiction to make a general committal
order it may be that this Court could, in some way, construe the
order made on 10
th
April as such an order. However, it is clear that that is not the
position.











Mr
Strydom accepts, correctly in my view that there exists no South
African or Namibian case law which supports the view that this Court
may impose a further sentence upon a person found guilty of contempt
and sentenced in respect of that same contempt or that this Court
can substitute a longer sentence after the sentence has been
imposed. Indeed, so far as the latter is concerned there is direct
English authority that a court may not take such a course:
Westcott
v
Westcott
[1985]
FLR 616, CA. Accordingly, no further order will be made and the rule
nisi
will
be discharged so far as the second respondent is concerned save for
the question of costs.











The
applicant seeks an order that the second respondent pays the costs
of the application on a scale as between attorney and own client.
Having regard to the circumstances in which the contempt was
committed I am of the view that a special costs order is warranted
but that the scale should be that of the attorney and client and not
attorney and own client. However, I do not see why the second
respondent should be saddled with the applicant's costs of the
hearing which took place on 21
st
May or with the applicant's costs of the additional heads of
argument. That hearing and the additional heads were primarily
concerned with the question of the Court's jurisdiction and having
regard to the conclusion I have reached I consider the fairest
course to adopt is to make no order as to the costs of that hearing
and the additional heads. As counsel did not address me on the
question of costs I will, however, give leave to both parties to
apply for a variation of the costs order should either or both wish
to do so.











For
the foregoing reasons the rule
nisi
is
discharged so far as the second respondent is concerned save that he
is ordered to pay the applicant's costs on an attorney and client
scale but excluding the costs of the hearing of 21
st
May and the costs of the additional heads of argument. Leave is
granted to both parties to apply for a variation of this costs order
should they so wish. In the case of the first respondent the rule is
extended to 27
th
August
and the applicant is granted leave to apply to the Registrar to
expedite that return date.





HANNAH,
J





For
the applicant:
Advocate
JAN Strydom







Instructed
by:
Messrs
van der Merwe-Greeff















For
the second respondent:
Advocate
A Corbett







Instructed
by:
Messrs
Dammert & Hinda