By Sasha Goldstein, attorney at Bregman Moodley Attorneys
In a recent judgment, the judge had to make a ruling on an application brought by an aggrieved father who had been denied contact with his minor child for 3 years.
The child’s primary residence was with her mother. The child’s granny lived with the child and her mother in the same house. After various court applications and negotiations, the father obtained court orders which specified the contact he was to have with the minor child. The mother continued to act in contempt of both court orders, refusing the father any contact whatsoever with the minor child. Her excuses ranged from not having transport money, which the father tendered to pay, to the child not being able to operate a cell phone, although that same child was able to operate a laptop.
The father sought inter alia an order for a prison sentence of 90 days against the mother and the granny, or a fine of R150 000.00, a curator to be appointed on behalf of the child, and the mother to pay the costs of the application.
The judge held that if the Respondents could just ignore the court orders without recourse, the courts could be undermined and there will be chaos. The judge further held that society places reliance on court decisions and arranges their affairs around them, with the expectation that they are made lawfully and will be carried out; when they experience a total disregard for such decisions, that could lead to the prejudice of their fundamental rights and interests as innocent people and the rule of law would suffer a blow and the society will take the law into their own hands.
In order to apply for a contempt of court order successfully, an applicant must prove the contempt of court beyond a reasonable doubt and should prove the following:
- that there is an underlying court order.
- that the Respondent knew about the court order; and
- with the knowledge of the order, the Respondent acted in a manner that conflicts with the terms of that order
In this case, it was evident that there were two court orders and that the mother and granny were aware of the court orders but acted in a manner that totally disregarded the existence of such court orders.
By refusing the father’s contact with the minor child for three years, having various inadequate excuses, their actions clearly showed that they had willfully and deliberately intended to disregard the court order without any justifiable cause. This behaviour of the mother and the granny prejudiced the child’s interest and robbed her of her relationship with the father arbitrarily. On the other hand, the father of the child is also deprived of his right to access the child and form a relationship with his daughter as stated in the court orders. The judge held that the Respondents had reduced the court order to mere paper that has no value in the hands of the aggrieved father. They had disrespected the father and the courts.
Section 35 of the Children’s Act provides that any person having care or custody of a child, who contrary to an order of the court or to a parental responsibilities and rights agreement that has taken effect in terms of section 22(4), refuses another person who has access to that child or who enjoys parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
The Respondents, in this case, were found guilty of contempt of court. The judge held that in the spirit of the Constitution and the rule of law the Respondents were each sentenced to 30 days’ imprisonment, which sentence was suspended for five years on the condition that the Respondents adhered to the court orders during the suspension period. It was further ordered that a curator be appointed to act on behalf of the minor child which would be in her best interests, and the Respondents were ordered to pay the costs of the Applicant on an attorney and own client scale.
In conclusion, our law and our courts take a parent’s parental responsibilities and rights very seriously. Furthermore, court orders must be upheld and not reduced to mere paper. Should the other parent, or anyone else for that matter, limit those rights unreasonably, or not abide by a court’s decision, such parent or another person will be held accountable and even sentenced to imprisonment.
 Dezirus v Dezirus 2006 (2AGPHC 77)