Bock v Bock (SA 12/2003) [2016] NASC 5 (08 November 2016);

Group

Full judgment

NOT REPORTABLE

CASE NO: SA 12/2003

 

IN THE SUPREME COURT OF NAMIBIA

 

In the matter between:

WILLEM BOCK                   Appellant

and

DAVID BOCK                      Respondent

 

CORAM: SHIVUTE CJ, MARITZ JA and DAMASEB AJA

Heard: 20 October 2006

Delivered: 8 November 2016

 

APPEAL JUDGMENT

 

DAMASEB AJA (SHIVUTE CJ concurring):

This appeal was heard on 20 October 2006 by Shivute CJ, Maritz JA (since retired) and myself. Maritz JA was assigned the responsibility to prepare the court’s judgment. Regrettably, in circumstances similar to those described by Mainga JA in Minister of Finance v Merlus Seafood Processors (Pty) Ltd SA 91/ 2011 delivered on 30 September 2016, paras 1-2, Maritz JA has not presented a draft judgment for consideration. The health of our brother has been on the decline, and the situation now is that he has conveyed through the Chief Justice the message that he has been medically advised against undertaking strenuous mental concentration on matters such as the current one. The Chief Justice has therefore asked me to prepare a draft judgment which, if he agrees, will be the judgment of the court.

 

Introduction

[2] The appellant, who as respondent in the court below, was cited by the present respondent in motion proceedings for contempt of court, appeals to the Supreme Court against an order of the High Court invoking a suspended sentence of 4 months imprisonment for what was determined by the High Court as his failure to comply with that court’s orders.

 

[3] The dispute involves access to a shared waterpoint by neighbouring farmers and the straying of livestock from fenced farming land occupied by the appellant onto that occupied by the respondent.

 

The facts

[4] The Farm Kareeboomvlei No. 449, situated in the district of Rehoboth, is divided into the ‘Remainder’ and several ‘Portions’ owned by different persons. The appellant and his son (William Gary Bock) occupy the Remainder and Portion 5. The respondent occupies Portion 3 while a Mr Frans Bock occupies Portion 4. It is common cause that the appellant’s son had since become the owner of Portion 4 formerly occupied by Mr Frans Bock but that the appellant was at all times material to the contempt proceedings and the appeal, the occupant of Portion 4 and kept livestock thereon.

[5] The respondent instituted action in the High Court during April 1999 against, among others, the appellant and his aforesaid son. The appellant did not defend the action and a default judgment was granted on 4 June 1999 requiring the appellant to do certain things and to refrain from certain conduct. The order reads as follows:

 

‘1. That the Defendants are hereby directed to allow the plaintiff:

 

(a) access to the waterpoint situated on the adjoining and mutual border of all portions of land which previously made up the original farm "Kareeboomvlei" No. 499 district of Rehoboth’;

 

(b) the peaceful and undisturbed exercise, exploitation of the plaintiff’s water right to extract water from the aforesaid water point.

 

2. That the first and second defendants are hereby prohibited and restrained from in any manner preventing the plaintiff, in a peaceful and undisturbed manner, obtain access to the aforesaid water point and to exercise, exploit and use the Plaintiff’s water right to extract water from the aforesaid water point.

 

3. That the first and second defendants are hereby directed to take the necessary steps to prevent any livestock from wandering across or onto the plaintiff’s property to wit a portion of portion 3 of the farm Kareeboomvlei No 499 district of Rehoboth, from the first defendants property situated adjacent to plaintiff’s aforesaid property and by interdicting and restraining the defendants from allowing such livestock to wonder onto the plaintiff’s property from the first defendants’ aforesaid property.

 

4. That the defendants are hereby directed to not leave any gates open situated on the border between the plaintiff and the first defendant’s aforesaid property, and that the defendants close such gates properly after having opened or used same.’

 

[6] It is common cause that the respondent approached the High Court on 29 October 1999 alleging that the appellant did not comply with the order of 4 June 1999. The appellant still did not oppose this application and the court a quo issued an order on 30 June 2000 that the appellant and his son be committed to 4 months imprisonment but wholly suspended for three years on condition that the appellant complies with the order granted by default on 4 June 1999.

 

[7] It is not in dispute that this mandatory and prohibitory orders were served on the appellant and his son on 27 July 2000.

 

[8] The respondent, accusing the appellant of not complying with the orders afore-mentioned, proceeded to court on 29 October 2001 citing the appellant for contempt. The appellant opposed this application and filed an answering affidavit. The court a quo had to determine the issue of whether the appellant, and his son, after the suspended sentence of imprisonment was imposed upon them, continued to contravene the order of 4 June 1999.

 

[9] The court a quo’s finding delivered on 30 May 2003, based on the respondent’s founding affidavit can be summarised as follows:

 

a) The appellant cut and removed the fence between his farm and that of another neighbour, Frans Bock, and as a result the appellant’s livestock wandered across the property of Frans Bock onto the respondent’s property. The court a quo found this action by the appellant to be in breach of the court order in that the appellant failed to take steps to prevent any livestock from wandering across or onto respondent’s property from appellant’s property;

 

b) The appellant removed and appropriated the fencing materials from a section of the border fence between the appellant and respondent’s property - a section situated at the waterpoint. The High Court found that in his answering affidavit in the 2001 proceedings, the appellant admitted that the fence was removed by him but qualified his actions by stating that the fence was situated in a common area adjacent to the waterpoint and that the fence prevented people from having access to the waterpoint. The court a quo correctly found that the appellant’s reliance on the existence of a 'common property' which allegedly 'surrounds' the waterpoint or a 'no man’s land' had no merit in law or fact. The court a quo specifically found that the adjacent properties meet each other at the waterpoint and that various owners jointly own the waterpoint.

 

c) That the appellant damaged a plastic pipe owned by the respondent which supplied water to the respondent’s house and household. It was common cause that the appellant disconnected the said pipe because, according to the appellant, the respondent did not contribute anything towards the maintenance of the waterpoint. The court a quo correctly found such conduct to be a violation of the court order which prohibited and restrained the appellant from, in any manner, preventing the respondent in a peaceful manner to obtain access to the waterpoint and to exercise, exploit and use his water rights.

 

[10] The court a quo found that:

 

‘It should be clear from the aforementioned incidents that first respondent on various occasions breached the conditions subject to which his imprisonment was suspended. Proof of only one of the aforementioned breaches by first respondent would entitle the applicant the relief being sought by him. I am satisfied that the conduct of first respondent amounts to a breach of the conditions subject to which the period of punishment had been suspended and consequently continued to remain in breach of the relevant court orders and applicant had successfully discharged his evidential burden of proof.’

 

[11] The court a quo then invoked the suspended sentence and committed the appellant to imprisonment for 4 months. It is the order of imprisonment that the appellant wants this court to set aside and, as he says, impose an alternative order such as a fine, should he be found to have been in breach of the conditions set to the suspended sentence.

 

Issues for determination on appeal

[12] The appellant does not challenge the initial sentencing but rather the court’s order to bring into operation the suspended sentence. On principle, therefore, the only issue to be decided in this appeal is whether the appellant breached the conditions invoking the operation of the suspended sentence.

 

[13] The appellant’s counsel in his written heads of arguments formulates the issues as follows:

 

a) Did the appellant deny the respondent access to the waterpoint situated on the adjoining and mutual border of all portions of the land which previously made up the original Farm Kareeboomvlei no 449, district of Rehoboth?

 

b) Did the appellant deny the respondent peaceful and undisturbed exploitation of the respondent’s right to extract water from the waterpoint?

 

c) Did the appellant fail to take reasonable steps to prevent livestock from wandering across or onto plaintiff’s property (ie Portion 3 of the Farm Kareeboomvlei) from appellant’s property (ie remainder of Farm Kareeboomvlei)?

 

Submissions by the appellant

[14] Mr Uietele for the appellant submitted that the court a quo erred in finding that the court order of 4 June 1999 was breached by the appellant since there is no fence between the appellant and the respondent’s farm. The appellant submitted that the fence in place was last repaired in 1975 and is so old that small stock easily pass onto the respondent’s property. Furthermore, the appellant maintained that the order was to prevent small stock wandering onto the respondent’s property from the appellant’s property and not from Frans Bock’s Portion 4. A further misdirection attributed to the court a quo is that because no proof was provided that the small stock that wandered on to respondent’s land belonged to the appellant and not Mr Frans Bock.

 

[15] As regards access to the waterpoint, the appellant submitted that the court a quo erred in finding that the disconnecting of the water pipe that supplied water to the respondent’s household is a disregard of the court order. The justification for the disconnection, according to the appellant, is that the respondent did not contribute anything to the costs of operating the waterpoint, as other users did, and because of the wastage of water by the respondent. The appellant submitted that the Farm is sub-divided in several portions co-owned by different users who share a waterpoint and as such the respondent’s right to extract water is subject to other users’ rights and is not absolute or unlimited. The appellant thus submitted that the order of the court a quo that the respondent be given absolute and unlimited right should not be sustained unless limited and subject to rights of other users.

 

[16] As regards sentence, it was submitted that the court a quo failed to take into account the personal circumstances of the appellant and thus failed to consider an alternative sentence to imprisonment such as a fine.

 

 

 

Submissions by the respondent

[17] Mr. Tӧtemeyer, who appeared for the respondent, submitted that the court a quo had every reason, based on the admissions of the appellant, to invoke the suspended sentence. He added that the appellant admitted that after the conditions were set and the court order personally served on him, he removed the fence between his property and that of the respondent as well as that erected near the waterpoint and this had the effect that livestock wandered on to the appellant’s property and crossing over to the respondent’s property. The admitted removal and appropriation of the waterpipe belonging to the respondent was a clear transgression of the respondents’ rights to access water as recognised by the court a quo.

 

[18] Mr Tӧtemeyer correctly submitted that the present appeal is unconcerned with the sentence imposed but rather the order invoking the suspended sentence based on the factual allegations on which the court a quo’s decision is based. Accordingly, since the factual enquiry had already been done, the appeal stood to be dismissed with costs, including the costs of one instructing and one instructed counsel.

 

Discussion

[19] I will now consider whether the appellant did in fact breach the conditions of the suspended sentence and whether the conduct, if proved, warranted the order made by the court a quo.

 

[20] As these are motion proceedings, the court a quo correctly applied the test in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] (3) SA 623 (A). The court a quo could only give a final order if the facts averred in the applicant's papers which were admitted by the respondent, together with the facts alleged by the respondent, justify such an order. In certain instances, the denial by a respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact.

 

What are the facts alleged by the respondent (applicant in the court a quo) as admitted by the respondent (appellant in the appellant respondent in the court a quo)

 

[21] The court order of 4 June 1999 (as amended) placed three major obligations on the appellant: firstly, not to hinder the respondent’s right of access to the waterpoint and to allow peaceful and undisturbed exercise of that right. The respondent alleged that such was breached by the removal and appropriation of a water pipe belonging to the respondent on 11 August 2000. Although the appellant denied having removed the pipe, he admitted that the pipe was disconnected due to the respondent’s ‘non contribution’ and ‘wastage of water’ in order to make the respondent realise that he should contribute to the maintenance of the water installation. In appellant’s own words:

 

‘As a result of applicants [respondent’s] non contribution, and his wastage of the water, this pipe was disconnected from the common water point and pulled towards second respondent’s [appellant’s] property, in order to make applicant realise that he should contribute to the maintenance of the water installation at the common waterpoint. This was however not intended as an attempt to prevent the applicant from getting water from the common waterpoint, but merely to illustrate the point.’

 

[22] It is obvious that the appellant played a part in that disconnection. In fact, counsel on behalf of the appellant conceded that the pipe was removed. There is therefore not a real genuine or bona fide dispute of fact that the appellant disconnected a pipe that made it possible for the respondent to access water from the share water source.

 

[23] The allegation, buttressed by the concession, that the pipe was removed through the actions of the appellant, amongst others, justified the finding that the appellant breached a condition imposed on him by the High Court in its order of 4 June 1999 not to disturb the respondent’s access to the common waterpoint. The fact that the pipe was ‘pulled’ towards the appellant’s property corroborates the assertion that it was a deliberate act by the appellant to disturb the respondent’s access to the common waterpoint, in breach of the very clear and unambiguous court order.

 

[24] That conclusion alone sufficed for the finding that the appellant was in breach of the court’s order, rendering it unnecessary to consider the alleged breach concerning livestock wandering onto the respondent’s land.

 

[25] The serious consequences of not obeying court orders have been reiterated in the past by our courts. Mainga J (as he then was) pointed out in Sikunda v The Government of the Republic of Namibia 2001 NR 86 (HC) at 92B that the Namibian state is founded on the rule of law and that the effectiveness of our courts lies in compliance with their orders. Mainga J stated at 92C-E that:

 

'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 to anarchy. A rule of law is a cornerstone of the existence of any democratic government and should be proudly guarded.’

 

[26] Public policy dictates that there shall be obedience of orders of court and that people should not be allowed to take the law into their own hands (Kotze v Kotze 1953 (2) SA 184 (C) at 187F). In Hadkinson v Hadkinson 1952 (2) All ER 567 at 569C-D wherein Romer LJ, inter alia, said:

 

‘It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a Court of competent jurisdiction to obey it, unless and until that order is discharged.’

 

[27] Romer LJ went on to add that two consequences flow from that obligation:

 

‘The first is that anyone who disobeys an order of Court is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to Court by such person will be entertained unless he has purged himself of his contempt.’

 

[28] The analysis of the evidence clearly indicates that the court a quo did not err in finding that the appellant breached a material condition on which the suspended sentence was based. The appellant himself admitted to disconnecting the respondent’s pipe allowing the latter access to the common waterpoint.

 

[29] Counsel for the appellant indicated in regard to the sentence that a non-custodial sentence such as a fine fitted the personal circumstances of the appellant. That was not an issue before the High Court which was concerned solely with whether there was contempt of the court’s order. The invocation of the suspended sentence was an inevitable consequence of the wilful breach of the court’s order.

 

[30] The delay in the delivery of this judgment is, regrettably, a failure of justice. The appellant is to serve a period of imprisonment of 4 months (ten) 10 years after the event which rendered him liable to imprisonment. One knows not how old he is now and in what state of health he is or even whether he is still alive. It is not in the interests of justice that he be committed to prison and I will therefore order that the order committing him to prison be stayed subject thereto that the contempt had been purged in the meantime. If not, the respondent should be allowed to return to the High Court armed with this order and proof that the contempt still remains and ask that court to commit the appellant forthwith.

 

[31] In the result, the following order is made:

 

(a) The appeal is dismissed with costs, such costs to include the costs of one instructing and one instructed counsel.

 

(b) The order of imprisonment of the appellant is stayed but the respondent may, upon proof that the contempt persists, approach the High Court to have the appellant committed for contempt.

 

 

 

 

 

 

______________________

DAMASEB AJA

 

 

 

 

 

 

_____________________

SHIVUTE CJ

 

 

 

 

 

APPEARANCE:

APPELLANT: S F Ueitele

Instructed by Ueitele & Hans Inc

 

RESPONDENT: R Tötemeyer

Instructed by Stern & Barnard