REPORTABLE
CASE NO. A
244/2007
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
(NAMFISA)
1ST
RESPONDENT
CHIEF
EXECUTIVE OFFICER OF NAMFISA 2ND
RESPONDENT
CORAM: HOFF,
J
Heard
on: 2009.02.03
Delivered
on: 2009.02.13
JUDGMENT:
HOFF,
J: [1] The
applicant gave notice of an “application
for review in terms of Rule 53 of the Rule of Court” in
which he sought the following relief:
“1. Condoning applicant’s
non-compliance with rule 53 (4) and (5) and delay (if any) for
bringing this application within a reasonable time.
Setting
aside and correcting the decision of second respondent to appoint
Mrs Lilly Brandt to act as the Chief Executive Officer of Namfisa
(for?) the months September 2007 and during May/June 2008.
Setting
aside and correcting the entire purported resolutions of first
respondent dated 16th
July 2003, 8th
October 2007 and 11th
June 2008 respectively.
Ordering
that the respondents pay the costs of this application, severally
and jointly, one paying the other to be absolved.
Further
and/or alternative relief.”
[2] The
respondents opposed this application by giving notice of an
application in which an order in the following terms would be sought:
“That
the applicant’s application initiated under the notice – heading
“Notice of Application for Review in terms of Rule 53 of the Rules
of Court dated 17 July 2008 and under case number A 244/07 and is
hereby struck-out, alternatively
struck from the roll, and in either of the aforementioned events,
with costs on a scale as between attorney and client, including costs
of instructed counsel, alternatively
that the applicant’s aforementioned application be stayed with
immediate effect pending the applicant’s compliance with this
Honourable Court’s order of 9 October 2007 in respect of the
payment of legal costs, and further pending the payment by the
applicant of the costs occasioned by this application.”
[3] The
respondents alternatively sought relief in terms of Rule 30 of the
Rules of this Court to the effect that the “application
for review” along
with the accompanying affidavit be struck-out since it constituted
and irregular step and/or improper step.
[4] The
applicant in turn raised four points in
limine.
These points
as well as the merits of respondents’ application to strike-out
were argued before me. The applicant appeared in person. Mr Obbes
appeared on behalf of the respondents.
[5] Though
it is customary to first decide points in
limine I shall
presently not follow such a procedure because of averments by the
second respondent to the effect that the applicant is in contempt of
Court and that he cannot approach this Court until such time as he
had purged his contempt.
[6] It is
common cause that Pickering AJ on 9 October 2007 and under case
number (P) I 244/07 inter
alia ordered:
“That
no further proceedings will be lodged before the applicant pays the
costs of today.”
[7] It is
also common cause that the applicant never paid those costs.
Subsequently the applicant launched another application in this Court
which prompted the respondents to bring a Rule 30 application in
which the respondents sought to have applicant’s application be
struck as an irregular and/or improper step.
[8] This
Rule 30 application was heard by Mainga J who delivered judgment on
25 July 2008.
The
applicant in his opposition to the Rule 30 application inter
alia submitted that
the previous judgment was void ab
initio since
Pickering AJ heard the application and gave judgment contrary to the
rule, nemo iudex in
sua causa.
Applicant further, submitted that since the order of Pickering AJ
was void ab initio
such an order could simply be disregarded and that he was entitled
for an order declaring such order to be void.
Mainga J in
his ruling had the following to say:
“
… I must find that
respondent is bound by the order by 9 October 2007 per Pickering AJ.
He can only initiate proceedings under case (P) I 244/07 … if he
pays the costs of 9 October 2007 or once he has succeeded to set
aside that order in the Supreme Court. Before and until the two
alternatives are done the doors are closed.”
[9] The
applicant presently repeated the same submissions raised before
Mainga J. He submitted that in terms of the provisions of Article 25
of the Constitution of Namibia he is entitled to approach a competent
court in order to protect his fundamental rights. In addition he
again submitted that the order of Pickering AJ was void ab
initio and could
simply be ignored. In this regard this Court was referred to the
matter of Mogotsi and
Others v Pienaar and Others 2000 (1) SA 577 (TPD) where Van Dyk J
said the following at 580 G:
“From
the aforegoing it would seem that an order which is void due to lack
of jurisdiction need not be declared void can simply be disregarded.”
[10] This
statement does not assist the applicant and should be read in
context. The following appears from the head note:
“On
a proper interpretation of ss (1) and (2) of the Extension of
Security of Tenure Act 62 of 1997, a party initiating legal
proceedings within the ambit of that Act has the following choices of
forum: the magistrate’s court having territorial jurisdiction, or
the Land Claims Court; or the High Court, but only with the consent
of all the parties to the proceedings.
In
the present matter, where a landowner had obtained an eviction order
in a High Court against occupiers in circumstances which made the
Extension of Security of Tenure Act applicable and the consent of the
occupiers to the proceedings being instituted in the High Court had
not been obtained, the Court declared the eviction order void for
lack of jurisdiction.”
[11] It
surely is not applicant’s case that when Pickering AJ made the
order on 9 October 2007 that this Court had no jurisdiction to make
such an order.
[12] It is
further common cause that the applicant had filed on 10 October 2007
(prior to the judgment by Mainga J) a notice of appeal but that his
appeal has lapsed due to failure to prosecute in the Supreme Court.
Applicant now submitted that he has initiated review proceedings but
this cannot assist the applicant since review proceedings do not stay
the operation of court orders.
[13] Numerous
cases held that court orders must be complied with and remain valid
until such time as such order has been set aside by a competent court
of law.
[14] In
Hadkinson v Hadkinson
[1952] 2 All ER 567 at 569 Romer L J
had the following to say regarding court orders:
“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.
The uncompromising nature of this obligation is shown by the fact
that it extends even to cases where the person affected by an order
believes it to be irregular or even void. Lord Cottenham L.C., said
in Chuck v Gremer (1) (Coop. temp. (1 Cott. 342):
“A
party, who knows of an order, whether null or valid, regular or
irregular, cannot be permitted to disobey it … It would be most
dangerous to hold that the suitors, or their solicitors, could
themselves judge whether an order was null or valid – whether it
was regular or irregular. That they should come to the court and not
take upon themselves to determine such a question. That the course
of a party knowing of an order, which was null or irregular, and who
might be affected by it, was plain. He should apply to the court
that it might be discharged. As long as it existed it must not be
disobeyed.”
Such
being the nature of this obligation, two consequences will, in
general, follow from its breach. The first is that anyone who
disobeys an order of the court (and I am not now considering
disobedience of orders relating merely to matters of procedure) is in
contempt and may be punished by committal or attachment or otherwise.
The second is that no application to the court by such a person will
be entertained until he has purged himself of his contempt.”
[15] In the
same case Denning L J expressed himself as follows at 575 A – B:
“…
I am of the opinion that the
fact that a party to a cause has disobeyed an order of the court is
not in itself a bar to his being heard, but if his disobedience is
such that, so long it continues, it impedes the course of justice in
the cause, by making it more difficult for the court to ascertain the
truth or to enforce orders which it may make, then the court may it
its discretion refuse to hear him until the impediment is removed or
good reason is shown why it should not be removed.”
[16] In
Hamutenya v Hamutenya
2005 NR 76 this
Court as per Maritz J (as he then was) stated the position regarding
compliance with court orders as follows at 78 B – G:
“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 if orders of Court
are disregarded with impunity. Recognising the considerations of
public policy which underline the need to respect and comply with
order of that kind, the Court said in Sikunda v Government of the
Republic of Namibia and Another 2001 (2) NR 86 (HC) at 92 D – 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 strict 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 187 F:
‘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 229 B – 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 494 A – 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).’
[17] In
Associated Newspapers
of Zimbabwe (Pvt) Ltd v Minister for Information and Publicity in the
President’s Office and Others 2004 (2) SA 602 (ZS) at 609 B
the court expressed itself as follows:
“In
my view, there is no difference in principle between a litigant who
is in defiance of a court order and a litigant who is in defiance of
the law. The Court will not grant relief to a litigant with dirty
hands in the absence of good cause being shown or until such defiance
or contempt has been purged.”
[18] It is
clear from the aforementioned authorities that a litigant may be
barred from approaching a Court until he or she has obeyed an order
of such Court which has not been set aside.
[19] Applicant’s
reliance on the provisions of Article 25 of the Constitution is
misplaced since a litigant, in my view, cannot utilize the provisions
of Article 25 in order to evade compliance with a court order.
[20] The
applicant has in spite of the judgment by Mainga J that he must
comply with the Court order of Pickering AJ or have it set aside,
launched his present “review
application”.
[21] In my
view the applicant is in willful disregard of this Court’s order
(dated 9 October 2007) and stubbornly persists with his
non-compliance of that order.
[22] This
Court cannot in the face of applicant’s continued contempt of an
order of this Court grant him the relief prayed for in his “review
application”. This Court thus refuses to consider his application.
[23] Regarding
the issue of costs I am of the view that in the instant case this
court should mark its disapproval in respect of the conduct of the
applicant by making a special cost order.
[24] In the
result the following order is made:
1. Applicant’s
application “Notice
of Application for Review in terms of Rule 53 of the Rules of Court”
dated 17 July 2008 under case number A 244/07 is struck from the
roll.
2. Applicant
is ordered to pay costs on an attorney-client scale including costs
of instructed counsel.
___________
HOFF, J
ON BEHALF
OF THE APPLICANT: IN PERSON
Instructed
by:
ON BEHALF
OF THE 1ST
& 2ND
RESPONDENTS: ADV. OBBES
Instructed
by: LORENTZ ANGULA INC.