Demystifying Contempt of Court in Family Law: Lessons from a Recent Case.

P L v R L (2022/016375) [2023] ZAGPJHC 1331 (10 November 2023)

Introduction to the Case

In a recent application, the court examined an opposed application divided into three parts, with only Parts A and B being presented to the judge on 18 October 2023.

Part A – Contempt of Court

Context of the Contempt Application

The applicant and respondent, previously married, had their marriage dissolved by a court order in 2017. This order included a deed of settlement that detailed the arrangements for their minor children’s primary residence, care, and contact. The children were to primarily reside with the respondent, and the applicant was granted reasonable contact.

Relocation and Trigger for Contempt Application

After the divorce, the respondent and children moved from Johannesburg to Potchefstroom. In August 2022, the applicant sought relief for the respondent’s alleged contempt of the deed of settlement, triggered by disputes over Father’s Day contact and holiday contact during the June/July 2022 school holidays.

Legal Principles in Contempt of Court Applications

Established Law and Purposes

Contempt of court is defined as the willful disobedience of a court order. The purposes of contempt proceedings include protecting fair trial rights, maintaining public confidence in the judiciary, and upholding the integrity of court orders.

Requirements for Establishing Contempt

To establish contempt, it must be shown that there was a court order, knowledge of the order, non-compliance, and that the non-compliance was willful and in bad faith. If the applicant proves the order, knowledge, and non-compliance, the respondent must then demonstrate that their non-compliance was not willful and in bad faith.

Nature of Relief Sought

In this case, the relief sought was punitive, not coercive, as the applicant requested the respondent be imprisoned for 30 days, suspended for 2 years on the condition of full compliance with the court order.

Onus of Proof

Given the punitive nature of the relief, the criminal standard of proof, “beyond a reasonable doubt,” was applicable. The court must consider if there’s a reasonable possibility that the non-compliance was not willful and in bad faith.

Consideration of Willfulness and Material Non-Compliance

The court must determine if there was an intention to defeat the course of justice and consider whether the non-compliance was material or minor, with substantial compliance potentially mitigating the need for punitive measures.

Contempt of court was understood as any act or statement showing disrespect for the court’s authority or its officers acting officially. This encompassed wilful disobedience and resistance to lawful court orders, with such disobedience in civil proceedings being both contemptuous and a criminal offence. The aim of contempt proceedings was to uphold the court’s honour and ensure compliance with its orders.

In these civil contempt proceedings, the relief sought was punitive, not coercive.

The applicant aimed for the respondent to be imprisoned for 30 days, suspended for two years on condition of full compliance with the court order. Nkadbinde ADCJ, in the case of Matjhabeng Local Municipality v Eskom Holdings Limited and Others; Mkhonto and Others v Compensation Solutions (Pty) Limited, clarified the onus of proof in contempt proceedings. The standard of proof varied depending on the remedy’s consequences. For civil contempt remedies like committal or a fine, which impact an individual’s freedom, the criminal standard of proof – beyond reasonable doubt – always applied. However, for civil remedies like declaratory relief or mandamus, which don’t deprive an individual of freedom, the civil standard of proof – a balance of probabilities – was applicable.

Since the relief in this contempt application was punitive, including imprisonment, the criminal standard of proof of beyond reasonable doubt was necessary. If there was a reasonable possibility that non-compliance with the court order was not willful and mala fide, contempt was not established. The consideration of willfulness (intent) required an intention to defeat the course of justice for an act to constitute civil contempt. The law also considered substantial compliance with a court order, not committing for minor non-compliances, and the materiality of non-compliance was crucial.

Discussion of Facts and Law in Contempt Proceedings

Context of Non-Response and Historical Arrangements

The court considered the respondent’s interpretation of the applicant’s non-response as acquiescence or acceptance of the holiday arrangements reasonable. This view was based on the history of the parties frequently agreeing to amended contact arrangements.

Respondent’s Belief and Good Faith

The respondent was found to have genuinely, albeit mistakenly, believed she was entitled to proceed as she did. Despite potentially breaching the deed of settlement, her actions were not deemed mala fide due to her bona fide belief in her entitlement.

Father’s Day Contact Issue

The refusal of Father’s Day contact by the respondent was attributed to the daughter’s exam preparations and pre-existing plans. The applicant’s late request for contact was also noted. The court acknowledged that prior to the 2022 Father’s Day weekend, the children had spent two consecutive weekends with the applicant, deviating from the deed of settlement but mutually agreed by the parties.

The respondent’s lack of time with the children on Mother’s Day, due to it falling on the applicant’s weekend, was mentioned. No specific arrangements for Mother’s Day or Father’s Day had been historically made, and this practice was not disputed by the applicant. The court observed that for several years, both parties did not insist on strict compliance with the deed of settlement terms, indicating tacit acquiescence to this status quo.

Parties’ Attitude Towards the Deed of Settlement

Both parties were found to have informally and ad hoc varied the contact arrangements outlined in the deed of settlement over the years, indicating a flexible approach to its terms.

The court noted a mutually beneficial attitude adopted by both parties towards the deed of settlement, often engaging in contact arrangements different from those expressly provided.

Consideration of Court Order and Public Policy

While acknowledging the binding nature of a court order, the court criticised the applicant’s inconsistent adherence to the deed of settlement and his recent change in approach, deeming it inappropriate and contrary to public policy.

Assessment of Father’s Day Contact Rights

The court opined that the applicant’s right to contact on Father’s Day was not absolute and was subject to the children’s educational and social activities. The respondent’s plans for the weekend were deemed legitimate, given the historical attitude towards Mother’s and Father’s Day.

Disputed Contact Rights

One of the primary issues revolved around the applicant’s complaint that the respondent hindered his contact rights by preventing him from directly collecting their daughter from specific school sports tournaments. The respondent’s defense was grounded in the school’s policy, which required children leaving Potchefstroom on the school bus to return on the same bus—a security measure ensuring the safety of all children.

Timing of Contact

Further contention arose regarding the 17h00 pick-up time on Fridays during the applicant’s weekend contact. The respondent clarified that this timing was necessary due to the minor children’s occasional extramural activities on Fridays.

Communication Breakdown

Throughout 2022, it became evident that a breakdown of communication and miscommunication characterized the interactions between the parties.

No Purposeful Withholding

Despite the communication challenges, it was challenging to conclude that the respondent purposefully withheld the applicant’s contact with the minor children. This was supported by the respondent’s agreement to additional contact days and holidays in 2022.

Understanding Contempt of Court

It is worth noting that the court emphasised that “contempt of court” goes beyond mere disobedience of a court order—it signifies a contumacious disrespect for judicial authority.

Compliance with Settlement

A thorough analysis of the facts revealed that it could not be definitively stated that the respondent willfully and maliciously failed to comply with the provisions of the deed of settlement, including clauses 3.4 and 3.5.

Consensual Deviations

Since their divorce, the parties frequently reached consensual agreements to deviate from the provisions of the deed of settlement, accommodating each other’s contact requests.

Satisfactory Explanations

In the past, the respondent provided satisfactory and exculpatory explanations regarding alleged non-compliance during the long June/July 2022 school holidays, Father’s Day contact in 2022, and the 17h00 Friday pick-up time. These explanations were deemed sufficient to establish that the respondent was not in willful contempt of the deed of settlement.

Burden of Proof

The respondent successfully discharged the evidentiary burden, creating reasonable doubt that her non-compliance was not willful and malicious. This standard of proof was met in both civil and criminal contexts.

Intent and Justice

Objectively assessed, the respondent’s conduct demonstrated that she did not intend to obstruct justice or willfully fail to comply with the deed of settlement’s provisions. Consequently, the applicant did not meet the burden of proving his case beyond a reasonable doubt.

concerns were raised regarding the applicant’s conduct, specifically their request for a 30-day imprisonment for the respondent, who is the primary caregiver of minor children. This demand was seen as drastic, especially considering the parties’ history with the deed of settlement. The applicant appeared to have disregarded the impact of such a sanction on the children and whether it would serve their best interests.

The relief sought was deemed an abuse of process, aimed at achieving an ulterior, vexatious, and mala fide end, rather than genuine compliance with court orders. Courts in South Africa have the inherent power to intervene in cases of litigation abuse, particularly when legal processes are misused for extortion, oppression, or other improper ends.

It was viewed that the punitive nature of the applicant’s relief could be seen as an attempt to oppress the respondent. This could have justified a punitive costs order, referencing various precedents, including cases from the Supreme Court of Namibia and South Africa’s Supreme Court of Appeal. However, the judge decided to give the applicant the benefit of the doubt, believing his actions were motivated by the desire for contact between the minor children and him, rather than an ulterior motive. Consequently, the judge ordered costs on an ordinary scale but expressed hope that this assessment would guide the applicant’s future conduct.

Part B – Family Advocate

In Part B of a recent legal application, the applicant sought an order requesting the Family Advocate of Johannesburg to investigate matters concerning the primary residence, care, and contact of minor children. The respondent, however, raised a preliminary objection (point in limine) concerning the court’s jurisdiction over this matter.

The crux of the jurisdiction issue stemmed from the fact that the respondent and the minor children reside in Potchefstroom, which, since April 18, 2018, falls under the jurisdiction of the High Court, North-West Division, Mahikeng. This jurisdictional change was formalized in a Government Gazette Notice in March 2018.

While it’s established that a High Court has jurisdiction over all minor children within its area and that a court which issued a divorce decree retains the authority to amend or vary that order regardless of the current residence of the parties involved, the scope of this case extended beyond these parameters. The court determined that the relief sought by the applicant, involving a new investigation and report by the Johannesburg Family Advocate, was not a variation of the divorce decree or the deed of settlement but rather a new application. Therefore, it fell outside the ambit of the initial court’s jurisdiction.

Since there had been no previous investigation by the Family Advocate in the jurisdiction of the court in question and considering the children’s residence was within the jurisdiction of the High Court in Mahikeng, the court ruled that it could not entertain the relief sought in Part B.

As a result, the court dismissed the contempt of court application in Part A and ordered the applicant to pay the respondent’s costs for this part of the application. In Part B, the respondent’s preliminary objection regarding jurisdiction was upheld, leading to the dismissal of Part B for lack of jurisdiction, and the applicant was also ordered to pay the respondent’s costs for this part.

Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.