REPUBLIC
OF NAMIBIA
HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case
No: A 35/2013
In
the ex parte application of:
HENDRIK
CHRISTIAN T/A HOPE FINANCIAL
SERVICES....................................APPLICANT
IN
RE: DECLARATION OF RIGHTS IN CASE NO: 244/2007 (HENDRIK CHRISTIAN T/A
HOPE FINANCIAL SERVICES V NAMIBIA FINANCIAL INSITITUTIONS SUPERVISORY
AUTHORITY & ANOTHER) PURSUANT TO SUPREME COURT JUDGMENT IN CASE
NO: SCR1/2008 (HENDRIK CHRISTIAN t/a HOPE FINANCIAL SERVICES V
NAMIBIA FINANCIAL INSITITUTIONS SUPERVISORY AUTHORITY & 2 OTHERS)
Neutral
citation: Christian ta Hope Financial Services (A 35-2013)
[2016] NAHCMD 188 (30 June 2016)
Coram:
GEIER J
Heard:
12 May 2016
Delivered:
30 June 2016
Flynote:
Declaration of rights — when granted — Court to approach
the question of a declarator in two stages. 'First, is the applicant
a person interested in any existing, future or contingent right or
obligation. Secondly, and only if satisfied at the first stage,
the court decides whether the case is a proper one in which to
exercise its discretion. An existing dispute is not a prerequisite
for jurisdiction under s 16(c) of the High Court Act No 16 of 1990.
There must, however, be interested parties on whom the declaratory
order will be binding. The absence of an existing dispute may, of
course, incline the court, in the exercise of its discretion, not to
grant a declarator.
Contempt
of Court – applicant prima facie in contempt of a number of
court orders granted by another judge in a related case – court
holding that it was not necessary in such circumstances to act
immediately against the applicant in the protection of the authority
and integrity of the court or the maintenance of the orderliness of
proceedings. Court however considering itself duty- bound not to
ignore the seemingly blatant disregard by the applicant of the courts
orders, which were clearly binding on him at all times As the
applicant’s actions could not simply be overlooked it was
deemed appropriate to refer the matter to the Prosecutor- General for
her to decide whether or not the applicant should be prosecuted in
the ordinary course for contempt.
Summary:
The applicant had originally brought an application certain
declaratory relief aimed at the revival of a default judgement which
had been granted in his favour, but which was subsequently rescinded
by agreement. The applicant thereafter litigated excessively and
vexatiously against the respondent who then brought and was granted a
permanent stay in respect of a number of cases. The court granting
the permanent stays also directed that the applicant could only
litigate against the respondent with prior leave. In spite of these
orders the applicant launched the present directly related
application for declaratory relief without prior leave. The court
thus dismissed the application for these grounds. In any event no
declaratory relief court be granted these circumstances.
ORDER
1.
The application is dismissed with costs on the attorney and own
client scale, such costs to include the costs of one instructed- and
one instructing counsel.
2.
The applicant is this ordered to pay the wasted costs occasioned by
the postponement of the matter on 22 July 2015, such costs to include
the costs of one instructed- and one instructing counsel.
3.
The Registrar is directed to refer this matter to the
Prosecutor-General of the Republic of Namibia in order for her to
decide whether or not the applicant should be prosecuted for contempt
of the court orders granted by Smuts J in Namibia Financial
Institutions Supervisory Authority v Christian 2011 (2) NR 537
(HC) at [104].
JUDGMENT
GEIER
J:
[1]
It is seldom that one case is so intertwined with its preceding case
history.
[2]
A better understanding of this introductory remark will be obtained
from the summation of the factual background found in Namibia
Financial Institutions Supervisory Authority v Christian[1],
which
I believe should be set out herein, as this summary will conveniently
show the interrelation of that case, and its history, with the
present one, which aspect will, in turn, become relevant to the
outcome of this case.
[3]
The litigation history of the parties, against which Smuts J had to
make his decision at the time was as set out as follows in his
judgment:
‘The
action
[23]
In the action, Namfisa is cited as the first defendant, Mr F van
Rensburg, a previous Chief Executive Officer of Namfisa, is cited as
second defendant. The summons was signed by Mr Christian personally.
Mr Robinson argued that it fails to disclose the cause of action
against Namfisa or Mr Van Rensburg and that default judgment should
not have been granted and that the judgment would also be set aside
mero motu by the court as a judgment erroneously sought and/or
granted. There is much merit in that submission.
[24]
The action seeks to hold Namfisa and Mr Van Rensburg liable for the
sum of N$2 911 402,15 together with interest at the rate of 20% on
that sum from September 2002 to date of payment on the grounds of an
alleged unlawful interference with the plaintiff's right to do
business as an insurance agent in September 2002 on the part of Mr
Van Rensburg, acting in the course and scope of his employment with
Namfisa. Mr Christian alleged that the unlawful conduct relates to Mr
Van Rensburg interfering with his business by forbidding the transfer
of members' interests in the Self-Financed Retirement Annuity Fund in
South Africa to Metropolitan Life Namibia Retirement Annuity Fund. It
is contended in the particulars of claim that Mr Christian only
became aware of the reasons for Mr Van Rensburg's alleged wrongful
conduct in August 2005.
[25]
It is pointed out in the founding papers that Namfisa's empowering
legislation was promulgated in 2001 and that it was only established
then. Its Chief Executive Officer states that its operations started
in June 2001 although Mr Christian states that it did so in
September/October 2001. Mr Van Rensburg was employed as its Chief
Executive Officer after its establishment. Prior to that, he was the
Director: Financial Institutions Supervision Department within the
Ministry of Finance of the Government of Namibia. It was in that
capacity that Mr Christian had approached him in 2000 with reference
to the transfer of pension benefits of members of the Self-Financed
Retirement Annuity Fund in South Africa. Mr Van Rensburg responded,
in his erstwhile capacity within the Ministry, to that approach on 6
October 2000 in terms which did not prohibit the transfers but merely
stated that his office would have no objection to a transfer provided
that the client approves, the insurance companies approve, the rules
(of the Fund) make provision for those transfers and that the
Commission of Inland Revenue approves. As is pointed out in the
founding papers, this letter was not written on behalf of Namfisa. It
was on behalf of the Ministry of Finance of the Government at a time
before Namfisa had been established.
[26]
In an answering affidavit deposed to by Mr Van Rensburg in 2005 in
respect of the application brought by Mr Christian against Namfisa in
which Momentum was cited as a respondent and to which I have
referred, Mr Van Rensburg stated that he had, in 2000, requested the
Momentum Group to desist from making payments from that pension fund
to the funds designated by Mr Christian for his clients by reason of
adverse consequences for members of the Fund. Mr Van Rensburg had
also requested the Commissioner of Inland Revenue not to approve such
transfers for tax purposes. Mr Christian states in his answering
affidavit in this application that it was this approach by Mr Van
Rensburg (in his email in 2000) which forms the foundation of his
cause of action against Namfisa, amounting to an alleged unlawful
interference with his right to do business. The conduct on the part
of Mr Van Rensburg took place in 2000. This was before he was
associated with or employed by Namfisa and well before it was
established. It was pointed out by Mr Robinson that Namfisa is not
the successor in title to Mr Van Rensburg's previous employer.
[27]
Mr Robinson submitted that these facts demonstrate that the conduct
complained of took place at a time before Mr Van Rensburg was
employed by Namfisa. This is also confirmed by Mr Van Rensburg in his
affidavit in these proceedings. It would follow, he submitted, that
Namfisa could not be held liable for the alleged unlawful conduct. I
cannot find fault with this reasoning. For this reason alone, the
action would be stillborn.
[28]
Mr Robinson further argued that the attempts by Mr Christian to
suggest that Mr Van Rensburg's conduct took place in 2002 do not
stand up to scrutiny. He pointed out that the alleged corroboration
for this assertion is to be found in Mr Christian's own letter of 26
April 2005 addressed to the Registrar of Pension Funds. This
self-serving letter was addressed to Mr Van Rensburg. In its heading,
it refers to an email by Mr Van Rensburg during September 2002 to a
certain Mr Olaf Badenhorst of Momentum. Mr Van Rensburg states under
oath that he cannot recall ever having seen Mr Christian's letter,
but Mr van Rensburg also points out that his own email was dated in
2000 and not in 2002 as suggested by Mr Christian. Significantly, Mr
Christian did not produce the email in question. It was contended by
Mr Robinson that the reason for this is self-evident, namely that it
does not exist. Mr Robinson accordingly contended that there is no
basis to have suggested in the summons that Namfisa should be held
vicariously liable for the alleged delict of Mr Van Rensburg. Upon
the disputed facts properly approached, I find that the approach by
Mr Van Rensburg, which forms the basis for the alleged interference,
occurred in 2000 and not 2002 as alleged by Mr Christian.
[29]
Mr Robinson also pointed out that Mr Christian has studiously avoided
dealing with the merits of his claim by not proceeding to trial or
showing any intention to do so.
[30]
Mr Christian alleges in the particulars of claim of the action that
he was unaware of Mr Van Rensburg's alleged instruction until being
informed during 2005 by a certain Mr Jooste (of Momentum). But Mr
Robinson points out that Mr Christian already knew of the position in
2002 at the very latest on his own version, assuming that he effected
the transfer of members' interest during 2001 to 2002, as alleged by
Mr Christian. It would then have been clear to him that his work
would have been interrupted or stopped. Mr Robinson contended that Mr
Christian would have had the knowledge already then which would have
prompted him to make enquiries as to the position and that Mr
Christian ought reasonably to have known or could, with the exercise
of reasonable care, have ascertained the facts establishing his
alleged claim in 2002. As is further pointed out by Mr Robinson, Mr
Christian has not issueably denied Mr Van Rensburg's version that he
had written an email in 2000 to that effect to the Momentum Group,
which I also find to be the position.
[31]
Mr Robinson submitted that whatever claims there may be would thus in
any event have prescribed long before the institution of the action
in 2007. The reference to acquiring knowledge of the wrong in 2005 in
the particulars, he correctly pointed out, is a conclusion in law and
that no facts have been provided in support of that statement. The
reference to being told by Mr Jooste in para 74.4 of Mr Christian's
affidavit plainly constitutes inadmissible hearsay evidence which
falls to be disregarded (and struck, given the notice to strike it).
Furthermore, the allegation in question in the particulars of claim
does not in any event relate to being unaware of the cause of action
(the alleged wrongful interference) but merely the reason for it. In
para 14 of the particulars of claim, it is stated:
'The
plaintiff was unaware of the reasons for second defendant's aforesaid
wrongful conduct until August 2005.'
[32]
I agree with the submission that upon the facts properly approached
any claim has prescribed.
[33]
Mr Robinson accordingly submitted that the action should be
permanently stayed in the exercise of the inherent discretion vested
in this court to avoid injustice and inequity to Namfisa, given these
flaws to it and the vexatious conduct on the part of Mr Christian
which I refer to below.
[34]
The combined summons in the action was served on Namfisa on 9 August
2007. That summons is yet to be served upon Mr Van Rensburg, despite
a contention by Mr Christian in the rescission application that he
had personally served the summons on Namfisa for Mr Van Rensburg.
That would not constitute service in accordance with the rules and
would have no force and effect. Mr Van Rensburg had ceased to be an
employee of Namfisa during 2005, to the knowledge of Mr Christian.
Default
judgment
[35]
After service of the summons on 9 August 2007, Namfisa had decided to
oppose the relief sought and to instruct certain legal practitioners,
Lorentz Angula Inc, to defend the action. Notices of intention to
defend were however prepared by Mr Denk, a qualified and duly
admitted legal practitioner in the service of Namfisa at the time.
These notices were signed by him on behalf of a specified legal
practitioner within Lorentz Angula Inc, Mr R Philander. A notice of
intention to oppose was then served upon Mr Christian personally on
21 August 2007 by a legal assistant, Ms Pickering, in the legal
services department of Namfisa. She had made arrangements with Mr
Christian to meet him at the office of the registrar to serve the
notice to defend. Mr Christian does not dispute that he received this
notice on 21 August 2007.
[36]
Ms Pickering then attended the office of the registrar with the
intention of filing that notice on 21 August 2007. She was however
informed at the registrar's office that the notice would have to be
served by legal practitioners of record and that a N$5 revenue stamp
would need to be fixed to the notice together with a power of
attorney. The legal practitioner handling the matter for Namfisa at
Lorentz Angula, Mr R Philander, was out of town at that stage. This
was the reason why Namfisa had itself caused delivery of the notice
on his behalf. Ms Pickering then handed over the notice to defend to
Mr Philander's secretary for further action. It was not however
brought to the attention of Mr Philander.
[37]
On 10 September 2007, the deputy-sheriff served a writ of execution
upon Namfisa arising from the action. It was thereafter established
by Namfisa that Mr Christian had on 7 September 2007 and after the
notice of intention to defend had been served upon him, and without
any notice to Namfisa, brought an application for default judgment
against Namfisa and Mr Van Rensburg — even though there had
been no proper service of the summons upon Mr van Rensburg. It was
also established and not disputed by Mr Christian that he did not
inform the court of the fact that Namfisa had served the notice to
oppose upon him. Had he done so, the court would clearly not have
granted the default judgment. I infer upon the papers and what was
stated in argument that this was why Mr Christian did not disclose
its existence to the court. The omission in the circumstances
constituted misleading of this court in order to secure the granting
of the judgment. On this basis alone, the default judgment should be
set aside given the fraudulent manner it was obtained. The order
granted was itself also defective as is pointed out in the founding
papers. At the instance of Mr Christian, he managed to obtain a
different version of the court order. Based upon that order, he then
proceeded with the issuing of a writ of execution.
Rescission
[38]
Namfisa's legal advisors on 11 September 2007 demanded from Mr
Christian that he stay the execution of the order he had obtained. He
refused to do so. An urgent application was launched to this court to
rescind the judgment and to stay the execution process. In response
to this application, Mr Christian filed an application claiming that
the urgent application was based upon perjury and was in contempt of
court and was furthermore incompetent and constituted an abuse of
court. This application for rescission (case No A 244/07) was
postponed and on 5 October 2007 served before Silungwe AJ. Mr
Christian was represented by counsel on that occasion, Mr Boesak,
instructed by legal practitioners. His counsel without any
reservation of rights agreed to the rescission of judgment and whilst
Mr Christian was present in court an order to that effect was granted
by Silungwe AJ.
[39]
It is however clear from the multiplicity of applications which then
ensued, that Mr Christian has not considered himself to be bound by
the order rescinding the default judgment. Mr Christian contends that
he is not bound by the conduct of his counsel agreeing to the
rescission and has instead repeatedly endeavoured to execute upon the
default judgment fraudulently obtained by him. Mr Christian's
contention that he is not bound by the rescission of the default
judgment is premised upon his contention that Namfisa had not
properly instructed and authorised Lorentz Angula Inc to represent it
in the action and in the application for rescission and that
Namfisa's acting Chief Executive Officer, who had deposed to the
founding affidavit in the rescission application, was not authorised
to represent Namfisa in launching that application. The acting Chief
Executive Officer made it clear, however, that Namfisa's board had by
delegation of its powers and assignment of duties assigned the final
approval in respect of litigation to the Chief Executive Officer.
This would include the initiation of proceedings on its behalf. This
was pursuant to a board resolution. The Chief Executive Officer was
at the time visiting Europe and had in turn under s 29 of its
empowering legislation (Act 3 of 2001) delegated those powers
conferred upon him to the acting Chief Executive Officer in his
absence, as is expressly authorised by s 29. The attack upon the
authority of the acting Chief Executive Officer is thus without any
merit at all.
[40]
Furthermore, the rescission order had been obtained by Mr Christian's
consent (and in his presence).
Further
applications
[41]
Despite this, Mr Christian then launched an application on 8 October
2007 set down for 9 October 2007 (under case No A 244/07). In this
application Mr Christian sought to have set aside the 'undertaking of
the parties as pronounced by the court on 5 October 2007'. He did so
on the grounds that the agreement was not voluntary and was based
upon 'misinformation as to the purported inclination of the
Honourable Presiding Judge to rule in favour of Namfisa' and was
based upon 'coercion by fallacious threats as to costs'. This
application came before Pickering AJ on 9 October 2007. It was
dismissed for lack of urgency with costs on a special scale.
Pickering AJ further ordered that 'the applicant (Mr Christian) may
not proceed in this matter until he has paid the costs set out by
this court dated 9 October 2007'.
[42]
On 10 October 2007 Mr Christian noted appeals against both the orders
of Silungwe AJ rescinding the judgment and the order of Pickering AJ
of 9 October 2007. In the notice of appeal, certain of the grounds
contained in the notice of appeal include that the learned Judge was
'fraudulently misled by the appellant's legal practitioners . . . to
make an order based upon fraudulent misrepresentation' and that the
appellant's consent to 'the fraudulent agreement was obtained in a
fraudulent and coercive manner by his legal practitioners'.
[43]
On 31 October 2007, Namfisa gave notice in terms of rule 30 to set
aside the notices of appeal. On the same day, Mr Christian,
notwithstanding the rescission of the default judgment and the order
(of Pickering AJ) of 9 October 2007, gave instructions to the
deputy-sheriff to enforce the warrant of execution issued out of the
registrar's office on 10 September 2007. This instruction resulted in
yet a further urgent application by Namfisa on 1 November 2007
seeking interdicts against Mr Christian which were granted by Parker
J on 2 November 2007. Of importance for present purposes is para 2 of
that order. It interdicted and restrained Mr Christian from taking
any steps whatsoever to execute upon or give effect to the warrant of
execution of 10 September 2007, pending the finalisation of his
appeal to the Supreme Court. When the matter came before Parker J, Mr
Christian brought an application for Parker J's recusal. It was
refused. Shortly after the order was granted by Parker J, Mr
Christian again gave notice of his intention to appeal against the
judgment of Parker J.
[44]
The rule 30 notice in respect of Mr Christian's original notice of
appeal came before Frank AJ on 27 November 2007 who granted the
application to set aside the two notices of appeal. Shortly
afterwards, on 3 December 2007, Mr Christian noted an appeal against
the order of Frank AJ.
[45]
A few months later and on 27 March 2008, Mr Christian launched an
application set down for 4 April 2008 claiming that the judgment of 5
October 2007 be declared void ab initio, alternatively to be declared
to have been obtained by fraud including perjury and be set aside. On
4 April 2008 it came to Mr Philander's attention that Angula AJ, a
principal in Lorentz Angula Inc, would preside in motion court on
that day. Before court commenced, Mr Philander raised the issue with
Mr Christian and proposed that the registrar be approached to obtain
hearing dates for the matter or that the matter be assigned to a
different court for hearing. Mr Christian indicated that he had no
objection to the matter continuing before Angula AJ as the matter was
merely to be postponed for a date to be arranged with the registrar.
I find Mr Christian's denial of this version — although not
pertinent to the material issues in this application — not to
be genuine in the circumstances.
[46]
Mr Van Rensburg and Namfisa filed a notice in terms of rule 30
against the application on the basis that it was prohibited in terms
of the order of Pickering AJ of 9 October 2007 by reason of the fact
that the costs had not been paid. Mr Christian also filed a rule 30
notice objecting to the authority of Lorentz Angula Inc to represent
the respondents. Shortly afterwards he filed a further rule 30
application in which it was contended that the application should
only be heard after it had been determined whether or not the matter
was properly opposed. The latter rule 30 became opposed and it was
then withdrawn.
[47]
The first rule 30 application by Mr Christian came before Hoff J on 6
May 2008 who on the same day found that the matter was opposed and
should proceed on an opposed basis. Mr Christian then on 3 June 2008
filed two further applications firstly to rescind the order of Angula
AJ postponing the matter of 4 April 2008 and in the second instance
to rescind the order of Hoff J that the matter should proceed on an
opposed basis. The respondents in those applications again gave
notice in terms of rule 30 to set aside those applications to rescind
the two respective orders.
[48]
The earlier rule 30 application by Namfisa directed at Mr Christian's
application of 27 March 2008 (in which Mr Christian had applied for
the rescission of judgment of 5 October 2007 to be declared void or
to be declared obtained by fraud and to be set aside), thereafter
served before court. Judgment was handed down subsequently on 31
October 2008 and Mr Christian's application was struck with costs.
[49]
In the meantime and on 17 July 2008, Mr Christian launched an
application to review the appointment of the Acting Chief Executive
Officer of Namfisa and various resolutions of its board under case No
A 273/2009. Namfisa opposed this application and filed a rule 30
application which was heard on 3 February 2009. Judgment was
subsequently delivered upholding the rule 30 application and
dismissing the review application with costs.
[50]
Despite the sequence of events and the orders of 9 October 2007 of
Pickering AJ and that of Parker J of 2 November 2007, Mr Christian
and Mr Beukes on 30 July 2009 launched an application under case No A
273/2009 in which they sought an order declaring the rescission
judgment of 5 October 2007 to be void and to vary the court order of
9 October 2007 with regard to the punitive costs order. They also
sought to set aside all proceedings under case No A244/07 being the
rescission application. This application followed a ruling of the
Supreme Court of 17 June 2009 in respect of a review brought by Mr
Christian in the Supreme Court in respect of the proceedings of 5
October 2007 (the rescission of judgment). In those proceedings in
the Supreme Court, Mr Christian objected to the representation of
Lorentz Angula Inc and contended that they were not authorised to
represent the respondents in the Supreme Court. The Supreme Court,
per Maritz JA, found that the power of attorney relied upon by
Namfisa had not been supported by resolution of the board of Namfisa
as is required by the rules of that court and that Namfisa was thus
not properly before that court. The review however proceeded because
there were powers of attorney filed on behalf of the other
respondents, being natural persons. Judgment on the merits of that
review is yet to be delivered.
[51]
The application by Messrs Christian and Beukes of 30 July 2009 was
opposed. On the day following the notice of opposition, Messrs Beukes
and Christian on 5 August 2009 filed a document entitled 'Notice of
objection to authority' denying the authority of Lorentz Angula Inc
to represent the respondents in that application. That application
was postponed on 7 August 2009 and on 10 August 2009 Messrs Christian
and Beukes gave notice to file a rule 30 notice to set aside the
notice of opposition and the resolution relied upon for it. On 19
August 2009 Namfisa and Mr Van Rensburg gave notice in terms of rule
30 to set aside the application of 30 July 2009 and the notice
objecting to the authority and the rule 30 application of 10 August
2009. When this rule 30 application came before court on 11 September
2009, Mr Christian objected to it on the basis that in terms of rule
30(5) notice ought to have been given prior to the notice of
application under rule 30. On 7 October 2009, the court incorrectly
found in Mr Christian's favour that a notice in terms of rule 30(5)
should precede a notice in terms of rule 30. As a consequence,
Namfisa then gave a rule 30(5) notice on 16 October 2009. The
application by Mr Beukes and Mr Christian of 30 July 2009 is thus
still pending and is subject to the rule 30 applications I have
referred to. It is because of this (30 July 2009) application, in
which Mr Beukes is an applicant, that he has been cited as a
respondent in these proceedings.
[52]
Following the judgment of 7 October 2009 in favour of Mr Christian
with reference to rule 30(5), Mr Christian on 8 October 2009 once
again instructed the deputy-sheriff, with reference to the original
writ and garnishee order, and pointed out to the deputy-sheriff that
the order relied upon by the latter not to proceed with executing the
writ was void ab initio. Mr Christian then proceeded to instruct the
execution of the writ and for it to be finalised by no later than 14
October 2009. When the deputy-sheriff did not act upon the writ, Mr
Christian launched an application for an order to compel him to do so
on 13 November 2009. The application was set down for hearing on 20
November 2009. Namfisa and Mr Van Rensburg had not been cited in that
application. They then brought an application set down on the same
date, dismissing the ex parte application, alternatively granting
them leave to oppose it. When the matter came before the late
Manyarara AJ on 20 November 2009, he dismissed the ex parte
application and directed that Messrs Beukes and Christian pay the
costs of the application for intervention on an attorney and client
scale. In addition he made an order that no further proceedings may
be brought by any person which would have the effect of reviving the
rescinded order of 7 September 2007 or endeavouring to set aside the
order of 5 October 2007. Reasons for these orders were to be provided
subsequently. Manyarara AJ however unfortunately died thereafter and
before reasons were given.
[53]
On 24 November 2009 Messrs Beukes and Christian again served I
an application under case No A 366/2009, enrolled very shortly
thereafter on 27 November 2009, to declare the judgment and order of
20 November 2009 to be void. Namfisa and Mr Van Rensburg however
brought an application on 27 November 2009 to declare the actions of
Messrs Christian and Beukes to be in contempt of the order of court
of 20 November 2009. Despite this, on 9 December 2009 Messrs
Christian and Beukes served an urgent application under case No A
411/2009, enrolled for 11 December 2009, seeking an order that the
contempt application brought by Namfisa should be set down within a
period of two days. When the matter came before the court on 11
December 2009 it was postponed to 20 January 2010 but could not
proceed on that day due to the fact that there was not a judge
available on that date. It was then postponed to 28 January 2010. On
26 January 2010 Messrs Christian and Beukes filed an answering
affidavit in the contempt application again challenging the authority
of both Namfisa and Mr Van Rensburg to bring it. The application was
then postponed on 28 January 2010 to afford the applicants the
opportunity to reply. That application (case No A 411/2009) is still
pending.
[54]
These proceedings constitute the multiplicity of applications which
have arisen following the institution of the action and the default
judgment which was fraudulently obtained by Mr Christian. It is
pointed out in the founding papers that Mr Christian, as a lay
litigant representing himself, has an intimate knowledge of the rules
of court and is not deterred by the threat of costs orders obtained
against him. Namfisa has obtained several costs orders against him
including on a punitive scale. It is also pointed out that Namfisa
has incurred substantial costs opposing the relief sought and that
these are in excess of N$1 million, which would
include the considerable amount of time spent by its officials in
addressing these applications. The endeavours by Namfisa to recover
costs after they have been taxed have resulted in nulla bona returns.
This is not disputed.
[55]
Namfisa also pointed out in the papers that Mr Christian has launched
attacks upon the judiciary and other officers of court. There is
reference to the instance of the application heard on 20 November
2007 when Mr Christian applied for the recusal of Manyarara AJ
accusing him of bias and conduct destroying his fundamental rights.
Instances of other attacks upon other judges and officers of the
court are referred to in the founding papers and are not denied.
[56]
Namfisa also refers to case No A 34/2009, which is an ex parte
application brought on 5 March 2009 and enrolled shortly thereafter
but not placed on the roll as it had not complied with practice
directives of this court. On 3 April 2009 Mr Christian launched a
similar application without serving it upon Namfisa. This matter was
removed from the roll to enable Mr Christian to effect service upon
Namfisa. It was subsequently opposed and postponed for a date to be
arranged with the registrar. It is also currently pending. There is
also reference to an application by Mr Christian of 19 May 2010
brought under case No A 244/2007 and to a review application launched
by Mr Christian on 13 November 2008 under case No A 345/2008 against
the Chairperson of Namfisa and others. … ‘.[2]
[4]
It was because of this plethora of litigation that Mr Christian found
himself on the receiving end of an application brought by Namfisa
for:
‘ …
final relief …
in terms of the Vexatious Proceedings Act 3 of 1956 and under the
common law.’ [3]
[5]
In the referred to case Namfisa then sought:
‘ … an
order … that the action and pending applications be
permanently stayed and that Mr Christian be directed to pay all
Namfisa's costs on a punitive scale of attorney and own client.
Namfisa also sought
an order under s 2(b) of the Vexatious Proceedings Act that no legal
proceedings may be instituted against it by Mr Christian without the
leave of the Judge President or another Judge assigned by him for
that purpose and that such leave will not be granted unless the Judge
President or his assignee is satisfied that the proceedings are not
an abuse of process of court and that there are prima facie grounds
for such proceedings. The applicant also sought
an order that several applications, listed in the notice of motion
instituted by Mr Christian against it, are permanently stayed. The
applicant also sought
an order declaring that Mr Christian is held to be in contempt of
court of three specific orders referred to and that
a sentence to be imposed upon Mr Christian in respect of the contempt
contended for. The applicant also sought
an order directing that Mr Christian's suspended sentence for
contempt of court, imposed by Van Niekerk J on 11 December 2008, be
put into operation. The applicant has also applied to strike out
certain portions of Mr Christian's answering affidavit. …
‘.[4]
[6]
For the reasons set out in his judgment Smuts J then granted the
following relief:
‘[104]
In the result, I make the following order:
1.
The applicant's application to strike is granted with costs.
2.
The action instituted by Mr Hendrik Christian against the applicant
and Mr Van Rensburg under case No I 2232/2007 on 8 August 2007 is
permanently stayed and Mr Christian is directed to pay all costs of
Namfisa in the action to date upon the attorney and client scale.
3.
No legal proceedings of whatever nature may be instituted by Mr
Christian against Namfisa in any courts or inferior court without the
prior leave of this court or a judge of this court. Such leave shall
not be granted unless the court or the judge in question, as the case
may be, is satisfied that the proceedings are not an abuse of the
process of the court and that there is a prima facie ground for such
proceeding.
4.
The following applications — under case Numbers A 345/2008, A
34/2009, A 273/2009, A 411/2009, A 366/2009, and A244/2007,
instituted by Mr Christian against Namfisa, are permanently stayed.
5.
Mr Christian is held to be in contempt of the following orders of
this court:
5.1
The order of Pickering AJ of 9 October 2009 under case No A 244/2007.
5.2
The order of Parker J of 2 November 2009 under case No A 297/2007.
5.3
The order of Manyarara AJ of 20 November 2009 under case No A
366/2009.
6.
Mr Christian is sentenced to a fine of N$5000 or, in default of
payment, six months' imprisonment, plus a further period of
imprisonment of 12 months, which further period of 12 months'
imprisonment is suspended for five years on condition that Mr
Christian is not convicted of or committed for contempt of court
during the period of suspension.
7.
The respondents are directed to pay the costs of the applicant on the
scale as between attorney and client and to include the costs of one
instructed counsel and one instructing counsel.’ [5]
[7]
It was against this background that Mr Christian, as applicant,
again, launched a further application. This is the case serving
currently before this court.
[8]
It had the following hallmarks:
a)
it was brought on an ex-parte basis;
b)
although brought on an ex parte basis it was served on
Namfisa;
c)
on the
occasion when it first served before the court, in the motion court
for the hearing of unopposed matters, when questioned by myself, Mr
Christian frankly conceded that his latest ex
parte
application had been served on Namfisa, as Namfisa was an interested
party; [6]
d)
despite
this acknowledgement Mr Christain thereafter opposed all efforts of
Namfisa to oppose his application, and thus also the joinder of
Namfisa, ‘tooth
and nail’;
[7]
e)
ultimately,
and by virtue of its order of 28 January 2014, the court, in the
exercise of its inherent powers, ordered the joinder of Namfisa, as a
respondent to the applicant’s ex
parte
motion - to ensure that all persons - with the requisite interest in
the subject matter of the dispute - and whose rights might be
affected - were before the Court.[8]
[9]
Through it the applicant now seeks declaratory orders in the
following terms:
‘1.
Declaring that the Supreme Court Judgment in Case No. SCR1/2008,
relating to a power of attorney filed without a resolution of an
artificial person (Namfisa), is wholly apposite, mutatis
mutandis, to the rescission proceedings under Case No. A244/2007
instituted on 12th September 2007;
1.
Declaring that the passage from the Selma Patricia Tödt v Claude
Walter Ipser, Case 194/91 in the Supreme Court of South Africa
(Appelate Division), relating to the type of cases in which judgment
is void, is wholly apposite, mutatis mutandis, to the
rescission judgment in Case No. A244/2007 obtained on 5th
October 2007;
2.
Declaring that the defect of lack of authorization of LorentzAngula
Inc. brings the rescission judgment in Case No. A244/2007 into the
category that attracts ex debito justitiae, i.e to have it set
aside by right;
3.
Declaring the rescission a deprivation of applicant’s vested
right in the default judgment obtained from this Honourable Court in
Case No. I 2232/2007 on 7th September 2007;
4.
Declaring all other proceedings consequent to the rescission void;
5.
Granting the applicant further and/or alternative relief as the Court
may deem fit to restore the status quo ante as at 7th
September 2007.’
[10]
In support of this relief the applicant states that this court has an
inherent jurisdiction to set aside its own order and that the Supreme
Court judgment, delivered ex tempore in Case SCR1/2008 on 17
June 2009 empowers the High Court to set aside its own judgment and
to deal de novo with the power of attorney filed in the
rescission application brought under case A 244/2007.
[11]
The purpose of the application was formulated in somewhat
incomprehensible terms – but it would seem that the
self-proclaimed aim of this application was:
a)
to inquire into the rescission order granted in Case A 244/2007 and
to determine again the applicant’s right to the default
judgment originally obtained in that matter and;
b)
to restore the applicant’s position which he had obtained by
virtue of the default judgment which he had obtained against Namfisa,
which judgment had however been rescinded.
[12]
It thus emerged that the self-proclaimed purpose of the declaratory
relief now sought was squarely aimed at the relief granted against
the applicant in Case A 244/2007.
[13]
The applicant’s right was described as a right founded in the
Supreme Court’s judgment made in case SCR 1/2008 Hendrik
Christiaan t/a Hope Financial Services v Namfisa and 2 others.
It was contended that the Supreme Court’s judgment had declared
the rescission order (presumably granted under case A 244/2007) as
ipso jure void-
[14]
Again it is to be noted that this formulation of the applicant’s
perceived right reveals that the declaratory orders, now sought,
where all aimed at the relief granted against the applicant in case A
244/2007.
[15]
The applicant then endevours to justify the bringing of this
application on an ex parte basis with reference to what is
stated in Herbstein & Van Winsen (Ed?) at page 1062.
He alleged purportedly that he does not seek relief against any
persons but:
‘ … merely
a declaration of rights (as the remedy) in that the litigation
between the parties had come to an end as the Supreme Court, as it
was put, ‘ had already adjudicated the same matter.’
[16]
It was alleged that the lack of authority of Mrs Lilly Brandt and
LorentzAngula Inc. resulted - ex dibito justitiae - in the
right to have the order (again I presume the order in Case A 244/2007
rescinding the default judgment granted in his favour) set aside.
[17]
The request for a declaration of rights was thus made for a
determination of rights pursuant the said Supreme Court decision.
[18]
The applicant then sets out his view of the case history under case I
2232/2007 which resulted in the said default judgment and the
rescission of such judgment granted under case A244/2007.
[19]
The applicant discloses, without providing any detail – that he
has since 5 October 2007 brought various applications to have the
courts declare the said rescission of judgment void.
[20]
The applicant states that all of these applications where in vain and
that they were “oppressive proceedings’ in which
the courts adopted an ‘indifferent attitude’
towards the applicant.
[21]
Importantly the applicant at least also mentions that he was found
guilty of contempt of court for disregarding the rescission order,
dated 5 October 2007, by Smuts J:
“for
reasons not supported by single evidence in the court file and
without a valid executable judgment against the applicant, without
regard to its nullity in law.”
[22]
He goes on to allege in the founding papers why, in his view, Smuts
J’s remarks, made in the course of the proceedings, serving
before him, and were the learned Judge agreed with counsel for
Namfisa, were “wholly unsustainable”.
[23]
After outlining certain authorities the applicant summarizes the
foundation for the relief now sought as follows:
’39.1
The default judgment granted by this Honourable Court in Case No.
I2232/2007 on 7th September 2007.
39.2
The Supreme Court judgment in Case No. SCR1/2008 on 17th
June 2009.
40.
It is further clear that there was and is concrete invasion of the
above rights in that:
40.1
The rescission application launched on behalf of the respondent on
the strength of a power of attorney given by Mrs. Lily Brandt without
a resolution of respondent, which resulted in a rescission judgment
deprived me of my vested right in the default judgment.
40.2
Despite the binding nature of the Supreme Court judgment in Case No.
SCR1/2008 and that that litigation involved judicial determination of
the same question of law and same issue of fact, to which the
Applicant and NAMFISA were parties, the High Court failed to apply
mutatis mutandis to the rescission proceedings in Case No.
A244/2007. Thus, I am deprived of my vested right in the
Supreme Court judgment in Case No. SCR1/2008.’
[24]
On the basis of which he then submitted in conclusion that:
’48.
… it is respectfully submitted that the case is justiciable
and/or ripe for the Court to make a declaratory order as set out in
the notice of application in that:
48.1
Applicant affected by a rescission order which can be properly
described as a nullity is entitled ex debito justitiae to have
it set aside, the Court has no power to impose any terms upon the
applicant, and the Court, in its inherent jurisdiction, can set aside
its own rescission order.
48.2
This application is principally seeking the enforcement of the
Supreme Court judgment in Case No. SCR1/2008 in the High Court in
Case No. A244/2007 in the rescission of 12th September
2007.
48.3
The Supreme Court judgment in Case No. SCR1/2008 is final and binding
on the High Court.’
THE
IMPACT OF THE 2011 ORDERS
[25]
It has already been mentioned that it was noted from the founding
papers, that the applicant had made a flirting reference to the fact
that he had been convicted of contempt of court by Smuts J – He
did however neither elaborate nor disclose the fact that he was also
convicted by Van Niekerk J on 11 December 2008, as appears from the
judgments which have since been reported.[9]
[26]
On closer scrutiny of the self-disclosed judgment it emerged that
that judgment, and the relief sought then, by the respondent, stemmed
from the applicant’s non- acceptance of the rescission of the
default judgment, which he had obtained under case No. I 2232/2007 on
7 September 2007 and which was subsequently rescinded, with his
consent, and in his presence, on 5 October 2007 under Case A
244/2007.[10]
[27]
It appears further from that judgment that, amongst others, cases I
2232/2007 and A 244/2007 where permanently stayed.[11]
[28]
In addition the orders made by Smuts J on that occasion also
expressly dictated that:
‘3.
No legal proceedings of whatever nature may be instituted by Mr
Christian against Namfisa in any courts or inferior court without the
prior leave of this court or a judge of this court. Such leave shall
not be granted unless the court or the judge in question, as the case
may be, is satisfied that the proceedings are not an abuse of the
process of the court and that there is a prima facie ground for such
proceeding.’[12]
[29]
It is important to note here that the applicant has once again
flouted further orders of this court, in this case the order made by
Smuts J on 27 May 2011, in that no prior leave from this court, or
from another judge of this court was obtained by the applicant before
he instituted the current ex parte application under case
A35/2013, admittedly also aimed at Namfisa and the cases which had
been permanently stayed.
[30]
In so far as the manner, in which this case has unfolded, might have
created the impression that this court impliedly, through its
conduct, might have granted the applicant the requisite leave to
litigate against Namfisa, the following should immediately be said to
dispel any misconception in this regard:
a)
Namfisa, at the first motion court hearing of the matter, on 22
February 2013, had insisted that it be granted the opportunity to
oppose the applicants further application, the ex parte
application brought under case A35/2013, which had been served on it;
b)
The court accordingly ordered that the matter be removed from the
roll and that answering papers or any application which Namfisa might
wish to file should be filed within 14 days from 22 February 2013.
c)
This
order triggered a number of interlocutory applications, which were
determined by the court’s judgment delivered on 18 September
2013;[13]
d)
The ensuing proceedings then continued to focus on whether or not
Namfisa should be granted leave to oppose the application and whether
or not Namfisa should be joined as a party;
e)
Once the joinder of Namfisa was eventually effected through the
judgment and by the order granted on 28 January 2014, the next
interlocutory skirmish resulted from Namfisa’s late filing of
its notice to oppose the main application, the outcome of which is
reflected in the court’s judgment and order made on 21 May
2014;
f)
The applicant then approached the Supreme Court, requesting that
court to exercise its review powers in regard to the perceived ‘gross
irregularities’ committed by this court;
g)
All proceedings under Case A 35/2013 was thus stayed in the High
Court, pending the outcome of the said review;
h)
After
the Supreme Court had informed the applicant that it declined to
entertain the applicants review he brought a rescission application
for the variation of another interlocutory order made by this court.
This application was struck on 11 February 2015;[14]
i)
The main application was then set down for hearing for the first time
on the 22nd of July 2015;
j)
The July 2015 hearing had to be postponed due to an eye operation the
applicant had to undergo;
k)
The matter was then set down for hearing again in October 2015, on
which occasion the applicant indicated that he now wished to bring an
application for my recusal; (incidentally it should be mentioned in
this regard that a previous recusal application had also been
brought, which was not persisted with);
l)
The October hearing was also postponed to afford the applicant the
opportunity to consider his position and bring the application if he
so chose;
m)
Eventually the threatened recusal application was brought. It was
heard on 28 January 2016;
n)
The
application for recusal was refused for the reasons given in the
judgment handed down on 10 February 2016;[15]
o)
The main application could thus eventually, and for a third time, be
set down for hearing on 12 May 2016.
[31]
From the above sketched case history - which reflects only the most
significant events - and which does not even record all the many
interim case management hearings that had to be conducted during the
lead- up to the main hearing - it emerges that the road, to hearing
this case on the merits, was paved with interlocutory obstacles,
which had to cleared first before the matter eventually became ripe
for hearing. Surely, and only once all the interlocutory aspects had
been disposed of, particularly those relating to ensuring that all
the necessary parties were before the court, did the time come to
hear the parties on all their contentions. This is then also
reflected in the court’s case management order, contained in
the judgment on recusal and which directed that the main application
be set down for hearing on 12 May 2016 at 10h00 and that also all
points in limine, as well as the issue of wasted costs
relating to the postponement of the matter on 22 July 2015 were also
to be heard on that date. All this is a far cry from granting the
applicant any tacit leave to litigate against Namfisa.
[32]
It is in this context and against this background that the impact of
the permanent stay of cases I 2232/2007 and A 244/2007 and the aspect
of the applicant’s failure to obtain the requisite leave only
became ripe to be considered at the hearing of 12 May 2016, even
though the respondent, even before it had formally become a party to
this case endeavored to draw the court’s attention to the fatal
bar that the Smuts judgment posed to the applicant’s ex
parte application. It does not take much to fathom that these
orders, on their own, will impact fatally on the applicant’s
case. I will revert to this aspect.
[33]
All this also explains, at the same time, why, in my introductory
remarks made above, I have already alluded to the fact that I
consider the litigation history between the parties as highly
relevant to the outcome of this matter as it is also against this
background that the applicant seeks the declaratory relief already
spelt out above.
SHOULD
THE APPLICANT BE GRANTED DECLARATORY RELIEF?
[34]
Declaratory relief can be granted by virtue of the powers afforded to
the court by Section 16 of the High Court Act 1990. This court
in Daniel
v Attorney-General and Others; Peter v Attorney-General and
Others[16]
reaffirmed the approach to be adopted in this regard. When the court
is called upon to exercise these powers it does so as follows:
‘[17]
The court approaches the question of a declarator in two stages[17].
'First, is the applicant a person interested in any existing, future
or contingent right or obligation. Secondly, and only if satisfied at
the first stage, the court decides whether the case is a proper one
in which to exercise its discretion.'[18]
[18]
It was decided in Ex parte Nell 1963 (1) SA 754 (A) that an existing
dispute is not a prerequisite for jurisdiction under s
19(1)(a)(iii).[19] There must,
however, be interested parties on whom the declaratory order will be
binding. The absence of an existing dispute may, of course, incline
the court, in the exercise of its discretion, not to grant a
declarator.’ [20]
[35]
The first question which then arises is whether or not the applicant
is a person interested in any existing, future or contingent right or
obligation in respect of which some tangible and justifiable
advantage in relation to the applicant’s position can be
established.
[36]
In my view no such tangible and justifiable advantage in relation to
the applicant’s position vis a vis cases I 2232/2007 and
A 244/2007 can be established in view of the permanent stay which has
been ordered as far back as 27 May 2011 in respect of these cases.
[37]
During oral argument the applicant again made it clear beyond doubt
that the real purpose of his ex parte application was- and had
always been - the revival of the default judgment, which had been
granted in his favour, but which had been rescinded, by agreement,
subsequently as far back as 5 October 2007 under case A244/2007.
[38]
The settlement of the rescission application, which had been brought
under case A244/277, however, not only compromised the causa,
on which the rescission application had originally been based, but
also rendered that dispute, res
judicata through
the ensuant rescission order granted by agreement between the parties
in this regard.[21]
[39]
It should again be said that also the relied upon Supreme Court
decision delivered on 17 June 2009, under case SCR 1/2008, is of no
assistance to the applicant. The applicant had quite clearly relied
on this decision in the case which was heard by Smuts J as the
learned Judge already then, in his judgment, had explained what the
decision of Maritz JA was all about when he stated :
‘ … Mr
Christian and Mr Beukes on 30 July 2009 launched an application under
case No A 273/2009 in which they sought an order declaring the
rescission judgment of 5 October 2007 to be void and to vary the
court order of 9 October 2007 with regard to the punitive costs
order. They also sought to set aside all proceedings under case No
A244/07 being the rescission application. This application followed a
ruling of the Supreme Court of 17 June 2009 in respect of a review
brought by Mr Christian in the Supreme Court in respect of the
proceedings of 5 October 2007 (the rescission of judgment). In those
proceedings in the Supreme Court, Mr Christian objected to the
representation of Lorentz Angula Inc and contended that they were not
authorised to represent the respondents in the Supreme Court. The
Supreme Court, per Maritz JA, found that the power of attorney relied
upon by Namfisa had not been supported by resolution of the board of
Namfisa as is required by the rules of that court and that Namfisa
was thus not properly before that court. The review however proceeded
because there were powers of attorney filed on behalf of the other
respondents, being natural persons. Judgment on the merits of that
review is yet to be delivered. …’.[22]
[40]
The applicant did not produce the said outstanding judgment in this
court and also the court’s searches of the all the reported
Supreme Court judgments, on both the SAFLII and Supreme Court
websites, and in the Namibian Law Reports, since June 2009, did not
establish that the judgment on the merits of the referred to review
has since been delivered. The relied upon interlocutory judgment of
the Supreme Court does accordingly not bolster the applicants case
for a declarator in any way as also it cannot show any tangible and
justifiable advantage in relation to the applicant’s position
as far as this case is concerned
[41]
The first leg of the applicable enquiry can accordingly not be
answered in the applicant’s favour.
[42]
Even if I were wrong in this regard it must clearly be said that I
would, in any event, not have exercised my discretion in favour of
the sought orders if one has regard to the underhand manner in which
this application was originally brought on an ex parte basis,
although it was served on Namfisa “as an interested party”.
It is clear also that, under the guise of an ex parte
application, not citing Namfisa as a respondent, and then
endeavouring, at every turn, to prevent Namfisa to come on record,
the declaratory relief sought under case A 35/2013 was nothing more
than a veiled attempt on the part of applicant to steal a march on
Namfisa, who had always been a party to the proceedings under cases I
2232/2007 and A 244/2007, and whose rights, title and interest in the
said judgments obtained, the applicant again sought to assail behind
their back in spite of the permanent stay of prosecutions which had
been granted in that regard.
[43]
In addition also the order granted by Smuts J prohibiting the
applicant in no uncertain terms to institute further legal
proceedings of whatever nature against Namfisa in any court or
inferior courts without prior leave must weigh negatively against the
exercise of any discretion in favour of the applicant. No such leave
has been obtained. The applicant seems once again to have acted in
contempt of court orders.[23]
[44]
I can also think of no compelling further reason why, in such
circumstances, any court of law would exercise its discretion in
favour of an applicant, who has sought declaratory relief, in “legal
proceedings”, aimed at the same party, which the applicant, by
virtue of a court order, has clearly been prohibited from bringing,
or if he wasn’t, was at least prohibited from bringing such
further proceedings, without leave first having been granted on the
basis that a court, in spite of the litigation history, first having
satisfied itself that the further case would not again amount to an
abuse of the process of the court and that there, at least, would be
prima facie grounds for such further legal proceedings. I
simply cannot detect any such prima facie grounds. In any
event I believe that I have already made it clear that I consider the
current application a further abuse of process on the part of the
applicant, at least, in respect of those cases which have been
permanently stayed.
[45]
Finally it should be said that the permanent stay of cases I
2232/2007 and A 244/2007, (and all the others listed in the order),
as well as the aforesaid conditional prohibition to institute further
legal proceedings against Namfisa, without leave, which was not
obtained, in any event renders all the other questions raised in this
application ‘hypothical, abstract and/or academic, in
circumstances where there simply cannot be any actual (ie. any
legally recognisable dispute) between the parties.[24]
Also for these reasons it cannot be said that this case is a proper
one in which to exercise any discretion in favour of granting the
sought relief.
[46]
It so emerges that the second leg of the enquiry and the further
related considerations can also not be answered in favour of the
applicant.
[47]
The application can therefore not succeed also for these reasons.
[48]
In addition these findings then also obviate the need to determine
the myriad of other issues, whether raised in limine, or
otherwise, by the parties save for the issue of the wasted costs
occasioned by the postponement of the main application on 22 July
2015, which had stood over for later determination.
THE
COSTS OF THE POSTPONEMENT OF 22 JULY 2015
[49]
The point of departure for deciding this issue must be the general
rule that it is usually the applicant for a postponement that will be
ordered to pay the wasted costs occasioned thereby.[25]
I cannot detect any substantial reason for departing from the general
rule in this instance if one takes into account in this regard that
the postponement was sought and applied for by the applicant to
enable him to undergo an eye operation. It is also clear that it was
the applicant that sought the indulgence and obtained the benefit
thereof. It is also clear that the respondent was prejudiced and
inconvenienced by the postponement in that it had incurred
unnecessary legal costs. In such circumstances I deem it proper to
exercise my discretion in favour of the respondents, as the prejudice
that was suffered was of the type that can be cured by an appropriate
costs order. The applicant will thus be ordered to pay the wasted
costs occasioned by the postponement of the matter on 22 July 2015,
such costs to include the costs of one instructed- and one
instructing counsel.
CONTEMPT
OF COURT
[50]
Given my findings in this matter it would appear that the applicant
may now have acted in contempt of the orders 2, 3 and 4, as granted
by Smuts J, on 27 May 2011, in Namibia
Financial Institutions Supervisory Authority v Christian
2011 (2) NR 537 (HC)[26].
[51]
Here it should be mentioned that although the respondent had
initially, and for the greatest part of the duration of this case,
insisted that the applicant be held in contempt of court, and after
having strongly argued that the applicant’s case had no merit
whatsoever and was brought with the sole aim of reviving a default
judgment fraudulently obtained, in a mala fide manner, in which case
the applicant had once again shown that he did not consider himself
bound by the court orders pertaining to him, even while the period of
suspension of the previous conviction on contempt had not yet
expired, [27] Mr Barnard, who
appeared on behalf of the respondent, surprisingly, and for
inexplicable reasons, during argument, relinquished this quest and
left any further steps to be taken in this regard in the hands of the
court.
[52]
Although the respondents have abdicated their responsibility in this
regard it is clear that this court cannot just simply turn a blind
eye to the applicant’s non-compliant conduct as it is duty-
bound not to ignore his seemingly blatant disregard of the courts
orders, which were clearly binding on him at all times.
[53]
The prima facie contemptuous conduct of the applicant has been
ongoing. For this reason it is in my view not necessary to act
immediately against him in the protection of the authority and
integrity of the court or the maintenance of the orderliness of
proceedings. I have already considered that his actions cannot simply
be overlooked. It would thus be appropriate in these circumstances to
refer the matter to the Prosecutor- General for her to decide whether
or not the applicant should be prosecuted in the ordinary course for
contempt in respect of which, in my view a prima
facie
cause exists.[28]
COSTS
[54]
Given the above findings in regard to the conduct of the applicant,
relevant to this case, I believe that a special order as to costs is
warranted as a mark of this court's displeasure of such conduct.
[55]
In the result I make the following further orders:
1.
The application is dismissed with costs on the attorney and own
client scale, such costs to include the costs of one instructed- and
one instructing counsel.
2.
The applicant is this ordered to pay the wasted costs occasioned by
the postponement of the matter on 22 July 2015, such costs to include
the costs of one instructed- and one instructing counsel.
3.
The Registrar is directed to refer this matter to the
Prosecutor-General of the Republic of Namibia in order for her to
decide whether or not the applicant should be prosecuted for contempt
of the abovementioned court orders granted by Smuts J in Namibia
Financial Institutions Supervisory Authority v Christian 2011 (2)
NR 537 (HC) at [104].
H
GEIER
Judge
APPEARANCES
FOR
THE APPLICANT: IN PERSON
FOR
THE RESPONDENT: PCI Barnard
Instructed
by LorentzAngula Inc.,
Windhoek
[2]
Namibia
Financial Institutions Supervisory Authority v Christian op
cit at [23} to [56]
[3]
Namibia
Financial Institutions Supervisory Authority v Christian op
cit at [5}
[4]
Namibia
Financial Institutions Supervisory Authority v Christian op
cit at [5}
[5]
Namibia
Financial Institutions Supervisory Authority v Christian op
cit at [104}
[7]See
generally Namibia
Financial Institutions Supervisory Authority v Christian t/a
HopeFinancial Services (A
35/2013) [2014] NAHCMD 54 (28 January2014) op cit and at [31], see
also Christian
v Namibia Financial Institutions Supervisory Authority (A
35-2013) [2015] NAHCMD 146 (11 February 2015) reported on the
Namibia Superior Courts website at
http://www.ejustice.moj.na/High%20Court/Judgments/Pages/Civil.aspx ,
Namibia
Financial Institutions Supervisory Authority v Hendrik Christian t/a
Hope Financial Services (A
35/2013) [2015] NAHCMD 87 (31 March 2016), reported on SAFLII at
http://www.saflii.org/na/cases/NAHCMD/2016/87.html
, Christian
t/a Hope Financial Services v Namibia Financial Institutions
Supervisory Authority (A
35/2013) [2015] NAHCMD 65 (10 February 2016) reported on SAFLII at
http://www.saflii.org/na/cases/NAHCMD/2016/65.html
[8]
See Namibia
Financial Institutions Supervisory Authority v Christian t/a
HopeFinancial Services (A
35/2013) [2014] NAHCMD 54 (28 January2014) at [52]
[9]
Christian
t/a Hope Financial Services v Chairman of Namibia Financial
Institutions Supervisory Authority and Others
(1) 2009 (1) NR 22 (HC), at [40], Christian
t/a Hope Financial Services v Chairman of Namibia Financial
Institutions Supervisory Authority and Others
(2) 2009 (1) NR 37 (HC) at p 37 and Christian
and Another, Namibia Financial Institutions Supervisory Authority
v 2011 (2) NR 537 (HC) at [97]
[10]
Christian
and Another, Namibia Financial Institutions Supervisory Authority
v 2011 (2) NR 537 (HC) at [2] to [3] and [38] to [40]
[11]
Christian
and Another, Namibia Financial Institutions Supervisory Authority
v 2011 (2) NR 537 (HC) at [104] orders 1 and 4
[12]
Christian
and Another, Namibia Financial Institutions Supervisory Authority
v 2011 (2) NR 537 (HC) at [104] order 3
[13]
See : Hendrik
Christian t/a Hope Financial Services (A
35/2013) [2016] NAHCMD 111 (18 September 2013)
[14]
See : Christian
v Namibia Financial Institutions Supervisory Authority (A
35-2013) [2015] NAHCMD 146 (11 February 2015)
[15]
Christian
t/a Hope Financial Services v Namibia Financial Institutions
Supervisory Authority (A
35/2013) [2015] NAHCMD 65 (10 February 2016)
[16]
2011 (1) NR 330 (HC), see also Merlus
Seafood Processors (Pty) Ltd v Minister of Finance
2013 (1) NR 42 (HC) at [19]
[17]
Reinecke
v Incorporated General Insurances Ltd
1974 (2) SA 84 (A) at 93A – C
[18]
Myburgh
Park Langebaan (Pty) Ltd v Langebaan Municipality and Others
2001 (4) SA 1144 (C) at 1153A
[19]
Section 19(1)(a)(iii) is equivalent to s 16(d) of the Namibian High
Court Act 16 of 1990
[20]
Myburgh
Park Langebaan (Pty) Ltd v Langebaan Municipality and Others
op cit at 1153B
[21]
See for instance: Eke
v Parsons
2016 (3) SA 37 (CC) at [36]
[22]
Namibia
Financial Institutions Supervisory Authority v Christian
2011 (2) NR 537 (HC) at [50]
[23]
Namibia
Financial Institutions Supervisory Authority v Christian
2011 (2) NR 537 (HC) at [104] – order no 3 – which
directed that : ‘No legal proceedings of whatever nature may
be instituted by Mr Christian against Namfisa in any courts or
inferior court without the prior leave of this court or a judge of
this court. Such leave shall not be granted unless the court or the
judge in question, as the case may be, is satisfied that the
proceedings are not an abuse of the process of the court and that
there is a prima facie ground for such proceeding.’
[24]
See for instance : Erasmus
Superior Court Practice
- Service at A 1 – 34 and the authorities cited in footnote
10, compare also Stellmacher
v Christians and Others
2008 (2) NR 587 (HC) at [16] to [17]
[25]
See for instance : Christian
v Metropolitan Life Namibia
2007 (1) NR 255 (HC) at [5]
[26]
[104] In the result, I make the following order:
1.
….
2.
The action instituted by Mr Hendrik Christian against the applicant
and Mr Van Rensburg under case No I 2232/2007 on 8 August 2007 is
permanently stayed and Mr Christian is directed to pay all costs of
Namfisa in the action to date upon the attorney and client scale.
3.
No legal proceedings of whatever nature may be instituted by Mr
Christian against Namfisa in any courts or inferior court without
the prior leave of this court or a judge of this court. Such leave
shall not be granted unless the court or the judge in question, as
the case may be, is satisfied that the proceedings are not an abuse
of the process of the court and that there is a prima facie ground
for such proceeding.
4.
The following applications — under case Numbers A 345/2008, A
34/2009, A 273/2009, A 411/2009, A 366/2009, and A244/2007,
instituted by Mr Christian against Namfisa, are permanently stayed.
…..
‘.
[27]
‘[104] … 6. Mr Christian is sentenced to a fine of
N$5000 or, in default of payment, six months' imprisonment, plus a
further period of imprisonment of 12 months, which further period of
12 months' imprisonment is suspended for five years on condition
that Mr Christian is not convicted of or committed for contempt of
court during the period of suspension.’
[28]
S
v Mamabolo (E TV Intervening) 2001
(1) SACR 686 (CC) (2001 (3) SA 409; 2001 (5) BCLR 449; [2001] ZACC
17) were the Constitutional Court considered the constitutionality
of the summary procedure in the context of the offencwe of
scandalizing the court and were Kriegler J remarked at [57] to [59]