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Minister of Education and Others v Interim Khomas Teachers Strategic Committee and All Persons forming part of the Collective Body of the First Respondent and Others (LC 166/2012) [2012] NALC 43 (5 December 2012)

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REPORTABLE



REPUBLIC OF NAMIBIA

LABOUR COURT OF NAMIBIA MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: LC 166/2012



In the matter between:



THE MINISTER OF EDUCATION .....................................................FIRST APPLICANT

THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA ............SECOND APPLICANT

and

THE INTERIM KHOMAS TEACHERS STRATEGIC

COMMITTEE AND ALL PERSONS FORMING PART OF

THE COLLECTIVE BODY OF THE FIRST RESPONDENT ........FIRST RESPONDENT

EVILASTUS KAARONDA .......................................................SECOND RESPONDENT

MAHONGORA KAVIHUHA ........................................................THIRD RESPONDENT

DANKIE KATJIUANJO FOURTH RESPONDENT

ELFRIEDA MWAGBO FIFTH RESPONDENT

JOSEF KATJINGISIUA SIXTH RESPONDENT



Neutral citation: The Minister of Education v The Interim Khomas Teachers Strategic Committee and All Persons forming part of the Collective Body of the First Respondent (LC 166/2012) [2012] NALCMD 13 (5 December 2012)



Coram: PARKER AJ

Heard: 13 November 2012

Delivered: 5 December 2012



Flynote: Practice – Applications and motions – Interim interdict – Return date of rule nisi – Court finding applicants have placed before the court sufficient facts that are unchallenged and indisputed and so entitle them to the confirmation of the rule nisi.



Flynote: Contempt of court – Civil contempt of court – In order to be civil contempt it is sufficient if the act complained of is done wilfully.



Flynote: Contempt of court – As to second respondent – Court finding that though not party to proceeding that led to the 2 November 2012 order second respondent acted contumaciously when he incited parties to the proceeding to disobey the order – As to third, fourth, fifth and sixth respondents – Court finding that they disobeyed the 2 November 2012 order – Consequently all these respondents committed for contempt – On sentence court taking into account certain mitigating factors that stand in favour of some of the respondents and aggravating factors that stand against them.



Flynote: Costs – The Labour Act 11 of 2007, s 118 – Interpretation and application of.



Summary: Practice – Applications and motions – Rule nisi – Confirmation of – Court satisfied that applicants have placed sufficient and indisputed and unchallenged facts before the court entitling the applicants to confirmation of the rule nisi.



Summary: Contempt of court – An act done in derogation of the court’s dignity or in derogation of due administration of justice will be civil contempt if done wilfully.



Summary: Contempt of court – As to second respondent – Second respondent not party to proceeding that led up to the 2 November 2012 order interdicting and restraining the first respondent from embarking on an unlawful strike action – Court finding, however, that by inciting parties to those proceedings to disobey the court order second respondent acted contumaciously of the court order – Second respondent’s guilt is on the basis that the court will not allow its process to be set at naught and treated with contempt by any person – The guilt of the third, fourth, fifth and sixth respondents is based on the fact that they also acted contumaciously of the 2 November 2012 order and their act was in derogation of the court’s dignity – Consequently, second, third, fourth, fifth and sixth respondents committed for contempt – The belated obedience of the court order and show of remorse by third, fourth, fifth and sixth respondents are mitigating factors to be taken into account in their favour in sentencing.



Summary: Costs – The Labour Act 11 of 2007, s 118 – Interpretation and application of – The ‘frivolous and vexatious manner’ that may lead to an order of costs concerns ‘instituting, proceeding with or defending the (those) proceedings’ in question.



ORDER



In the result, I make the following order:



  1. Subject to para (b), the rule nisi issued on 9 November 2012 is confirmed.



  1. Para 3(c) of the rule nisi is discharged.



  1. Para 3(a) and (b) are to stand over until I have heard evidence or statements in mitigation of sentence.



JUDGMENT



PARKER AJ:



[1] This proceeding concerns the return date in which this court is to determine whether to discharge or confirm the rule nisi granted in terms of para 5(c) of the court’s order made on 9 November 2012 (the 9 November 2012 order). The proceeding centres around a strike action taken by the collective body of persons constituting the Interim Khomas Teachers Strategic Committee and All Persons Forming Part of the Body of the First Respondent (the first respondent). The other respondents in the proceeding in which the 2 November 2012 order was made are the Namibia Teachers Union (the second respondent) and the Labour Commissioner (third respondent). In sum, the present proceeding concerns industrial action by the aforementioned persons.



[2] Under the Labour Act 11 of 2007 employees have the right to strike but that right must be exercised in strict accordance with the relevant provisions of the Labour Act. In my opinion, where the applicants have what they consider to be reliable information tending to indicate that the second respondent is unlawfully inciting the second applicant’s employees to strike without compliance with the Labour Act, they would, in my opinion, be abdicating their statutory duty if they did not approach the court for relief. The second respondent denies in his so-called answering affidavit that he uttered the words, attributed to him, with the aim of inciting the employees of the second applicant in the Public Service (public servants) to strike without complying with the Labour Act. The second respondent says further that teachers, who are employees in the Ministry of the first applicant, had indicated that they would defy the court order, and so they did not need the second respondent to incite them in that regard. And as to the second applicant’s employees; the second respondent in his own answering affidavit admits that he uttered words in public to the effect that the employees of the second applicant should go on strike in order to cripple the Government; but, according to him, he did not say he ‘wanted that done by illegal means or through illegal strike’. That may be so, but with respect, I should say that the second respondent misses the point. Mr Coetzee, counsel for the second respondent, did not in his submission do any better. As I say, it is the statutory duty of the applicants, if they reasonably apprehended that their right to property under contracts of employment had been breached or such breach was threatened or their Article 12(1) right under the Namibian Constitution was breached or such breach was threatened, in relation to them, to approach the court for redress – as they have done – to restrain and interdict the second respondent from his harmful conduct or continuing harmful conduct. That is the whole purpose, as I understand the law, of the final interdict sought by the applicants and granted by the court in the 9 November 2012 order.



[3] To start with, the second respondent does not state in his so-called answering affidavit by what lawful means he was able to ascertain that employees of the second applicant would understand his statement in the same way he now explains in that affidavit. Secondly, he does not state in his so-called affidavit by what lawful means he would ensure that those employees would take industrial action that would be in compliance with the Labour Act. If that were the case, what prevented the second respondent from adding to the words complained of that those employees should only strike in compliance with the Labour Act, that is, if he meant well and he did not mean to be mischievous. With the greatest deference to the second respondent, his statements uttered at such volatile times were irresponsible and reckless in the extreme and cannot be countenanced in a free society like ours and ‘in a country whose very life and soul are nourished by the triadic ideals of democracy, human rights and the rule of law’. See Rally for Democracy and Progress v Election Commission 2009 (2) NR 793 at 798H. I accept Mr Namandje’s submission that by uttering those words complained of the second respondent, with respect, behaved like a loose cannon – and a dangerous one at that, I should add.



[4] Thus, on the papers I found that the applicant had established a clear right, namely, right to property under valid contracts of employment. Having so found, I held that the applicants were entitled to the grant of final interdict (ie para (b) of the order granted on 9 November 2012).



[5] I have taken considerable time to revisit para (b) of the 9 November 2012 order in virtue of certain statements in the second respondents ‘answering affidavit’ in the instant proceeding for a good reason; that is to say, the aforegoing reasoning and conclusions and the second respondent’s ‘answering affidavit’ have a bearing on the rule nisi that was granted in the 9 November 2012 order, which I now proceed to consider on this return date. I find that on the papers and taking into account the aforegoing reasoning and conclusions the applicants have a clear right that must be protected by the court. It is the right guaranteed to them by Article 12(1) of the Namibian Constitution to have a valid order granted by the court in their favour enforced. The applicants have put forth sufficient facts in their founding affidavits – and unchallenged sufficiently – that establish that clear right.



[6] The general principle is that a party to a civil case against whom a court has given an order and who intentionally refuses to comply with the order commits contempt of court. And in this regard it has been said that contempt of court procedure is a means of enforcing performance of a judgment. See Cape Times Ltd v Union Trades Directories (Pty) Lt and Others 1956 (1) SA 105 (N). Thus, punishment for civil contempt per se must always be for the purpose of coercing the offender to do or refrain from doing something in accordance with an order obtained against him or her, and not be merely punitive.



[7] Thus, where a case, like the present, is not concerned with the derogation of a civil litigant’s rights under an order made in civil proceedings but with an act in derogation of the court’s dignity or in derogation of the due administration of justice, the act need not, in order to be a criminal contempt, be accompanied by any intention to act disrespectfully towards the court: it is sufficient in such a case if the act is done wilfully. (R v Benson 1914 AD 357) If that is the position in criminal contempt, it is reasonable to deduce, as I do, that it should be more so in civil contempt. Thus, it is my view that in civil contempt it is sufficient in such a case if the act is done wilfully, which means not casual or accidental or otherwise unintentional (Cape Times v Union Trades Directories and Others at 122A).



[8] It is – I suppose – based on the general principle that a party to a civil case against whom a court has given an order and who wilfully refuses to comply with the order commits contempt of court that Mr Coetzee, counsel for the second respondent, put forward the argument that the second respondent is not a party to the proceeding in which the 2 November 2012 order was made and so he cannot be charged with, and convicted of, contempt in relation to the 2 November 2012 order. I proceed to test Mr Coetzee’s submission which he made with great verve. Granted, there is no injunction against the second respondent in terms of the 2 November 2012 order. Thus, on the face of it, the second respondent is no more bound by the 2 November 2012 order than any other member of the public. But he is bound, like other members of the public, not to interfere with, and not to obstruct, the course of justice. The case against the second respondent is not that he has technically infringed the 2 November 2012 order which was not granted against him. The case against the second respondent is rather that he incited parties against whom the 2 November 2012 order was made to disobey that order. This is established in Hon Dr Namwandi’s founding affidavit which, as Mr Namandje, counsel for the applicants, submitted, stands unchallenged by the second respondent’s so-called affidavit.



[9] The evidence is that the second respondent openly and in public uttered words that were aimed at inciting the parties to the 2 November 2012 order to disobey that court order. He did not stop there; he incited them to disobey the court order so that their interdicted strike would form part of a wider strike action he incited public servants to embark on so as to cripple the Government, as I have discussed previously. I find, therefore, that by his conduct the second respondent incited others in setting the court at defiance and wilfully treated the order of the court as unworthy decision. In the face of all these facts, which I accept, it is, with respect, sheer idle talk for Mr Coetzee to submit that this court has no jurisdiction, albeit in totidem verbis non, to attach the second respondent for contempt. It is trite that an order of the court must be obeyed and could not be set at naught and disobeyed by any member of the public by inciting those against whom the order is made to disobey the order.



[10] There is a yawning gap between a motion to commit a person for breach of an order which cannot be sustained if that person is not a party to the proceedings in which such order is made and a motion to commit a person for contempt of court, not because he or she is bound by the order by being a party to the proceedings in which the order was made, but because he or she is conducting himself or herself so as to obstruct the course of justice. In the first type motion the respondent is pursued for the purpose of enforcing the order of the court for the benefit of the applicant who was granted relief. In the second type motion – like the instant proceeding – the proceeding is on the basis that the court will not allow its process to be set at naught and treated with contempt by any person. Thus, in the second type motion the court order has been contumaciously been set at naught and the offender cannot square it with the applicant who has obtained the order and save himself or herself from the consequence of his or her action. See Seaward v Paterson 1897 (1) Ch at 554, approved by Milner J in Cape Times v Union Traders Directories and Others.



[14] From the papers I find that the second respondent cannot square it with the applicants who obtained the 2 November 2012 order and save himself from the consequences of his act. The aforegoing reasoning and conclusions repel Mr Coetzee’s submission on the point. They also show that the vehicle by which the 2 November 2012 order came to the knowledge of the second respondent is of no moment. What is relevant is, as I have found previously, that he incited the parties to the proceeding against whom that order was made to disobey that order. The second respondent’s conduct must, therefore, be condemned as contumacious of the 2 November 2012 order by finding him guilty of contempt of court and committing him for contempt. His conduct is clearly wilful. The aforegoing reasoning and conclusions apply with equal force mutatis mutandis by context to the conduct of the third, fourth, fifth and sixth respondents. Their conduct, like that of the second respondent, is contumacious of the 2 November 2012 order. They do not deny that they disobeyed the court order of 2 November 2012. They rather put forth their contention that they thought they had the right to continue with their industrial action and that their action would not be in derogation of the court’s dignity. I have no doubt in any mind that their conduct, like that of the second respondent, was wilful. It follows that the third, fourth, fifth and sixth respondents must also be condemned by finding them guilty of contempt of court and committing them for contempt.



[15] Accordingly, I commit the second, third, fourth, fifth and sixth respondents to contempt. Of course, the fact that the 2 November 2012 order has now been obeyed, as I understood it during the hearing, cannot be ignored; and it is, indeed, a welcome development in this proceeding; but I should also say that this fact, if confirmed, has relevance only in the sentencing face of this proceeding.



[16] For all the aforegoing reasoning and conclusions, find that the applicants have made out a case for relief in the contempt application to the extent set out in the order below.



[17] I proceed to consider the issue of costs (ie para 3(c) of the 9 November 2012 order). I do not think the challenge put up by the respondents is frivolous or vexatious; if anything the respondents, particularly the third, fourth, fifth and sixth indicate in their affidavits their misplaced belief that they had the right to take industrial action without more and make statements of remorse. And the second respondent’s affidavit – if it be characterized as such – is basically statements of trivial excuses influenced by misguided empty denial and fear of taking full responsibility for what I have described previously as extremely reckless and irresponsible conduct. Be that as it may, it cannot be said that the contumacious conduct of all the respondents lies in or forms part of defending proceedings: their conduct is prior to the proceedings, ie judicial proceedings of this court. I have taken this crucial factor, coupled with the peculiar circumstances of the case, into consideration, and more important, I have also weighed it against the interpretation and application of s 118 of the Labour Act 11 of 2007, seeing that this is a labour matter (LC 166/2012). Having done that, I do not think in defending the proceedings, the respondents have acted frivolously or vexatiously within the meaning of s 118 of the Labour Act; for, in terms of s 118 of the Labour Act the ‘frivolous or vexatious manner’ concerns the ‘instituting, proceeding with or defending those proceedings’. (Italicized for emphasis) In the instant case, ‘those proceedings’ are the proceedings in which the 9 November 2012 order was made and the instant proceedings on the return date of the rule nisi. Thus, inasmuch as the case of Sikunda v Government of the Republic of Namibia (2) 2001 NR 86 (HC) is not a labour matter and so the court there did not interpret and apply s 118 of the Labour Act as has been done in the instant case, as respects the issue of costs Sikunda is distinguishable. For these reasons I conclude that a case has not been made out for the relief sought in para 3(c) of the 9 November 2012 order.



[18] In the result, I make the following order:



  1. Subject to para (b), the rule nisi issued on 9 November 2012 is confirmed.



  1. Para 3(c) of the rule nisi is discharged.



  1. Para 3(a) and (b) are to stand over until I have heard evidence or statements in mitigation of sentence.











----------------------------

C Parker

Acting Judge













APPEARANCES



APPLICANTS: S Namandje

Instructed by Government Attorney, Windhoek





SECOND RESPONDENT: E E Coetzee

Of Tjitemisa & Associates, Windhoek





FIRST, THIRD, FOURTH, S Rukoro

FIFTH, SIXTH RESPONDENT: Instructed by Kaumbi-Shikale Inc., Windhoek