CASE NO. [P] A 345/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

HENDRIK CHRISTIAN t/a HOPE FINANCIAL SERVICES Applicant

and

THE CHAIRMAN OF NAMIBIA FINANCIAL INSTITUTIONS SUPERVISORY AUTHORITY 1^ST Respondent

THE CHIEF EXECUTIVE OFFICER OF NAMFISA 2^ND Respondent

CHAIRPERSON OF STATE-OWNED ENTERPRISES GOVERNANCE COUNCIL 3^RD Respondent

CORAM: VAN NIEKERK, J

Heard on: 15 December 2008

Delivered on: 16 December 2008

SENTENCE

VAN NIEKERK, J.: The applicant has been convicted of contempt of court and must now be sentenced.

In considering what a proper sentence would be, I bear in mind what was stated in S v Nel 1991 (1) SA 730 (AA ) (the quotation is from the English headnote, which accurately reflects the Afrikaans judgment):

“Contempt which is committed in facie curiae is a unique offence; it is a distinct procedure whereby the offender can there and then be found guilty and sentenced; and the sentence which is imposed also has unique characteristics. Someone who commits contempt in facie curiae is not an ordinary criminal in the everyday meaning of the word and he ought not to be treated as such. The reason for the existence of the summary procedure (in the wide sense) in terms of which the offence can immediately be dealt with is the necessity that a court, as the axis on which the administration of justice turns, must be in a position to protect its reputation and dignity and to ensure the orderly conduct of its proceedings. The primary objective of the application of the contempt procedure is to maintain the reputation and dignity of the court and the orderliness of its proceedings. It is to achieve that objective that the court exercises its power to punish the offender. The most important function of the imposition of punishment in this case is to enforce the court's authority. There is no room whatsoever for any notion of retribution. There can also be limited scope for reformation: for the most part (leaving aside exceptional cases) the purpose of the punishment which is imposed is to bring the offender to his senses in the very proceedings in which the offence is committed. Deterrence is by the same token often and chiefly directed at getting the offender to refrain from continuing with his contemptuous conduct in the proceedings which are underway. The punishment is not meant to hurt the offender but to bring about an end to the outrage to the court's esteem and authority. The extent of the punishment stays in the background; in the foreground is the esteem and authority of the court; and between the one and the other there is no direct relationship. The authority of the court is too precious to attempt to measure it against any punishment which may be imposed for conduct which harms it. Esteem for the court cannot be achieved by heavier punishments for insults to the court. These considerations indicate why a heavy sentence in these sort of cases is generally inappropriate in the ordinary course of events.”

There are some factors which to my mind operate as mitigating factors. Firstly the applicant apologized to the Court while addressing it on sentence, saying that he was very sorry. Secondly, he stated that, at the age of 57 years, it is the first time that he has been convicted of conduct of this nature. Thirdly, during the enquiry he stated that when he wrote the letter he felt frustrated about the fact that his complaints about the hearing by ANGULA AJ had not been dealt with to his satisfaction. This is no excuse for his conduct, the more so when he put his hand on paper during the course of litigation, when there is in the nature of things, more occasion and need for careful reflection. Nevertheless, I am prepared to accept that the fact that he felt frustrated tends to ameliorate his blameworthiness. Fourthly, although it was placed on the Court file where any member of the public or media would have access to it, it seems that the intention was that there should be limited publication of the letter only to the Court, the Registrar and the parties.

On the other hand, as I have said in my earlier judgment, applicant’s statement in the letter casts gross and unwarranted aspersions on the integrity of the Court. While the Court and the judiciary in general or a particular judge is not above criticism, imputations of partiality constitute contempt because, in themselves, they have the potential to lower public confidence in the impartiality, integrity and independence of the Court and the judiciary and thereby to undermine public confidence in the administration of justice. This cannot be allowed.

When applicant addressed me about the sentence to be imposed, he stated that I should take into consideration his lack of means. The Court posed some questions to gauge his financial position. He informed me that he does not have fixed employment, but that he is part of what he described as a close association of people operating as a non-profit organisation, namely the Workers Advice Centre, which provides advice and assistance to mostly indigent members of the public, often in labour matters. Applicant provides services as part of the Centre as a consultant on pension matters. He explained that, as the contribution paid by a member of the public is limited to N$300 per case, the income the Centre derives from them is limited. The result is that his income for work done is irregular, on average N$800 per month. Applicant stated that he relies mostly on his wife’s salary as a teacher, which is about N$2000 after deductions. They also receive assistance in the form of about N$300-N$400 per month from some of their children. Applicant and his wife, two of their children who are at college and four grandchildren live together in a house for which the rental is N$3000 per month. They are currently in arrears with about N$8000. From this picture it is clear that the applicant is not a man of much means. I bear in mind that he normally conducts all litigation in this Court in person, which provides support for the allegations of lack of means. In fact, applicant asked me to take into consideration that his financial situation is such that he cannot afford legal representation.

I have special regard to the financial position of the applicant, because the usual punishment for contempt of court in facie curiae in ordinary cases is a fine and not imprisonment. I do not think that imprisonment without the option of a fine is warranted in the circumstances of this case.

Applicant asked me to impose a suspended sentence. I think there is merit in this request. In my view it will take into account that he will probably have difficulty in paying a fine. Furthermore, I cannot ignore that, although the Court had indicated to applicant that it was intending conducting a summary enquiry against him and the basis therefore, he continued to express himself in the application for recusal, as well as in the subsequent notice of appeal against its refusal, in much the same terms. The sentence now to be imposed is of course not intended to punish him for that conduct, but I trust that a suspended sentence may have a salutary effect upon the applicant’s future conduct, as he is clearly intent upon continuing litigation before the courts of this country.

The sentence is as follows:

N$1000 (One Thousand Namibia Dollars) or, in the event of non-payment, one month imprisonment, suspended for 3 (three) years on condition that the applicant is not convicted of contempt of court committed within the period of suspension.

_______________________

VAN NIEKERK, J