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[2015] ZAGPPHC 314
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R.G.T v M.S.D (64290/14) [2015] ZAGPPHC 314 (20 March 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 64290/14
DATE:
20 March 2015
R[…]
G[…]
T[…]
.......................................................................................................................
Applicant
V
M[…]
S[…]
D[…]
....................................................................................................................
Respondent
JUDGMENT
MABUSE
J
:
[1]
This is an application in which the applicant, Mr. R[…] G[…]
T[…], an adult Mechanical Technician of 25
Strydom Street,
Birchleigh North, Kempton Park and employed as described above at
Weir Minerals Africa, seeks against the respondent,
an adult female
who resides at 212 K[…] cnr P[..] K[…] and J[…]
R[…] Streets, Pretoria and employed
as a Business Analyst at
Nedbank, Sandton:
(1)
an order in terms of which the respondent is found to be in contempt
of a court order issued on 30 September 2013 by Kempton
Park Regional
Court;
(2)
an order in terms of which the respondent is committed to
imprisonment for contempt of the court order in 1 supra for a period
of 30 days or such other period as this Court may deem fit;
(3)
in the alternative, the applicant seeks an order in terms of which
the order referred to in two above is suspended for a period
of five
years on condition that the respondent, during that period of five
years, complies with the court order referred to in
1 supra, within
fourteen days of this order;
(4)
an order authorising him, the applicant, in the event of the
respondent failing to comply with the said court order, to approach
the Court on the same papers, some implemented as may be necessary,
to seek an order in terms of which the respondent is committed
to
prison.
[2]
The affidavit of the applicant is used in support of the
application. The purpose of the said affidavit is to place
before
the Court facts on the basis of which the applicant contends
that the respondent has defied the Court order of 30 September 2013.
Suffice to point out that this application is opposed by the
respondent who, to that end, has delivered an answering affidavit.
In the said answering affidavit, the respondent has set out fully the
grounds upon which she resists this application. Before
turning
to such grounds, it is only apposite that I turn to the facts that
are salient to the present application. I do so
hereunder.
[3]
The applicant and the respondent were married to each other in 2011.
From the said marriage a child, M[…] N[…]
T[…],
a minor was born on […] 2011. In the year 2013, two
years after the parties had concluded their aforementioned
marriage,
the applicant instituted a divorce action against the respondent on
the ground that the parties’ marriage had irretrievably
broken
down. For the purposes of this application, it is not necessary
to refer to the grounds of divorce.
[4]
On 30 September 2013, an order of divorce incorporating a settlement
agreement was granted by the Regional Court at Kempton
Park.
The said order of divorce is annexed to the founding affidavit as
Annexure ‘RGT1’. According to the
said annexure,
the parties herein to the said divorce action, signed the settlement
agreement in the presence of their witnesses
on 10 September 2013.
The validity of the said agreement is not in dispute.
[5]
The said settlement agreement was confirmed by the Court by agreement
between the parties. It dealt with a number of issues
which
included issues that related specifically to the parties’ minor
child. It is important at this stage to point
out that once a
settlement agreement between the parties is confirmed by a Court it
seizes to be a settlement agreement between
the parties and becomes
an order of Court. Accordingly compliance with such a court
order can be enforced through contempt
of Court, in this regard see
Dadel Vlak Boerdery v Greyling and Another
[2007] JOL 19050
at
paragraph 9
.
[6]
Paragraph 4 of the settlement agreement dealt with parental rights
and responsibilities. It provides that the plaintiff
is awarded
the following responsibility and rights in respect of the minor child
namely:
“
4
(i) Every alternative weekend from Friday at 07h00 until Sunday at
15h00 when the child is seven years old.
(ii)
Long and short school holidays to be shared equally between the
parties.
(iv)
Christmas to be rotated between the parties.”
[7]
The applicant contends that at the beginning of June 2014 school
holidays it was his turn to spend the long school holidays
with the
child. He contacted the respondent by telephone and enquired
from her when he could come and fetch the parties’
minor
child. The respondent refused him contact with the child. The
respondent acted in defiance of the court order.
When his
attempts to exercise his rights arising from the court order failed,
the applicant contacted his current attorneys and
sought assistance
in that regard from them. His attorneys obliged. On 11
July 2014 they wrote a letter to the respondent
and demanded that she
grant the applicant contact with the minor child within 48 hours from
receipt of the letter and warned that
if she refused to do so they
would approach the court with an application for an order declaring
her to be in contempt. A
copy of the said letter and proof of
its transmission to the respondent have been attached to the
applicant’s founding affidavit
as Annexures ‘RGT2 and
RGT4’. The applicant was never able to have contact with
his child during those long school
holidays.
[8]
I now turn to the reasons why the respondent refused the applicant
contact with the parties’ minor child. In the
first
place, the respondent does not deny that the applicant contacted her
during 2014 in order to make proper arrangements to
have the child
with him. Secondly the respondent admits in paragraph 6 of the
answering affidavit that she received the letter
from the applicant’s
attorneys. She admits that she did not respond to it because
she had no obligation to allow the
applicant to have contact with the
minor child for the June 2014 long school holiday because the child
was not yet seven years
of age as ordered by the Court.
Paragraph 4 of her answering affidavit contains her principal reasons
why she refused to
let the applicant have contact with the minor
child. In it she stated as follows:
“
The
right of contact with the minor child was amended as follows in
paragraph 4(c) to (v) of the settlement agreement;
Every
alternative weekend from Friday at 07h00 UNTIL Sunday 15h00.
When the child is seven years old, this portion was inserted
by both
parties agreed and signed to it.”
[9]
There are several other issues that the applicant raised in his
founding affidavit and to which the respondent responded.
In
view of the fact that the only issue before the Court is the
respondent’s reason for refusing the applicant access to
the
child I do not deem it necessary to be detained by such other
issues. In view, it is only appropriate to consider whether
the
respondent has valid reasons to refuse the applicant access to the
minor child when he tries to exercise his right emanating
from the
Court order.
[10]
The issue involved in this matter is the question of interpretation
of the settlement agreement. In paragraph 6 supra
I set out the
relevant clauses of the settlement agreement. These clauses of
the settlement agreement are clear and quite
distinct. Clause
4(c)(1) deals with the applicant’s visitation rights during
weekends. It has nothing to do with
long holidays. In it
the parties have agreed that this visitation right shall only be
exercised when the child is seven years
old. On the other hand,
and which is of paramount importance, is clause 4(c)(ii). The
contents of this sub-clause are
unambiguous and as clear as crystal.
This do not have anything to do with alternative weekends in
particular with the age
of the child. This sub-clause has
nothing to do with weekends and everything to do with long holidays.
Counsel for
the respondent submitted a somewhat skewed interpretation
of claims 4(ii) of the Court order. In this order, if the
applicant
may not have access to the child on weekends until this
child was 7 years old then he may not for the same reasons have the
child
for long and short holidays. If this was the intention of
the parties they would certainly have amended clause 4(ii) of the
Court Order. He conceded that as that clause had not been
amended it may not be read into the Court Order that the applicant
would only have the child when it is 7 years old. His
submission has, in my view, no merit and the Court does not accept
it. The respondent has refused the applicant’s rights of
access to the child on a completely wrong ground.
[11]
Even before the applicant could have recourse to the Court to see his
own child it is humanly incomprehensible why one parent
would refuse
the other parent rights of access to their own child. In my
view, and here I am not laying any general principle,
a parent should
encourage frequent contact between their children as parents.
Parents should not stand in the way of such
contact by being
unnecessarily dogmatic. Courts will never allow parents to use
children as pawns where it notices such conduct.
[12]
In this instant case, there was just no justification to refuse the
applicant access to the child.
[13]
In his heads of argument, counsel for the applicant referred me to
the authority of
Du Plessis vs Du Plessis 1972(4) S A 216 (O) at
page 220 A-D
. In this paragraph the Court quoted with
approval the following passage from
Van Biljon v Van Biljon
1960(1) PH4 F28 (O)
:
“
A
review of the authorities leads me to the conclusion that the onus is
on the applicant to show the disobedience of the Court’s
order,
but once that is proved, the respondent must show that such
disobedience is not wilful.”
The
duty therefore rests on the applicant to satisfy the Court that:
1.
there is a court order; and
2.
the respondent has failed to comply with such court order.
It
is not required of the applicant to satisfy the Court that the
respondent willingly failed to comply with the Court order.
In
Fakie N.O. vs CCII Systems (Pty) Ltd
2006(4) SA 326 (SCA) at paragraph 42(3)
the Court has this to say about the duties of the applicant in civil
contempt proceedings:
“
In
particular the applicant must prove the requisites of contempt (the
order); service or a notice; non-compliance; and wilfulness
(mala
fides) beyond reasonable doubt.”
The
duty then rests on the respondent to satisfy the Court on the balance
of probabilities that it did not intentionally fail to
comply with
the Court order
(“cum animo
calumniandi”)
. See also
Du
Plessis vs Du Plessis 1972(4) SA 216 (O) at page 220 D
where the Court stated as follows:
“
Waar
bewys word dat ‘n persoon willens en wetens ‘n hofbevel
nie nagekom het nie, moet hy op ‘n oorlig van waarskynlikhede
bewys dat hy nie die opset (cum animo calumniandi) gehandel het nie.”
In
Fakie N.O. vs CCII Systems (Pty) Ltd
2006(4) SA 326 (SCA) at paragraph 42(4)
the
Court puts it as follows:
“
But
once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears 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.”
In
Davis vs Davis 1947(3) SA 111 (WLD) page
113
Dowling AJ cited with approval the
following passage from
Jacobs vs Jacobs
(1911) T. S. 768
at page 770
where
Bristowe had this to say. This was a matter in which the Court
had to consider whether failure to pay maintenance as
ordered by the
Court had been contempt of Court:
“
Mr.
Tindall says the petition ought to state some ground on which the
Court can hold that there had been a contempt of Court - that
is, an
intentional disobedience of the Court’s order. By the
fact that the order is not obeyed is itself prima facie
evidence of
wilful disobedience, and if the respondent wishes to show that he had
not the means to obey the order, and could not
pay the sum directed,
it is for him to prove that allegation.”
[14]
Has the respondent discharged the
onus
on the balance of
probabilities? The respondent did not plead innocence.
She did not state that she did not disobey
the Court order
deliberately. The issue whether or not she had the necessary
intention has to be determined on the basis
of the conduct in the
matter. The respondent signed the settlement agreement and
thereby indicated unequivocally that she
understood its contents and
undertook to abide by it. She should have understood the
settlement agreement before she signed
it. On this basis the
Court is entitled to infer that while she was aware of the clauses of
the settlement agreement, she
intentionally disobeyed the Court
order. Secondly after she received a call from the applicant
she should not have answered
before she read the clauses of the
settlement agreement. If she had any doubt about whether or not
the applicant had any
right to have the child for a long weekend at
this stage she should have there and then verified this from a copy
of the settlement
agreement in her possession. She did not
plead that she did not have a copy of the settlement agreement in her
possession.
It is not the case that she did not have a copy of
the settlement agreement. It was for her to verify the clauses
of the
terms of the settlement agreement and establish whether she
was right in her decision to refuse the applicant access to the
parties’
minor child. In my view her failure to do so
demonstrates a conduct. Thirdly she could still have referred
the letter
from the applicant’s attorneys to her own attorneys
and sought clarification or advice from either the applicant’s
attorneys or her own attorneys. I have already pointed out that
the two clauses that deal with the applicant’s rights
of access
to the minor child are distinct. There is, in my view, no way
that one could confuse one clause with the other.
Failure by
the respondent to seek clarity on this and on the letter from the
applicant’s attorneys demonstrates her unpreparedness
to comply
with the Court order. It is a demonstration of her intention
not to comply with the Court order. I am satisfied
that the
respondent has not raised any justifiable excuse in refusing to let
the applicant have the parties’ minor child.
[15]
As correctly pointed out by Counsel for the applicant s 165(1-5) of
the Constitution of the Republic of South Africa Act 105
of 1996
rests the judicial authority of the state in Court. It enjoins
other Organs of State to assist and protect the Courts.
It
gives everyone the right to have legal disputes resolved by Courts or
other mechanism. The authority of
State v. Mmabolo (ETV and
Others intervening) 2001(3) SA 409 CC at paras 16-20
sets out an
erudite opposition of the authorities and powers and positions of the
Courts in countries that believe in the Rule
of Law.
[16]
Finally, it is important that the provision of s 28(2) of the
Constitution and s 35 of the Children’s Act 38 of 2005
be drawn
to the attention of the respondent. S 28(2) provides as
follows:
“
A
child’s best interests are of paramount importance in every
matter concerning the child.”
S
35 of the Children’s Act 38 of 2008 provides as follows:
“
1.
Any person having care or custody of a child who, contrary to an
order of any court or to a parental responsibilities and rights
agreement that has taken effect as contemplated in s 22(4), refuses
another person who has access to that child or who holds parental
responsibilities and rights in respect of that child in terms of that
order or agreement exercise such access or such responsibilities
and
rights or who prevents that person from exercising such access or
such responsibilities and rights is guilty of an offence
liable on
conviction to a fine or to imprisonment for a period not exceeding
one year.
2.
(a) A person having care or custody of a child whereby another person
has access to that child or holds parental responsibilities
and
rights in respect of that child in terms of an order of any court or
a parental and rights agreement as contemplated in subsection
(1)
must upon change in his or her residential address forthwith in
writing notify such other person of such change.
(b)
A person who fails to comply with paragraph (a) is
guilty
of an offence and liable on conviction to a fine or imprisonment for
a period not exceeding one year
.”
The
respondent’s aforementioned disobedience must, in the
circumstances of this particular case, be regarded as wilful or
intentional and should be treated as a contempt.
[17]
In conclusion:
(1)
The respondent is hereby committed for a period of 30 days;
(2)
The order of committal is suspended for a period of 5 years on
condition that the respondent complies during the period of
suspension with the order of the Court granted by Regional Court
Kempton Park on 30 September 2013.
(3)
The respondent is hereby ordered to pay the costs of this
application.
_____________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Applicant: Adv. B.D. Lekokotla
Instructed
by: Maliseha Attorneys
Counsel
for the respondents: Adv. M Khathutshelo
Instructed
by: Nthambeleni Attorneys
Date
Heard: 19 March 2015
Date
of Judgment: 20 March 2015