Over the years, Namibia has witnessed judgements or court orders ignored by liability parties in civil proceedings who failed to discharge their burden of proof in civil matters. That’s a situation which makes one infer that perhaps civil law judgements are not respected and/or complied with, compared to criminal law judgements.

The general principles of civil
procedure entail that a party against whom judgement has been given should comply with such judgement given by the court
in civil proceedings.

No judgement or order of court would be of any use to a successful party if it
could not be enforced, because the
purpose of instituting a civil claim is to obtain money owed or other relief
claimed. 

In juridical circles, if a judgement cannot be enforced due to one reason or another, it is called an academic judgement, meaning it is for scholarly purposes only, and thus not effective.

It is trite law that if the defendant refuses or ignores a court order, steps must be taken by law-enforcement
agencies to enforce such judgement or court order to execute it.

Usually, after the court issues a judgement or order against the liable party, the successful party in the cause or matter should approach the court to issue a writ of execution against the liable party for execution by the deputy sheriff/messenger of court for the area in which such liable party resides or conducts business, to attach properties and sell them at a public auction to recover the money or realise money from the sale of such properties to satisfy the judgement.

The law provides remedies to successful parties against the liable parties who failed to discharge their burden of proof, which is a contempt of court charge that follows when the liable party cannot comply with the judgement/court order. 

Thus, it constitutes a criminal offence, notwithstanding that the judgement in question has been obtained in a civil case.

What many litigants such as the
plaintiff/applicant do not know or are enlightened about is the fact that they have a right to approach a court of law and institute civil proceedings for contempt of court to commit the liable party to prison for that.

In the premises, this is exactly what Paragon Investment Holdings (Pty) Ltd JV Ethiopian Airlines CC and the Namibia Airports Company Limited (NAC) were supposed to do in a matter of Menzies Aviation Namibia (Pty) Ltd, who defied judgements/court orders given against them.    

It is common cause that Menzies Aviation Namibia entered into a contractual agreement with the Namibia Airports Company Limited in January 2014 for ground handling services at Hosea Kutako International Airport for five years, with the right of renewal for another three years.

During 2021, Menzies Aviation Namibia disputed a tender bid awarded to Paragon Investment Holdings by the Central Procurement Board of Namibia (CPBN) for ground handling services at Hosea Kutako International Airport.

When Menzies Aviation Namibia’s contract came to an end in 2022, it remained in unlawful occupation of Hosea Kutako International Airport premises, which prompted the NAC to approach the High Court for an order to evict Menzies Aviation Namibia from Hosea Kutako International Airport premises from 30 June 2022, and for Paragon Investment Holdings to start their ground handling operations at the airport by 30 June 2022. But despite court orders from the High Court, Menzies Aviation company refuses to vacate the premises, with various appeals made to stay judgements/court orders issued by the High Court. They even appealed the Supreme Court of Namibia, but were their unsuccessful.

So, what has been manifested by Menzies Aviation Company is flagrant acts of contempt of court with impunity.

The crime of contempt of court consists of the unlawful and intentional violation of the dignity, repute or authority of a judicial body or a judicial officer in his/her judicial capacity. 

If we look into the history of Menzies Aviation Company, its conduct fits the definition ofa  contempt of court offence.

Now, why up to now have no
proceedings been brought to enforce the judgement/court orders given against Menzies Aviation Company when it ignores court orders?

If this non-compliance by Menzies Aviation Company were committed by a person in a criminal case, such non-compliance could be met with fierce reaction by the law- enforcement agencies within 24 hours, and the offender would have been apprehended outright. 

The question is why have members/shareholders of Menzies Aviation
 Company not been held liable for an offence of contempt of court so that one may invoke the provisions of section 332 of the
Criminal Procedure Act 51 of 1977, which deals with the prosecution of corporations and members associations in Namibia? 

Everyone should be treated equally in terms of Article 10 of the Namibian constitution, which requires that all persons shall be equal before the law.  

*Lucas Tshuuya is an attorney from Onaanda in the Uukwambi district.