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[2022] ZAGPPHC 668
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Baben v Botha N.O (24537/2015) [2022] ZAGPPHC 668 (16 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 24537/2015
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES / NO
REVISED.
2022-09-16
In
the matter between:
WILLEM
JACOBUS
BABEN
Applicant
and
MADELEEN
BOTHA
N.O.
First
Respondent
PHILLANA
OBERHOLZER
Second
Respondent
JUDGMENT
POTTERILL
J
[1]
The Applicant [first respondent in the main application], Mr Baben,
filed an application
for leave to appeal against the finding of
contempt of court, the remedy imposed and the punitive cost order
granted. At the hearing
Mr Baben’s legal representative
abandoned the appeal against the finding of contempt of court, but
persisted with the appeal
against the direct imprisonment and
punitive costs order. The
curatrix
and Ms Oberholzer opposed
the application for leave to appeal.
The
remedy
[2]
As a basic principle a court is loath to restrict the personal
liberty of a person.
[1]
Perhaps even more so, where a father is imprisoned in relation to
non-compliance of a court order involving his children.
[3]
This matter was brought on an urgent basis and required a speedy
judgment in order
to prevent further derailment of the envisaged
process. I did consider every factor raised by the respondents as
reasons for the
contempt, albeit not every factor is listed in the
judgment.
[4]
I also factored in every fact on which I could exercise my discretion
to come to impose
a remedy. The first question was how would it
further affect the children, but the children’s therapists
submitted it would
not in this process be detrimental to the
children. Mr Baben was not prepared in his opposition of the
application to commit to
in future adhere to the court order,
rendering suspension on condition that the court order is complied
with futile. There is not
a single fact put before me that if Mr
Baben is not part of the envisaged process how it would negatively
impact the process. He
has not displayed
bona fides
by purging
his default of the payments he was ordered to make.
[5]
Mr Baben had in the application for leave to appeal not shown what
factors, even in
exercising a very wide discretion, I should have
taken into account. Losing his job is a reality when committal is
sought. However,
he has not been paying as ordered and this factor is
thus a neutral fact. A court of appeal will not have new facts or
factors
to consider and there are no prospects that another court
would come to another conclusion.
[6]
Mr Baben had requested a punitive order against the
curatrix
and cannot now assert that a punitive order was not just. His conduct
and his assertions rendered such order appropriate.
[7]
I thus make the following order:
The
application for leave to appeal is dismissed with costs.
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NUMBER:
24537/2015
HEARD
ON: 14
September 2022
DATE
OF JUDGMENT: 16
September 2022
FOR
THE APPLICANT: ADV.
D. POOL
INSTRUCTED
BY: Coetzee
& Jansen van Rensburg Attorneys
FOR
THE FIRST RESPONDENT: ADV.
S.D. WAGENER SC
INSTRUCTED
BY: M
Botha Attorneys
FOR
THE SECOND RESPONDENT:
ADV. L.C. HAUPT
SC
INSTRUCTED
BY: Wynand
du Plessis Attorneys
[1]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
2021
(5) SA 327
(CC) par [55]