Court name
Labour Court
Case name
Alexander Forbes Group Nambia (Pty) Ltd v Ahrens
Media neutral citation
[2011] NALC 11





CASE NO











CASE NO.: LC 75/2010











IN THE LABOUR COURT OF
NAMIBIA







In the matter between:











ALEXANDER FORBES GROUP
NAMIBIA (PTY) LTD …..................Applicant







and







HEINZ WERNER AHRENS
…....................................................Respondent











CORAM: PARKER, J







Heard on: 2011 March 14



Delivered on: 2011 April 5



_________________________________________________________________________


JUDGMENT







PARKER J



[1] The instant application
ensues from, and it is part of, a labour matter brought on notice of
motion on urgent basis to enforce a restraint of trade clause in an
employment contract concluded between the applicant and the
respondent. In a judgment delivered on 10 January 2011 (‘the
judgment’) this Court granted interim interdict sought by the
applicant: Para [29] of the judgment contains the order granted (‘the
order’). The present application, too, has been brought on
urgent basis and it seeks interim relief in the following terms:







(1)
That the applicant’s non-compliance with the forms and service
provided for in the Rules of this Court is condoned and this matter
is heard as one of urgency as contemplated in Labour Court Rules
6(24).







(2)
That a rule nisi issue, calling upon respondent to show cause
(if any) on a date and time to be determined by the above Honourable
Court handed down on 11 January 2011, why an order in the following
terms should not be made final:







(2.1)
Declaring that the respondent is in contempt of the order of this
Honourable Court handed down on 10 January 2011;







(2.2)
Extending the rule nisi granted on 10 January 2011 to the
return date referred to in para (1) of this order for the respondent
to purge himself of his contempt before the main application for
confirmation of the rule nisi is heard;







(2.3)
Convicting the respondent for contempt of this Court;







(2.4)
Sentencing the respondent to a fine or such other punishment as the
Court may deem fit;







(2.5)
Ordering the respondent to pay costs of this application on a scale
as between legal practitioner and client.







(3)
That prayers 2.1 and 2.2 operate as interim orders with immediate
effect.







(4)
Further and/or alternative relief.’







[2] The respondent has moved to
reject the application. In doing so the respondent has raised a point
in limine in which he avers that the application is not urgent. I
shall dispose of this averment immediately. The respondent relies on
the principle that an applicant who has generated his or her own
urgency cannot approach the Court to hear the matter on urgent basis.
Speaking for myself, this ‘has-generated-his-or-her-own-urgency’
notion should not be applied mechanically as if it were an immutable
principle that applies in all circumstances and on every set of facts
imaginable under the sun.







[3] In the instant case the
applicant has approached the Court for the Court to enforce its own
judgment. In such a case, where there is some prima facie evidence
supporting the applicant’s allegation that the respondent has
breached and continues to breach a valid order of the Court different
considerations should apply; as they should where the applicant’s
basic human right guaranteed to him or her by the Namibian
Constitution has been violated or is being violated or threatened
(see Paulus Tuhafeni Sheehama v Minister of Safety and Security
and Others
Case No. A 22/2011 (unreported)). In that event it
matters the least whether the alleged breach occurred on a Sunday and
the applicant brought the application the next Friday and not on the
Monday immediately following that Sunday and prays the Court to hear
the matter on urgent basis. It is always in the interest of the
proper administration of justice and the dignity of the Court and,
indeed, of the practicalization of the notion of rule of law, which,
as this Court observed in Rally for Democracy and Progress v
Electoral Commission
2009 (2) NR 793 at 798H, is one of the
triadic ideals which nourish the very life and soul of the Namibian
nation, to hear such application as a matter or urgency, unless, of
course, the delay in bringing such application is inordinate by all
reasonable account, which, I must say, is not the situation in the
present proceedings. To crown it all, the intrinsic nature of the
rule of law and the danger that would attend upon its collapse are
encapsulated succinctly in the following passage from Sikunda v
Government of the Republic of Namibia and Another
(2) 2001 NR 86
at 92D-E, per Mainga J (as he then was):







Judgments,
orders, are but what the Courts are all about. The effectiveness of a
Court lies in execution of its judgments and orders. You frustrate or
disobey a Court order you strike at one of the foundations which
established and founded the State of Namibia. The collapse of a rule
of law in any country is the birth of anarchy. A Rule of law is a
cornerstone of the existence of any democratic government and should
be proudly guarded and protected.







[4] As I see it, the thrust of
the application is that the applicant seeks a specific relief that
will lead to the respondent purging himself of his alleged contempt
before the application for confirmation or discharge of the rule nisi
in the order is heard. It would be stultifying any attempt by the
applicant to move for the confirmation of the rule nisi if the
present application is not heard as a matter of urgency and before
the hearing of that ‘confirmation’. Thus, on the facts
and in the circumstances of this case, I think there is a case made
out on the papers for the matter to be heard on urgent basis. This
conclusion disposes of the respondent’s preliminary objection
thereanent the issue of urgency.







[5] Thus, the issue at hand in
these proceedings is that the applicant has brought contempt
proceedings and seeks the relief set out in the notice of motion.
This form of contempt is usually referred to as ‘civil
contempt’ because it is usually only dealt with by civil law
(Snyman, Criminal Law, 3rd edn: p 317, and the
cases there cited). And it has been said that for this form of
contempt to be criminal there must be present some element which
cannot be waived by the party whose rights are affected by the
disobedience of the Court’s order, e.g. where the case is not
concerned with the derogation of a civil litigant’s rights
under an order made in civil proceedings but with an act in
derogation of the court’s dignity. (Cape Times v Union
Trades Directories & Others
1956 (1) SA 105 (N) at 121G-122A)







[6] In the instant matter, the
alleged contempt is undoubtedly ‘civil contempt’; and I
accept the submission by Mr Tötemeyer SC, counsel for the
respondent, that the form of contempt in the instant case can only be
committed intentionally (Snyman, ibid., p 312). In this
regard, as respects civil contempt; the intention is constituted by
the wilful breach, without more, of an order of court obtained in a
civil proceedings; and ‘wilful’ means ‘not casual
or accidental or otherwise unintentional’. (Cape Times v
Union Trades Directories & Others
supra at 120A-B)







[7] From the aforegoing, the
next level of the enquiry should be to consider whether the applicant
has placed sufficient evidence before the Court which leads to the
strong inference that the respondent has breached the order. If there
is no such prima facie evidence, that is the end of the matter. But
if there is such evidence the issue to consider next is whether the
breach is wilful; that is, not casual or accidental or otherwise
unintentional (Cape Times v Union Trades Directories & Others
ibid.)







[8] I find that on the papers
the applicant has put forth evidence which constitutes breach, and
continued breach, of the order. Irrespective of what the respondent’s
counsel has submitted beautifully and forcefully on behalf of the
respondent, I gain the irrefragable impression from the respondent’s
own answering affidavit that the submission by counsel is not enough,
with the greatest deference to counsel, to cover the respondent’s
real intentions, which is that, according to him the order was
wrongly sought and wrongly granted, and so he will not obey it. The
respondent says:







The
applicant, as it did in the founding papers in the main application,
simply relies on unfounded allegations, speculation and conjecture to
vilify me. The applicant’s case cannot be sustained on such
bases.’







[9] If one reads the
above-quoted statement between the lines, as I have done, what
emerges indubitably is that the respondent is saying: this Court was
wrong in accepting ‘the unfounded allegations, speculation and
conjecture’ by the applicant, and the Court was accordingly
wrong in granting the order. In sum, according to the respondent, the
order is wrong and he has no intention of obeying it – albeit,
not in so many words, as I say. My impression is confirmed in no mean
measure by what Mr. Jan Hermanus Olivier states – wittingly
or unwittingly
– in his confirmatory affidavit which forms
part of the respondent’s papers. (Italicized for emphasis) Mr.
Jan Hermanus Olivier says:







I
also first wanted to digest the judgment thoroughly and also wanted
to obtain the views of Advocate Barnard who was Respondent’s
Counsel at the time, to enable me to provide our views on the
judgment and order to Respondent simultaneously with conveying the
news of the order to him.







What is so difficult in the
judgment that needed thorough digestion of; what is so complex with
the formulation of the order that required unravelling by an
Advocate; and why was it necessary for both Advocate Barnard and Mr.
Olivier to formulate their views on the judgment? Mr. Olivier does
not say in his affidavit.







[10] Be that as it may, the
application was fully argued by both counsel and a full judgment was
delivered, containing reasoning and conclusions that led to the
granting of the order. In this regard, I accept the submission of Mr.
Corbett, counsel for the applicant, that the respondent understood
the order; the respondent knew what was expected of him that would
amount to obeying the order; but the respondent chose not to obey the
order for the reason I have set out previously. Accordingly, on the
papers, I find that prima facie there are substantial, as opposed to
wild and generalized, allegations tending to show that the respondent
has breached, and continues to breach, the order. And for what I have
found previously of the attitude of the respondent towards the order,
it is with firm confidence that I find that the respondent’s
breach of the order is wilful, in the sense that it is not casual or
accidental or otherwise unintentional. Whereupon, I hold that the
applicant has made out a case for the grant of the relief in the
notice of motion.







[11] In the result I make the
following order:







(1) That the applicant’s
non-compliance with the forms and service provided for in the Rules
of this Court is condoned and this matter is heard as one of urgency.



(2) That a rule nisi
issue, calling upon respondent to show cause (if any) at 10H00 on
Friday, 8 April 2011 why an order in the following terms should not
be made final:



(2.1) declaring that the
respondent is in contempt of the order of this Court granted on 10
January 2011;







(2.2) extending the rule nisi
granted on 10 January 2011 to 8 April 2011 for the respondent to
purge himself of his contempt before the main application for
confirmation of the rule nisi is heard;







(2.3) convicting the respondent
for contempt of this Court;







(2.4) sentencing the respondent
to a fine or such other punishment as the Court may deem fit;







(2.5) ordering the respondent
to pay costs of this application on a scale as between legal
practitioner and client.







(3) That prayers 2.1 and 2.2
operate as interim orders with immediate effect.















________________________



PARKER J















COUNSEL ON BEHALF OF
APPLICANT:
Adv. A Corbett



Adv. R Maasdorp



Instructed by:
LorentzAngula Inc.











COUNSEL ON BEHALF OF
RESPONDENT:
Adv. R Tötemeyer SC



Adv. D Obbes



Instructed by: Van der
Merwe-Greeff Inc.