P.J.B v E.B (5955/2023) [2023] ZALMPPHC 56 (24 July 2023)
Introduction
In a follow-up to a previous urgent court order concerning joint parental rights, the applicant, known as Ruan, had launched another urgent application alleging that the respondent was in contempt of the court’s order dated 12th May 2022. This new development added another layer of complexity to an already intricate case involving the welfare of a minor child. The court order of 12 May 2022, aimed to restore the applicant’s joint parental rights and responsibilities for their minor son. It called for a comprehensive investigation by the Family Advocate to assess the best interests of the child. In the interim, both parties were to share full parental responsibilities, including joint primary care and residence for the child. Specific arrangements were outlined for custody rotation, telephonic contact, and financial responsibilities, such as school fees and medical expenses. The order also allowed for future investigation by the Family Advocate’s Office to make recommendations.
The Contempt of Court Application
Ruan’s urgent application sought several orders, including:
- Restoration of Parental Rights: Immediate restoration of Ruan’s parental rights concerning his minor son.
- Disclosure of Address: The respondent was to disclose the physical address where the minor child was being kept.
- Temporary Care: The minor child was to be placed in the primary care and residence of Ruan until the divorce action was finalized.
- Variation of Previous Order: The previous order was to be reinstated, but with primary care vested in Ruan and reduced contact for the respondent.
- Warrant of Arrest: Authorisation of a warrant of arrest against the respondent for contempt of court, with a proposed imprisonment period of 45 days.
- Financial Penalties: A fine of R75,000, plus an additional R1,000 per day for each day the respondent remained in contempt.
The Allegations and Counter-Allegations
Ruan alleged that he had been denied his parental rights, as he had not been allowed to see his son since 28 April 2023. He also claimed that the respondent was refusing to disclose the child’s current address.
In response, the respondent argued that Ruan’s application was an abuse of court processes. She claimed to have complied with the May 2022 order until April 2023 and cited “bona fide non-compliance” thereafter. She also mentioned that she had informed Ruan about her relocation for a better job and that the child was uncomfortable visiting Ruan due to his new living arrangements.
The Complexity of Parental Rights
This case highlighted the intricate balance courts had to maintain between upholding parental rights and ensuring the child’s best interests. It also raised questions about how far a parent could go in seeking court intervention and what constituted “bona fide non-compliance” with a court order.
Issues Raised by the Respondent
The respondent had claimed that her concerns for the minor child’s safety were based on several factors: the applicant’s past kidnapping incident, allegations of substance abuse by the applicant’s girlfriend, and the older children of the applicant’s girlfriend. These concerns had led her to seek a protection order against the applicant, for which she had obtained an interim order with a return date on 2 August 2023.
The respondent had also argued that the applicant had not approached the court with clean hands. She pointed out that he had unilaterally stopped paying the minor child’s school fees starting in April 2023. She further stated that her relocation to Brits had made it impossible for them to maintain the previous arrangement of joint primary residence and care for the minor child. She had expressed that the applicant’s past and his girlfriend’s background were genuine concerns for her, justifying her decision to withhold the child from the applicant. She insisted that her non-compliance with the court order had been neither willful nor intentional.
In a counter-application, the respondent had sought to vary the 12 May 2022, order. She had proposed that she retain sole primary care of the minor child, pending a comprehensive investigation by the Family Advocate.
The Law
Legal precedent had established that to prove contempt of court, the applicant must show that an order was granted, the respondent was aware of the order, and the respondent had failed to comply with it. Once these elements were proven, the burden had shifted to the respondent to prove that their non-compliance was not willful or in bad faith. In this case, while it was undisputed that a valid court order existed and the respondent was aware of it, the respondent had argued that her non-compliance had been bona fide and not a deliberate act of disobedience.
The legal test for disobedience constituting contempt, as stated in Fakie v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) at para 9 was whether the breach was committed “deliberately and mala fide.” A deliberate disregard is insufficient if the non-complier genuinely believes they are entitled to act in the way that is claimed to constitute contempt. Even an objectively unreasonable refusal to comply may be considered bona fide, although unreasonableness could be evidence of a lack of good faith. This was further supported by the case Secretary of Judicial Commission of Inquiry into allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma [2021] ZACC 18 (29 June 2021) at para 37 which outlined the elements needed to establish contempt.
The Facts
From the respondent’s answering affidavit, it seemed that issues began on 12 April 2023, when the respondent sent a congratulatory Facebook message to the applicant’s girlfriend. In response, the girlfriend allegedly sent a threatening message back. The respondent claimed that her minor child did not want to visit the applicant because the child had told her that the applicant and his girlfriend were “naughty.” She also cited the applicant’s past kidnapping incident, rumors of substance abuse by the applicant’s girlfriend, and the presence of older children in the girlfriend’s life as reasons for her concern for the minor child’s safety.
These concerns were apparently triggered by the Facebook interaction with the applicant’s girlfriend. Until that point, the respondent had been aware of the applicant’s living situation and had not expressed concerns. The issues seemed to arise solely from the Facebook exchange and were not communicated to the applicant. The respondent unilaterally decided that the minor child should no longer be in the applicant’s care, without citing any specific incidents involving the applicant that would justify her fears. Moreover, the rumors she mentioned were untested, and she could not elaborate on what the 3-year-old minor child meant by saying the applicant and his girlfriend were “naughty.”
The 12 May 2022, order had granted both parties joint and shared primary care of the minor child, an arrangement the respondent appeared to be unhappy with. Instead of addressing her concerns through proper legal channels, such as filing an application to vary the existing order, she resorted to other tactics. Had she genuinely been concerned for the child’s safety, the appropriate course of action would have been to discuss the issues with the applicant and, if necessary, seek a variation of the existing order.
On 20 May 2023, the applicant’s then-attorneys had written to the respondent’s attorneys, stating that she had unilaterally and without consultation denied the applicant access to his child, in violation of the 12 May 2022, order. They claimed her actions were in bad faith and gave her seven days to comply before launching a contempt of court application. In response, the respondent’s attorneys merely stated that they had filed an application in children’s court and obtained an interim order, without addressing the issues raised by the applicant’s attorneys. At no point was the 12 May 2022, order varied or set aside, and the children’s court’s interim order did not supersede it.
The respondent claimed that she was not allowed to enter the applicant’s residence when dropping off the minor child, leaving her unable to verify rumours about the applicant’s girlfriend’s alleged substance abuse. Consequently, on 10 May 2023, she sought and obtained an interim protection order against the applicant, prohibiting him from contacting or abusing her. The return date for this interim order was set for 2 August 2023.
This interim protection order was secured shortly after the respondent had moved to Brits. In the Judge’s opinion, her being denied entry into the applicant’s home did not justify her fears for the minor child’s safety while in the applicant’s care. The crux of the matter, as stated in her answering affidavit, was that had the applicant agreed to her relocation to Brits, this application would have been unnecessary.
The interim protection order seemed to be a retaliatory move against the applicant’s refusal to consent to her relocation, indicating that her actions were in bad faith. She had been warned on 20 May 2023, that her actions were malicious and given seven days to remedy the situation. Despite this warning, she continued to deny the applicant access to his minor child. It appeared that the respondent had issues with the applicant’s girlfriend and was using the minor child to punish the applicant for his girlfriend’s actions, making her actions malicious and willful.
All the counter applications that the respondent had initiated against the applicant seemed designed to undermine the 12 May 2022, order. Therefore, the respondent was in contempt of that order. At this point, there was no merit in the respondent’s counter application, and the court saw no reason to vary the 12 May 2022, order without a comprehensive report from the family advocate.
The Order
In the end, the following order was made:
- The respondent was found to be in contempt of the order issued by the Honourable MG Phatudi on May 12, 2022, under case number 3893/2022.
- The applicant’s parental rights and responsibilities were restored with respect to the minor child, JJB, born on an unspecified date in March 2023, to whom this application pertained.
- The respondent was directed to immediately disclose the physical location where JJB was being held.
- The existing order from May 12, 2022, was to remain in effect until the divorce proceedings were finalized. The respondent was required to comply with this order within 24 hours of the current order being issued.
- A warrant for the respondent’s arrest was authorized, committing her to 45 days in jail for contempt of court. However, the warrant was wholly suspended on the condition that the respondent complied with the May 12, 2022, order within 24 hours of the current order.
- The respondent’s counterclaim was dismissed.
- The respondent was ordered to cover the costs of this application, calculated on a party-and-party scale.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.
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