23

CORAM:
MULLER
J

Heard
on: 12 November 2010 Delivered on: 21 January 2011

JUDGMENT
MULLER J

[1]
In this matter the court was confronted with 3 separate court files
with 3 different case numbers, namely:

a)
Case number A 220/2009 in respect of an urgent application on Notice
of Motion dated 25 June 2009 in which the applicants applied for a
fundandam
jurisdictionerm, alternatively
a confirmandam
jurisditionem order
to attach an amount of N$15 00.00 held in trust by the applicant's
legal practitioners, as well as a DAT tape containing a Finstel
Software System Programme to found jurisdiction in an action to be
instituted by the applicants against the respondents;

b)
Case number A 224/2009, also dated 25 June 2009, in respect of an
application on Notice of Motion for a Rule Nisi to interdict the
respondents from infringing various rights of the applicants pending
the outcome of an action to be instituted by the applicants; and

c)
Case number I 2738/2009 regarding the combined summons issued by the
applicants against the respondents and the latter's exception to the
applicants' particulars of claim, amplified by further particulars,
as well as amended particulars of claim and amended further
particulars.

[2]
Because it was very confusing what the court had to consider, it is
necessary to refer briefly to what occurred previously in respect of
all these matters. For the purpose of this judgment, I shall refer
to all the applicants and respondents as such and not e.g. as first,
second or third applicant or the first, second and third respondent.
Although in the application for leave to appeal, the respondents are
the applicants, I shall continue to refer them as respondents and
vice versa. In the contempt of court application only the first
respondent is the single respondent.

[3]
The two application referred to in a) and b) above were referred to
in previous hearings as the "attachment
application" and
the "interdict
application", respectively.
I shall continue with the same appellation for the sake of clarity.
In respect of the orders granted in this application, I shall refer
to it as the "attachment order" or the "interdict".
In the attachment application Hinrichsen AJ granted a Rule Nisi on
26 June 2009 and in the interdict application Ndauendapo J also
granted a Rule Nisi on 2 June 2009. The Rule Nisi's in respect of
both applications were argued before Hinrichsen AJ on 16 July 2009
after the Rule Nisi in the attachment application had been
anticipated by the respondents. Answering affidavits in respect of
both applications by respondents were filed. The applicants only
replied in the attachment application. On that day the learned
acting judge confirmed the Rule Nisi in the attachment application
and also confirmed the Rule Nisi in the interdict application.
Although both orders were issued on 16 July 2009, reasons for these
judgments were only delivered 15 April 2010 and are contained in two
separate documents.

[4]
In the meantime, the applicants (as plaintiffs), issued summons
against the respondents (as defendants) on 30 July 2009. Further
particulars were requested on 4 September 2009 and, after an
application to compel, were provided on 25 November 2009. The
respondents (as defendants) then excepted to the particulars of
claim as amplified by further particulars on 31 March 2010. The
applicants (as plaintiffs) amended their particulars of claim and
further particulars on 28 June 2010. Without filing a new exception
to these amended pleadings, the respondents (as defendants) pursued
their original exception.

[5]
From the letters written by the respondents and attached to the
affidavits it is evident that the respondents never accepted any of
the judgments by Hinrichsen AJ. This attitude led to the contempt
issue, which I shall soon deal with, as well as the respondents'
subsequent steps to appeal, which will also be dealt with. The
respondents also filed a record of the attachment proceedings in
this court in the Supreme Court.

[6]
On 22 July 2009 the respondents filed a Notice of Appeal against the
whole of the judgment of Hinrichsen AJ, in regard to the attachment
order in case A220/2009 in the Supreme Court of Namibia.

[7]
On 23 July 2009 the respondents applied to this court for leave to
appeal against the interdict granted by Hinrichsen AJ in case
A224/2009. On 3 September 2009 the first and third respondents also
filed a Notice of Appeal in the Supreme Court against the interdict
granted by Hinrichsen AJ in case A 224/2009. This application and
notice of appeal was met by a Rule 30 application by the applicants
craving a declaration that both the application for leave to appeal
against the interdict order and the Notice of Appeal of 3 September
2009 are irregular steps that fall to be struck out.

[8]
The conduct of the respondents to continue as if no court order
existed, despite the fact that this court did issue an interdict on
16 June 2009, caused the applicants to launch an urgent application
against the first respondent, Sebata, for committal for contempt of
court on 20

August
2009. The next day Tomassi J granted a Rule Nisi, with a return day
of 9 October 2009. The respondents opposed that Rule Nisi and
answering and replying affidavits were filed. The respondent also
filed a counter-application against the applicants. The return day
of the Rule nisi had been extended on several occasions, the last
extension to 12 November 2010.

[9]
On 12 November 2010 the entire matter was set down for arguments.
The hearing commenced with the court obtaining clarification on all
the issues contained in the various court files which had been heard
by different judges. There are 4 issues that were argued. They

are:

a)
The exception;

b)
The application for leave to appeal against the interdict;

c)
The Rule 30 application; and

d)
The Rule Nisi in respect of committal for contempt of court and
counter-application.

Separate
sets of heads of arguments were filed by both parties dealing with
individual issues or more than one issue. The appellants were
represented by Mr Coleman, assisted by Mr Dicks, and the respondents
by Mr Corbett, assisted by Mr Silver, respectively. Oral submissions
were made by Mr Coleman and Mr Corbett, respectively.

[10]
Before arguments commenced, the court expressed its concern about
the procedure to be followed to deal with all these issues and the
sequence in which they should be argued. The court's main concern
was that in the light of the prosecution of the respondents' appeal
in respect of the attachment order, all the other issues might fall
away if the Supreme Court should regard the above-mentioned order
appealable and if the respondents should succeed on appeal. The
court expressed its reservation and reluctance to make findings on
issues that fall to be decided by the Supreme Court and which may at
this stage be purely academic. The parties, however, insisted to
argue all the issues, with Mr Corbett submitting that a finding on
the respondents' exception may dissolve all the other issues, while
Mr Coleman persisted that the respondents remained in contempt of
the interdict granted by Hinrichsen AJ, even if the Supreme Court
should find in favour of the respondents.

[11]
At the conclusion of counsels' submissions the court reserved
judgment on the first three issues and extended the Rule Nisi in
respect of the contempt of court order to 21 January

2011.

[12]
What is not in dispute is that a Notice of Appeal to the Supreme
Court against the attachment order granted by Hinrichsen AJ had been
filed. Whether the Supreme Court would regard that as an order that
is appealable is of not a concern of this court. The respondents
have prosecuted this appeal and a record of the proceedings in this
court has been filed. Copy of that record was handed to the court
during argument by Mr Coleman, without objection from Mr Corbett.

[13]
As mentioned, a Notice of Appeal to the Supreme Court in respect of
the interdict order was filed on 3 September 2009. However, this was
done in addition to their application for leave to appeal in respect
of the interdict order. This is the first issue that Mr Coleman
argued on the basis of irregularity in terms of the Rule 30
application. Mr Corbett's explanation for this double-barrel action
is that the respondents' wanted to make sure that their appeal will
be heard by the Supreme Court and to avoid that the Supreme Court
may refuse to hear the appeal without leave being granted by this
court, they also applied for leave. Mr Coleman submitted that this
argument holds no water. According to him the respondents knew they
needed leave to appeal, which he submits cannot be granted, and that
they never had any intention to prosecute the appeal that they noted
on 3 September 2009. He submitted that the record that had been
submitted to the Supreme Court was only in respect of the other
appeal, namely against the attachment order and no similar record
had been filed in time in respect of the interdict. According to him
that proves that the respondents had no intention to prosecute that
appeal and only took these steps as part of a design to frustrate
the applicants.

[14]
I have considered the arguments by both counsel in respect of the
application for leave to appeal against the interdict order and the
subsequent Rule 30 application of the applicants. I shall first deal
with the application for leave to appeal.

Application
for leave to appeal against the interdict order

[15]
In his judgment in respect of the attachment order Hinrichsen AJ
said the following at

p2,
[5]:

"A
sine qua non to the hearing of the interdict application was a
judgment on the issue relating to the jurisdiction of the above
Honourable Court. Accordingly, I rule that the attachment
application be heard first." The
issue was then argued and Hinrichsen AJ confirmed the Rule Nisi in
the attachment application. Against that order the respondents
appealed directly to the Supreme Court without applying for leave to
appeal. A mentioned, a record of the proceedings has been filed.
That record contains the reasons of Hinrichsen AJ order in respect
of the attachment.

[16]
A day after the respondents filed their notice to appeal in case
A220/2009, they applied for leave to appeal against the interdict
order in case A224/2009. The first question to consider is whether
the respondents need leave from this court to appeal to the Supreme
Court is. S 18(1) of the High Court Act, no. 16 of 1990, grants the
Supreme Court of Namibia the right to hear appeals against judgments
or orders of the High Court of Namibia. The Supreme Court Act, no.
15 of 1990 contains a similar provision in S 14(1). In Zweni
v Minister of Law and Order 1993(1)
SA 523 (A) at 536A-B, three requirements for a "judgment or
order" to be appealable must exist. These requirements are:

a)
The decision must be final;

b)
The decision must be definitive of the rights of the parties,

c)
The decision must have the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.

Zweni's
case,
supra,
has
been approved in this respect by our Supreme Court in Aussenkehr
Farm (Pty) Ltd v Minister of Mines and Energy 2005
NR 21(SC) (See also Eric
Knowds NO v

Nocilaas
Cornelius Josea and Another, case
no. SA 5(2008), an unreported judgment of the Supreme Court,
delivered by Strydom AJA, at p7 [10]). In respect of interlocutory
or cost orders made by this court, leave to appeal to the Supreme
Court has to be obtained in this court. (S18 (3) of Act 16 of 1990).
If this court refuses to grant leave, it can still be granted by the
Supreme Court, but on petition to that court. (S 14(3) and (6) of
Act 15 of 1990).

[17]
In respect of the interdict order Hinrichsen AJ stated in his
reasons that in its nature that order is "interlocutory,
not final" (pl6
[11]). In considering whether to grant leave to appeal, I have taken
cognizance of the fact that the question of appealability had been
recognized in many cases as a complex issue. (Cronshaw
and Another v Fidelity Guards Holdings (Pty) Ltd 1996(3)
SA 686 (A) at 690D-E). In the Zweni
case,
supra,
Harms
AJA (as he then was) analysed several previous decisions in this
regard and summarised it. He also referred with approval to the case
of Van
Steepen and Germs v Transvaal Provisional Administration 1987(4)
SA 569 (A). In short, Harms AJA recognised in the Zweni
case
that a ruling by a court is not appealable, but that the distinction
between a "judgment" and an "order" is
formalistic and outdated and should be discarded. The decision must
be final in effect and comprise of the three requirements referred
to earlier. (Cronshaw,
supra, at
690F-G).

[18]
The interdict was granted pending the finalisation of the action
instituted by the appellants. It is not a permanent interdict and is
not final. It is clearly an interim interdict by nature. The
interdict does not comply with the requirements for an appealable
order. In my opinion another court will not arrive at any other
decision than the one of Hinrichsen AJ when he confirmed the Rule
Nisi in respect of the interdict.

[19]
Consequently, leave to appeal against the order of Hinrichsen AJ in
case A224/2009, namely the interdict is refused. The applicants in
this application for leave to appeal (the respondents) are
responsible for the costs of the applicants (respondents in the
application for leave to appeal).

Rule
30 application

[20]
The applicants want the court to strike out the application for
leave to appeal, alternatively the notice of appeal, or both. Their
Rule 30 notice reads as follows:

"That
the first and third respondents⁷
notice
of application for leave to appeal filed on 23 January (July?) 2009,
alternatively the first and third appellants⁷
notice
of appeal filed on 3 September 2009, further alternatively both such
notice of application for leave to appeal and notice of appeal be
declared to constitute an irregular step, alternatively to declared
to be improper as envisaged by Rule 30 of the Ruled of the
Honourable Court and that same be struck out".

[21]
I have already attended to the application for leave to appeal as
argued and declined to grant leave to appeal. Consequently, there is
no need deal with it in terms of Rule 30. In respect of the notice
of appeal this court has no authority to struck it or deal with it
otherwise. It is a notice to the Supreme Court and only that court
can attend to it. An application in terms of

Rule
30 of this Court's Rule is bad in law in respect of proceedings in
and before the Supreme Court.

[22]
The appellants' contention concerning the motive of the respondents
in bringing an application for leave to appeal and thereafter filing
a notice of appeal in the Supreme Court, as well as that it is
evident that the respondents have no intention to proceed with he
latter, may have merit. However, in the light of what has been
stated above, regarding this court's jurisdiction in respect of a
notice of appeal to the Supreme Court, the application for leave is
not an irregular step. This court has already dealt with it and has
refused to grant such leave.

[23]
The application in terms of Rule 30 is therefore refused. In the
light of my decision to grant leave, no order of costs is made in
respect of the Rule 30 application.

Rule
Nisi -
Contempt
of Court

[24]
The court has to consider whether to confirm or discharge the Rule
Nisi in the contempt application granted on 21 August 2009 and
extended until November 2010. Although there is only one respondent
in this matter, Sebata, I shall refer to the parties as applicants
and respondent.

[25]
It is common cause that the applicants obtained a Rule Nisi in
respect of the interdict against all respondents in that
application, including the respondent Sebata, on 2 July 2009.

That
Rule Nisi was confirmed on 16 July 2009. There can also be no doubt
that the respondent and its legal representatives were aware of
these court orders. That Rule Nisi is an order of this court and has
not been set aside.

[26]
The interdict was obtained as a result of a dispute between the
parties concerning the purported cancelation of a sole distribution
agreement regarding the sale of certain software in Namibia to
clients of the applicants. As a further result of the respondent's
attitude that it was entitled to cancel the agreement and indeed did
so, it proceeded to canvass and service the clients of the
applicants. The applicants averred that the respondent could not
unilaterally cancel the agreement, while being in breach of it and
continuing to canvass their clients. The purpose of the interdict
was to maintain the status
quo pending
the outcome of the action to be instituted (at that time). The
respondents' legal representatives were warned that they are
disobeying the interdict order of this court by failing to comply
with it. The respondent, apparently on the advice of the legal
representatives, attempted to excuse its conduct because an appeal
has been noted against the interdict. This advice was based on
provisions in the South African Rules, which do not apply here.
Again the respondent was informed that the interdict remains valid
and should be complied with, but the respondent did not heed that
warning.

[27]
Despite the interdict and objections contained in several letters
written by the applicants to the respondents, the latter persisted
to contravene the interdict and continued to infringe the rights of
the applicants. There is no doubt that it did so not only with the
knowledge of the respondents' legal representatives, but also with
the latter's' active participation. Examples of the respondents
conduct are contained in annexures to the applicants' founding
affidavit. There were also active approaches by the respondent
through its employees to clients of the applicants. The applicants
also averred that the respondent misrepresented the factual and
legal positions to certain clients (local authorities and
municipalities).

[28]
There can be no doubt that the respondent deliberately ignored the
interdict and continued to approach and canvas the applicants'
clients. Applicant has 45 municipalities and local authorities in
Namibia and two electively companies, namely Cenored and Nored, as
clients. The letters written by the respondent to some of these
clients and attached to the founding affidavit in respect of the
contempt application bear this out. Although the respondent denies
in its answering affidavit to that application that it did not
ignore the interdict, its actions indicate the contrary. The
respondent attempts to hide behind advice received from its legal
representatives to the effect that by its noting of an appeal
against the interdict was suspended. That advice was clearly wrong.
However, the respondent denies that it was mala
fide or
acted in wilful disregard of the court order. The respondent avers
that it was bona
fide and
acted reasonably.

[29]
As a result of the respondent's conduct the applicants applied for
the committal of the respondent for contempt of court on 20 August
2009. The respondent was apparently legally represented in court on
21 August 2009 when the order was granted. The following order was
granted:

"
It
is ordered:

1.
That the forms and service provided for in the Rules of Court is
dispensed and that this matter is heard as urgent application as
contemplated in Rule 6 (12) of the Rules of Court.

2.
That a rule nisi issue calling upon first respondent to show cause
(if any) on Friday, 9^th
October
2009 at 10h00 why an order in the following terms should not be
granted.

2.1.
Declaring that the respondent is in contempt of the order of this
Honourable Court handed down on 16 July 2009;

2.2.
Convicting the respondent of contempt of Court;

2.3.
Sentencing the respondent to a fine of N$1 million or such other
punishment as the Court may deem fit;

2.4.
ordering the respondent to pay the costs of this application on a
scale as between legal practitioner and client.

3.
That prayer 2.1 operates as an interim order with immediate effect."

[30]
Long after the interdict was finally granted on 16 July 2009 and
after the contempt of court order of 21 August 2009 on September
2009, the respondent's own legal practitioners, Moss Cohen, wrote a
letter to the Aranos Village Council, one of the applicants'
clients, to provide it with an "up-to-date
overview of the disputes that our client has with Ae-Gams and more
particularly the legal status of the various proceedings that are
pending in the High Court of Namibia and Supreme Court of Namibia."
The
letter then proceeded to list each application to and order made by
the High Court. Although mention is made of the applicants'
application to hold the respondent in contempt, the respondent
failed to mention that a Rule Nisi in respect of the contempt
application had in fact been issued on 21 August 2009. There cannot
be any doubt that the respondents' legal representatives, while
carefully listing all court proceedings with the purpose of
providing a full "up-to-date
overview" of
all the proceedings, deliberately left this important court order
out. The question is: Why was the existence of that order not
conveyed to the client? Later in the same letter the writer for a
second time referred to the contempt application and that a
counter-application had been filed to seek a declaratory order to
the effect that the agreement had in fact been cancelled. Again no
mention was made of the Rule Nisi in respect of the contempt order
issued a month earlier. Again the defence seems to be that the
respondents' legal representatives, including counsel (and even
senior counsel), advised the respondent that the effect of the
notice of appeal was to stay the interdict.

[31]
Before dealing with the factual situation it is necessary to look at
the applicable law pertaining to proceeding pertaining to a
committal for contempt of court.

[32]
"The
object of proceedings that are concerned with the unlawful and
intentional refusal or failure is the imposition of a penalty in
order to vindicate the court's honour consequent upon the disregard
of its order and/or to compel performance in accordance with the
order."

(Herbstein
and van Winsen - The Civil Practice of the High Courts of South
Africa, vol.
2, at 1100). This disobedience of a court's order constitutes a
criminal offence, because of the deliberate and intentional
violation of the court's dignity, repute or authority. (Fakie
N.O. v CC11 Systems 2006
(4) SA 326 (SCA) at 333D-E [10]). The form of the punishment for
disobeying a court order in civil proceedings may take the form of
committal to gaol, a suspended sentence or the imposition of a fine.
(Herbstein
and van Winsen, supra, at
1101).

[33]
In contempt proceedings the onus
rests
on the applicant to set out the grounds of contempt. The applicant
has to prove the existence of the court order, service thereof and
that to prove the respondent failed to comply with it. The applicant
has to prove wilful or reckless disregard of the order of court.
(Clement
v Clement 1961
(3) SA 861 (T) at 866A; Haddow
v Haddow 1974
(2) SA 181 (R) at 182H). Unreasonable non-compliance, provided it is
bona
fide, does
not constitute contempt; it must be wilful and mala
fide. (Fakie, supra, at
333). In the Fakie
case,
Cameron JA, held that the contempt procedure survives constitutional
scrutiny and he approved what Pickering J held in Uncedo
Taxi Service Association v Maninewa 1998
(3) SA 417 (E) at 425-6, namely that contempt proceedings brought by
notice of motion does not entail unconstitutional unfairness. The
decision of Camaron JA in the Fakie
case
brought a change to the common law in the sense that a respondent no
longer bears a legal burden to disprove wilfulness and mala
fides on
a balance of probabilities, but has to provide evidence to establish
reasonable doubt. (Herbstein
and van Winsen, supra, at
1104; Fakie
NO, supra 334H
-335A [12]. Cameron JA carefully considered the standard of proof in
committal for contempt cases and what the approach of a court should
be. He concluded his analysis of what the law in this regard should
be and summarised it. I respectfully agree with Cameron JA's
statements as set out in [41] and [42] on 344 E - 345A of the Fakie
case,
where he stated the following:

"[41]
Finally, as pointed out earlier (in para [23]), this development of
the common law does not require the applicant to lead evidence as to
the respondent's state of mind or motive: Once the applicant proves
the three requisites (order, service and non-compliance), unless the
respondent provides evidence raising a reasonable doubt as to
whether non-compliance was wilful and mala fide, the requisites of
contempt will have been established. The sole change is that the
respondent no longer bears a legal burden to disprove wilfulness and
mala fides on a balance of probabilities, but need only lead
evidence that establishes a reasonable doubt. It follows, in my
view, that Froneman J was correct in observing in Burchell (in para
[24]) that, in most cases, the change in the incidence and nature of
the onus will not make cases of this kind any more difficult for the
applicant to prove. In those cases where it will make a difference,
it seems to me right that the alleged contemnor should have to raise
only a reasonable doubt.

[42]
To sum up:

a)
The civil contempt procedure is a valuation and important mechanism
for securing compliance with court orders, and survives
constitutional scrutiny in the form of a motion court application
adapted to constitutional requirements.

b)
The respondent in such proceedings is not an 'accused person', but
is entitled to analogous protections as are appropriate to motion
proceedings.

c)
In particular, the applicant must prove the requisites of contempt
(the order; service or notice; non-compliance; and wilfulness and
mala fides) beyond reasonable doubt.

d)
But, once the applicant has proved the order, service or notice and
non-compliance, the respondent bears an evidential burden in
relation to wilfulness and mala fides: Should the respondent fail to
advance evidence that establishes a reasonable doubt as to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.

e)
A declarator and other appropriate remedies remain available to a
civil applicant on proof on a balance of probabilities."

[34]
Our law is clear that a litigant cannot act against an existing
court order or an Act. This is commonly referred to as the doctrine
of "dirty
hands" or
"clean
hands". This
doctrine has been considered in old English cases and the ratio is
"purge
first and argue later". In
the context of an existing law or court order it means that until
such time as that law or court order had been set aside it must be
complied with. It is irrelevant that the law or court order may be
unconstitutional or wrong.

[35]
In respect of a law or statute, the House of Lords in the case of F
Hoffman - La Rocheche and Co AG and Others v Secretary of State for
Trade and Industry [1975]
AC 295 (HC) B, (also reported in [1974] 2 All ER 1128), Lord Denning
MR said the following at 322B:

"They
argue that the law is invalid, but unless and until these courts
declare it to be so, they must obey it. They cannot stipulate for an
undertaking as the price of their obedience. They must obey and
argue afterwards."

This
principle was followed and upheld in Associated
Newspapers of Zimbabwe (Pty) Ltd v Minister for Information and
Publicity in the President's Office and Others 2004
(2) SA 602 (ZS). Chidyansibu CJ, writing for the Zimbabwean Supreme
Court, stated the following at 610 A-D:

"This
Court is a court of law and as such cannot connive at or condone the
applicant's open defiance of the law. Citizens are obliged to obey
the law of the land and argue afterwards. It was entirely open to
the applicant to challenge the constitutionality of the Act before
the deadline for the registration and thus avoid compliance with the
law it objects to pending a determination by this Court. In the
absence of an explanation as to why this course was not followed,
the inference of a disdain for the law becomes inescapable. For the
avoidance of doubt the applicant is not being barred from
approaching this Court. All that the applicant is required to do is
to submit itself to the law and approach this court with clean hands
on the same papers." The
court also approved of the doctrine of clean hands in respect of a
law in Petrus
Shaanika and 13 Others v The Windhoek City Police and 3 Others, an
unreported judgment in case A249/2009, delivered on 28 October 2010.

[36]
The same principle applies in respect of a court order, as in this
matter. In Hamutenya
v Hamutenya 2005
NR 76 (HC) at 78C-79A. Maritz J, as he then was, expressed himself
as in respect of disobedience of a court order and also quoted with
approval what this court said in this regard in the Sikunda
matter,
as well as other South African cases:

"In
pressing the point in limine on behalf of the respondent, Mr Boesak
reminded the court of the dire consequences to the administration of
justice and the maintenance of order in society of orders of court
are disregarded with impunity. Recognising the considerations of
public policy which underline the need to respect and comply with
orders of that kind, the court said in Sikunda v Government of the
Republic of Namibia and Another 2001 (2) NR 86 (HC) at 92D-E:

'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.'

Authority
for this approach is also to be found in a case both parties drew
the court's

attention
to. In Kotze v Kotze 1953 (2) SA 184 (C) Herbstein J said at 187F:

'The matter is one
of public policy which requires that there shall be obedience to
orders of court and that people should not be allowed to take the
law into their own hands.'

It
is for these reasons that Froneman J pointed out in Bezuidenhout v
Patensie Sitrus

Beherend
Bpk 2001 (2) SA 224 (E) at 229B-D:

'An
order of a court of law stands until set aside by a court of
competent jurisdiction. Until that is done the court order must be
obeyed even if it may be wrong (Culverwell v Beira 1992 (4) SA 490
(W) at 494A-C). A person may even be barred from approaching
the
court until he or she has obeyed an order of court that has not been
properly set aside (Hadkinson v Hadkinson [1952] 2 all ER 567 (CA);
Byliefeldt v Redpath 1982 (1) SA 702 (A) at 714).'

These propositions
apply with equal force to orders relating to the custody and control
of minor children. This much was recognised by Herbstein J in
Kotze's case supra at 187D-E: 'A similar question has recently been
dealt with in England in the of Hadkinson v Hadkinson 1952 (2) All
ER 567 Romer LJ gave the main judgment and 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."
He went on to say 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."

[37]
This court confirmed a Rule Nisi on 16 July 2009 in terms whereof
the respondents (and others) were interdicted to refrain from
certain acts. They did not despite several warnings by the
applicants that they were in contempt of court and continued with
the conduct that the court order forbids. This led to the
applicants' application for committal for contempt of court and the
Rule Nisi that was issued in that regard on 21 August 2009. However,
despite that order the respondent still continued with the same
contempt and as pointed out before, the respondents' legal
representatives purported to put the record straight on 16 September
2009, but withheld important information, i.e. the order of 21
August 2009.

[38]
The respondent attempted to hide behind the guise of legal advice
for its conduct. That excuse is seems very lame to me. Even before
the Rule Nisi in the contempt application and

rd

before
the 3 September 2009 notice of appeal, the respondent infringed the
very rights that the interdict forbid. The respondent should have
waited for the Supreme Court to set the interdict aside before it
could do anything that it was interdicted not to do. They should
have "purged
first and argue later". The
respondents' lawyers should have known that in Namibia a notice of
appeal or an application for leave does not entitle a respondent to
ignore or infringe the prohibition contained in an interdict.
Although the respondents clearly disagreed with the interdict
granted and the order issued by Hinrichsen AJ, they could not just
ignore it. It does not matter whether the law or order is
unconstitutional or wrong, a respondent or a person who is
prohibited by it, must obey it.

[39]
The Respondent based its arguments on the Fakie
-
case and more specifically that as a result of the advice it
received from its legal practitioners it was not mala
fide and
did not wilfully ignore the interdict. The respondent submitted that
it acted bona
fide and
reasonable. Consequently, it submitted that the court should not
have granted the Rule Nisi on 21 August

2009.

[40]
Acting on legal advice may render conduct excusable. This excuse can
only go so far as the stage when the client should reasonably
understood that it should not act on such advice. In respect of
acting on legal advice, courts have in the past concluded that it
may be unreasonable to rely on such advice and refused to regard it
as an excuse for conduct. In HEG
Consulting Enterprises (Pty) Ltd v Siegwart 2000
(1) SA 507 (CPD) the court did not uphold reliance upon a defence of
"legal advice" to disprove "willingness". The
court held that Katzeft
(the
third respondent) had not discharged his onus
showing
that he was entitled to take the advice at face value. (See also S
v Abrahams 1983
(1) SA 137 (A) at 146 H). In Culverwell
v Beira 1992
(4) SA 490 (W) the court held, at 493I - 494A, that it is no excuse
if an order was wrongly granted; it must still be obeyed until set
aside.

[41]
The non-compliance of the respondent may be apportioned into two
periods; one before the Rule Nisi in respect of the contempt of
court and one thereafter. After the interdict order was granted on
16 July 2009 and before the Rule Nisi of 21 August 2009 the
respondent approached several clients of the applicants, issued a
newsletter of which the contents also did not comply with the
interdict and further canvassed the appellants' clients. The
applicants' legal advisers warned the respondent that it did not
obey the interdict. In its answering affidavit to the contempt
application the respondent blamed the legal advice, which it
accepted and averred that it acted bona
fide and
not mala
fide or
wilful. The second stage concerns the respondent's action after the
contempt Rule Nisi.

[42]
There can be no doubt that the allegation of bona fides, etc do not
avail the respondent in respect of the second stage. After that
hearing the court issued a Rule Nisi. A prima facie case had been
made out and the applicants had discharged the onus
of
proving the interdict, service and disobedience with the court order
(interdict). Despite the court order of 21 August 2009 the
respondent continued to approach the appellants' clients as the
letter of 16 September 2009 clearly indicates. Not only did it do
so, the important issue of the Rule Nisi of 21 August was
deliberately not mentioned. The respondent's only motive was to keep
that information from the reader of the letter, namely a client of
the applicants. At that stage the respondent knew about the order.
Its legal representatives still continued to act on its behalf in
respect of disobedience of not only the interdict, but also the Rule
Nisi of 21 August 2009. The respondent has in my view not discharged
the onus
to
show that it could bona
fide and
reasonably accept the legal advice anymore. Once the court has
issued the Rule Nisi the picture has changed. The respondent wrongly
refused an order of court and persisted in its actions. It is also
significant that except for claming to be bona
fide, etc,
no evidence has been provided by the respondent to prove what is
required in terms of the Fakie
case,
supra.

[42]
Returning to the first stage, namely the period between 16 July and
21 August 2009, the defence of bona fides, because of respondent's
reliance on legal advice might have had some merit, was it not for
persistence with the same attitude as was revealed in second stage.
That conduct indicates in my view that the respondent was wilful and
mala fide during the first stage also. The respondent's attempt to
hide behind the so called "legal advice" is merely a
guise. The respondent did not intend to abide by the court's order.
It never had the intention to comply with the interdict and its
clear disregard of the Rule Nisi in respect of contempt is an
illustration of this attitude that was disclosed by its letters to
the clients of the applicants.

[44]
In the circumstances the Rule Nisi granted on 21 August, as
extended, is confirmed.

[45]
Simultaneously with its answering affidavit the respondent also
filed a counter-application based on the cancelation of the contract
between the parties. The respondent prays for a declaratory order to
the effect that the contract had been cancelled. It is obvious that
the court cannot make such an order at this stage as it would
require a decision on the merits of the litigation instituted after
the attachment order was made. No decision will consequently be made
in respect of the counter-application, which appears to be nothing
more than a smoke screen in the light of the respondent's contempt
of the orders of this court.

Exception

[46]
In the light of the court's decision to confirm the Rule Nisi issued
on 21 August 2009, the respondent is in contempt of court. As long
as that order is not complied with the respondent's hands are dirty
and no legal proceedings can be conducted by the respondent in this
court. The respondent is either a crucial or only relevant defendant
in the exception. The exception can therefore also not be
entertained by this court at this stage.

[47]
Even if the court is wrong in respect of the aforegoing, the
exception cannot be entertained because it is purely academic at
this stage in the light of the respondents' (who are the exciplints
in the main action) notice of appeal against the attachment order.

[48]
Although I refused to grant leave to appeal against the interdict,
there is still a pending appeal against the order of Hinrichsen AJ
regarding the attachment. If that appeal should succeed and the
judgment of Hinrichsen AJ in case A220/2009 is set aside, the effect
is that applicants did not have jurisdiction to sue the respondents
and the litigation instituted by the applicants (as plaintiffs)
against the respondents (as defendants) will also be set aside (or
withdrawn) because of lack of jurisdiction. Consequently, the
exception also falls away.

[49]
In my opinion a decision on the exception would be purely academical
at this stage.

"The
court will not decide issues which are academic, abstract or
hypothetical". (Eric Knowds N.O. v Nicolaas Cornelius Josea and
Another, supra, at
p9, [13], Mushwena
v Government of Namibia and Another (2),
2004, NR 94 (HC) at 102H-I, [12]).

[50]
Consequently, no decision is made at this stage in respect of the
respondents' (defendants') exception to the applicants'
(plaintiffs') particulars of claim, supported by further
particulars, including costs. The exception will be struck from the
roll.

[50]
In the result the following orders are made:

1.
The application for leave to appeal against the order of Hinrichsen
AJ in case A224/2009 is refused with costs, such costs, including
the costs of one intructing and two instructed counsel, have to be
paid by the respondents, jointly and separately, the one paying the
other to be absolved;

2.
The Rule 30 application is dismissed and no order of costs is made;

3.
The Rule Nisi granted on 21 August 2009, as extended, is confirmed.
The costs to be paid by the respondent, Sebata,
includes
the costs of one instructing and two instructed counsel.

4.
The exception by the respondents (as defendants) against the
applicants' (as plaintiffs') amended particulars of claim, as
amplified by amended further particulars, in case I2738/2009 is
struck from the roll and no order as to costs is made.

MULLER J

ON
BEHALF OF THE APPLICANTS: Adv. Coleman

Assisted
by: Adv. Dicks

Instructed
by: ELLIS & PARTNERS

ON
BEHALF OF THE RESPONDENTS: Adv. Corbett

Assisted
by: Mr. Silver

Instructed
by: FISHER, QUARMBY & PFEIFER