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  • T.A.M-W v C.M.M (2025/030666) [2025] ZAWCHC 217 (23 …

T.A.M-W v C.M.M (2025/030666) [2025] ZAWCHC 217 (23 May 2025)

82 Reportability
Family Law
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Brief Summary

Contempt of Court — Divorce proceedings — Applicant sought to hold respondent in contempt for failing to comply with court order regarding children's travel — Respondent's application for postponement to file answering affidavit denied due to lack of merit and as a delaying tactic — Respondent unlawfully retained children in Switzerland, violating agreed terms of court order — Court found respondent in contempt and ordered immediate return of children to South Africa.

Comprehensive Summary

Case Note


Case Name: In the matter between T[...] A[...] M[...] -W[...] (Applicant) and C[...] M[...] M[...] (Respondent)

Citation: Case No: 2025-030666

Date: Heard on 22 May 2025; Delivered electronically on 23 May 2025


Reportability


This case is reportable because it involves a contempt application brought by the applicant against the respondent for failing to comply with specific court orders relating to a care and contact assessment for the minor children. The judgment highlights serious procedural and substantive issues, including allegations of delaying tactics, failure to provide an appropriate defense in contempt proceedings, and potential harm to the best interests of the children. The case is significant as it underscores the court’s jurisdiction in enforcing its orders and protecting the rights and welfare of minor children in cross-border divorce proceedings.


The judgment also has broader implications for the enforcement of court orders in family law matters, particularly when one party appears to willfully disregard judicial decisions. The urgency attached to the proceedings due to the potential impact on the children’s welfare, who are being held in a state of limbo due to travel restrictions, further accentuates the case’s importance. This reportability establishes essential precedents regarding contempt, jurisdiction, and international child abduction within the judicial context.


The case additionally illustrates the complexities arising from conflicting actions across jurisdictions, as the respondent simultaneously pursued a counter application under the Hague Convention in the Swiss courts. Consequently, the judgment serves as a valuable reference for legal professionals navigating similar issues in cross-border family law disputes.


Cases Cited


Shilubana and Others v Nwamitwa 2007 (5) SA 620 (CC) at para 11


MDN v SDN (10540/16) [2020] ZAWCHC 157 (13 November 2020) at para 6


Legislation Cited


Hague Convention on the Civil Aspects of International Child Abduction


Rules of Court Cited


(No specific procedural rules of court were directly cited in the judgment text.)


HEADNOTE


Summary


The judgment concerns an application by the applicant in divorce proceedings to hold the respondent in contempt for breaching the terms of a court order agreed on 14 March 2025. The order required both parties to facilitate a care and contact assessment of their minor children by a clinical psychologist, Mr. Bernard Altman, with the aim of determining the children’s best interests in relation to their residency in either South Africa or Switzerland. The matter is further complicated by the respondent’s simultaneously initiated counter application under the Hague Convention, challenging the lawful residence of the children.


The case is marked by substantive procedural failures on the part of the respondent. Despite providing extensive reasons for a postponement of proceedings, he failed to offer a substantive defense against the contempt allegations, limiting his response to a bare denial. His submission contained uncorroborated and, at times, demonstrably false claims, such as the fabrication regarding his counter application in Swiss courts. This conduct, combined with the strategic delay tactics, has further complicated the proceedings and tarnished procedural fairness.


In addition to the respondent’s non-compliance with the order, his actions have had direct and immediate adverse effects on the children’s welfare. The applicant now finds herself unable to secure the necessary travel documents for the children to return to South Africa, thereby effectively holding both the children and herself to ransom. This situation has prompted urgent intervention from the court, which is tasked with balancing judicial authority and the children’s best interests.


Key Issues


The primary legal issues addressed include the respondent’s failure to comply with a court order directing cooperation in a care and contact assessment, the refusal to provide assistance in procuring travel documents for the children, and the broader implications of conducting parallel legal proceedings under different jurisdictions. The judgment also considers the validity and impact of hearsay evidence presented by the respondent in his postponement application, as well as the overall balance between judicial authority and the best interests of the minor children. The court was also required to determine whether the omission of a detailed defense in the contempt proceedings could be regarded as a deliberate tactic to delay justice.


Held


The court held that the respondent’s actions amounted to contempt of the court’s order, finding him in clear and willful breach of his obligations. The respondent’s request for postponement was rejected as a delaying tactic, and the court stressed that his conduct was directly responsible for causing substantial prejudice to the applicant and the welfare of the minor children. The judgment underscored that the court has jurisdiction to hold the respondent in contempt and enforce its order to the extent possible under the circumstances.


THE FACTS


The case arose from ongoing divorce proceedings, with the applicant seeking substantive relief in the form of an order enforcing cooperation for a care and contact assessment carried out by clinical psychologist Mr. Bernard Altman. The order, stemming from an agreement reached on 14 March 2025, required both parties to assist Altman in assessing the children’s best interests regarding their international residency. Shortly after the order was granted, the applicant and her children traveled to Switzerland, and subsequent events led to the discovery that essential travel documents had gone missing.


On 25 April 2025, the applicant noted that the children’s passports were missing from her handbag, triggering an urgent need to secure emergency passports in South Africa. Despite having provided prior undertakings and necessary declarations of consent, the respondent refused to cooperate, thereby preventing the applicant from obtaining the travel documents in time. The respondent further compounded the matter by allegedly filing a counter application under the Hague Convention—a claim later proven to be false.


In addition, the respondent’s extensive but inadequate submission in the postponement application failed to articulate a genuine defence against the contempt application. This series of events left the applicant and her children in a vulnerable situation, effectively stranded abroad with their legal rights compromised and their welfare in clear jeopardy.


THE ISSUES


The key legal issue was whether the respondent’s conduct—his failure to adhere to the clearly defined terms of the court order—amounted to contempt of court. The court had to decide if the respondent’s actions, particularly his refusal to assist in securing the necessary travel documents and his unsubstantiated claims regarding a foreign counter application, demonstrated a willful disregard for the court’s authority. The secondary issue involved assessing whether the respondent’s request for a postponement, despite its extensive justifications, was merely a delaying tactic that prejudiced the applicant and endangered the best interests of the minor children.


It was also critical to determine if the respondent’s evidence, heavily reliant on hearsay without reliable corroboration, was sufficient to justify his delay. Furthermore, the court had to evaluate the balance between ensuring procedural fairness—especially in regard to complex cross-border legal issues—and protecting the urgent welfare interests of the children involved.


Finally, the court reassessed its jurisdiction and authority to enforce its prior order in light of the respondent’s conduct, ensuring that any remedial measures adopted would effectively safeguard the children’s rights and adhere to both domestic legal standards and international obligations under the Hague Convention.


ANALYSIS


The court’s analysis focused extensively on the inadequacy of the respondent’s submissions in both his postponement and contempt affidavits. The judgement noted that despite the respondent’s allocation of considerable space to justify a delay, he failed to provide an outline or substantive defence to the contempt allegations, offering only a bare denial. This lack of a meaningful response was indicative of a deliberate attempt to subvert the court process and delay the enforcement of its orders. The reference to established authority, particularly Shilubana and Others v Nwamitwa and MDN v SDN, reinforced the judicial expectation that parties must comply with court orders without resorting to tactics that would undermine procedural integrity.


In examining the evidence before the court, significant weight was given to the factual matrix surrounding the children’s travel documents. The court observed that the respondent, despite prior undertakings, actively prevented the applicant from obtaining emergency passports for the children by refusing to cooperate at the last minute. This conduct not only invalidated his claims of a mere administrative oversight but also highlighted a calculated effort to frustrate the execution of the court order. The court further criticized the respondent’s reliance on uncorroborated allegations, particularly regarding his purported counter application under the Hague Convention, which was emphatically disproved by external confirmation.


The analysis extended to the broader implications of such contemptuous conduct within the context of family law. The decision emphasized that the authority of the court and the best interests of the children must not be compromised by deliberate delay or avoidance tactics. The weighing of evidence in light of both domestic judicial principles and international legal obligations underscored the need to enforce compliance with court orders, particularly when vulnerable parties—such as minor children—are directly impacted.


REMEDY


The court refused the respondent’s application for postponement, characterizing it as nothing more than a delaying tactic designed to thwart the effective application of the court’s order. Costs were ordered to follow the result in the contempt proceeding, thereby reinforcing the principle that parties must adhere strictly to the obligations imposed by the court. The remedy sought by the applicant was aimed at restoring the effective function of judicial authority and ensuring the prompt and fair resolution of the issues surrounding the children’s travel and welfare.


In rendering its decision, the court underscored that its jurisdiction to hold the respondent in contempt was firmly established, even though immediate effects might be challenging to implement fully. The court’s guidance emphasized that any order should incorporate recommendations made by both the clinical psychologist and the Family Advocate to protect the best interests of the minor children. The order thus serves as both a disciplinary measure against the respondent and a mechanism to guarantee the application of critical protective measures affecting the children’s future.


The remedy accordingly provides for an order compelling the respondent to cooperate fully with the stipulated arrangements for the children’s care and travel documentation. This serves not only to restore compliance but also to mitigate the current hardship faced by the applicant and her children, reaffirming the court’s commitment to upholding its orders and protecting vulnerable parties.


LEGAL PRINCIPLES


The judgment reaffirms several key legal principles. First, it firmly establishes that the court’s authority extends to holding parties in contempt when they fail to comply with clearly articulated and binding court orders, regardless of any procedural deficiencies in their submissions. Contempt jurisdiction is confirmed as an essential tool for safeguarding the integrity of the judicial process and ensuring that parties adhere to their legal obligations.


Secondly, the case underscores the paramount importance of the best interests of the child in family law proceedings. In situations involving international dimensions—such as cross-border custody and travel arrangements—the protection of children’s rights remains a core judicial mandate. Best interests of the child emerged as a guiding principle when weighing potential prejudice against the applicant and the children’s welfare.


Lastly, the judgment highlights the necessity for clear, corroborated evidence in contesting judicial orders. The respondent’s reliance on hearsay and unsubstantiated claims was decisively countered by the court’s insistence on verifiable evidence, thus reinforcing the principle that the judicial process must rely on sound and reliable proof rather than conjecture or strategic delay.

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy






IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 2025 -030666

In the matter between:

T[...] A[...] M[...] -W[...] Applicant

and

C[...] M[...] M[...] Respondent

Court: Justice J Cloete
Heard: 22 May 2025
Delivered electronically : 23 May 2025


JUDGMENT


CLOETE J :

[1] The applicant, who is engaged in divorce proceedings against the respondent
in this court, applies to have the respondent held in contempt of certain terms of an
order granted by agreement between the parties on 14 March 2025 in respect of the
main application referred to hereunder (‘the order’) and related reli ef. The
respondent has filed a notice of opposition, but no answering affidavit.

[2] On the morning of the h earing (22 May 2025) the respondent applied for a
postponement for a short period for the purpose of delivering an answering affidavit.
The affidavit to which he deposed in support thereof mostly contained what purports
to be an explanation for the delay i n delivering his answering affidavit. In short, he
asserted that he did not understand what was required of him, and mostly blamed
his attorney of record in the main application as well as that attorney’s assistant for
allegedly failing to advise him properly about what he was required to do . Although
that attorney still represents him in the main application (but not in these contempt
proceedings ) the respondent did not annex confirmatory affidavits by that attorney or
his assistant confirming his all egations. They thus constitute impermissible hearsay
evidence.

[3] Tellingly however, and contrary to clear Constitutional Court authority1 (the
highest court in South Africa ), and despite the respondent h aving devoted 21
paragraphs to his reasons for requesting a postponement, nowhere did he provide
even a brief outline of his defence to the contempt application itself, save for a bare
denial. What is more, his allegation at paragraph 7 of his affidavit, namely that he
has “ filed a counter application under the Hague Convention in the Swiss courts”
was demonstrated to be palpably false , as was confirmed in writing by the
applicant’s Swiss attorney in an email transmitted at 11h04 on 22 May 2025 (thus
less than 30 minutes before the hearing commenced ).

[4] The respondent also submitted there would be no prejudice to the applicant
and the children should a postponement be granted. In my view the prejudice to
them is manifest as will be shown later in this judgment . The respondent did not
even make a ten der for the wasted costs should a postponement be granted. Having
considered the postponement application and the submissions of counsel, I was
persuaded that it had no merit and was nothing short of a delaying tactic on the part

1Shilubana and Others v Nwamitwa 2007 ( 5) SA 620 (CC) at para 11
of the respondent. That application was thus refused with costs to f ollow the result in
the contempt application .

[5] The contempt application is brought as one of urgency, giv en its nature2 and
that it impacts directly on the best interests of the two minor children born of the
marriage, a son who is four years old and a daughter who is two years old.

[6] The paragraphs of the order relevant for present purposes are as follows:

6.1 Paragraph 7, in which it was recorded that the applicant has appointed Mr
Bernard Altman, a clinical psychologist (“Altman”) to conduct a care and contact
assessment of the children, including making a report with recommendations to
this cou rt as to whether it better serves the interests of the children to reside in
either of South Africa or Switzerland;

6.2 Paragraph 8, in which the respondent agreed to participate in the
assessment by Altman, and the parties were accordingly directed to cooperate
with Altman’s assessment (despite the respondent reserving his rights and
placing on record that he did not agree that such assessment was appropriate);

6.3 Paragraph 9, which spelt out the steps Altman was authorized to take for
purposes of his assessment and completion of his report, and which importantly
included conducting interviews, psychological assessments and clinical
observations of the children on reasonable notice, and observing the children
interacting with the applicant and the respondent in such environment as he
may determine (Altman resides in Cape Town, South Africa and conducts his
practice in Cape Town); and

6.4 Paragraph 11, in which the respondent, amongst other things, consented
to sign all documentation requi red to facilitate the children travelling between
South Africa and Switzerland pending finalization of the main application
launched by the applicant simultaneously with the divorce action for, inter alia,

2 Contempt proceedings are inherently u rgent because the vindication of the court’s autho rity is at
stake : MDN v SDN (10540/ 16) [2020] ZAWCHC] 157 (13 November 2020) at para 6
virtually the same relief as that contained in the order (Part A) and
subsequently for the court to make an order incorporating the
recommendations made by Altman and the Family Advocate (Part B). The
Family Advocate is also the Central Authority for the Republic of South Africa
for purposes of the Hague Convention on the Civil Aspects of International
Child Abduction. In this regard, the respondent also launched a counter
application in South Africa on 4 April 2025 (thus subsequent to the granting of
the order) in terms of article 12 of the Hague Convent ion, for the return of the
children to Switzerland on the alleged basis they had been unlawfully retained
by the applicant in this country (which is disputed by the applicant).

[7] On Friday, 18 April 2025, after the order was granted, the applicant and the
children travelled to Switzerland at the request of the respondent for the children to
spend the Easter holidays with him. Prior thereto, and on 15 April 2025, the
respondent gave a written undertaking that he granted permission for the children to
travel back to South Africa on 28 April 2025. Also prior thereto, the respondent
provided the applicant with a “Declaration of Consent for Travel with Minors” in
respect of both children which confirms that they could depart from Switzerland to
South Africa on 26 April 2025.

[8] The applicant’s evidence is that on Friday, 25 April 2025, she noticed the
children’s passports w ere missing from her handbag where she had stored them for
safekeeping, although her own passport was still there. The respondent denie d
having removed them from her possession. The applicant requested the respondent
to assist her in obtaining emergency passports for the children at the airport on the
following morning , Saturday, 26 April 2025. He refused, informing her that he had
decided the children would remain in Switzerland . When the applicant attended at
the airport in Zürich to try to obtain emergency passports for the children (which the
applicant states would have taken 30 minutes with the consent of the respondent )
she discovered that he had already informed the police he would not f urnish consent.
In fact the respondent telephoned the applicant to check that the authorities had
refused to furnish her with emergency passports for the children.

[9] The respondent has since refused to permit the children to return to Sou th
Africa and has also refused to cooperate with the applicant to procure their required
travel documents , even after demands were made by both the applicant’s Swiss and
South African attorneys. Indeed , and through his Swiss attorney, he has adopted the
startling attitude that because he is of the view that the children are habitually
resident in Switzerland, he is therefore entitled to simply ignore the pending
proceedings in South Africa (including his own Hague a pplication) and the clear
terms of a court order to which he agreed a month earlier. Altman has confirmed in
writing that without the children being present in South Africa he is unable to conduct
his assessment and complete his court ordered report . The respondent’s conduct
has also caused the determination of the main application and indeed his own
counter application , which were to be hea rd yesterday , 22 May 2025, to be delayed
and frustrated, and the irresistible inference in light of the undisputed facts is that he
has done so wilfully .

[10] At present the applicant and the children are effectively being held to ransom
by the respondent in Switzerland . It matters not to this court, as the respondent
suggests, that because the children are currently staying with the applicant in
Switzerland , there is no prejudice to them. As previously indicated, the prejudice to
them is manifest : the children cannot return to South Africa and the applicant will not
return without them. These are very young children and their best interests must be
respected and protected. During the hearing I was informed by senior counsel for the
applicant that she is now bein g compelled to launch a Hague application in
Switzerland as well, no doubt with the attendant emotional toll and additional legal
costs.

[11] It is settled law in South Africa that this court has jurisdiction to hold the
respondent in contempt of the ord er and thus of the court, and that the applicant, if
successful, is entitled to an order to the extent to which it can be made effective,
even though it may not be possible to do so immediately. This is because at the time
the main application was institut ed this court had the necessary jurisdiction to make
orders in respect of the children, and contempt proceedings are not new proceedings --
but merely a continuation of proceedings previously instituted: JC v DC3. In the
aforementioned case the court also referred to Cats v Cats4 and Re D (A Mi nor)5.
In the latter decision the English court found it was empowered to issue an order for
the return of a child to its jurisdiction notwithstanding the fact that the child was no
longer in its jurisdiction. The English court further concluded that it was not pointless
to make such an order, given that it would assist the father in foreign proceedings for
the return of the child , and that the court would not refuse to assist a parent whe n the
other had acted in defiance of an undertaking voluntarily given to the court.6 I
acknowled ge however that an order made by me in the present proceedings for the
immediate return of the children to South Africa is not binding on the courts of
Switzer land.

[12] It is also settled law in South Africa that for a contempt of court application to
succeed, the applicant must demonstrate the following three requirements . First, an
order was granted obliging the respondent to do certain things. Second, the
respondent received notice of the order. Third , the respondent failed to comply with
it. Once the applicant has established these three requirements, wilfulness and mala
fides (bad faith) are presumed and the respondent bears the evidentiary burden to
establish reasonable doubt that his non-compliance was not wilful and /or mala fide .
Should the respondent fail to discharge th at burden , contempt will have been
established: Secretary, Judicial Commission of Inquiry into Allegations of State
Capture v Zuma and Others7.

[13] In the present case the applicant has self – evidently met all three requirem ents
and the respondent has not even attempted to discharge the evidentiary burden
resting upon him. It follows that the applicant is entitled to the relief sought. As far as
costs are concerned, the respondent ’s behaviour i s particularly egregious when
regard is had to the fact that he agreed to the terms of the very order which he
decided to frustrate and/or ignore, As a mark of the court’s displeasure, the applicant
is also entitled to the punitive costs order sought , as well as the costs of two counsel

3 2014 (2) SA 138 (C )
4 1959 (4) SA 375 (C )
5 [1992] 1 ALL ER 892
6 JC v DC at para 30
7 2021 (5) SA 327 (CC) at para 37
(since the respondent himself briefed two counsel for the purpose of the
postponement application only).

[14] The following order is made :

1. The matter is declared urgent;

2. The respondent is declared to be unlawfully retaining the parties’ two
minor children, namely M[...] T[...] M[...] (born on 6 March 2021) and
A[...] N[...] M[...] (born on 3 August 2022) in Switzerland in contempt
of the order of this court granted by agreement between the parties
under the above ca se number on 14 March 2025 (“the Order”) ;

3. The respondent is also declared to be in cont empt of paragraphs 8, 9
and 11 of the Order;

4. Subject to the jurisdiction of the courts of Switzerland, the children
are to be returned to South Africa forthwith , and the respondent is
ordered to do all things and sign all documentation neces sary to
facilitate their return ;

5. In the event of the respondent returning to South Af rica, he is
sentenced to 30 (thirty ) days direct imprisonment , suspended until
finalisation of the main application and counter application pending
under the above case number , on the condition that he complies in
full with the terms of paragraphs 8, 9 and 11 of the Order ;

6. Given that the respondent’s contempt of the Order has resulted in
the main application and counter applicati on referred to in paragraph
5 hereof not being able to be determined on the agreed and court
ordered hearing date, i.e. 22 May 2025, the main application and
counter application are postponed sine die , with the parties (or either
of them upon notice to the other ) being given leave to approach the
Judge President for permission for the allocation of a special date for
hearing . The wasted costs of the postponement referred to in this
paragraph shall stand over for later determination as agreed between
the parties ; and

7. The respondent shall pay the costs of this application and his
unsuccessful application for a postponement thereof , on the scale
as between attorney and client (and if required by the taxing master,
the costs of both senior and junior couns el on scale C) .


_______________________
JUSTICE J CLOETE


For Applicant : Adv L Buikman SC
Adv L Liebenberg
Instructed by : Mr J Loubser of Oosthuizen & Co Inc

For Respondent : Adv R McClarty SC
Adv E Smit
Instructed by : Norman Wink & Stephens

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