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[2016] ZAWCHC 27
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M.T v C.H.S.T (10757/14) [2016] ZAWCHC 27; 2016 (4) SA 193 (WCC) (11 March 2016)
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IN THE HIGH COURT
OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOW
CASE NO: 10757/14
DATE: 11 MARCH 2016
In the matter between:
[M……….]
[T……….]
.................................................................................................................
Plaintiff
And
[C……..]
[H………] [S……]
[T……..]
...................................................................................
Defendant
JUDGMENT
DELIVERED ON FRIDAY 11 MARCH 2016 IN RESPECT OF THE MERITS OF THE
CONTEMPT OF COURT HEARING.
GAMBLE, J
BACKGROUND
1. This court has
been managing, in terms of rule 37(8), the pre-trial procedures
relevant to the [T……..] divorce
case which was
transferred to this Division from the High Court in Durban in 2014.
The matter has a long and chequered history
having commenced in that
court in 2009. Both parties were previously represented by attorneys
and counsel but these have fallen
by the wayside and since the
transfer of the matter to this court they have represented themselves
in the divorce action. I do
not intend to go into any great detail
regarding the background circumstances relevant to this matter: that
is dealt with in a
very comprehensive report (574 pages exclusive of
annexures) filed by the Family Advocate 2 days ago.
2. The plaintiff, Ms
[T…….], presently resides in [S……] [W….]
with the parties’ 9 year
old minor son [E……]
(whom the plaintiff prefers to call “[B…..]”),
while the defendant resides
in Johannesburg. He travels down to Cape
Town by bus when it is necessary to attend court for a pre-trial
hearing, claiming that
he is penniless, and when he is in Cape Town
puts up at a cheap backpackers’ lodge in Long Street not far
from the court
building.
3. The principal
issue in the main action is the care and contact arrangement in
relation to [E…….]. The plaintiff
has informed the
court that this is the only issue. As far as the defendant is
concerned it is the principal issue, but he says
he also has
proprietary claims against the plaintiff which he intends pursuing.
The clarification of the issues was finalised by
this court at a
pre-trial hearing conducted on 22 October 2014. Since then the court
has been endeavouring to finalise the pre-trial
issues around [E……..]
so that the matter can go to trial speedily. I must record that the
court has dealt with the
[T…….] pre-trial matter
differently to the customary practice: all proceedings have been
conducted in open court,
on the record and with the judge robed. In
addition, a special time slot (usually 11h30 on a Friday) has been
allocated for these
parties to be heard alone.
4. I should perhaps
point, too, out at this juncture that the defendant has not had
contact with [E……..] for the
last six years, other than
for a short period of about 20 minutes during which it appeared as if
the child did not wish to see
his father. The defendant contends that
the plaintiff has alienated the child from him and has effectively
demonised him in the
eyes of the child, while the plaintiff says that
because they separated when the child was still very young (about 18
months old)
he does not know his father who has been an absent figure
in his life. She is not at all well disposed towards the defendant
and
complains bitterly that he is in arrears with his maintenance
obligations under a Rule 43 order granted in the Durban court, and
that such arrears now far exceed R1m. The plaintiff is convinced that
[E……] does not wish to see his father at all
and that
it is accordingly in his best interests not to have any such contact
with his father. The plaintiff has manifestly not
taken any positive
steps to encourage the child to have contact with his father. Rather,
it seems to me that she oersistently places
obstacles in the way of
the father and son establishing a proper relationship.
5. It is of great
concern to the court that a child allegedly does not wish to have
contact with his father but that is an issue
which will ultimately be
determined by the trial court. However, before the trial court can do
so it is bound by the provisions
of section 6 of the Divorce Act 70
of 1979, (which section has to be read in conjunction with sections 6
to 10 of the Childrens
Act 38 of 2005) to satisfy itself as to the
appropriateness of the proposed care and contact arrangements and, if
an enquiry has
been instituted by the Family Advocate, the trial
court must consider the report of that office.
6. The Family
Advocate, represented in this matter by Adv M.Fourie of Somerset
West, has been assisting the court for more than
2 years by
endeavouring to complete a report in terms of section 6 in relation
to the welfare of [E……] and the recommended
care and
contact arrangements. In the process of conducting her enquiry, Ms
Fourie came to the conclusion that both parents were
required to be
assessed by an independent psychiatrist before she could complete her
report: the parties’ mental health is
clearly of some concern
to the Family Advocate. The plaintiff initially expressed
reservations about participating in such an assessment
and, in
particular, the mental health practitioner to be appointed.
Ultimately, and after some considerable to-ing and fro-ing
on the
part of the plaintiff, the parties were referred to Dr Larissa
Panieri-Peter, a forensic psychiatrist now in private practice
in
Cape Town and formerly attached to the forensic unit at Valkenberg
Hospital. At the request of the Family Advocate, this court
gave
specific directions to the parties as to when and where they were to
consult Dr Panieri-Peter. The parties ultimately agreed
to be bound
by the court’s directions and attended on the psychiatrist as
directed.
DIRECTIONS GIVEN
IN TERMS OF RULE 37(8)
7. The psychiatric
investigation was completed during the latter part of 2015 and Dr.
Panieri-Peter’s report is an annexure
to the final report (9
March 2016) of Adv Fourie. However, the Family Advocate informed the
court at the time that she could not
complete her section 6 report
(which would include the psychiatrist’s report) until she had
completed a further assessment
of [E……] in his domestic
environment. Adv Fourie also informed the court that she required a
full consultation with
the plaintiff, the defendant having long since
complied with her request in that regard. At a further
pre-trial hearing conducted
on 6 November 2015 (which the court had
anticipated would be the final pre-trial hearing in this matter)
these two outstanding
issues were raised by Adv Fourie, who has
regularly been in attendance at these pre-trial hearings.
8. After the court
had enquired from her what her attitude was in relation thereto, the
plaintiff agreed to facilitate a domestic
visit at her place of
residence on 9 December 2015 for the assessment of [E……],
and further agreed to attend a consultation
with the Family Advocate
in Somerset West at 09h00 on 10 December 2015. These attendances
would have put the Family Advocate in
a position to file her final
report in terms of section 6 by the end of January 2016, and the
matter would have been ready to go
to trial towards the end of the
1st term 2016. Despite agreeing thereto a month before, the plaintiff
kept neither of these appointments,
and on 15 December 2015 the
Family Advocate informed the court of these developments in a further
interim report. The failure to
stand by her undertakings meant that
the plaintiff was holding up the progress of the litigation.
9. On Tuesday 12
January 2016 this court’s registrar informed the plaintiff by
email (the customary form of communication
with these unrepresented
parties) of the Family Advocate’s communication regarding her
lack of cooperation. The plaintiff
was directed to appear before this
court 10h00 on Thursday 21 January 2016 to answer charges of contempt
of court in light of her
failure to adhere to the directions of 6
November 2015. The plaintiff was informed in that email of her
entitlement to legal representation
at the hearing on 21 January 2016
and was urged to take the matter seriously. She was also informed
that in the event that she
wished to reconsider her earlier refusals
to participate in the Family Advocate’s investigation, she
should contact Adv Fourie
to make new arrangements to consult with
her and to permit the domestic visit to take place.
10. The plaintiff
failed to appear before this court on 21 January 2016 and a warrant
was issued in terms whereof the Sheriff for
Somerset West was
directed to take the plaintiff into his custody and bring her through
to court at 14h30 the following day. The
Sheriff was expressly
informed that the court did not wish the plaintiff to be held
overnight or in police custody.
THE PLAINTIFF’S
RESPONSE
11. At the hearing
on Friday 22 January 2016 the plaintiff appeared in the company of
the Sheriff who had brought her through to
Cape Town during the
course of that morning. The plaintiff was informed that the court did
not intend conducting an enquiry into
her non-appearance on that day.
The court issued a rule nisi returnable on Friday 12 February 2016
calling on the plaintiff to
show cause why she should not be found to
be in contempt of court due to her failure to facilitate the domestic
visit on 9 December
2016, to attend the meeting with the Family
Advocate the following day and to appear before this court on 21
January 2016. She
was also called upon to show cause why she should
not be sentenced to 30 days’ imprisonment, and to bear the
costs of the
Sheriff incurred in securing her attendance at court on
21 January 2016.
12. Thanks to the
intercession of the Cape Bar Council, the plaintiff was represented
at the contempt hearing by Advocate M.Holderness,
who appeared as
amicus curiae
.
The court is indebted to Ms Holderness for her assistance in this
matter, which is in the finest traditions of the Bar.
13. With the
assistance of Ms Holderness the plaintiff filed a detailed affidavit
explaining her failure to comply in December
2015 with the court’s
directions of 6 November 2015 and her failure to appear on 21 January
2016. In relation to the planned
home visit of 9 December 2015 the
plaintiff said that [E…….] had become increasingly
agitated about the prospect
of the Family Advocate interviewing him
at home and had expressed himself in strong terms in regard thereto.
She said that when
the Family Advocate and her assistant Ms Baartman
(a qualified social worker} arrived at her townhouse on the morning
of the visit
she refused them entry to the secure complex as [E…….]
was too upset, and she said that she told Adv Fourie this through
the
intercom system at the gate. This was confirmed by Adv Fourie in her
report of 15 December 2015.
14. Whether [E…….]
was indeed so distressed that the Family Advocate should have been
refused access the court will
never know. I am, however, most
sceptical about the explanation in light of the fact that when Adv
Fourie and her assistant were
eventually allowed access on 27 January
2016, the Family Advocate found him to be a well-adjusted boy who
engaged freely with her.
There was no evidence of the distress
attributed to him a month earlier.
15. As far as the
consultation on 10th December 2015 is concerned, the plaintiff’s
explanation under oath is somewhat garbled.
She seems to say that she
thought that the visit was not necessary because she and Ms Baartman
would conduct it via an exchange
of emails through a question and
answer session. That explanation is at odds with the reasons advanced
to Adv Fourie at the time
– that the plaintiff was not prepared
to participate in the investigation because she believed that the
Family Advocate’s
office had already exhibited bias towards her
and that she would not get a ‘fair hearing’ from them, as
it were.
16. In relation to
the failure to appear on 21 January 2016, the plaintiff says that she
knew about the hearing and did indeed
set off for Cape Town from
Somerset West that morning to attend court. She says that it is her
practice to travel as far as Cape
Town International Airport, to park
her car there and to take the MyCiti bus through to town, so as to
save on the cost of parking
in the city. The plaintiff says that on
that morning she became nauseous on her way to the airport, to such
an extent that she
turned back and drove straight home. There is no
way of verifying the accuracy of this assertion since no doctor’s
note was
tendered by the plaintiff. What is troubling, however, is
that at no time before the Sheriff arrived at her home on the Friday
morning did she make any effort to inform the Court or the Family
Advocate of the reason for her failure to appear. One would have
expected that she would have done so immediately, particularly
because she has the email address of the court’s registrar
(with whom she is in communication when necessary) and the telephone
number of the High Court switchboard, as well as the court’s
registrar’s direct line, which appears at the foot of all her
emails. Further, the record shows that the plaintiff does not
hesitate to contact the Family Advocate if there is something
concerning the investigation which troubles her.
17. A further factor
which contributes to the court’s scepticism about this
explanation is the fact that late on the Wednesday
afternoon (15h57)
the court’s registrar was copied into an email written by the
plaintiff to an entity known only by its
email address –
“
probono
”.
The plaintiff subsequently informed the court through counsel that
she found the address in the newspaper and wrote off
for urgent help.
In that communication the “
probono
”
entity was informed of the prospect of a hearing on Thursday 21st
January 2016. “
Probono
”
was briefly informed of the background to the litigation and was
directed by the plaintiff to obtain a postponement of the
matter on
the Thursday.
18. In the email of 15h57
to the court’s registrar (with which I will deal more fully
hereunder), the plaintiff informed
the court of her late decision to
seek legal advice to meet the charges of contempt and went on to say
that she had, in the interim,
complied with the November directions –
evidently she met with Adv Fourie and Ms Baartman for 4 hours on
Monday 18 January
2016.
CONTEMPT OF
COURT?
19. As
amicus
curiae
, the court requested Ms
Holderness to address it on the question as to whether it was
appropriate to hold proceedings for contempt
of court against a
person who had disobeyed a direction given in terms of Rule 37(8), as
opposed to a court order per se. Ms Holderness
submitted that such a
direction was not an order and that contempt proceedings were
accordingly not appropriate. She referred the
court to the express
wording of Rule 37(8) (c) in which the judge presiding at a Rule
37(8) conference may only give a direction
when there is agreement
between the parties in relation thereto.
[1]
Counsel fairly submitted that if a practice direction was given
pursuant to such agreement it would be appropriate for contempt
proceedings to follow in the event of non-compliance therewith. I
shall return to the application of Rule 37(8) shortly.
20. One of the
leading cases on contempt of court is
Fakie
[2]
in which Cameron JA extensively analysed the principles applicable to
such proceedings in the constitutional era. The Learned Judge
of
Appeal confirmed, with reference to the common law,
pre-constitutional and constitutional jurisprudence, that the core of
contempt
proceedings was that “
the
dignity and authority of the courts, as well as the capacity to carry
out their functions, should always be maintained
”.
[3]
Cameron JA observed that contempt of court for disobeying a court
order “
is part of a broader
offence, which can take many forms, but the essence of which lies in
violating the dignity and authority of
the court.
”
21. At common law,
Melius de Villiers
[4]
wrote that –
Contempt of
court…..may be adequately defined as an injury committed
against a person or body occupying a public judicial
office, by which
injury the dignity and respect which is due to such office or its
authority in the administration of justice is
intentionally
violated.”
22. In
Crockett
[5]
Bristowe J was of the view that whatever the nature of the actual
contempt was-
“…
whether
consisting of disobedience to a decree of the Court or of the
publication of matter tending to prejudice the hearing of
a pending
suit or of disrespectful conduct or insulting attacks”, it was
“necessary for protecting the fount of justice
in maintaining
the efficiency of the courts and enforcing the supremacy of the law.”
23. And while the
practice more recently
[6]
has tended to distinguish between contempt
in
facie curiae
[7]
and
ex facie curiae
[8]
,
Milton
[9]
noted that –
“
The concept
of contempt of court is one which bristles with curiosities and
anomalies. Of the various examples which may be chosen
to illustrate
this point, perhaps the most striking is that of the classification
of contempt of court into civil contempt ( or
contempt in procedure)
and criminal contempt.”
24. In
Mamabolo
[10]
Kriegler J delivered a masterful exposition of the constitutional
context in which contempt proceedings (in that matter criticism
of a
court order and the refusal to comply therewith by a State official)
are to be assessed, describing the proceedings as
“…
the
Proteus of the legal world, assuming an almost infinite diversity of
forms. The breadth of the genus is apparent from the definitions
of
contempt of Court in standard textbooks on South African criminal
law.”
25. Contempt
proceedings are invariably initiated by the party who is the
beneficiary of an order of court obliging the other party
to do, or
not to do, something (
ad factum
praestandum
) and whose opponent is in
default of his/her obligations under that order. Such proceedings are
not permissible in respect of judgments
sounding in money (
ad
pecuniam solvendam
)
[11]
where the beneficiary of an order must resort to execution
proceedings to satisfy the judgment. A number of examples in which
contempt proceedings have been initiated are cited by
Herbstein
and van Winsen
,
[12]
but for present purposes it will suffice to refer to an order
regulating contact with children
pendente
lite
, which if disobeyed by the
respondent may lead to contempt proceedings, and ultimately
imprisonment.
[13]
RULE 37(8)
PROCEDURES IN THE WESTERN CAPE DIVISION
26. In terms of a
directive issued by the Judge President, the Judges of this Division
preside over pre-trial conferences in open
court on a regular basis
during term time. The purpose of these hearings is to expedite the
speedy resolution of matters in which
the pleadings have closed and
which have therefore been enrolled for trial with the Registrar.
Judges preside over such matters
on a roster-basis at hearings
conducted before the commencement of the court day and they do not
robe, although the proceedings
are held in open court. On any given a
day a judge can expect to deal with 10 – 20 matters, some new
and others postponed
from previous hearings.
27. The parties are
represented by attorneys, and sometimes counsel. The legal
representatives inform the judge of the status of
the trial
preparation in the case and usually ask for an agreed timetable for
the filing of any further pleadings or notices in
terms of the Rules
to be authorised by the presiding judge. In the event that a party is
in default of a procedural step, e.g.
has failed to file a reply to a
request for trial particulars, or claims that certain documents are
not discoverable, the pre-trial
procedure is held in abeyance while
the parties take the dispute to the motion court for resolution
there: the Rule 37(8) procedure
is not geared to the resolution of
pre-trial disputes which invariably require the filing of affidavits
and heads of argument.
28. The intervention
of the judge at a Rule 37(8) conference is fairly limited. For
example, if the time sought for a postponement
is considered to be
unduly lengthy, or the parties cannot agree on such a date, the judge
may fix a date unilaterally. Furthermore,
in the event that the
parties are unable to agree on a date, or a step to be taken, the
judge may be asked by one of the parties
to direct accordingly. The
function of Rule 37(8) procedures in this Division is to speed up the
pre-trial process and to ensure
that when a matter is allocated a
trial date that it is indeed trial ready. To this end the practice is
for the Rule 37(8) judge
to issue a compliance certificate when all
pre-trial steps have been completed. The practice, for example, in
claims involving
expert testimony, is that a compliance certificate
will not be issued until a joint minute signed by the experts has
been filed.
Ideally, no matter should need to be postponed at the
last minute before the trial due to some or other procedural
short-coming.
RULE 37(8)
PROCEDURE IN RELATION TO DIVORCE ACTIONS
29. The provisions of
section 6
of the
Divorce Act, 70 of 1979
are binding on all courts
hearing divorce actions, whether opposed or not. The following
subsections are relevant to this matter
-
“
6.
Safe
guarding of interests of dependent and minor children.
(1) A decree of divorce shall not be granted until
the court-
(a) is satisfied that
the provisions made or contemplated with regard to the welfare of any
minor or dependent child of the marriage
are satisfactory or are the
best that can be effected in the circumstances; and
(b) if an enquiry is
instituted by the Family advocate in terms of
section 4
(1)(a) or
(2)(a) of the Mediation in Certain Divorce Matters Act, 1987, has
considered the report and recommendations referred
to in the said
section 4(1).
(2) For the purposes of subsection (1) the
court may cause any investigation which it may deem necessary, to be
carried out and
may order any person to appear before it and may
order the parties or any one of them to pay the costs of the
investigation and
appearance.”
30. The
Divorce Act must
be
read in conjunction with
sections 6
to
10
of the Children’s
Act, 38 of 2005, which set out the general principles to be applied
in matters involving children. These
include
•
that in all matters concerning the care,
protection and well-being of a child, the best interests of the child
are to be regarded
as paramount;
•
an extensive list of factors to be taken
into account relevant to the measurement of the best interests
standard;
•
the express direction that in a matter
involving a child, delays are to be avoided;
•
the need for a child to be brought up
within a stable family environment and where that is not possible, in
an environment closely
approximating same; and
•
the need for a child to have adequate
contact with the parent with whom he/she does not reside.
31. The involvement
of the Family Advocate in this divorce matter commenced in 2009 when
the case was still being heard in the
Durban court. Since the
transfer of the case to this division the Family Advocate in Somerset
West has been intimately involved
in the investigation and monitoring
of [E………]’ best interests. Her work has
included facilitating the
defendant’s repeated, but regrettably
hopeless, attempts to have weekend contact with the child when he
(the defendant) has
been in Cape Town. In this regard, the defendant
has regularly complained to this court at
Rule 37(8)
hearings that
his attempts to see his child have been intentionally thwarted by the
plaintiff.
32. Against that
statutory and factual background the obligatory report by the Family
Advocate in terms of
section 6
of the
Divorce Act is
critical to the
trial court coming to a just decision in the interests of [E……..].
The Family Advocate has regularly
attended the
rule 37
(8)
conferences and has furnished the court with a number of interim
reports. The final report, which must be completed before
the matter
can be declared trial ready, was long overdue and was the only matter
which, for many months, had been holding up the
referral of this case
to trial. The Family Advocate was not to blame for these delays.
Rather, the court came to the considered
conclusion that it was the
parties themselves, principally the plaintiff, who were occasioning
the delays. In the circumstances
the directions which were given by
this court on 6 November 2015 were critical to the finalisation of
the pre-trial procedures
and compliance therewith by the parties was
a
sine qua non
to the matter being brought to its completion after many years of
unnecessary delay.
33. In my respectful
view it does not matter that the direction which was given on 6
November 2015 was not a court order per se.
Disregarding the fact
that the plaintiff consented to the order being made, I am of the
view that the practice direction in question
falls within the broad
ambit of instructions which a court may issue to litigants to ensure
that efficient and speedy steps are
taken to enable the court to
properly discharge its functions to the litigants before it. It falls
within the purview of the “
curiosities
and anomalies
’’ referred to
by
Milton
,
supra, since, as Cameron JA remarked in
Fakie
,
(also in a passage referred to above) contempt of court “
is
part of a broader offence, which can take many forms
”.
After carefully considering all the facts I am left with little doubt
that the failure of the plaintiff to adhere
to this court’s
directions in terms of
Rule 37
(8) has led to the undermining of the
efficiency, dignity and authority of “
the
fount of justice
”.
34. In the
circumstances I am persuaded that, subject to that which is set out
below in relation to wilfulness, the plaintiff’s
failure to
adhere to the direction given on 6 November 2015 is capable of being
addressed through contempt proceedings.
WILFULNESS/MALA
FIDES
35. In
Fakie
,
[14]
Cameron JA dealt with the necessity for the court hearing contempt
proceedings to be satisfied that the party in default had
intentionally
disobeyed the court’s order –
“
[9] The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed
‘deliberately
and mala fide’. A deliberate disregard is not enough, since the
non-complier may genuinely, albeit mistakenly,
believe…..
herself entitled to act in the way claimed to constitute the
contempt. In such a case, good faith avoids the
infraction. Even a
refusal to comply that is objectively unreasonable may be bona fide
(though unreasonableness could evidence
lack of good faith).
[10] These
requirements - that the refusal to obey should be both wilful and
mala fide
,
and that unreasonable non-compliance, provided it is
bona
fide
, does not constitute
contempt - accord with the broader definition of the crime, of which
non-compliance with civil orders is a
manifestation. They show that
the offence is committed not by mere disregard of a court order, but
by the deliberate and intentional
violation of the court’s
dignity, repute or authority that this evinces. Honest belief that
non-compliance is justified or
proper is incompatible with that
intent.”
36. If one applies
that test to the facts at hand there are three separate acts on the
part of the plaintiff which fall to be considered.
In the first place
there is the refusal to allow the staff from the Office of the Family
Advocate to enter her home for the purposes
of interviewing [E…….]
in his domestic environment. As I have already said, the plaintiff’s
explanation of
the child’s distress on 9 December is at odds
with his good-natured behaviour when the Family Advocate ultimately
interviewed
him.
37. As regards the
second incident on 10 December, when the plaintiff refused to meet
with the Family Advocate, I am not persuaded
that she has discharged
the requisite evidential burden. Although she says otherwise in her
affidavit filed in the contempt proceedings,
the true facts are as
set out in a series of emails written by the plaintiff to Adv Fourie
and her superior, Adv Ebrahim, early
in December 2015 in which she
complains of an attitude of bias on the part of the staff of the
Office of the Family Advocate.
38. At 14h12 on 8 December
2012 , the plaintiff , after labelling the conduct of Adv Fourie
“
appalling
” goes on to say the following to Ms
Ebrahim –
“
There have
been numerous lies, distortions and withholding of information, yet
your organisation professes to be neutral, but your
actions are
carefully chosen to place selected information before the Judge.
Examples:
1…
2…
3…
4…
5…
6…
The list of
oversights and omissions in the SIX interim reports presented to the
Judge by Adv. Fourie, along with the false trumped
up charges which
she made against me, as well as the blatant lies, exposes that
neutrality and ensuring the child’s best
interest, is not the
primary object of her role in this matter.”
39. And, just less than an
hour later at 15h05, the plaintiff said the following to Adv Fourie ,
in reply to the latter’s
email a short while before –
“
In any
event, I believe you have already drawn your own conclusion and what
you seek to have as an outcome. I say this because (sic)
the numerous
omissions you failed to put before the Judge. You made mention of
issues regarding PAS, being worse than sexual or
other abuse…
and this was prior to your appointment in this matter… Clearly
no one is bothered to listen to the child’s
voice.”
40. At 17h18 on the same
day , after receipt of an email from Adv Fourie sent at 15h52 in
which her neutrality was assured, the
plaintiff penned a lengthy
email to Adv Fourie which contains further allegations in a similar
vein to those made to Adv
Ebrahim –
• “
Strangely,
you fail to see that “neutral” would mean that you will
have had to do a home visit with the other party,
at his home.…”,
• “
Your non—impartiality is
becoming more and more evident each day, especially where you can
even expect me to
force my child
to see you AGAINST HIS WILL.”
• “
I believe it is time for you
to withdraw.”
41. The complaints
of bias are, however, not borne out by the various interim reports by
Adv Fourie which demonstrate that she
and her staff members were, at
all times, doing their best to comply with their statutory duties in
filing the requisite report
under
section 6
of the
Divorce Act, and
most importantly, were seeking to assist the trial court to address
the child’s best interests.
42. In addition to
allegations of bias the plaintiff expressed a litany of complaints
about the inappropriateness of the Family
Advocate wanting to have
access to [E…...]. Her view clearly reflected that she did not
think that the Family Advocate was
going about her work properly and
the plaintiff took her to task for the way in which the boy was
approached at school for pre-trial
assessment. She then berated her
for seeking an interview at the house since “he did not invite
you to his home”. She
went on to tell Adv Fourie that –
“…
I
would like to inform you that which I told you in the meeting of 6th
November 2015, that [B…….] does not want to
see you or
talk to you or [your assistant] Laura Baartman. And when I told him
of your email he reiterated that you must not come
to his home.
Therefore, please adhere to his wishes.”
43. It seems fairly
clear that the plaintiff was strongly opposed to the home visit long
before it actually was due to take place
and her professed concern,
on 8 December 2015, regarding [E……s’] alleged
state of distress simply does not
wash. She knew of the importance of
the visit and was under an obligation to ensure that it took place.
But she consciously chose
not to do so. Indeed, after the court had
indicated to the plaintiff that it was contemplating contempt
proceedings against her,
she hastily set up consultations for herself
and [E……] with the Family Advocate in early January
2016. These meetings
evidently went ahead without a hitch.
44. In light of the
fact that the plaintiff was informed at the hearing on 6 November
2015 of the necessity for the consultation
with [E…….]
at his home, and considering her agreement in open court to adhere to
the court’s directions on
that day, I am of the view that the
evidence shows beyond reasonable doubt that on both occasions in
December 2015 the plaintiff
wilfully disobeyed the court’s
directions under
Rule 37(8).
20
0%">
45. The final aspect
which needs to be considered is whether the plaintiff wilfully failed
to appear in court as directed, on 21
January 2016. As already stated
the plaintiff was informed by the presiding judge’s registrar
on Tuesday 12 January 2016
of her failure to comply with the
directions of 6 November 2015. She was also advised to take legal
advice. On Wednesday 20 January
2016 at 13h42 the plaintiff wrote to
the entity allegedly supplying legal assistance under the “
probono
”
email address, referring to an advertisement in the Cape Argus
newspaper and asking for legal representation:
“…
I
believe that skewed reporting is being placed before the Judge which
has resulted in him sounding (sic) prejudice towards me.
In addition, I believe
that various (sic) child’s basic human rights and my
Constitutional (sic) are being ignored and violated
and I believe I
have a right to legal representation in order to present my defence
without fear, favour or prejudice.
Judge Gamble is
presiding in the pre-trial and it
may
be his intention to
continue with a hearing on Thursday 21st January 2015.
I shall be pleased
if you can arrange for a postponement with his Registrar… in
order to give us time to meet and discuss
matters with the appointed
Pro Bono attorney/Advocate who will be representing me.”
(Emphasis added)
46. The plaintiff’s
suggestion to the provider of legal services that a hearing “may”
take place the next day
is obviously factually incorrect in light of
the fact that she had been expressly informed thereof in an email
communication more
than a week before. Be that as it may, the letter
makes it clear that the plaintiff required a postponement of the
contempt hearing
to enable her to consult a lawyer, and that she
assumed that the matter would not continue in her absence, hoping
that the lawyer
(whom she had not yet met or spoken to) would attend
court and secure a postponement in her absence on the strength of the
instructions
contained in her email.
47. In the email sent to
the court’s registrar at 15h57 on the 20th January 2015, the
plaintiff said the following –
“
In view of
the fact that I believe misinformation or information has not (sic)
reaching the Judge, I have taken up my right to apply
for legal
representation, because I affirm it is incorrect to state that I
‘purported’ to comply, when in fact the
meeting was held
for four hours and, I have also made the availability in respect of
the home visit. These were addressed in my
response which I could
only make available today.
I trust that this
will be given due consideration
.”
48. As for the
contention in the affidavit explaining her non-appearance (that she
was allegedly nauseous), the plaintiff’s
failure to contact the
court and to explain her absence immediately on the Thursday morning
read together with the instructions
in the “
probono
”
email suggests, not that she took ill, but rather that she had
resolved the previous day not to attend court because she
believed
she was not obliged to do so. In essence, the plaintiff thought that
she could control the court proceedings as it suited
her.
49. When this email
is read in conjunction with the email to “
probono
”
it is clear that the plaintiff held the view that the hearing set for
the Thursday was no longer necessary because she had
attempted to
make good (in January 2016) on her failure to adhere to the
directions of 6 November 2015 to meet in December 2015
– she
manifestly held the view that her attendance was not required and
that matters could be left up to the “
probono”
representative to sort out in her absence. This demonstrates that her
non-appearance was a
fait accompli
already on the Wednesday. At the hearing on 12 February 2016 the
plaintiff informed the court through Ms Holderness that when she
had
not received any response from “
probono
”,
she decided to hasten through to Cape Town by car on the Thursday
morning, when she allegedly took ill.
50. In my view the
plaintiff’s assumptions of bias on the part of the Family
Advocate and the court, as collectively expressed
in the various
emails of the Wednesday (and earlier), were manifestly unreasonable
in the context of clear directions to participate
in the obligatory
investigation being conducted by the Family Advocate, and the later
direction to appear in court on the Thursday.
Displaying an
almost paranoid response to the repeated requests of the Family
Advocate for cooperation in order to enable her to
finalise her
report (something quite reasonable in the circumstances), the
plaintiff took it upon herself to attempt to set the
terms of the
investigation and subsequently for the proposed hearing on the 21st
January, and then took a conscious decision not
to attend the latter.
When the plaintiff’s conduct is considered in this context the
only reasonable conclusion that can
be drawn is that the plaintiff
did not wish to adhere to the directions of the court and the Family
Advocate, preferring to do
things her way. This is a clear and
intentional violation of the court’s authority and infringement
of its institutional
dignity.
51. In all the
circumstances I am bound to conclude that the plaintiff is in
contempt of court for failing to adhere to the directions
given on 6
November 2015 and 12 January 2016.
APPROPRIATE
SANCTION
52. It has been
repeatedly said that, aside from preserving the dignity and moral
authority
[15]
of the institution of justice, the purpose of a finding a party to be
in contempt is to ensure compliance with the order previously
ignored.
[16]
Most often the sanction will contain a punitive element (which is
suspended either wholly or in part) on condition that the order
is
complied with.
[17]
53. In asking to be
heard in relation to the appropriate sanction to be imposed, the
defendant pointed out that there had been previous
orders made in
Durban which the plaintiff had contemptuously ignored. The plethora
of proceedings in that court is dealt with extensively
in the Family
Advocate’s report of 9 March 2016, which only came to hand very
recently and which by virtue of its length
and detail the court has
not had an opportunity to fully consider.
54. Nevertheless, it
appears from that report that in the Durban court the plaintiff was
called for contempt before Ms Justice D.
Pillay on 7 January 2013 and
on the same day the Learned Judge made an order finding the plaintiff
to be in contempt and imposing
an appropriate sanction to which
various conditions were attached. A copy of that judgment was placed
before the court by the Family
Advocate yesterday. It seems to me
that before an appropriate sanction in this matter can be considered,
the parties should be
afforded an opportunity to address me afresh.
The parties and the Family Advocate may wish to deal with the
judgment of Justice
D. Pillay and bring to my attention any issues
flowing therefrom, including compliance (or non-compliance) with the
conditions
laid down by Her Ladyship.
55. To enable these issues
to be dealt with the matter is postponed to Wednesday 30 March 2016
and the parties are afforded the
opportunity to file further
affidavits on this aspect only by no later than Wednesday 23 March
2016, and the Family Advocate, if
she is so minded, may file a
supplementary report on Tuesday 29 March 2016 after consideration of
the parties’ further affidavits.
GAMBLE J
[1]
Lekota v Editor, Tribute Magazine’ and
Another
1995(2) SA 706(W) at 710E)
[2]
Fakie NO v CCII Systems (Pty)Ltd
2006(4) SA 326 (SCA)
[3]
Coetzee v Government of the Republic of South
Africa; Matiso v Commanding Officer, Port Elizabeth Prison
1995(4)
SA 631(CC) at [61]
[4]
The Roman and Roman-Dutch Law of Injuries
(1899) at 166
[5]
Attorney-General v Crockett
1911 TPD 893
at 925-6
[6]
Herbstein and Winsen, The Civil Practice of the High Courts of
South Africa (5
th
ed)
Vol 2 at 1097
[7]
“
in the face of the court”-i.e. while
the court is in session
[8]
“
outside the face of the court”-i.e.
when the court is not in session
[9]
JRL Milton
‘
Defining
Contempt of Court
(1968) 85 SALJ 387
[10]
S v Mamabolo (ETV and Others Intervening)
2001(3) SA 409 (CC) at 419G-420
[11]
Save for maintenance orders under
Rule 43
where
contempt proceedings are recognised –
Bannatyne
v Bannatyne
2003(2) SA 363 (CC)
[12]
Op. cit. at 1106-7
[13]
Bruckner v Brucker
(1999)
3 All SA 544
(C)
[14]
333 D-F
[15]
Mamabolo
420G
[16]
Brukner
550a,
para [21](b) and the cases there cited;
Herbstein
and van Winsen
1100
et
seq
[17]
cf
Bruckner
547h, para [11]