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[2021] ZALMPPHC 18
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M.C.P v N.M.H and Another (1973/2021) [2021] ZALMPPHC 18 (14 May 2021)
INTHE
HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION: POLOKWANE
CASE
NUMBER:1973/2021
M[…]
C[…] P[…]
APPLICANT
AND
N[…]
M[… H[…]
FIRST
RESPONDENT
GLENDA
SEMENYA
SECOND
RESPONDENT
In
re:
T[…]
A[…] B[…] M[…]
The
Child
JUDGEMENT
AML
PHATUDI J
Introduction
[1]
The applicant approaches this court on an urgent bases seeking an
order (i) that the first respondent is found to be in
contempt of
court of the order granted on 1 April 2021 by Honourable Justice MG
Phatudi (High Court) and (ii) the court order granted
on 8 April 2021
by the Learned Magistrate Hewetson in the Childrens Court
[1]
held at Nebo (Nebo).
[2]
The applicant (M[…]) and the first respondent (N[…])
are married to each other- one 10 year old boy child is born
of the
marriage. The boy child(BM) was born on 2[…] N[…] 2010.
M[…]-N[…] separated shortly after BM’s
birth. BM
is a string that keeps the two on speaking terms through court
proceedings. The one contends that the other is cantankerous
relating
to BM’s affairs. Lack of proper and meaningful communication
between the two led to the parties turning to Nebo’s
intervention relating to the best interest of BM. The High Court is
approached only for enforcement of the orders granted by Nebo.
Both
M[...] and N[...] enjoy legal representation at both Nebo and High
Court. The following factual background reminds me of an
idiomatic
expression that says: “when two elephants fight, it is the
helpless grass that gets hurt”.
Factual
background
[3]
M[...] approached Nebo on an ex parte basis for an order for the
immediate removal of BM from N[…]. He approached
the court
with a document purporting to be a social worker’s (Semenya)
report. The court granted the order on 1 March 2021.
The Court
ordered:
“
BM be removed from
the custody of N[...] by Semenya and be placed in [House No 4[…],
F[…] Avenue, Northview Estate,
Polokwane] a temporary safe
care until this order is confirmed, set aside or varied in terms of
section 156 of the Act by a Presiding
officer of a Children’s
Court.”
[4]
Nebo found that BM “lives in or is exposed to circumstances
which may seriously harm that child’s physical,
mental or
social well-being”. The court further ordered
“
[a] supervision
order, placing a *child(ren)/ the parent/care-giver of a child(ren)/
both the child(ren) and the parent or care-giver,
under the
supervision of a *social worker/other person designated by the court.
The social worker to
ensure that the child is registered and enrolled with a public or
private school duly registered and recognised
by the Department of
Education with the area of Polokwane.
This order is valid until
18 March 2021 subject to extension or variation by Children’s
Court in a district having jurisdiction
over the child”.
[5]
On 11 March 2021, N[...] anticipated. The matter was, without any
consideration of the merits, postponed and extended
the interim order
to 18 March 2021. The matter was further postponed with the interim
order granted on 01 March 2021 being extended
to 25 March 2021. It is
not clear from the record as to what transpired on 25 March 2021.
[6]
On 28 March 2021, the matter was adjourned to 08 April 2021 “to
allow parties to file their opposing and replying
papers
respectively”. The matter was further postponed to 4 June
2021.
[7]
On 01 April 2021 M[...] approached the high court on an urgent basis,
for an order declaring N[...] to be in contempt
of court order dated
01 March 2021. The High Court found N[...] to have been in contempt
of court and sentenced her to 30 days’
imprisonment, which
sentence was suspended on condition that N[...] complies with the
Nebo’s order dated 01 March 2021 within
24 hours’ service
thereof. Immediately thereafter, M[...] and Thovhakale, the social
worker, went to N[…]’s
purported residence to fetch BM.
They encountered some challenges that prompted them to seek the
assistance of SAPS but to no positive
fruition.
[8]
On 9 March 2021, N[...] launched an urgent application seeking an
order to “suspend the Children Court order of
01 March 2021.
M[...] countered with an application seeking execution of the
suspended sentence imposed by the High Court on 01
April 2021. The
matter came before me on 13 April 2021. I struck the applicant’s
application off of the roll and postponed
the counter application
sine die
. None was mulcted with costs.
[9]
Hardly a week from the said order, M[...] returns with this
application. He now seeks an order that N[...] be found to
be in
contempt of court of the High Court order granted on 1 April 2021,
and the Children’s Court order of 08 April 2021
respectively.
With that in mind, I find it prudent to regurgitate the said orders.
The High Court order handed down on 1 April
2021 stipulates:
“
1. …
2.
[N[…]] is found to be in contempt of the court order issued
out of the Children’s Court held at nebo on 1 March
2021 under
case no: 14/1/4-06/2021.
3. [N[…]] be
committed to imprisonment for contempt of court for period of 30
(thirty) days, [or] such period as this Honourable
Court deems just
and equitable…”
Nebo’s order issued
on 08 April 2021 stipulates:
1.The
court orders that the social worker from Glen Cowie provides a
report.
2.The court orders that
an attorney LASA takes instruction from child concerned in order to
protect the interest of the child.
3.In respect of the
interim order the applicant to comply by handing over the child to
the father pending the outcome of the court’s
final order as it
would be in the best interest of the child.
4.Remanded to 4/06/2021
for the social worker’s report.
5.Both warned for 08h30.”
Issues
[10]
Issues to be determined are whether N[...] is indeed in contempt of
court order handed down on 01 April and 08 April 2021 by
the High
Court and Nebo respectively.
Law
in relation to contempt of court
[11]
Contempt of court is a common law offence of being wilfully
disobedient to court orders or disrespectful towards a court of
law.
It has been accepted under the common law that contempt of court,
where there is non- compliance with a court order to do
or not to do
something (
ad
factum praestandum
),
is a criminal offence
[2]
which
may, however, be enforced or prosecuted either by way of civil or
criminal proceedings. Contempt of court can be committed
either in
court, commonly referred to as
contempt
in facie curiae
or outside court proceedings-
contempt
ex facie curiae.
Committal for contempt was only available in those instances where an
offending litigant has been ordered by the courts to do or
not to do
something and has failed to comply with the order. The Magistrates’
Court Act
[3]
provides a penalty
for disobedience of a judgment or order of court. Section 106 of the
Act provides that ‘any person wilfully
disobeying, or refusing
or failing to comply with any judgment or order of a court or with a
notice lawfully endorsed on a summons
for rent prohibiting the
removal of any furniture or effects shall be guilty of contempt of
court and shall, upon conviction, be
liable to a fine, or to
imprisonment for a period not exceeding six months or to such
imprisonment without the option of a fine.
[12]
I find it apposite to firstly deal with the case law that espouse the
principle set pre and post constitutional dispensation
governing
contempt of court with specific reference to the principle set out by
the Supreme Court of Appeal in Fakie.
[4]
[13]
Section 165 of the Constitution of the Republic of South
Africa
[5]
entrenches the judicial
authority. The section provides that an order or decision issued by a
court binds all persons to whom it
applies.
[6]
Nkabinde J penned in
Pheko
and others v Ekurhuleni Metropolitan Municipality
[7]
and later in
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others; Shadrack
Shivumba Homu Mkhonto and Others v Compensation Solutions
(Pty)
Limited
[8]
(
as she then was ADCJ) 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 is 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.”( footnotes omitted)
[14]
Prior to the constitutional dispensation certain requirements had to
be met on a balance of probabilities when determining
a contempt in
relation to a court order that created certain obligations to the
contemnor. Those requirements are that (a) the
order must exist; (b)
the order must have been duly served on or brought to the notice of,
the alleged contemnor; (c) there must
have been non-compliance with
the order; and (d) the non-compliance must have been wilful or mala
fide
[9]
. The majority in Fakie,
through the pen of Cameron JA (as he then was), after consideration
of the rights of a contemnor entrenched
in the Constitution, had this
to say:
[22]
The decisions deal with statutory presumptions and reverse
onuses. But they undoubtedly entail that where the state
prosecutes
an alleged contemnor at common law for non-compliance with
a civil order, the requisite elements must be established beyond
reasonable
doubt. In such a prosecution the contemnor is plainly an
‘accused person’ in terms of s 35(3) of the Bill of
Rights,
and enjoys the inter-related rights that s 35(3)(h) confers:
to be presumed innocent, to remain silent in the face of the charges
and not to testify during the proceedings. By developing the common
law in conformity with the Constitution, the reverse onus the
accused
bore in prosecutions such as
Beyers
must now be
reduced to an evidential burden (as Mbenenge AJ rightly envisaged in
the second
Uncedo
decision). Once the prosecution
has established (i) the existence of the order, (ii) its service on
the accused, and (iii)
non-compliance, if the accused fails to
furnish evidence raising a reasonable doubt whether non-compliance
was wilful and mala
fide, the offence will be established beyond
reasonable doubt: the accused is entitled to remain silent, but does
not exercise
the choice without consequence.
[23]
It should be noted that developing the common law thus does not
require the prosecution to lead evidence as to the accused’s
state of mind or motive: once the three requisites mentioned have
been proved, in the absence of evidence raising a reasonable
doubt as
to whether the accused acted wilfully and mala fide, all the
requisites of the offence will have been established. What
is changed
is that the accused no longer bears a legal burden to disprove
wilfulness and mala fides on balance of probabilities,
but to avoid
conviction need only lead evidence that establishes a reasonable
doubt. (footnotes omitted).
[15]
After analysing
Fakie
,
Nkabinde J said that “the presumption rightly exists that when
the first three elements of the test for contempt have been
established, mala
fide
and wilfulness are presumed unless the contemnor is able to lead
evidence sufficient to created reasonable doubt as to their
existence”
[10]
.
Evaluation
[16]
It is without doubt that these proceedings were instituted against
N[...] not as an “accused person”- with
section 35
of the Constitution available to her- but as a “civil
contemnor” (
ex facie curiae
) who is sought to be
imprisoned as a punishment for disobeying court orders of 01 and 08
April 2021 respectively.
Contempt
of High Court order
[17]
Let me first determine if N[...] is indeed in contempt of court of
the order granted on 1 April 2021 by the High Court. As
indicated at
paragraph [9] above, MG Phatudi J found N[...] to “be in
contempt of the court order issued out of the Children
Court held at
Nebo on 1 March 2021 under case no 14/1/4-06/2021”.
[18]
It is common cause that Nebo issued an order on 01 March 2021 on
Ex
parte
basis. The court ordered
BM be removed from the
custody of N[...] by Semenya and be placed in the temporary safe care
until this order is confirmed, set
aside or varied in terms of
subsection 156 of the Act… This order is valid until 18 March
202 subject to extension or variation
by Children’s Court in a
district having jurisdiction over the child”
[19]
The order was anticipated on 11 March 2021. The court postponed and
extended the order to 25 March 2021. There is no evidence
led as to
what transpired on the 25 March 2021. I engaged both counsel as to
what transpired on the day in question. Both counsel
could not make
any submission as to what transpired on the 25 March 2021. The
evidence on record is that Nebo issued an order on
28 March 2021
postponing the matter to 08 April 2021. On the 08 April 2021, before
remanding the matter to 04 June 2021, Nebo,
ordered:
“…
3. In respect of the
interim order the applicant to comply by handing over the child to
the father pending the outcome of the court’s
final order as it
would be in the best interest of the child…”
[20]
It is now trite law that for a person to be found to be in contempt
of court order, the applicant must prove that an order
exist. The
order issued by Nebo on 1 March 2021, returnable on 18 March 2021,
was extended to 25 March 2021. I indicated earlier
at paragraph [19]
that there is no evidence led on what transpired on 25 March 2021. In
the absence of such evidence, Nebo’s
interim order issued on 01
March 2021 and as extended on various occasions up to and including
25 March 2021 respectively, lapsed,
in my view, on 25 March 2021.
There is no order extending the “interim order” to 28
March 2021. If an interim order
is not extended on the return day,
then such an order lapses by operation of the law.
[21]
I suspect that the High Court was not aware and or was not informed
that the order issued on 01 March 2021 had lapsed. The
High Court
would not have found N[...] to be in contempt of court order issued
on 01 March 2021 had the parties brought that fact
to the fore. Put
differently, had the High Court knew that there was no court order,
the sanction imposed on 01 April 2021 or committal
to imprisonment
for contempt of court as ordered, would not have been pronounced.
[22]
I cannot agree more with counsel for the applicant’s submission
that a court order remains valid and enforceable until
it is set
aside or varied upon proper application to a court of competent
jurisdiction.
(see: Bezuidenhout v Patensie Sitrus Beherend Bpk
2001(2) SA 224 (E) @ 229).
The High Court order remains valid
because it has not been set aside by a competent court. Therefore,
the High Court order does
exist. Let me continue with other factors.
[23]
There is no contestation that the order was brought to the notice of
N[…]. The issues to determine is whether there
has been
non-compliance with the High Court order of 01 April 2021 and if so,
whether such non-compliance was wilfully or mala
fide.
[24]
It is common cause that on 01 April 2021 M[…], accompanied by
the social worker Thovhakale, went to N[...] sister’s
homestead
with the view to fetch BM. BM refused to go with them. Again on 13
April 2021 in Glen Cowie, at N[...] maternal homestead,
M[…],
accompanying social worker- Semenya to go fetch BM, sought police’s
assistance. BM refused to leave with them.
The members of SAPS
present thereat tried to intervene but to no positive fruition. BM
told the members of SAPS that he is not
going to leave with them.
Members of SAPS left M[...] and Semenya at the said homestead. It is
common cause or not seriously contested,
that the said police
officers placed on record that “the child refused to leave with
the social worker” and they left
to attend to their daily
duties.
[25]
Counsel for M[...] submits that it is untenable for a child to
dictate to court what he/she wants or does not want irrespective
of
what the court order stipulates. She submits that it is not about the
child’s “wishes”- but what is in the
best interest
of that child. She refers this court to certain decisions including
that of
MEC for Education, Kwazulu –Natal and others v
Pillay 2008 (1) SA 474 (CC)
.
[26]
In that Pillay matter, a parent approached the governing body of the
school to exempt a school child from its code of conduct
to allow a
school child to wear a gold nose-stud to school. In considering the
facts before it, the Constitutional Court reiterated
what they said
in
Christian Education South Africa v Minister of Education
[2000] ZACC 11
;
2000
(4) SA 757
(CC)
that “in the context of a case concerning
children that their actual experience and opinions would not
necessarily have been
decisive, but they would have enriched the
dialogue”. The pen of Langa CJ continued to stipulate that
“the
need for the child’s voice to be heard is perhaps even more
acute when it concerns children of [certain] age who
should be
increasingly taking responsibility for their own actions and belief”.
(emphasis added)
[27]
The question to determine in casu, is not the interest of the child
per se
, but whether N[...] is in contempt of the High Court
order finding her to be in contempt of the court order issued by Nebo
on 01
March 2021. On 01 March 2021, Nebo ordered Semenya and not any
other person to remove BM from N[...] to a place stipulated in the
order.
[28]
There is no court order that directs N[...] to remove that child.
There is no evidence led that N[...] refused to release BM
to
whomsoever. The evidence tendered is that N[...] said-“if the
child refuses to go, you cannot force him”. This evidence
is
corroborated by the evidence of the two police officers who
accompanied Semenya to fetch BM. The police officers too, left on
realising that the child refuses to leave with either the social
worker or them. There is no evidence, even by the enforcers of
the
law who were present, that N[...] played a magnificent role towards
the child’s refusal to leave with Semenya.
[29]
It is common cause that the court order of 01 March 2021 orders
Semenya to remove the child. The child’s refusal to leave
with
either Semenya or Thovhakale does not impute any wrong doing on the
part of N[...] especially that there is no evidence that
proves
refusal by N[...] to release the child. All she says is that neither
Semenya nor Thovhakale can remove the child if the
child refuses to
go. All she says, in my view, is that BM’s voice needs to be
heard acutely especially that the order for
his removal tramples more
on his (BM) best interest. There is no evidence of any wilful
disobedience of the High Court order led.
[30]
It is perhaps an appropriate time to consider the decisions referred
to by counsel for M[...] before coming to my final conclusion
as to
whether the application falls to be dismissed or not. In
MT v CT.
2016 (4) SA 193
(WCC)
the presiding judge was tasked to manage
the pre-trial conference as envisaged in terms of Rule 37(8)(c) of
the Uniform Rules of
this Court. The main issue at that pre-trial was
the care and contact arrangements in relation to a child born of the
parties’
marriage. The plaintiff agreed at pre-trial, to
“facilitate a domestic visit at her place of residence on a
specific date
for assessment of the child by the social workers”.
The plaintiff failed to honour the appointments as agreed and
“ordered”
at the pre-trial-thus withholding the progress
of the litigation at ransom and ultimately the finalisation of
divorce. The plaintiff’s
failure thereto, prompted the court to
direct the plaintiff to appear and answer to charges of contempt of
court. The plaintiff
failed to appear in court resulting in the
warrant of arrest being issued against the plaintiff. The plaintiff
was found to have
wilfully disobeyed the court orders and was
correctly found to have been in contempt of court. In
casu
,
there is no direction or order directed to N[...] . Nebo ordered
Semenya to remove BM and not N[...] to take the child to M[…].
The two cases are distinguishable from each other.
[31]
The Court in
FB and Another v MB
2012 (2) SA 394
(GSJ)
dealt
with a Child’s right to bring, and to be assisted in bringing a
matter to court as provided for by section 14 of the
Children Act 38
of 2005. This case too, has got nothing to do with the contempt of
court order and thus misplaced. I need not analyse
the principle
espoused therein. In my consideration of the evidence tendered and
submissions made, I have no reason to find N[...]
to have been in
contempt of court of the order granted by the High Court on 01 April
2021. The second prayer of the applicant’s
application falls to
be dismissed. This takes me to the determination of whether N[...] is
indeed in contempt of the court order
granted by Nebo on 08 April
2021.
Contempt
of Children’s Court order of 08 April 2021
[32]
Nebo issued an order on 8 April 2021 as stated verbatim at
paragraph [9] above . The point that requires determination
is number
3 of the said order. The typed version has been handed up and marked
CPM1A. The order warrants repetition. It states
“
In respect of the
interim order , the applicant [is ordered] to comply by handing
over the child to the father pending the
outcome of the courts final
order as it would be in the interest of the child”
[33]
On perusal of the order, Nebo ordered the “applicant” to
comply by handing over the child to M[…]. M[...]
and Semenya
are cited as the applicants on the order. One can easily draw an
inference that the second applicant as cited in the
order, Ms
Semenya, the social worker, is the one ordered to comply with the
“interim order”. The interim order referred
to can only
mean an order issued on 28 March 2021. Even if I am wrong and
reference of an interim order is considered to
be that of 1 March
2021, my
ratio decidendi
at paragraph [29] above relating to
prayer 2 sought in the notice of motion, applies
mutatis mutandis
and find N[...] not to be in contempt of the Children’s
Court order issued on 08 April 2021. Prayer 3 sought in the notice
of
motion, as well, falls to be dismissed. Prayers 2 and 3 are the
pillars of the rest of the prayers. The fall of the two prayers,
pulls the other prayers down. There is no need for their
consideration save for costs.
[34]
The issue of costs needs no determination because both counsel for
the applicant and respondent, submits that neither party
seek costs
against the other- notwithstanding their prayers in the contrary. In
simpler terms, both parties abandoned their prayers
for costs. I have
no reason to open this closed door.
[35]
I, in the result, make the following order:
Order
35.1
The applicants’ application is dismissed.
35.2
There shall be no order as to costs.
AML
PHATUDI
JUDGE
OF THE HIGH COURT
Appearances
For
the Applicant:
M.C
de Klerk
Instructed
by:
DDKK
Attorneys Inc
POLOKWANE
For
the First Respondent:
T.E
Buthane
Instructed
by:
Buthane
Rasemana Attorneys
POLOKWANE
Heard:
28
and 30 April 2021
Judgment:
14
May 2021
[1]
Childrens Court means Childrens Court referred to in section 42.
Section
42 (1)
[2]
S v
Beyers
1968 (3) SA 70
(A) at 80E-81F.
[3]
Magistrates’ Court Act, Act 32 of 1944 as Amended
[4]
Fakie
NO v CCII Systems (Pty) Ltd
[2006]
ZASCA 52
;
2006
(4) SA 326
(SCA)
[5]
The Constitution of the Republic of South Africa Act, Act 108 of
1996.
[6]
Section 165(
5).
An order or decision issued by a court binds all persons to whom and
organs of state to which it applies.
[7]
(No
2) (CCT19/11) [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR
711 (CC) (7 May 2015)
[8]
[2017] ZACC 35
[9]
See Fakie case
[10]
Pheko and the other case