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
LIMPOPO DIVISION, POLOKWANE
CASE NO: 13283/2024
(1) REPORTABLE : YES/NO
(2) OF INTEREST TO THE J UDGES: YES/NO
(3) REVISED.
DATE:
SIGN ATURE:
In the matter between :
J[...] E[...] D[...] R[...] APPLICANT
And
L[...] D[...] R[...] RESPONDENT
_______ _____
JUDGEMENT
KGANYAGO J
[1] The applicant and respondent are married to each and their common home is
in Musina . From their marriage relationship one minor child, a girl was born.
The minor child is currently five years of age. The parties experienced some
marital problems which led to the applicant instituting divorce proceedings
against the respondent but has not yet been served on the respondent with
divorce summons .
[2] The applicant had secured employment in Ermelo as an educator. On 21st
October 2024 the applicant noti fied the respondent that she intended to
relocate to Ermelo together with the minor child and her son from her previous
relationship . That led to the respondent in December 2024 instituting an
urgent application in th is court seeking orders that the applic ant be interdicted
from relocating to Ermelo with the minor child and that he be awarded primary
residence of the minor child. The application was set down for the 10th
December 2024.
[3] The applicant opposed the respondent’s application. On 10th December 2024
the parties reached an agreement, and by consent the agreement was made
an order of court before Bresler AJ. The consent order read as follows:
“1. Mrs Sarie Nel l is appointed to conduct a comprehensive investigation into
the inte rest of the minor child XXX, born on … with specific focus on primary
residency, contact and whether a relocation to Ermelo would be in the minor
child’s best interest.
2. Mrs Nelll is to compile a report and make recommendations on or before
3rd January 2025.
3. In the interim and pending final adjudication of the application, the minor
child will rotate between the parties every ten days.
4. The minor child will be in the Applicant’s care for the first ten days after the
Respondent vacates the matrimonial home on 14th December 2024
whereafter the minor child will be in the Respondent’s care for the following
ten days from 24 December 2024.
5. Adjudication of Part A of the Applicant’s urgent application as well as the
Respondent’s counterapplication is postponed pending the report by Mrs Nell.
6. The parties are entitled to approach the urgent court upon receipt of the
report by Mrs Nell on the same papers duly supplemented on or before 10th
January 2025.
7. Costs reserved”.
[4] On 1st January 2025 Mrs Nell delivered an interim report in which she intimated
that a forensic investigation was needed to be undertaken in respect to the
primary care and residence and contact to the minor child due to multiple
concerns raised by both parties, and the high -risk factors identified by the
social worker in both parties ’ profiles . Therefore, the social worker c ould not
make any recommendation s regarding the best interest of the minor child at
this moment.
[5] From December 2024 the minor child has been rotating between the parties in
terms of the court order. The minor child was suppo sed to return to the
applicant on 13th January 2025, however, but that did not happen. During July
2024 when thing s were still fine between the applicant and respondent, they
applied for the enrolment of the minor child in grade R at a certain school in
Musina and she was accepted. In January 2025 the respondent instead of
returning the minor child to the applicant in compliance with the court order ,
enrolled the minor child at th e school which the minor child has been
accepted in Musina . The respondent enrolled the minor child without notifying
and/or consent of the applicant. When the applicant demande d the return of
the minor child, the respondent sent the applicant a message telling her that
school’s requirements for the child to attend school would generally override
the court order if the court order disrupts the child’s education. Further that it
would require a legal review or modification of the type of the custody order to
align with the child’s educational needs.
[6] The applicant and the respondent could not resolve their differences relating to
the return of the minor child to the applican t in compliance with the court of
the 10th December 202 4. That led to the applicant launching the current
contempt of court application against the respondent on urgent basis seeking
orders that the respondent be found to be in contempt of court order of t he
10th December 2024; he be committed to prison for a period of 30 days for
contempt, alternatively for such period the court deems just and equitable;
and also variation of the order in relation to primary residence of the minor
child.
[7] The respondent is opposing the applicant’s contempt of court application , has
also filed a conditional counterapplication in which he is seeking that the order
of the 10th December 2024 be varied to the extend that the minor child remain
in his care pending the finalisation of the forensic evaluation by Mrs Alexa
Young ; finalisation of the investigation by Mrs Sarie Nell and further
adjudication of the main application ; the minor child remain enrolled at the
current school she is schooling pending further adjudication of the main
application ; and that the applicant be entitled to contact, in Musina, every
alternative weekend from Friday after school until Sunday at 17h00 pro vided
that the applicant shall not remove the minor child from the current school.
[8] According to the respondent, the relief that the applicant is seeking is contrary
to the minor child’s best interest as the minor child had already commenced
grade R at a school in Musina, and by the time the urgent application is
adjudicated upon she would have completed an entire month in grade R. The
respondent submitted that the order of the 10th December 202 4 was
supposed to remain operational until the 10th January 2025 as the intention of
the appointment of Sarie Nell was to have the recommendations made
available prior to the commencement of the academic year on 15th January
2025. The respondent admit that he had refused to comply with the 10 days
contact rotation, as it is impracticable and detrimental to the minor child’s
academic interests. The respondent submit that his refusal was not wilful and
mala fide. It has not yet been determined that relocation to Ermelo would be in
the minor child’s best inter est, and that the minor child remains domiciled in
Musina, Limpopo, and resident in the respondent’s care and at their former
matrimonial home .
[9] The respondent further submit that he and the minor child have participated
and completed their evaluati on process of Mrs Young, and to the best of his
knowledge the applicant interview and participation in the evaluation process
will be finalised prior to the hearing of this application. It is the respondent’s
contention that the applicant’s grievance does not pertain to his failure to
comply with the existing order, but rather that he did not give her the
opportunity to do so herself. The respondent submit s that all that he had done
is to ensure that the minor’s child’s best interest are protected.
[10] There are three issues which I am called upon to determine. The first is
whether the respondent was in contempt of the order of the 10th December
2024; the second whether it is in the best interest of the minor child to vary the
order of the 10th December 2024; and the third, if it is found that the order
needs to be varied, whether it should be varied as prayed for by the applicant
or respondent.
[11] It is trite that an applicant who alleges contempt of court must establish that (a)
an order was grante d against the alleged contemnor; (b) the alleged
contemnor was served with the order or had knowledge of it; and (c) the
alleged contemnor failed to comply with the order. Once all these elements
are established, wilfulness and mala fides are presumed and the respondent
bears evidentiary burden to establish a reasonable doubt. Should the
respondent fail to discharge this burden, contempt will have been established.
(See Secretary of Judicial Commission of Inquiry into allegations of State
Capture, Corruptio n and Fraud in the Public Sector including Organs of State
v Zuma1).
1 [2021] ZACC 18 (29 June 2021) at para 37
[12] The order of the 10th December 202 4 was a consent order which the applicant
and respondent agreed upon it at the door of the court and was thereafter
made an order of court. It is not in dispute that the order was valid and the
respondent had knowledge of it. The respondent conceded having not
complied with the order. Therefore , there is a presumption which the
respondent had to rebut that he was not wilful and mala fide .
[13] In Fakie v CCII Systems (Pty) Ltd2 Cameron JA said:
“The test for when disobedience of a civil order constitute contempt has to be
stated as whether the breach was committed ‘deliberately and mala 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. In such a case, good faith avoids infraction. Even a
refusal to comply that is objectively unreasonable may be bona fide (though
unreasonableness could evidence lack of good faith )”.
[14] It is not in dispute that the minor child was supposed to start schooling at the
beginning of January 2025. It is not in dispute that the applicant secured
employment in Ermelo as an educator and had relocat ed to Ermelo to start
new employment in J anuary 2025. This is what led to the respondent
launching th e urgent application in which the order of the 10th December 2024
was obtained. The main issue to be determined in that application is whether
it is in the best interest of the minor child to relo cate w ith the applicant to
Ermelo. That issue has not yet been determined as the final report of the
forensic clinical psychological evaluation has not yet been comp iled.
[15] As far back as July 2024 the applicant and respondent have applied to a
scho ol in Musina in which the minor child was going to start her grade R and
she had been accepted. By the time the school reopens, the dispute between
the applicant and respondent had not yet been resolved. Whether the minor
2 2006 (4) SA 326 (SCA) at para 9
child was with the applicant or re spondent the 10 days rotation of the minor
child between the parties will be impractical to implement taking into
consideration the distance between Musina and Ermelo. This is definitely
going to affect and interrupt the minor child ’s schooling activities . If the 10th
day fell during week when the minor child was supposed to go to school what
will happen to her schooling acti vities is anybody’s guess . At this stage the
applicant is not in position to enrol the minor child in Ermelo as that issue has
not yet been determined.
[16] The respondent whilst trying to act in the best interest of the minor child, has
done it the wrong way. He should have first consulted the applicant and see
whether they could not reach a n amicable solution of what is in the best
interest of the minor child, rather than acting unilaterally. Both the applicant
and the respondent had joint and equal responsibility towa rds the minor child.
If the parties could not agree on what was best for the minor child, the
respondent could have approached the court for variation of the order. A duly
granted court order is valid and enforceable until set aside by a court of
competent authority, and that order should be respected and complied with by
all the parties affected by that order .
[17] Even though the respondent in his answering affidavit has stated that he had
refused to comply with the order, there is no evidence that it was done for
ulterior motives. The minor child has already been accepted at a school in
Musina which was identified by the parties jointly as far back as July 2024 ,
and by then the schools have reopened . The minor child could not have
missed sta rting her s chooling because of the dispute between her parents
which dispute there is no guarantee is to when it will be resolved. On the hand
the if the school could have reopened whilst the minor child was in the
applicant’s care, she also could have enrolled the m inor child in Ermelo before
the dispute between her and the respondent was resolved.
[18] By enrolling the minor child in a school in Musina the respondent was acting in
good faith, and his actions were not unreasonable. In my view, even though
the res pondent has acted unilaterally, had conceded that he refused to obey
the court order of the 10th December 2024, and did not attempt to vary that
order, his actions were not wilful and mala fide. He mistakenly though t that he
was doing the right thing which was in the best interest of the minor child . If
follows that he cannot be found to be in contempt of the order of the 10th
December 2024.
[19] The second issue is whether it is in the best interest of the minor child that the
order of the 10th December 2024 be varied. When the partied agreed on that
order to be made an order of order, they did not foresee that their dispute will
drag beyond the 15th January 2025 which was the date for the reopening of
the schools. The applicant had relocated to Ermelo, and the minor child had
been enrolled in a school in Musina. Both parties are in agreement that
currently, it impractical if not impossible to comply with the order that the
minor child rotate between the parties every 10 days. I agree with the pa rties
that it is not in the best interest of the minor child to leave that clause of the
order in its current format. A compelling case by both parties has been made
that the order be varied.
[20] The third issue is whether order should be varied in ter ms of the applicant or
respondent’s prayer s. The courts as the upper guardian of minor children , and
in disputes involving minor children, the court will determine the matter in
terms of what is best interest of the minor children and not the best interest of
their parents or guardians. In Stock v Stock3 Diemont JA said:
“It has been said repeatedly by the Courts that where there is a dispute
concerning the award of custody of minors there is substantially one norm to
be applied, namely the pred ominant interest of the children. The same norm
applies where the disputes relates, not to the award, but the variation of a
custody order or where application is made to remove the children out of the
jurisdiction of the Court. The parent who seeks such r elief will be called upon
to show cause, that he or she will have to satisfy the court on a balance of
probabilities that the order made at the time of divorce should be varied.
3 1981 (3) SA 1280 (A) at 1290F -H
There are many factors to which the Court will have regard in determining
whet her the welfare of the children calls for such variation. So, for example,
where there are several children in the family, it well be deemed inadvisable
to separate the siblings. The n again the Court will bear in mind that any
variation in the order will have a more lasting effect on the younger children
than it will on the older children who will become independent sooner and can
then make their own decisions”.
[21] Sarie Nell in her interim report was unable to make any recommendation
regarding the best interest of the minor child due to the multiple concerns
raised by both the applicant and respondent and also the high -risk factors
identified by the social worker in both parties ’ profile s, hence she
recommended a forensic clinical psychologist evaluation. Sarie has also
stated that although the minor child was 5 years old, she clearly indicated that
both parents were involved in her caretaking task, and that she wants bot h
parties in her living world. The minor child is therefore comfortable to live with
both parent without having preference of one over the other .
[22] Since December 2024 up to date the minor child ha s been living with the
respondent, and it does not s eem that the respondent is not taking good care
of the minor child. Both parties are in agreement that the forensic evaluation
report may be received any time from now. Nobody at this stage knows what
will be the final outcome of the parties ’ case, and it may go either way. If in
this application before me, the order is varied to favour the applicant, it will
mean the minor child will h ave to leave her current school and go and start a
new school in Ermelo. A month later the court finds in favour of the
respondent, the minor child will have to relocate back to Musina. That, in my
view, will cause confusion and inconvenience to the minor child. Currently the
minor child is staying in a place which all along she had regarded it as her
home. She is schooling in a school that has been identified by both parents.
For about two months the minor child has been with the respondent, there is
no co mplaint about how the respondent is taking care of the minor child. In my
view, it is in the best interest of the minor child if the status quo remain s the
same. This is just a temporary arrangement, unless the parties wanted to
unnecessarily drag the matt er.
[23] With regard to costs, both parties were under the impression that the matter
would have been resolved before the school s reopens. They did not foresee
that their consent order was going to create problems for them. In my, view,
the appropriate order will be that each party to pay his/her own costs.
[24] In the result the following order is made:
24.1 The applicant’s application is dismissed.
24.2 The respondent’s conditional counterapplication is granted and the
followin g orders are made:
24.2.1 Paragraph 3 to 6 of the order dated 10th December 2024 is
varied and substituted with the following:
24.2.1.1 The minor child, shall remain in the care of the
respondent, pending finalisation of the forensic evaluation by
Mrs Alexa Young, finalisation of the investigation by Mrs Sarie
Nell and further adjudication of the main application.
24.2.1.2 The minor child shall remain enrolled in M […] Primary
School pending further adjudication of the main application.
24.2.1.3 The applicant shall be entitled to contact , in Musina
every alternative weekend from Friday after school until a
Sund ay at 17h00 provided that the applicant shall not remove
the minor child from Musina area.
24.2.1.4 The applicant shall be entitled to daily telephonic
contact.
24.3 Each party to pay his/her own costs.
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION , POLOKWANE
APPEARANCE S:
Counsel for the app licant : Adv E Malherbe
Instructed by : Machobane Kriel Inc
Counsel for the respondent : Adv A Koekemoer
Instructed by : Radley Attorneys Inc
Date heard : 18th February 2025
Judgment delivered on : 20th February 2025