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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 3242/2015

In the matter between:

HEWAT SAMUEL JACOBUS BEUKES..................................................................1^ST APPLICANT

ERICA BEUKES.........................................................................................................2^ND APPLICANT

And

BENSON KAAPALA...............................................................................................1^ST RESPONDENT

AUGUST MALETZKY..........................................................................................2^ND RESPONDENT

Neutral citation: Benson Kaapala v Hewat Beukes (I 3242/2015] [2016] NAHCMD 179 (16 June 2016)

Coram: MILLER AJ

Heard: 18 May 2016

Delivered: 16 June 2016 (Ex tempore)

ORDER

In the premises I make the following order:

1. The application instituted by the applicants stands to be dismissed and is so dismissed.

2. The applicants are ordered jointly and severally to pay the cost of 1^st and 2^nd respondents, such costs be limited to actual expenses incurred.

JUDGMENT

MILLER AJ:

[1] This is an interlocutory application brought by the applicants who are respectively the 1^st and 2^nd Defendants to an action instituted against them by the plaintiff. 

[2] The application centres on proceedings of Contempt of Court, where the applicants are seeking the Court to find the 1^st and 2^nd respondents in contempt of Court due to remarks made by the 2^nd respondent who is the 3^rd plaintiff in the main action on Facebook during the years 2015 and 2016 respectively.  In the application which is before me, the applicants seek the following orders:

1. To arraign - refer the 1^st and 2^nd respondent for a prosecution for criminal contempt of Court.

2. To refer 1^st and 2^nd respondents for prosecution of fraud.

3. Striking out the whole proceedings and

4. Awarding punitive costs to 1^st and 2^nd respondents.

[3] The proceedings which paragraphs 3 of the prayers referred to, is the action instituted against the 1^st and 2^nd applicant inter alia.  The applicants alleged in the founding affidavit that Mr August Maletzky who is the 3^rd plaintiff in the main action used the Facebook platform on some occasions to make certain discovery remarks against the present Deputy Chief Justice, Mr Justice Damaseb. 

[4] The applicants allege that these Facebook comments which were made by 2^nd respondent Mr Maletzky accused Damaseb, JP of misappropriating and stealing funds from the International Football Association.  In another Facebook comment it is alleged that Mr Maletzky stated that Damaseb, JP does not have a matric

[5] Mr Maletzky in his replying affidavit although not specifically denying that he was the author of these remarks, seeks to argue that the allegations in the applicant’s founding affidavit is a copy and paste exercise, whatever that may mean.  I am prepared to accept for purposes of this present application that Maletzky did indeed make these disparaging remarks concerning Damaseb, JP.

[6] The question to be determined however is whether in the circumstances, the comments as such renders Mr Maletzky guilty of contempt of Court. According to the author Hunt, Contempt of Court consist an unlawful and intentional violation of the dignity, repute or authority of the judicial body or interfering in the administration of Justice in the matter pending before it.[1]

[7] The learned author Snyman puts it as follows. Criminal contempt of Court is defined as the unlawful and intentional violation of the dignity repute or authority of a judicial body or interfering with the administration of justice (see CR Snyman, Criminal Law 4^th edition page 56).  It is important to note for purposes of this judgment that the comments made by Mr Maletzky were not directed at the Courts or the administration of justice itself.  The remarks although directed at a member of the High Court and the present Deputy Chief Justice were directed at him in his personal capacity but not in his capacity as a judicial officer of this Court.  That to my mind does not constitute contempt of Court.

[8] So if the remarks were made against Damaseb, JP in his personal capacity, it is open to Damaseb, JP if he wishes to take such action as he deems fit.  As far as prayer 2 is concerned, that is to refer the respondents to a criminal prosecution on the charge of fraud, this Court does not have the power to refer somebody to court for fraud.  If the applicants contend that the respondents are guilty of fraud, the avenue they should follow is to lay a complaint with the police or the Prosecutor-General who are the authorities to institute fraud charges against the respondents if they so desire.  I fail to find any basis why I should strike out the proceedings instituted against the applicant by the respondent.

[9] Nothing that has transpired before me thus far warrants the striking out of the whole proceedings nor is there any provision for that in the Rules.  Even though  Mr Maletzky had made these remarks, he is not the only plaintiff in the matter.  There are two other plaintiffs. Nothing is said by the applicants which warrants any steps to be taken against them.

[10] This Court will in any event be slow to close its doors to a litigant seeking relief.

[11] Order

1. The application instituted by the applicants stands to be dismissed and is so dismissed.

2. The applicants are ordered jointly and severally to pay the costs of 1^st and 2^nd respondents, such costs to be limited to actual expenses incurred.

Miller, AJ

Acting

Appearance:

Applicant Mr Beukes

Respondent : Mr Maletzky

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