MATHEUS
TAAPOPI HAMUTENYA v PAX BEAULAH HAMUTENYA

CASE NO. (P) A 195/2004

2005/03/02

Maritz, J.

PRACTICE
AND PROCEDURE

CASE NO.: (P) A 195/2004

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

MATHEUS
TAAPOPI HAMUTENYA APPLICANT

versus

PAX
BEAULAH HAMUTENYA RESPONDENT

CORAM: MARITZ,
J.

Heard
on: 2005.02.03

Delivered
on: 2005.02.03 (Extempore)

JUDGEMENT

MARITZ,
J.: The applicant is seeking an amendment of the settlement
agreement incorporated in the final decree of divorce issued by this
Court. In terms of that agreement custody and control of the two
minor children born of the dissolved marriage between the parties are
vested in the respondent, subject, however, to the applicant’s
rights of reasonable access to them. The effect of the amendment
which the applicant is seeking will be to vest the right to custody
and control of the children in him. The respondent is opposing the
application on a number of grounds, one of which was raised in
limine, i.e. that the applicant is in contempt of the existing
order and that the Court should decline to hear the application
unless and until the applicant has purged his content.

It is common cause
between the parties that they are the biological parents of M.,
currently 11 years of age, and E., currently 7 years of age; that
their marriage was dissolved on the 10^th of February 2003
and that in terms of the settlement agreement dated 25^th
November 2002 incorporated in the final decree of divorce, the
respondent was awarded custody and control of the two children
subject to the applicant’s reasonable rights of access. After the
final order of divorce had been granted, the respondent by
arrangement inter partes allowed the minor children to
continue residing with the applicant - which they had been doing for
a period of 1 year preceding the dissolution of the marriage. The
applicant had de facto custody and control of the children for
the period 10 February 2003 to 2 December 2003. He restored custody
and control to the respondent in terms of the Court’s order for the
period 3 December 2003 to 8 December 2003. As he was about to depart
for a holiday with the children abroad - and was entitled to do so in
terms of the Court’s order - he requested that the children be
allowed to accompany him. The respondent acceded to the request.
She claims that she has done so on condition that the children would
be returned to her upon his return on 13 January 2004. That did not
happen. The applicant refused to return the children to her on 13
January 2004.

As a consequence,
the respondent not only insisted that the children be returned but
also laid a charge with the Women and Child Abuse Centre of the
Namibian Police on account of his refusal to comply with the order of
Court. After the intervention of the Namibian Police, the applicant
caused a letter to be written to the respondent through the offices
of his legal practitioners in which he stated his intention to launch
an application for the amendment of the High Court’s order. In the
letter he maintained that, because such an application was envisaged
and the children were in his de facto care, it would not be in
their interest to remove them pending the outcome of the application.
The respondent was also threatened that any steps to remove the
children would be vigorously resisted on an urgent basis with obvious
cost implications to her. Subsequently to that letter the respondent
regularly collected the children for visits and thereafter returned
them.

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
orders of that kind, the Court said Sikunda v Government of the
Republic of Namibia and Another, 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, (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 Patensi Citrus Beherend
Bpk, (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); Bylieveldt 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 187 D-E;

“A
similar question has recently been dealt with in England in the case
of Hadkinson v Hadkinson, 1952 (2) A.E.R. 567. ROMER, L.J.,
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.'

That
matter also concerned a child. The learned Judge pointed out that
this was the very kind of case in which the ordinary rule should be
applied in all its strictness. Disregard of an order of Court is a
matter of sufficient gravity, whatever the order may be. Where,
however, the order relates to a child the Court is, or should be,
adamant on its due observance. Such an order is made in the interests
of the welfare of the child and the Court will not tolerate any
interference with or disregard of its decisions on those matters.”

Whilst recognising these
principles, Mr Schikkerling, appearing for the applicant, advances
two propositions in defence, i.e. that the applicant is not in
contempt and, even if he is, the principle does not constitute an
absolute bar to the applicant’s right to approach the Court for
relief and that this application falls within the exceptions to be so
entertained. It is to those contentions that I shall turn hereunder.

It is apparent from the common
cause facts that the de jure custody and control of the two
children has been awarded to the respondent. After the divorce had
been finalised, the respondent allowed the applicant to keep the
children under his care until 2 December 2003 In terms of an
agreement concluded inter partes. She stated, as I understand
her affidavit, that she was constrained to agree to that arrangement
because her living conditions were not such that she could provide
the children with an appropriate home.

Her circumstances improved in
the course of that year to such an extent that she was able to
exercise her de jure rights from 3 December 2003. The
children were both de jure and de facto her care and
custody from that date until 8 December 2003. She only allowed them
to accompany the applicant for the December holidays abroad. She
says that she allowed that on the premise that the children would be
returned to her upon his return. When that was not done
notwithstanding her demand, she called on the police for help. Her
efforts to solicit their cooperation in order to assert her rights
came to an end after she had received the letter from the applicant’s
legal representatives in which he threatened legal action and advised
her and the police that he intended to move an application for the
variation of the existing order. It was pending the launching of
such an application that the respondent regularly collected and
returned the children.

It is on this basis and, in
particular, the fact that she returned the children to the applicant
on a number of occasions after visits to her, that Mr Schikkerling
submits that she has either waived her rights to insist on due
compliance with the Court’s order or has acquiesced to the de
facto of custody by the applicant pending the application to be
brought.

I find myself in disagreement
with his submissions. It is to be remembered that the applicant’s
refusal to return the children to the respondent after the holidays
on 13 January 2004 and his continued exercise of de facto care
and custody in the face of the Court’s order constitutes – to put
it lightly - a strong prima facie case against the applicant
for non-compliance with the Court’s order. The applicant seeks to
justify his actions by reference to waiver or acquiescence.

I find nothing in the papers to
persuade me that those contentions bear any merit. It must be
remembered, as was pointed out in the case of Kauesa v Ministry of
Home Affairs and Others, NR 102 (HC) that, in the case of factual
disputes in applications of this nature, such applications -

“.
. . should be adjudicated on the basis of the facts averred in the
applicant's founding affidavits which have been admitted by the
respondent, together with the facts alleged by the respondent,
whether or not the latter has been admitted by the applicant, unless
a denial by the respondent is not such as to raise a real, genuine or
bona fide dispute of fact or a statement in the respondent's
affidavits is so far-fetched or clearly untenable that the Court is
justified in rejecting it merely on the papers.”

See also: Public Service
Union and Another v Prime Minister of Namibia and Others, NR 82
(HC) at 85. If I have regard to the allegations made in the papers
of the respondent and those made in the applicant’s papers to the
extent that they are either admitted or not disputed by the
respondent, I must accept that the respondent demanded the return of
the children from the applicant on 13 January 2004. When the
applicant refused, she laid charges with the police. When, she was
faced with inaction on the part of the Namibian Police after they had
received the lawyer’s letter, she did what she could in the form of
regular visits without taking the law in her own hands. The
respondent, it is clear, is of much more modest means than the
applicant. She is represented in this Court because of assistance
she has received from the Legal Aid Directorate. The applicant is an
affluent man who can afford to give the children private tuition and
has appointed a chef and a chauffeur to attend to the children’s
requirements.

It seems to me that the
respondent raised her objection to the applicant’s failure to
comply with the Court order on the very occasion she could by going
to the police for assistance. She immediately opposed this
application and filed an answering affidavit. She has also raised
the applicant’s non-compliance as a point in limine. If one
considers her actions against those required by law to constitute a
waiver, her conduct proves the opposite – that she has never waived
any of her custodial rights.

Much has been made of the fact
that the respondent regularly collected the children from the
applicant and returned them to him after 13 January 2004. In doing
so, she acquiesced to the arrangement, so the applicant contends. I
am not in the least persuaded that that is indeed the case. What
would the alternative have been for the respondent - to take and keep
the children? Given the events at the offices of the Namibia Police
where, according to the respondent she was physically assaulted by
the applicant, the consequences of such an action is likely to have
resulted, at worst, in violence and, at least, in a tug of war with
the children in the middle. Such conduct would have been detrimental
to the relationship between the children and their parents and would
have been frowned upon by this Court. In the result I conclude that
the respondent has neither waived her custodial rights under the
Court’s order, nor acquiesced to the applicant keeping de facto
custody and control of the children.

The second point that falls to
be considered is whether the applicant’s contempt notwithstanding,
this case should nevertheless be entertained as an exception. It is
quite correct, as Mr Schikkerlingh submits, that the barring of a
litigant to seek redress in a Court of law simply because he or she
has failed to comply with an earlier order of Court, is not an
absolute one. That much has been recognised in the case of Di
Bona v Di Bona and Another, (2) SA 682 (C) where, at 688, it is
said:

“The
rule, however, that a person in contempt of Court will not be heard
is not an absolute rule. This appears clearly from the judgments of
Romer LJ and Denning LJ in Hadkinson's
case and in this regard those judgments have been adopted by our
Courts in Kotze's
case supra, Clements
case supra, and in the decision in Byliefeldt
v Redpath 1982 (1) SA
702 (A) . In Hadkinson's
case Romer LJ mentioned a number of exceptions to which he said the
consequence of the refusal to hear a person in contempt is
undoubtedly subject.”

I do not find that any of those
exceptions apply to the circumstances of this case. There is nothing
to suggest that particular urgency attaches to this application or
that compliance with the Court’s order until such time as the
application for an amendment thereof may be heard, will or may result
in dire or unacceptable consequences for the children’s welfare,
health or morality. On the contrary, the clinical psychologist’s
report on which the applicant relies - that of Claire Hearne,
describes the respondent as follows:

“Ms
Hamutenya presented in a calm manner during the consultation with
myself. She co-operated well throughout the consultation. She was
also able to give a realistic account of herself and no overt
psychopathology was noted during the interviews. Her speech,
language, mood, as well as thought process and content, social
relatedness and judgment and insight were all observed as appropriate
to her present circumstances.

Ms
Hamutenya can be described as a loving and attentive parent although
her present contact with the children is limited. She expressed
numerous frustrations pertaining to contact with the children and
expressed concerns that Mr Hamutenya deliberately places obstacles to
make contact with the children difficult”.

And in relation to the children
she says the following (and I shall quote only part thereof):

“Both
M. and Enio indicate a strong affection to both parents. They
however formed a much stronger bond with their father over the last
few years as with their mother…The mother figure is described at
times with some resentment, both children struggle to understand the
limited contact with her. M. expresses a certain amount of anger and
distrust towards the mother figure. Enio expresses disappointment,
confusion and emotional pain when confronted with issues pertaining
to the mother-child relationship. Enio particularly would benefit
from more contact, more frequent with his mother. Barring their
insecurities within the mother-child relationship, these children can
be described as two healthy well-adjusted young individuals. They
function well on a scholastic and extra-mural level and are quite
capable of meeting their environmental demands.”

As is evident from this report
presented by the applicant, there is nothing in the character or the
conduct of the respondent which makes her unsuitable to care for the
children pending the adjudication for any application of an amendment
of the Court’s earlier order.

It must, of course, be
remembered that I am not requested to deal with any application for
the committal of the applicant for contempt of Court. In such an
application different considerations would have arisen - such as male
fides referred to in the case of Clement v Clement, (3) SA
861 (T). For purposes of the point in limine it is sufficient
that the applicant has been and still is in wilful default of the
Court’s order and that there are no exceptional circumstances which
allow the Court to hear the application before the contemptuous party
has purged his or her default.

Furthermore - and this is
apparent from this report of the clinical psychologist - the
respondent is prejudiced by the applicant’s conduct in her efforts
to maintain and nourish a normal mother-child relationship with the
two children and therefore also in the presentation of a case in
opposition to the amendment of the order. The children - currently
being in de facto care and custody of the father - quite
naturally have much more contact with him and clearly enjoy the
benefits of his affluence. The contact with their mother is limited
to regular, but short visits which clearly do not suffice to
strengthen the bond with their mother. In retaining de facto care
and custody of the children, the applicant is positioning himself as
best he can to strengthen his case in the main application.

In the premises the following
order is made:

1. The application is struck
from the roll.

2. The applicant is given leave
to renew the application on the same papers - duly amplified - once
he has purged his default to comply with the order of this Court
dated 10 February 2003 insofar as it relates to the custody and
control of the two minor children, M. M. H. and E. M. H..

3. The applicant is ordered to
pay the respondent’s costs in the application.

MARITZ, J.

ON BEHALF OF THE APPLICANT
Mr Schikerling

Instructed by:
Olivier’s Law Office

ON BEHALF OF THE RESPONDENT
Mr Boesak

Instructed by: Sisa
Namandje & Co