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[2018] ZAWCHC 118
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B.V v L.V (9934/2018) [2018] ZAWCHC 118 (17 September 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE NUMBER:
9934/2018
(Main application case number:
874/2018)
In
the matter between:
B
V
Applicant
(Identity
number: […])
and
L
V
Respondent
(Identity
number: […])
J U D G M E N T
MACWILLIAM
AJ:
[1]
The Applicant applies for his ex-wife and
the mother of his two children to be committed to jail for contempt
of court, alternatively
to have the jail sentence suspended on
condition that the Respondent complies with four paragraphs of a
court order which was granted
on 18 April 2018 (“the Court
Order”).
[2]
In Founding Affidavit, the Applicant
alleged that the Respondent had not complied with the following four
paragraphs of the Court
Order which had been made by consent on
18 April 2018:
[a]
“
1.1.1
L [i.e. the Respondent] shall have supervised contact with I and B
(‘the Children’) as follows:
...
1.1.1.6 L shall approach
Table View Social Services or a similar organisation for assistance
with regard to the appointment of a
registered social worker (or a
designated and appropriately qualified appointed professional for
this purpose) to provide for the
services of supervising and
observing L’s contact. Alternatively in the event that
the parties agree to the appointment
of a private social worker or
professional for this purpose, the costs for supervising and
observing L’s contact with the
children shall be borne by L and
the appointed social worker or professional will invoice, and receive
payment from, L directly
for such costs.”
[b]
“
2.2
L shall attend to Dr Conrad Czech, a forensic psychiatrist, for one
assessment and will schedule an appointment with Dr Conrad
Czech
within 10 days of this order being granted and endeavour to complete
the assessment within 4 weeks of this order being granted.”
[c]
“
4.
L will have blood tests done within 4 weeks.”
[d]
“
5.
‘The Respondent [i.e. L] will file her assessment and her blood
test results, with the court and the Family Advocate, as
soon as the
reports are available.”
[3]
The Respondent filed an opposing affidavit
and stated,
inter alia
,
that she was representing herself as she was unemployed and unable to
afford legal representation.
[4]
At the last minute, an attorney was
appointed by her and Heads of Argument were filed by Adv JAB Nel
who appeared on her
behalf.
[5]
In her Opposing Affidavit, the Respondent
stated that she had no financial means to pay for the psychiatrist
referred to in paragraph
2.2 of the Court Order. She said that
he had informed her that his total bill would be approximately
R30 000,00, which
she could not afford to pay.
[6]
Insofar as paragraph 1.1.1.6 of the Court
Order is concerned, she stated that no social worker was prepared to
supervise her access
on Saturdays or Sundays and that she did not
have the financial resources to pay for a private social worker or
other qualified
professional.
[7]
In
his Replying Affidavit, the Applicant does not dispute that the
Respondent was unemployed. There are also no facts put up which
suggest that the Respondent could afford to pay the fees of the
social workers or the psychiatrist.
[8]
The
Applicant’s reply was simply that if the Respondent had
difficulty regarding finances,
“
she
should approach Valkenberg State Hospital for assistance”
.
However, he does not substantiate that Valkenberg State Hospital
would, in circumstances such as this, provide the requisite
assistance and in any event paragraph 2.2 of the Court Order which he
seeks to enforce makes no mention of Valkenberg.
[9]
Insofar
as paragraphs 4 and 5 of the Court Order are concerned, the
Respondent stated that she has had blood tests done and had
filed the
report at court, but there is no proof that this has been done.
At the hearing a document purporting to be the
results of the blood
tests were handed up by the Respondent’s counsel, but the
Applicant was not able to ascertain the authenticity
of this document
in the limited time available to him. However I am not able to
find that the Respondent has intentionally
breached the court order
and/or acted
mala fides
in this respect.
[10]
In
Fakie N.O. v CCII Assistance (Pty)
Limited
[1]
the Supreme Court of Appeal definitively laid down the following
principles in relation to Contempt of Court applications such
as this
one:
[a] “
The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed
‘
deliberately
and male fide’
.
A deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled
to act
in the way claimed to constitute the contempt”
;
[2]
[b] “
...
the refusal to obey should be both wilful and
mala
fide
,
and … unreasonable non-compliance, provided it is
bona
fide
,
does not constitute contempt ...”
;
[3]
[c]
a person should only be jailed
“
in
the absence of reasonable doubt
”
;
[4]
[d]
“
...
once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential burden in
relation
to wilfulness and
mala
fides
:
Should the respondent fail to advance evidence that establishes a
reasonable doubt as to whether non-compliance was wilful
and
mala
fide
,
contempt will have been established beyond reasonable doubt”
.
[5]
[11] In this matter
the Respondent has filed an affidavit in which she denies that her
conduct was in wilful disobedience of the
Court Order or
mala
fides
. In essence she explains that she has not been able to
afford the costs of the psychiatrist and social worker in question
and no
genuine dispute has been raised in this regard by the
Applicant.
[12]
Even
more troubling is the fact that it was stated in the Applicant’s
Heads of Argument, without the appropriate affidavits
being filed,
that the parties had agreed to the appointment of a facilitator, as a
result of which agreement was reached that the
Respondent could
relocate with the two minor children to Lydenberg.
[13] This agreement
was not placed before the Court, but it was indicated in the
Respondent’s Heads of Argument that a facilitation
order had
indeed been made.
[14]
In
any event, during the argument the parties agreed that I could have
regard to the fact that pursuant to a facilitation agreement
a
directive had been made on the 13 July 2018, as a result of which the
Applicant and the two minor children had moved to Lydenburg.
[15] In these
circumstances, the Applicant has simply not made out a case that I
should order that paragraph 1.1.1.6 of the Court
Order must be
complied with, as it would be quite pointless to approach the Table
View Social Services, in circumstances where
the children are no
longer here and one would have thought that the facilitation
agreement must itself have superceded this paragraph.
[16] Furthermore,
the fact that the Respondent states that she cannot afford to pay the
psychiatrist’s fee, which allegation
has not been shown to be
false, negates
mala fides
on her part in relation to the order
sought to enforce paragraph 2.2 of the Court Order.
[17] The fact that
the blood test report may not have been filed at court, is not
sufficient to justify the grant of an order for
contempt of court in
these proceedings.
[18] The present
application is a most unfortunate one. It seems plain that the
Respondent is experiencing personal problems.
There seems to be
no doubt that she requires psychological, psychiatric or other
assistance. It is not in dispute that has
a close bond with her
children and that her children she want to have a meaningful
relationship with her. Overall the money
expended in this
litigation would have been far better spent by advancing the best
interests of the children rather than this litigation
[19] The fact that
the Respondent apparently cooperated in relation to the conclusion of
the facilitation agreement pursuant to
which the Applicant and the
minor children were able to relocate to Lydenberg, is a further
indication that contempt proceedings
were not appropriate.
[20] What is before
me is an application to declare that the Respondent is to be in
contempt of a court order.
[21] The Applicant
has failed to discharge the onus resting upon it to succeed in this
application. Accordingly the application
is dismissed with costs.
MACWILLIAM AJ
Date
of Hearing: 12 September 2018
Date
of Judgment: 17 September 2018
APPEARANCES
For
the Appellant: Adv. JAB Nel
Instructed
by: Geldenhuys Jonker Inc., Langebaan
For
the Respondent: Adv. A Titus
Instructed
by: BBP LAW Inc., Lansdowne
[1]
2006 (4) SA 326 (SCA)
[2]
At para [9] at 333C
[3]
At para [10] at 333D-E
[4]
At para [20] at 337I; para
[29] at 340E-F and para [42(c)] at 344I
[5]
At para [42(d)] at 344J-345A