IN
THE HIGH COURT OF NAMIBIA

CASE
NO: I 2293/09

In the matter between:

and

_______________________________________________________________

SUMMARY

Locus standi of applicant –Application for contempt of
court — Action for divorce settled - Settlement agreement made
an order of court – Failure to comply with maintenance
obligations in terms thereof also relating to failure to pay
maintenance in respect of the parties’ minor son –
Objection raised in regard to applicant’s locus standi
to bring contempt proceedings due to failure to allege that
application also brought on minor’s behalf -

Court holding – Minor not having a ‘direct and
substantial interest’ in contempt proceedings brought by one of
the parties to the underlying court order against the other and in
respect of which minor never was a party in first place – As
minor therefore not a necessary party to such contempt proceedings –
there was no need to cite minor in such proceedings unless minor
bringing such application in own right – in which event the
citation of the minor would have to indicate that he or she was duly
assisted or that such application was brought on his or her behalf by
a competent person

Court
also approving dictum by Harms JA in the minority judgment of the
South African Appellate Division inGross
& Others v Pentz1996 (4) SA 617 (A) at
632 B-C - holding that - on the facts of this matter - the parties’
minor son never had a sufficiency and directness of interest in the
contempt proceedings instituted by his mother for him to be accepted
therein as a litigating party – point in limine dismissed

IN
THE HIGH COURT OF NAMIBIA

CASE
NO: I 2293/09

In the matter between:

and

CORAM: GEIER, J

Heard: 21 June 2012

Delivered: 06 July2012

_______________________________________________________________

JUDGMENT:

GEIER,J: [1] In this matter the applicant seeks to
commit her former husband -the first respondent - to goal.

[2] She seeks such committal on the basis of the first respondent’s
contempt of a settlement agreement, which was made an order of Court
on 18 January 2010, in terms of which, inter alia, also the marriage
between the parties was dissolved.

[3] The case advanced in support of such quest in the founding papers
isbrief and is essentially based on the central allegation that the
first respondent has failed to abide with the Court’s order
since May 2010 and that he has remained in default up to the date of
the bringing of this application, which was launched during March
2011.

[4] The Applicant alleges further that the first respondent was by
then in arrears in respect of maintenance to the tune of N$ 121
000.00 in respect of which also, in the interim, an amount of N$ 60
000.00 was recovered by way of an attachment from the first
respondent’s banking account, leaving an outstanding balance at
the time of the bringing of the application of N$ 80 780.85.

[5] Applicant avers further that the first respondent is in the
position to comply with the maintenance order as he is employed at
Oosthuizen Motors where he receives a salary. In addition she alleges
that he receives a substantial income from a shop in the Ovitoto
Reserve which he owns together with a partner. She also complains
that the first respondent has failed to enrol her with a medical aid
fund as per the relied upon Court order and that the first respondent
fails to pay for the multiple expenses which are incurred in respect
of the maintenance of the parties minor son’s motor vehicle.

[6] The final issue raised in the papers was the first respondent’s
failure to meet his obligations vis a vis the costs incurred
by the party’s minor son at a tertiary institute in
Potchefstroom, South Africa.

[7] The first respondent raised a number of in limine issues
as well as a defence on the merits.

[8] The first in limine issue was abandoned. The first
respondent’s application for striking out parts of the
applicant’s replying papers was disposed of on account of the
court’s refusal to grant condonation for the deliberate and
reckless out of time filing of such papers by some 3 (three) months
and due to the fact that it took the applicant a further month to
file a four page application for condonation thereafter.

[9] Mr van Vuuren who appeared on behalf of the first respondent
however persisted with the point in limine relating to the
applicant’s locus standi to bring the application on
behalf of the party’s minor son.

THE APPLICANT’S LOCUS
STANDI

[10] Mr. van Vuuren formulated this point crisply in his Heads of
Argument as follows:

“ The applicant seeks the first
respondent’s committal for non-compliance with the order for:

1. 
   failure to pay maintenance for the son;

   
   

2. 
   failure to pay maintenance for the applicant;

   
   

3. 
   failure to enrol the applicant with a medical aid;

   
   

4. 
   for failure to pay for the maintenance of the son’s motor
   vehicle; and
   

   
   

5. 
   for failure to pay for the son’s tertiary education.

   
   

The applicant alleges that only she is the applicant in the
application. The applicant makes no allegation on the son’s
behalf nor that she launched the application in her capacity as
guardian of the son.

The applicant, in the circumstances, it is submitted, is only
entitled to seek relief against the first respondent in respect of
the first respondent’s non-compliance with the order pertaining
to what the applicant is personally entitled to thereunder.

It is respectfully submitted that the applicant is not entitled to
claim the relief she is seeking in her application in the
circumstances.”

[11] Mrs. Petherbridge, who appeared on behalf of the applicant,
simply responded by stating:

“In the alternative the second point is
the fact that the Applicant does not bring this application on behalf
of the minor child of the parties. This is however not a valid point
since the application is based on the non-compliance of an order of
Court. An agreement reached between the Applicant and the First
Respondent was made an order of Court. First Respondent’s
non-compliance is been complained of. Payment in terms of the order
of Court is due to the Applicant and not the minor son of the
parties.

The point in limine is to be dismissed.”

[12] The logical point of departure for purposes
of determining this in limineissue
is to consider theunderlying legal principles to civil contempt
proceedings.

[13] The applicable case law was recently
comprehensively dealt with by Muller J in/Ae//gams
Data (Pty) Ltd and Others v St Sebata Municipal Solutions (Pty) Ltd
and Others¹,
where the learned judge stated:

“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
proof that the Respondent failed to comply with it. The Applicant has
to prove wilful or reckless disregard of the Court order ...”²

[14] It is indeed well established that an applicant for committal on
this basis must show:

1. 
   that an order was granted against the respondent, and

   
   

2. 
   that the respondent was either served with the order or was
   informed of the grounds of the order against him and could have no
   reasonable ground for disbelieving the information, and

   
   

3. 
   that the respondent had ether disobeyed it or
   had neglected to comply with it.³

   
   

[15] It flows from these central requirements
applicable to contempt relief that a party to a Court order -
obliging the other – the respondent - to do something -is
generally to be regarded as the applicant – ie. the party
havinglocus standito
institute and bring contempt proceedings.

[16] This requirement was clearly met in the present instance.

[17] It should be mentioned in this regard that it
was properly conceded by Mr. van Vuuren during argument that the
applicant in this matter was not precluded in bringing the contempt
proceedings in her own right and that she was - vis
a vis any relief sought in her own
right - properly before the Court. He also conceded that the point in
limine, raised on behalf of the first
respondent - even if upheld - would not strike at the root of the
application and - at best - would only limit the impact thereof
should the applicant succeed in obtaining the sought relief.

[18] He nevertheless persisted with his point in
respect of which it can at least be said that it is indeed so that –
generally speaking - a minor does not have locus
standi in iudicio⁴
and, if an action is to be instituted on behalf of
a minor child, such action would normally only be competently brought
if such minor would be duly assisted by his or her natural guardian
or a curator ad litem,
or by the guardian himself if such guardian would bring the action on
such minor’s behalf.⁵That
is the reason why in practice one would find for example in the
citation of a minor party the phrase that the particular minor ‘…
is duly assisted herein by Mr. or Mrs. in his
or her capacity as natural guardian … or that such action is
instituted on behalf of …(the minor) … by Mr or Mrs ..
in his or her capacity as natural guardian … etc‘.

[19] The question thus arises crisply whether or not the grounds –
ie the failure to pay maintenance - on which the contempt application
is based - affectthe applicant’s locus standi in the
present application where she is the only party that has applied to
court for an order seeking the committal of the other due to the
non-compliance with an order which was granted in such party’s
favour.

[20] In deciding the remaining issue it must firstly be of relevance
that the parties - to the action - which resulted in the relied upon
final order of divorce, incorporating the deed of settlement between
the parties– were only the applicant and the first respondent.

[21] Secondly - and although this Court order also dealt with the
issues of custody and maintenance relating to the parties’
minor child and how the scholastic and medical expenses of such child
would be paid for, as well as other relief not relevant to the minor
child - it appears that the minor child was never a party to the
divorce proceedings between the parties although his legal interests
were in fact affected in such action and by the court’s order.

[22] I point out that this is in accordance with the general
applicable practice followed in our courts and in terms of which it
is not customary to cite minor children as parties in actions for
divorce.

[23] It was thus not surprising that the applicant and the first
respondent were the only parties to the resultant court order and
that such order was granted ‘in favour’ of the applicant
‘against’ the first respondent only.

[24] Significantly it appears also from the papers that the minor son
of the parties is neither seeking the committal of his father for
contempt of court, nor that is he seeking an order for maintenance,
or any other relief in his own right. The position would clearly have
been different would he have sought any relief in his own right –in
which event he would have been necessary party to any such
application - which would have brought with it the necessity of
citing the minor in the proper manner.

[25] In addition and upon an analysis of the
nature of the relief applied for - were the first respondent
expressly only seeks ‘… the
committal of first respondent to imprisonment for Contempt of Court
and were she seeks an order that he remain in incarceration until he
has complied with his obligations imposed upon him in terms of the
Court’s order of 18 January 2010 …’,
it emerges that the parties’ minor son actuallyhas no ‘direct
and substantial interest’⁶
in the outcome of contempt proceedings launched by
the ex-wife against her former husband and in respect of which - at
the most - the minor child’s interest - if any– would be
a indirect financial interest only⁷
- in the sense that should the first respondent,
now, comply with his obligations, in terms of the maintenance order,
and make payment also of all arrear maintenance to his ex-wife, that
the minor child of the parties’ then - and in that event -
would/should benefit from these contempt proceedings.

[26] All these factors indicate that the minor son of the parties was
never a necessary party to these contempt proceedings –which
were in any event also never instituted at his instance or on his
behalf - in respect of which - he would then - have had to be duly
assisted.

[27] Applicant was thus at no stage obliged to join and therefore
cite the minor child of the parties as a necessary party to these
proceedings.

[28] She was always entitled to bring these
contempt proceedings in her own right despite the possibility that
this might ultimately even be of benefit to the parties’ minor
child.⁸

[29] Finally I take into account what was said by
Harms JA in the minority judgment of the South African Appellate
Division inGross & Others v Pentz⁹
at 632 B-C that :

“The question of locus standi is in a
sense a procedural matter, but it is also a matter of substance. It
concerns the sufficiency and directness of interest in the litigation
in order to be accepted as litigating party (Wessels en Andere v
SinodaleKerkkantoor C Kommissie van die NederduitseGereformeerdeKerk,
OVS 1978 (3) SA 716 (A) at 725H; Cabinet of the Transitional
Government for the Territory of South West Africa v Eins 1988 (3) SA
369 (A) at 388B-E). The sufficiency of interest is 'altydafhanklik
van die besonderefeite van elkeafsonderlikegeval, en geenvaste of
algemeengeldendereëlskanneergelê word vir die
beantwoording van die vraagnie . . D .' (Jacobs en 'n Ander v Waks en
Andere 1992 (1) SA 521 (A) at 534D)” …

and with reference to which it must be said that - on the facts of
this matter - the parties’ minor son never had a sufficiency
and directness of interest in the contempt proceedings instituted by
his mother for him to be accepted therein as a litigating party. This
finding then also obviates any need of citing him.

[30] This point in limine raised on behalf of the first
respondent thus fails.

THE MERITS OF THE CONTEMPT APPLICATION

[31] Counsel weread idem that the applicant had succeeded in
proving:

1. 
   that there was a Court order against the first respondent;

   
   

2. 
   that he had knowledge of such order,
   

   
   

3. 
   that he had failed to comply with such order.

   
   

[32] As wilfulness is usually inferred from this
the focus therefore shifted to the defence in respect of which the
first respondent thus had to adduce evidence to disprove wilfulness
and mala fide’s
which would establish a reasonable doubt in this regard.¹⁰

[33] The first respondent then indeed, in his answering papers,
endeavoured to set out the facts in circumstances against which he
claimed it was apparent that his inability to pay maintenance since
May 2010 - and therefore his failure to comply with the Court order -
was not due to any unwillingness or due to a wilful disregard of the
said order - and that such non-compliance was in any event also
notmale fide because it had been impossible for him to comply
therewith.

[34] The evidence in this regard was more particularly as follows:

1. 
   At the time - when the settlement agreement was concluded - and
   also when the final order of divorce order was granted - he was
   still employed by the Namibian Breweries in the position of
   Facilities Manager - he then earned a Nett monthly salary of around
   N$ 32 500.00 per month. He was thus able to pay the amount for
   maintenance agreed to in terms of the Settlement Agreement.

   
   

2. 
   However, subsequent to the granting of the final decree of divorce
   - which was in January 2010 - and some 2 (two) months later -
   during March 2010 he found himself in the position that he had to
   resign. He was facing serious disciplinary charges for “irregular
   transactions” and was thusgiven the option to resign or
   face disciplinary charges. He opted for the former, effective from
   the last week of March 2010.
   

   
   

3. 
   He informed the applicant of this during April 2010. By that time
   he had already provided the applicant with several post- dated
   cheques for maintenance for the next 5 (five) months. He now
   requested her not to deposit the remaining cheques to which the
   Applicant responded that “… this was his problem
   and that he simply had to pay …”. The first
   respondent then stopped payment of the cheques. The applicant
   however continued depositing the remaining cheques.

   
   

4. 
   The first respondent then claimedthat he did not apply for a
   variation of the governing order as he did not have the funds to
   initiate legal proceedings or to obtain legal advice. He claims
   that he did not know what to do about the matter.
   

   
   

5. 
   He then also attempted to obtain employment which attempts were
   unsuccessful. Proof of these endeavours was annexed.

   
   

6. 
   Because of the financial predicament, he now found himself in, he
   was forced to sell his motor vehicle as he could no longer afford
   the monthly instalments in that regard. For the same reason he had
   to give up the flat which he was renting in Klein Windhoek and
   ‘moved in with a friend’.
   

   
   

7. 
   The Applicant through her legal practitioners started to demand
   payment of the arrear maintenanceas from June 2010.
   

   
   

8. 
   During June - and after having discussed his financial predicament
   with the aforesaid friend – the aforesaid friend agreed to
   assist him by offering to pay first respondent’s monthly
   medical aid contributions and his contributions towards other
   insurance policies. She also agreed to pay the internet account of
   the parties’ son.
   

   
   

9. 
   It needs to be mentioned that - by this time- the said friend was
   also already paying for all the first respondent’s expenses
   relating to food, clothing and the like.
   

   
   

10. 
    It was pointed out that the said friend was also footing the first
    respondent’s legal bill.

    
    

11. 
    By December 2010 he had only very limited funds
    left in his banking account. This situation had been created by an
    attachment of N$ 60 000.00¹¹
    executed at the instance of the applicant
    through the Deputy Sheriff. In the result the first respondent had
    no further funds left.
    

    
    

12. 
    He also explained the various entries appearing from the bank
    statements annexed to his papers. In a more detailed response to
    the founding papers, first respondent then also explained that he
    received a monthly amount of N$ 8 000.00 from the said friend
    explaining that the monthly amount available/ left in his account –
    after deductions - was an amount of N$ 801.44 which was left for
    bank charges. He also disclosed that he has an overdraft facility
    to the extent of N$ 20.000.00 but that it is impossible for him to
    utilise this benefit as he has no means of repaying same.
    

    
    

13. 
    The first respondent then set out in detail why, according to
    him,the total amount of arrear maintenance claimed was incorrectly
    computed.He admitted however to bein arrears by a total amount of
    N$ 27 500.00 - as opposed to the claimed arrears of N$ 80 780.85 -
    as at the date of the applicant’s Founding Affidavit.

    
    

14. 
    He clarified further that he was only involved in the operations of
    the shop in the Ovitoto Reserve until May 2010 and that his
    involvement in this business had ceased since then.
    

    
    

15. 
    Importantly the first respondent explained that he had now been
    advised to seek an order for the suspension, reduction of variation
    of the terms of the order of 18 January 2010. He re-iteratedthat
    he, as a lay person, was not acquainted with the legal aspects of
    having a court order varied or that he knew of the implications of
    doing so. He allegedly was under the impression that the Court
    would understand and appreciate his predicament.He then alleged
    further that he was in the process of preparing the necessary
    application to be initiated in the Maintenance Court.

    
    

[35] I immediately pause to point out that the Court raised this
aspect with the counsel for the first respondent who indicated that
such application – for unknown reasons - had - at time of the
hearing of this matter – still not been made.An indication was
also given that some maintenance payments are in the meantime being
made by the first respondent.On the papersthese aspects could however
not be taken further.

[36] Turning now to the determination of whether
or not the relief sought by applicant should be granted in the
circumstances of this matter it is firstly to be taken into account
that the first respondent remains bound by the terms of the existing
Court order until such time that it is varied and set aside.¹²

[37] In this regard it should further be kept in mind that it has
authoritatively been held that:

“Once the Applicant has proved the order, service or notice,
and non-compliance, the Respondent bears an evidential burden in
relation to willfulness and male fides:

Should the Respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was willful and mala
fide, contempt would have been established beyond reasonable doubt.”¹³

[38] In this regard the Court was further referred
to the commentary in Erasmus Superior
Court Practice¹⁴
were it is stated that a respondent’s
conduct will not be considered as wilful if his or her non-compliance
with a Court order was bona fide
in that he or she genuinely - though mistakenly -
believed that he or she was entitled to disobey the order and that
such respondent - in such circumstances - would not be guilty of
contempt.¹⁵

[39] What is left for determination in this
instance is, whether or not, the first respondent has succeeded in
discharging his ‘evidential burden’ by adducing evidence
which would create a reasonable doubt and - by that same token -
whether or not the applicant was ultimately able to discharge the
burden – which remained with her throughout - of proving the
first respondent’s contempt beyond reasonable doubt.¹⁶

[40] These questions will, obviously, have to be
determined with reference to the test applicable to disputed facts in
motion proceedings.¹⁷

[41] In this regard it is to be kept in mind that where there is a
dispute of facts, final relief can only be granted where the
applicant’s allegations, and the facts admitted by the
respondent, would justify the granting of the sought relief. In
the case of a dispute the version of the respondent must prevail.

[42] It is with these principles in mind that the first respondent’s
version and the applicant’s entitlement to the relief sought
should be considered.

[43] It appears firstly – and particularly given the scant
nature of the allegations made founding papers – that the
founding papers contain no allegations – admitted by first
respondent - disproving the first respondent’s version as to
his initial genuine attempts to comply with the order – as
evidenced – for instance - by the giving of post-dated cheques-
and the subsequent change of his fortunes resulting in the inability
to comply with the terms of the court order and that he was thusbona
fide – as opposed to being wilful -in his
disobedience of the court order.

[44] The same must reluctantly be said in regard to the alleged
‘genuinely mistaken but erroneous belief that he was entitled
to disobey the terms of the divorce order’, ‘given his
dire financial circumstances’, ‘… which the
court would understand and appreciate …‘, which
averments would negate wilfulness.All these allegations stand
un-contradicted.

[45] The first respondent’s version – which will in such
circumstances have to be accepted- would thus technically also
disprove anywilfulness and mala fideson his part.

[46] Even if I am wrong in this finding it needs to be taken into
account that it was also shown on the first respondent’s
version that he was unable – as opposed to being unwilling - to
comply with the court’s order - due to his poverty which was
directly brought about by theloss of his fairly senior position at
the Namibian Breweries and the subsequent inability to regain
employment – a situation which was exacerbated by the
termination of his participation in the Ovitoto business and the
attachment of N$ 60 000.00 which ‘cleaned out’ his last
savings.

[47] As in the circumstances of this matter the first respondent’s
version must prevail it must be concluded that he was also able to
adduce sufficient evidence to disprove any reckless disregard of the
court’s order, all of which would establish a reasonable doubt
in his favour. It is clear from the applicable authorities that, in
such circumstances, an application for committal for contempt must
fail.

[48] Although it follows from these findings that the applicant
cannot succeed in her quest to have the first respondent incarcerated
for contempt I wish to make it clear that the outcome of this matter
could possibly have been quite different if the replying papers would
not have been struck.

[49] In so far as this may be permissible I hereby wish to indicate
to the First Respondent – in no uncertain terms – that he
would be well advised to regularise his maintenance obligations in
accordance with the parties’ respective means and obligations
without further delay.

[50] With these considerations in mind I deem it proper not to let
the costs follow the result.

[51] In the result:

1. 
   The application is dismissed.

   
   

2. 
   Each party is to pay its own costs.

   
   

_____________

GEIER,
J

ON BEHALF OF THE APPLICANT: Mrs. Petherbridge

Instructed by: Petherbridge Law Chambers

ON BEHALF OF THE 1^ST RESPONDENT:AdvA van Vuuren

Instructed by:MB De Klerk & Associates