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[2024] ZAECQBHC 35
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A.D v R.D (193/2018) [2024] ZAECQBHC 35 (20 February 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GQEBERHA
Case
no: 193/2018
In
the matter between:
A[...]
D[...]
Applicant
and
R[...]
D[...]
Respondent
REASONS
FOR JUDGMENT
Zilwa
AJ
[1]
This
matter came before me as an urgent application in which the Applicant
sought the following orders:
1.1
declaring
the Respondent guilty of contempt of the Order of Acting Justice
Zietsman granted on 2 March 2021
1.2
declaring
the Respondent guilty of contempt of the Order granted by Acting
Justice Naidu granted on 12 October 2021;
1.3
that
a period of imprisonment be imposed on the Respondent with such
period of imprisonment to be suspended on conditions deemed
appropriate by the Court;
1.4
that
a fine be imposed upon the Respondent as deemed appropriate by the
Court; and
1.5
that
the Respondent be ordered to pay costs of the application on an
attorney and client scale.
[2]
The
application was opposed by the Respondent and she further brought an
urgent counter application where he sought,
inter
alia,
the appointment of
a parenting co-ordinator, a variation of the Order of 2 March 2021
and the appointment of a therapist to the
minor children.
[3]
Sequel
to the granting of the order, the Respondent sought reasons of the
order on 6 December 2023 but was only brought to my attention
on 31
January 2024. The file was delivered to me on 12 February 2024.
Factual
Background
[4]
The
Respondent initiated an action for divorce where there was also an
issue of the minor children that needed to be determined.
The parties
concluded a deed of settlement which was ultimately made an order of
court by Acting Justice Zietsman on 2 March 2021.
This is one of the
orders which the Applicant contends that the Respondent is in
contempt of.
Naidu
AJ’s order
[5]
When
the Respondent failed to comply with the order of 2 March 2021, the
Applicant launched a contempt of court application which
was heard by
Acting Justice Naidu wherein,
inter
alia
, the Respondent was ordered to
comply with the divorce order in all material respects.
[6]
In
reaction to the application brought, the Respondent brought a
counter- application for variation and such application was postponed
sine die
.
[7]
The
application for contempt which served before me was a second one and
it was opposed by the Respondent. What the parties are
fighting about
is the issue of access to the minor children. On one hand the
Respondent believes that the Applicant’s supervised
access by
the latter’s mother is no longer suitable as it was at the time
of conclusion of the divorce settlement. On the
other hand, the
Applicant believes that the supervision by his mother is still
suitable. He further believes that the supervision
is not even
necessary and he is basing his view on the clinical psychologist
report compiled by Professor Stroud. The report opined
that the
Applicant is psychologically fit to have unsupervised contact with
the minor children. As a result thereof, the Applicant
launched a
variation application for her contact to be unsupervised and that
application is still pending.
Legal
Framework
[8]
It
is trite that the object of contempt proceedings is to obtain
imposition of a penalty in order to vindicate the Court’s
honour consequent upon a disregard of its order as well as to compel
performance in accordance with the Order.
[1]
[9]
It
is further trite that settlement agreements that have been made
orders of court in divorce actions are Orders of court like any
other
order. In
PL
v YL
[2]
,
Van Zyl ADJP, as he was then, writing for the Full Bench had the
following to say:
‘
The
parties may, however, choose to agree to ask the court to give
judgment on the issues raised by the action in accordance with
the
terms of their settlement agreement. One of the advantages of this
arrangement is that the court retains jurisdiction over
the matter in
the sense that it has the inherent power or authority to ensure
compliance with its own orders. This enables the
parties, in the
event of a failure by any one of them to honour the terms of the
order, to return directly to the court that made
the order, and to
seek the enforcement thereof without the necessity of commencing a
new action.’
[10]
For
as long as the order of 2 March 2021 has not been set aside nor
varied, the Respondent has no other option but to fully comply
even
if she may feel it is wrong or incorrect in some respects. In a
similar case that involved children, the Constitutional Court
had an
occasion to assert the legal position in a matter of
SS
v VVS
[3]
where
Kollapen AJ, as he was then, had the following to say:
‘
[23]
All
court orders must be complied with diligently, both in form and
spirit, to honour the judicial authority of courts. There is
a
further and heightened obligation where court orders touch interests
lying much closer to the heart of the kind of society we
seek to
establish and may activate greater diligence on the part of all.
Those interests include the protection of the rights of
children and
the collective ability of our nation to "free the potential of
each person" [8] including its children,
which ring quite
powerfully true in this context.
[24] Thus,
when courts act as the upper guardian of each child they do so not
only to comply with the form
that the Constitution enjoins us to be
loyal to, [9] but with the very spirit that is encapsulated in the
provisions of section
28(2) of the Constitution that "a child's
best interests are of paramount importance in every matter concerning
the child".
[25] This
is precisely such a matter. The Order was about ensuring the best
means of protecting and enhancing
the interests of the minor child,
and the scope and the breadth of the provisions of the settlement
agreement appear to compellingly
underscore that objective. The High
Court, when it granted the decree of divorce, must then have been
satisfied that the interests
of the minor child were well catered
for.
[26] When
those interests are imperilled or when the obligation undertaken by
either parent to the child
is not diligently complied with, then
courts are enjoined to interfere in a manner that best protects those
interests. In Bannatyne,
this Court dealt with the significance of
maintenance obligations and the duty of courts to ensure compliance
therewith.’
[11]
In
Bannatyne
v Bannatyne (Commission for Gender Equality, as Amicus Curiae
[4]
,
Mokgoro
J at para 27 had the following to say:
‘
If
court orders are habitually evaded and defied with relative impunity,
the justice system is discredited and the constitutional
promise of
human dignity and equality is seriously compromised for those most
dependent on the law.’
Conclusion
[12]
It
is my view that the Respondent’s actions have proven herself
not to be prepared to respect this Court’s orders considering
that there was a previous application for contempt which compelled
her to comply with all the terms of the order issued on 2 March
2021.
Notwithstanding the compulsion through the order of Naidu AJ, she
continues to disobey both orders. I am satisfied that her
actions are
contemptuous and this Court was left with no option but to issue a
coercive order on 28 November 2023.
[13]
I
was satisfied that all the elements for contempt as enunciated in
Fakie (supra)
were met and therefore the Applicant ought to succeed in his
application.
[14]
The
counter application that was launched on urgent basis was a clear
attempt to circumvent compliance with the previous court orders
issued and I did not find any sufficient grounds for urgency and that
is the reason why I ruled that it should be struck off from
the roll
with costs. Even if I am wrong in my conclusion in this regard, there
is another reason why the counter application could
not be
entertained. Assuming that the Respondent had a strong case in her
counter application, she would be able to get substantial
redress in
due course but compliance with the orders already issued could not be
postponed pending appointments of people the Respondent
believes
would be able to supervise the Applicant’s contact with his
children.
[15]
There
was also a defence of
lis pendens
raised by the Applicant
which was conceded by Ms Ellis, on behalf of the Respondent. It was
common cause between the parties that
there is a pending application
for variation which was postponed
sine die
in March 2021. The
said application was between the same parties and on the same subject
matter and therefore it meets all the requirements
of
lis pendens.
For this reason I would not have entertained the application in
any event even if I was satisfied that it was sufficiently urgent.
[16]
Resultantly,
I reiterate the order granted:
14.1
That
the Applicant’s non-compliance with the Rules relating to
forms, service and time periods is hereby condoned and the
matter is
allowed to be heard as one of urgency in terms of Rule 6(12) of the
Uniform rules.
14.2
That
the Respondent is found to be guilty of contempt of this Court’s
order issued by Mr Acting Justice Zietsman on 2 March
2021 under case
number 193/2018.
14.3
That
the Respondent is found to be guilty of contempt of this Court’s
order issued by Mr Acting Justice Naidu on 12 October
2021 under case
number 193/2018.
14.4
That
the Respondent be committed to prison for a period of 30 days, which
committal is suspended for a period of one year on condition
that she
complies with the orders granted by this Honourable Court on 2 March
2021 and 12 October 2021 within 3 days from the date
of this order.
14.5
That
the Respondent be and is hereby ordered to pay costs of the
application on a party and party scale.
14.6
That
the counter-application be and is hereby stuck off from the roll of
urgent matters, with costs.
14.7
That
in accordance with Rule 49(1)(c) of the Uniform Rules, the reasons
for this order will be furnished to either party on application.
H
ZILWA
ACTING
JUDGE OF THE HIGH COURT
Date
of hearing
: 28 November 2023
Date
of order
: 28 November 2023
Date
of reasons requested :
06 December 2023
Date
of reasons of judgment :
20 February 2024
Appearances
:
For
Applicant:
Mr
KD Williams
Instructed
by:
Badenhuizen
Inc., Walmer, Gqeberha
For
Respondents:
Ms
L Ellis
Instructed
by:
Kaplan
Blumberg Attorneys, Gqeberha
[1]
See
: East London Local Transitional Councl v MEC For Health, Eastern
Cape
2001 (3) SA 1133
(Ck) at 1140J – 1141 A; Fakie NO v CCII
Systems (Pty) Ltd
2006 (4) SA 325
(SCA) at 333A-B; Replication
Technology Group v Gallo Africa
2009 (5) SA 531
(GSJ) at 549C-D; Lan
v OR Tambo International Airport Department of Home Affairs
Immigration Admissions
2011 (3) SA 641
(GNP) at 653C – 655I
[2]
2013
(6) SA 28
(ECG) at para 10; Also see : Eke v Parsons
2016 (3) SA 37
(CC); Moraitis Investments (Pty) Ltd & Others v Montic Dairy
(Pty) Ltd
2017 (5) SA 508
(SCA) at para 10
[3]
2018
JDR 0275 (CC)
[4]
[2002] ZACC 31
;
2003
(2) SA 363
(CC)