An urgent court application was brought to the Gauteng Division of the High Court in Pretoria in terms of r 6(12) of the Uniform Rules of Court for the contempt of two court orders granted against the first respondent (the mother) by Vorster AJ on 4 August 2021 (the Vorster Order) and by Mosopa J, on 27 June 2022 respectively (the Mosopa Order). The applicant (the father) sought relief with the aim to protect his rights as the father of the minor child, and to have the right of access to, and contact with his minor child.
Both the applicant and first respondent are biological parents of the minor child, who was at the centre of the r 43 application, which led to the granting of the Vorster Order on the 4 August 2021. The High Court said that the background of this case was obtained from founding papers filed of record. The High Court pointed out that in his founding affidavit, the applicant refers to the Vorster Order in which he was ordered to pay maintenance in the amount of R 15 000 per month, and states that to date, he has not been able to have any contact with his son.
The High Court said that in terms of the Vorster Order, the applicant was also granted full parental rights and responsibilities, together with the first respondent in terms of s 18 of the Children’s Act 38 of 2005. He was also ‘granted reasonable contact to the minor child on every alternate weekend and reasonable consultation and contact at all relevant times to a maximum of two hours per day.’ The High Court pointed out that the respondent disobeyed and refused to comply with the Vorster Order, and as a result of non-compliance with the aforesaid court order, the applicant brought an application to have the first respondent declared in contempt, and accordingly, the Mosopa Order was then granted on 27 June 2022.
The High Court pointed out that Mosopa J also ordered that the first respondent be committed to imprisonment for a period of 30 days for contempt of the Vorster Order. The High Court added that the applicant stated in his affidavit that he had been attempting to get access to and have contact with his minor child whose primary residence and care is with the first respondent as per the Vorster Order. The High Court said the applicant further stated that he has sent correspondence to the first respondent through his attorney of record, requesting her to comply with the Vorster Order to allow him to have contact with the minor child, and these attempts have been fruitless. The High Court said it was clear that even with the knowledge of the Mosopa Order, which found the first respondent to be in contempt, the first respondent continues to deny the applicant access to the minor child. The High Court pointed out that there is no doubt that the first respondent was fully aware of the court orders.
The High Court said that the first respondent ignored correspondence through a letter and WhatsApp messages by the applicant and his legal practitioner. The High Court pointed out that the duty to observe court orders is a constitutional imperative flowing from the rule of law protected in s 1 of the Constitution, and the provisions of s 165, which vouchsafe judicial authority. The High Court added that the Constitutional Court (CC) recognises that ‘disobedience towards court orders or decisions risks rendering our courts impotent, and judicial authority a mere mockery, and the effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced’.
The High Court said that in Pheko and Others v Ekurhuleni City 2015 (5) SA 600 (CC), the CC explained that:
‘Contempt of court is understood as the commission of any act or statement that displays disrespect for the authority of the court or its officers acting in an official capacity. This includes acts of contumacy in both senses: wilful disobedience and resistance to lawful court orders. This case deals with the latter, a failure or refusal to comply with an order of court. Wilful disobedience of an order made in civil proceedings in both contemptuous and a criminal offence. The object of contempt proceedings is to impose a penalty that will vindicate the court’s honour, consequent upon the disregard of its previous order, as well as to compel performance in accordance with the previous order.’
The High Court said that it was inclined to agree with the applicants’ counsel that the behaviour of the first respondent prejudices the interests of the very child who she is supposed to protect as required of her by both the Constitution and the Children’s Act. The High Court added that while the courts do not countenance disobedience of judicial authority, it needs to be stressed that contempt of court does not consist of mere disobedience of a court order, but of the contumacious disrespect for judicial authority.
The High Court pointed out that the first respondent displayed herself to be recalcitrant in her behaviour. The High Court said that it was of the view that her continued defiance in respecting the rule of law, and her prolonged violation of her own child’s rights and best interests is something which cannot be ignored by the High Court. The High Court added that the first respondent continues to be in gross violation and disregard of the rule of law for an extended period – since 2021 and again in 2022. The High Court said that despite all these breaches of the court orders, the applicant had been paying and continues to pay maintenance to the first respondent and minor child as ordered by the court without any default.
The High Court added that the counsel for the applicant argued that the continued violation and disregard of the court orders have the effect of impacting negatively on the growth and the development of the minor child. It was further argued that the first respondent’s conduct in refusing to comply with the court orders negatively impact on the applicant’s rights as a father – who is doing his best to comply with the Vorster Order. It was further submitted that as clearly stipulated by both the Constitution and the Children’s Act, the court should protect the very interests of the minor child, so that he can be able to bond at an early age with the applicant, and allow the applicant to play his role as a father.
The High Court said that in considering whether the requirements in respect of the current application have been met, it was satisfied that the first respondent and her attorney had acknowledge of the court orders and knew the contents thereof. The High Court pointed out that the first respondent without proper advice from her attorney, continued to disobey, disrespect the authority of the court and the parental rights of the applicant and the duty of the court to stop the gross violation of court orders and abuse on the applicant who has been in possession of valid court orders.
The High Court said it was concerning that legal practitioners find themselves in situations where their profession would be compromised, considering that there was failure to advise the first respondent to comply with the court orders, or better yet, advise on what is in the best interests of her minor child, taking into account the impact non-compliance will have on the growth and development of the child. The High Court pointed out that in a correspondence dated 21 December 2023, the applicant’s attorney of record wrote to the first respondent’s attorney, alleging some sort of unethical behaviour, which it is said will be reported to the Legal Practice Council against the first respondent’s attorney. The High Court pointed out that legal practitioners are officers of the court and do not owe a duty to their clients only, but they also owe a duty to the courts and the legal system.
The High Court pointed out that it was important for legal practitioners to always bear in mind that they have an ethical duty to advise their clients to obey court orders, whether the client agrees with such an order or not. The High Court ordered the first respondent to pay the costs of this application on attorney and own client scale, including the costs of employing counsel, and if defended, costs de bonis propriis.
The High Court said that the applicant requested the court in his notice of motion to impose a sanction of direct imprisonment for continued non-compliance of the two court orders, having regard to the fact that such punishment was also ordered by court order on 27 June 2022. The High Court pointed out that the counsel of the applicant argued that a period of nine months of imprisonment as prayed for in the notice of motion is lenient, considering that there has been non-compliance for periods of three years. However, the High Court disagreed with the counsel of the applicant that nine months was lenient. The High Court pointed out that having considered that all circumstances of the case, the papers filed by the applicant’s counsel, the High Court said in its view an appropriate sentence to be imposed is a period of 12 months of imprisonment.
The High Court ordered that the first respondent be committed to prison for the contempt of two court orders for a period of 12 months.
The first respondent was directed to report to the Pretoria Central Police Station within 24 hours of the ordered being granted, for incarceration for the duration of 12 months at the Kgosi Mampuru Correctional Services, Female Prison.
The applicant was granted immediate access to the minor child, and the first respondent was ordered to deliver the minor child to the applicant by no later than 5pm on 5 January 2024 in Pretoria, Gauteng.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2024 (March) DR 42.
