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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2024-087577
In the matter between:
In the matter between:
M[….], T K First Applicant
and
N[….], M A Respondent
This judgment and the order incorporated herein is handed down electronically by circulation
to the parties’ legal representatives by e-mail and uploading to CourtOnline.
JUDGMENT
Moultrie J:
[1] The parties to this application are the parents of a minor child . The applicant
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
6 February 2026 ________________________
DATE SIGNATURE
(the father) seeks an order holding the respondent (the mother) in contempt of
court in respect of two alleged breaches of their Parenting Plan Agreement that
was made an order of court in November 2020 by the Daveyton Children’s
Court in terms of s 34(1)(b) of the Children’s Act, 38 of 2005. The order further
seeks the mother’s committal to prison for 30 days suspended for one year on
condition that she complies with the Plan.
[2] The Plan records that its purpose is to provide “ an outline ” to “assist the
parents” in meeting the child’s needs and interests and in exercising their
responsibilities and rights . It is to be noted that it was concluded some five
years ago, when the child was 4 years old . The parties agree that her needs
and interests evolved between that time and the time around her 8th birthday in
June 2024, when the events giving rise to both instances of alleged contempt
took place.
[3] The father alleges that, in each instance, the mother “ deliberately defied” the
court order and “ denied” or “ refused” him access to the child by failing to
comply with a clause in the Plan which deals with the exercise of his rights of
contact with her. It stipulates in relevant part that:
Mr M[…] will have contact with the concerned child on alternative weekends,
commencing on the 13/11/2020. He will fetch the minor child at the
designated address from the hours of 18:00pm to 19:00pm and, return the
concerned child on Sunday from 18:00pm-19:00pm.
…
Should there be any delays and/or any changes as aforesaid for either party;
the relevant part, shall notify the other party accordingly.
[4] There is a material dispute of fact in relation to the first alleged instance of
contempt. According to the mother, the parties agreed that the child would not
be fetched by the father upon the commencement of ‘his’ weekend on the
evening of Friday, 12 June 2024 , but that she would instead stay with the
mother until 20h00 on the Saturday so that she could have a pyjama party.
Recognising that the mother could not have been in contempt of court if such
an agreement had indeed been concluded, and that her version in this regard is
not “far-fetched or clearly untenable”, 1 counsel for the father conceded that the
first alleged instance o f contempt was unsustainable. In my view, this
concession was correct: it is apparent from the last sentence of the quotation
above that the Plan was amenable to amendment on an ad hoc basis (and as
appears from allegations regarding the second alleged instance of contempt
discussed below, it appears to be the father’s own contention that this may be
done by agreement). As such, it cannot be found that the father discharged his
onus of establishing that the mother did not comply with the order in this
instance.
[5] The events relevant to the second alleged instance of contempt took place the
following week. Since it was the school holidays and the mother was at work ,
the child was (to the father’s knowledge) staying with, and being cared for by ,
her maternal grandmother in C[...] Park, Benoni.
[6] On Wednesday, 19 June 2024, the father contacted the mother via WhatsApp
and requested to have her for the weekend. Even though this was evidently not
‘his weekend’ ( it will be recalled that the agreement stipulated that he would
have her on alternate weekends), the mother agreed but requested that he
1 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.
should “please fetch her in benoni as she is there for the holidays ”. The father’s
first response (the following day , 20 June 2024 ) was grudgingly agreeable :
“You know I have addressed with you my discomfort in fetching [the child] on
destinations that we we've not agreed on. If this is a favor fine but it can't be the
norm” [emphasis supplied].
[7] Unfortunately, however, a texting ‘spat’ then developed, during which the father
changed his mind, saying “I don't have a problem with [the child] being at your
mom for holidays however when collecting [her] it must be as per our
agreement and have been raising this timeusly with you ” [emphasis supplied].
The mother responded by pointing out that it would cause her greater
inconvenience for her to fetch the child from her mother’s house and take her to
her own house for the father to collect her, than it would be for him to directly
fetch the child in Benoni. But it does appear that she agreed on 20 June 2024
that he could collect the child at her house in Dawn Park Boksburg. This
appears from the following exchange:
[Father, 13:18]: So I see how this works , Nna I must be driving extra km for
my child becau se the child is not at the respective address at the time of
collection.
[Mother, 13:19]: I said il speak to my mom about your child and il come back
to you as im the one with a baby sitter problem and not us
[Mother, 13:20] II catch a taxi with [the child] to Dawn Park and you will find
her there as the owner of the car refuses”
[8] That is where matters rested until the following day (Friday, 21 June 2024) ,
when the WhatsApp exchange continued as follows:
[Mother, 17:16]: Hi please when u get to C[...] Park please tell the security u
going to 7[…] the gate isn't working
[Father, 17:17]: Hi there, I never agreed to go to C[...] Park.
[Father, 17:23]: I will go to the address which stated on the Parental Plan and
if [the child] is not there at agreed address, a dispute will be declared through
the legal process.
[Mother, 17:25]: Ok sharp see u at the courts
[Mother, 17:35] I'm not going to climb a taxi with [the child]
[Father, 17:40]: I was not the one who sent [the child] to C[...] Par in the first
place. Well it's up to you which mode of transport you want use.
[Mother, 17:42]: I left my child at my morns coz the schools are closed but it's
fine
[Mother, 17:43]: Go use your Brain's goodnight
[Father, 17:47]: You are in contempt of the court order in terms of accessing
my child at the agreed address as per the Parental plan and will be getting a
report from the social worker as she has been briefed previously on the matter
and then it will be a legal showdown.
[Father, 17:47]: I don't appreciate your insults
[9] It is apparent from these exchanges that both parties changed their minds over
the period between 19 and 21 June 2024 and that they did not ultimately agree
on where the child could be fetched on the Friday evening. Although the
pleadings are unclear as to what precisely occurred on the evening of 21 June
2024 after the last of these messages (I return to this below), it does seem to
be undisputed that the child was ultimately not available to be fetched at the
Dawn Park address at 19h00 that evening.
[10] In the absence of an ad hoc agreement, it was submitted by the father’s
counsel that the “designated address” referred to in the clause quoted above is
the mother’s house in Dawn Park, Boksburg, because that is the address
specified in the Plan as the child’s “Primary Residence”. I am unable to agree .
--
Applying the accepted principles of documentary interpretation which require
me to consider the text, context and purpose of the clause,2 it seems to me that
the term “designated address” is properly to be understood as being an
address “designated” by the mother , albeit within reasonable limitations. While
a “primary residence” can be understood at the address at which the child
should ordinarily be resident, it is evident from the Plan itself that does not
require that the child resides there each and every evening (or at least each
and every Friday evening on which the father is entitled to fetch the child).
Indeed, the circumstances that were present in this very instance (i.e. where
the child was staying temporarily at her maternal Grandmothers’ house) are a
clear example of circumstances under which it would be patently absurd to
interpret the “designated address” to mean the address identified as the
“primary residence”.
[11] Despite her (somewhat late) change of mind between 17h15 and 17h45 on the
evening of 21 June 2024, I do not think that it was unreasonable of the mother
to have designated her mother’s address in C[...] Park Benoni as the address at
which the child could be fetched when one considers the relative inconvenience
(or lack thereof) that would be caused to the parties by virtue of the late
change. Whereas the mother would have had to undertake an additional taxi
ride with the child after dark, the father would only have had to travel a few
extra kilometres in his car. In the circumstances, I find that the father has again
not established that the mother’s conduct infringed an order of court.
[12] However, even if my interpretation of the phrase “designated address” in the
2 Natal Joint Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).
Parenting Plan is incorrect and the mother was indeed obliged by the court
order to have ‘made the child available’ at her house in Dawn Park , I do not
accept that it may be inferred from the facts set out in the papers (and applying
the Plascon-Evans rule)3 that the mother’s conduct constituted deliberate
defiance of the court order in a manner that “denied” or “refused” the father
access to the child, as the father alleges. In this regard, I note that it is not clear
to me what actually occurred on the evening of 21 June 2024 after the last
WhatsApp message quoted above. If the father did in fact fetch the child in
Benoni, then there can be no question of his right to access the child having
been denied – only his ‘right’ to fetch the child at a particular location. And if he
in fact did not fetch her (and thus did not have access to her that evening or
even later in the weekend) , it would seem to me that this was not because the
mother intentionally prevent ed such access. In either instance, such non -
compliance as there was (i.e. not making the child available to be fetched in
Dawn Park, but in C[...] Park) was both not wilful and de minimis.
[13] An attorney and client costs order is justified when “ by reason of special
considerations arising either from the circumstances which gave rise to the
action or from the conduct of the losing party, the court considers it just… to
ensure more effectually that it can do by means of a judgment for party and
party costs that the successful party will not be out of pocket in respect of the
expense caused to him by the litigation ”.4 Attorney and client costs have been
awarded where conduct has found to be vexatious even in the absence of an
3 This rule applies irrespective of where the onus lies : NDPP v Zuma 2009 (2) SA 277 (SCA) para
27.
4 Nel v Waterberg Landbouwers v Ko -operatiewe Vereeniging 1946 AD 597 at 607 ; Swartbooi &
Others v Brink & Another 2006 (1) SA 203 (CC) para 27.
intention to be vexatious and even where the litigant’s conduct was bona fide5
but where he “put the other side to unnecessary trouble and expense which the
other side ought not to bear ”.6 A failure by a party to act reasonably may
constitute a ground for awarding costs on an attorney and client scale.7
[14] In this instance, while I carefully considered whether the father’s conduct in
pursuing the litigation was vexatious or unreasonable, I ultimately reached the
conclusion that he appears to have litigated out of frustration in the context of
an unseemly spat which had developed between the parties and in which
neither of them could be said to have acted with complete decorum and in the
best interests of the child . I thus conclude that a punitive costs order is not
warranted and that the costs should simply follow the result with counsel’s fees
on scale “B”.
[15] In the circumstances I make the following order:
1. The application is dismissed.
2. The applicant is ordered to pay the respondent’s costs on the party and
party scale, including the costs of counsel on scale “B”.
___________________________
RJ MOULTRIE
JUDGE OF THE HIGH COURT
JOHANNESBURG
5 Ernst & Young v Beinash 1999 (1) SA 1114 (W) at 1148B-C.
6 Re Alluvial Creek Ltd 1929 CPD 532 at 535.
7 Djama v Government of the Republic of Namibia & Others 1993 (1) SA 387 (NM) at 396B-C.
Date Heard: 5 February 2025
For the Applicant: AM Kutama of AM Kutama Attorneys: 081 544 06191,
amkutama92@gmail.com
For the Respondent: M Vilakazi of Menzi Vilakazi Inc Attorneys: 073 976 4099,
menzi.vilakazi@mvlegal.co.za.