Court name
Labour Court Main Division
Case number
166 of 2012
Case name
Minister of Education and Another v Interim Khomas Teachers Strategic Committee and All Persons forming part of the Collective Body of the First Respondent and Others
Media neutral citation
[2013] NALCMD 2
Judge
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA



LABOUR COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK








JUDGMENT








Case no: LC 166/2012








In the matter between:








THE MINISTER OF
EDUCATION
.....................................................
FIRST
APPLICANT



THE GOVERNMENT OF THE
REPUBLIC OF NAMIBIA ............SECOND
APPLICANT



and








THE INTERIM KHOMAS
TEACHERS STRATEGIC



COMMITTEE AND ALL
PERSONS FORMING PART OF



THE COLLECTIVE BODY OF
THE FIRST RESPONDENT ........FIRST
RESPONDENT



EVILASTUS KAARONDA
.......................................................SECOND
RESPONDENT



MAHONGORA KAVIHUHA
.........................................................THIRD
RESPONDENT



DANKIE KATJIUANJO
............................................................FOURTH
RESPONDENT



ELFRIEDA MWAGBO
..................................................................FIFTH
RESPONDENT



JOSEF KATJINGISIUA
................................................................SIXTH
RESPONDENT








Neutral citation:
The Minister of Education v The Interim Khomas Teachers Strategic
Committee and All Persons forming part of the Collective Body of the
First Respondent
(LC 166/2012) [2013] NALCMD 2 (23 January 2013)








Coram: PARKER AJ



Heard: 22
January 2013



Delivered: 23
January 2013








Flynote: Contempt
of court – Civil contempt – Sentence – Purpose of
sentence not merely punitive but to coerce obedience of court order.








Summary: Contempt
of court – Civil contempt – Sentence – Purpose of
sentence not merely punitive but to coerce offender to act in
accordance with order of court – Court has duty to ensure
respect for orders of court and promote proper administration of
justice – Sentence should fulfill these duties – Court
finding that the 2 November 2012 order whose disobedience resulted in
the contempt proceeding has now been obeyed – Court taking this
and personal circumstances of the respondents and seriousness of the
contempt into account – Court suspending sentence wholly.










ORDER










Mr Evilastus Kaaronda, Mr Mahongora
Kavihuha; I sentence each one of you to a fine of N$4 000,00 or nine
months’ imprisonment, wholly suspended on condition that you
desist with immediate effect from any act that is calculated or meant
to have or is likely to have the effect of instigating or encouraging
the disobedience of the order of the Labour Court granted on 2
November 2012. Mr Dankie Katjiuanjo, Ms Elfrieda Mwagbo, Mr Josef
Katjingisiua; I sentence each one of you to a fine of N$4 000,00 or
nine months’ imprisonment, wholly suspended on condition that
you comply with immediate effect with the order of the Labour Court
granted on 2 November 2012.










JUDGMENT










PARKER AJ:








[1] The facts giving rise
to the present civil contempt proceedings have been fully set out in
the judgment delivered on 9 November 2012 (‘the 9 November 2012
judgment’) in which the respondents were found guilty of
contempt of court; and so I shall not rehearse those facts here.



[2] Mr Rukoro, counsel
for the respondents, and Mr Namandje, counsel for the applicants,
made submissions in which they referred the court to authorities. I
have consulted those authorities and drawn appropriate counsel from
the principles they enunciate. I shall not garnish this judgment on
sentencing with copious excerpts of passages from those authorities.








[3] In considering an appropriate
sentence, I have taken into account the following factors: the nature
of the offence, the circumstances of the commission of the offence
and the personal circumstances of the respondents (see Immanuel
Reynecke v The State
Case No CA 63/1996 (Unreported), and, above
all, the following critical considerations. This case concerns civil
contempt – as opposed to criminal contempt. And civil contempt
procedure is a means of enforcing performance of a judgment; that is
to say, it is to coerce the offender to do or refrain from doing
something in accordance with an order obtained against him or her,
and not be merely punitive. The other critical consideration which is
connected to this critical consideration is that, as I understand it,
the 2 November 2012 order has now been obeyed. Furthermore –
and this is important – in arriving at an appropriate sentence
I should be guided by sentences imposed by this court in similar
cases, of course, due regard being had to factual differences. (S
v Simon
2007 (2) NR 500 at 518C-D.) In this regard, in Simon
at 519C-F, the court, relying on authorities, reiterated the
beneficial effects of suspended sentence:



5



In
the ordinary way it (suspended sentence) has two beneficial effects.
It prevents the offender from going to gaol . . . The second effect
of a suspended sentence, to my mind, is a matter of very great
importance. The man has the sentence hanging over him. If he behaves
himself he will not have to serve it. On the other hand, if he does
not behave himself, he will have to serve it. That there is a very
deterrent effect cannot be doubted.’








[4] Standing in favour of the
respondents is the contrition they have shown as appears in their
individual affidavits. On the question of contrition, Mr Namandje’s
submission is that their apparent show of remorse is not sincere, and
that the respondents have just put up a show that they are
well-behaved citizens, particularly because their individual
affidavits are formulated in similar terms and also because of their
behaviour which led to the launching of the contempt proceeding. That
may be so; but I think the court should always try to see the
positive side of a person’s conduct and be prepared to give him
or her the benefit of the doubt in a positive light. If those
respondents say on oath – and I emphasize ‘on oath’
– that they are sorry for their conduct and that they will
refrain from doing any of those things for which they have been found
guilty, their statements should be received in a positive light, as I
do. I do not think they are disingenuous: there is no evidence placed
before the court to show that they are disingenuous.








[5] I have taken into
account the aforementioned factors and critical considerations,
including their individual personal circumstances, but not forgetting
that their contumacious conduct is a serious matter as it goes to the
root of proper administration of justice and the dignity of the
court, as Mr Namandje submitted. The seriousness of their conduct is
deepened by the fact that a strike that was not in conformity with
the Labour Act No. 11 of 2011 had been ‘engineered’ (to
use Mr Namandje’s word) and when the Labour Act ordered the
respondents to refrain from their illegal conduct, they had disobeyed
the court order and had followed their defiance of the order with
reckless statements referred to in the 9 November 2012 judgment.








[6] After taking into
account the aforementioned critical considerations and the factors,
it is also my view that the sentence I impose should aim at deterring
the respondents and others who are thinking of taking up a career in
disobeying court orders and inciting others to disobey court orders
and breach the law. The sentence should also emphasize the duty of
the court to ensure respect for, and obedience of, its orders and
also the duty to promote proper administration of justice. In all
this, one must not lose sight of the fact that this is an application
proceeding, and the applicant has sought certain relief in the notice
of motion. Of course, this court can grant further and/or alternative
relief, but such relief should not in my opinion be exceedingly
divergent from the specified relief sought by an applicant himself or
herself unless there is a good reason to do so. As respects sentence;
the applicant seeks a specified relief. I do not have any good reason
to deviate from the relief sought by the applicant concerning the
nature and type of sentence it has prayed for.








[7] For all these
reasoning and conclusions, I am of the firm view that the sentences
set out, hereunder, meet the circumstances and the justice of the
case.








[8] Mr Evilastus
Kaaronda, Mr Mahongora Kavihuha; I sentence each one of you to a fine
of N$4 000,00 or nine months’ imprisonment, wholly suspended on
condition that you desist with immediate effect from any act that is
calculated or meant to have or is likely to have the effect of
instigating or encouraging the disobedience of the order of the
Labour Court granted on 2 November 2012. Mr Dankie Katjiuanjo, Ms
Elfrieda Mwagbo, Mr Josef Katjingisiua; I sentence each one of you to
a fine of N$4 000,00 or nine months’ imprisonment, wholly
suspended on condition that you comply with immediate effect with the
order of the Labour Court granted on 2 November 2012.























----------------------------



C Parker



Acting Judge























APPEARANCES








APPLICANTS: S Namandje



Instructed by Government
Attorney, Windhoek













FIRST, SECOND, THIRD,
FOURTH, S Rukoro



FIFTH, SIXTH RESPONDENT: Instructed by
Kaumbi-Shikale Inc., Windhoek