Louw v Louw (2137/2020) [2021] ZAFSHC 196 (10 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case number: 2137/2020

In the matter between:

LEZANÉ

LOUW

APPLICANT

and

MONDRÉ

LOUW

RESPONDENT

JUDGMENT BY: CHESIWE,

J

HEARD ON: 22 JULY 2021

DELIVERED ON: 10 SEPTEMBER 2021

[1] This is an application of Part B of the notice of motion in which the applicant seeks the following relief:

“1. The respondent is found to be in wilful contempt of Court Order with incorporated Deed of Settlement granted by this honourable Court under case number 2137/2020

2. That the respondent be imprisoned for a period of three (3) months, alternatively that the respondent be sentenced to a payment or fine to be determined by the Honourable Court.

3. That the operation of prayer 2 be suspended conditional upon the respondent’s compliance with the Court Order granted under case number 2137/2020.

4. That the applicant is authorised to effect service of this order by way of email transmission to all relevant persons and/or entities.

5. That the Sheriff be authorised and requested to effect service of this order by means of accepting and transmitting copies thereof to the respondent by telefax and/or whatever means may be reasonably necessary to affect the execution thereof.

6. The respondent to pay the costs of the application on attorney and client scale.”

[2] Part A of the application is opposed by the Respondent, in which he contends that the application for part B is not properly before court as the parties had by agreement removed Part A matter from the roll, in which a draft order was made an order of court dated on 14 May 2021.

[3] Background on this matter briefly is that the parties were married to each other. One minor child was born in this marriage on 16 January 2019 (RL). On 11 February 2021, the parties were divorced and the deed of settlement was incorporated. The Respondent’s contact rights were set out on in paragraph 1.3, page 2 of the deed of settlement as follows:

“1.3.1 Kontak elke Dinsdag en Donderdag vanaf 09:00 tot 15:00

1.3.2 Kontak elke altenatiewe Saterdag van 09:00 tot 17:00 en alternatiewe Sondag vanaf 09H00 tot 17H00

1.3.3 Redelike telefoniese kontak.”

[4] Several incidents took place whereby the Respondent seemingly brought the child some hours later than the court order. On 16 February 2021 Respondent brought the minor child at 16h08 instead of 15h00. On 20 February 2021, the Respondent brought the minor child at 17h28 instead of 17h00. On 25 February 2021, the minor child was brought back by the respondent at 17h08 instead of 15h00. A few other dates are mentioned in the founding affidavit of the Applicant as evidence to the contempt of court application against the Respondent.

[5] The issue for determination is whether the Respondent is in contempt of the court order dated 11 February 2021.

[6] Adv. Lubbe, Counsel on behalf of the Applicant, submitted that the Respondent did not file his opposing papers in Part B. He stated that the Court to grant the prayers as set out in the Notice of Motion. Adv. Hatting, Counsel on behalf of the Respondent submitted that Part B is prematurely before Court and that all the reports required in Part A are still outstanding. She further submitted that the Applicant has approached Court with an application for variation of the original Court order, and as a consequence thereof, the Respondent is confused as to which Court order is he in contempt off. Counsel submitted that the application be dismissed and the parties to comply with Part A the Notice of Motion.

[7] The Applicant further contends that the Respondent continued to use alcohol in the presence of the minor child. Pursuant to the alcohol allegations, as contained in the court order dated 14 May 2021, the Applicant approached court for an interim order that the Respondent undertakes not to consume alcohol at any stage when the minor child is with him. The undertaking is part of the court order dated 14 May 2021.

[8] Indeed, part A of the notice of motion was removed from the roll by agreement between the parties, with a draft order that was made an order of court. I will therefore not deal with part A as it already has an existing court order, with pending reports from the Family Advocate Me. Heidi Joubert and Adv Dorette Van Zyl.

[9] In Argus Printing and Publishing Co Ltd and others v Esselen’s Estate [1], Corbett CJ said the following:

“The purpose which the law seeks to achieve by making contempt of criminal offence is to protect the ‘fount of justice’ by preventing unlawful attacks upon individual judicial officers or the administration of justice in general which are calculated to undermine public confidence in the court.”

[10] In Fakie N.O v CCII Systems (Pty) Ltd [2], the court stated as follows:

“Once the prosecution has established

(i) the existence of the order,

(ii) its service on the accused and;

(iii) non-compliance, if the accused fails to furnish evidence raising a reasonable doubt whether non-compliance was wilful and mala fide, the offence will be established beyond reasonable doubt: The accused is entitled to remain silent, …Once the three requisitions mentioned have been proven, in the absence of evidence raising a reasonable doubt as to whether the accused acted wilfully and mala fide, all the requisites of the offence will have been established. What changed is that an accused no longer bears a legal burden to disprove wilfulness and mala fide on the balance of probabilities, but to avoid conviction and need only lead evidence that establishes reasonable doubt.”

[11] In a recent judgment of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector, including Organs of State v Zuma and Others [2021] ZACC 18, the court emphasised that contempt of court proceedings which the court is charged with, the critical constitutional obligation is defending the rule of law.

[12] The parties divorced on 11 February 2021. Since the divorce was finalised, the conflict between them escalated to a point where both parties would minute and diarise every action or conduct towards each other. I was given a memory stick to watch what happens when parties are in each other’s presence. I watched the video. It shows both parties arguing with each other. The applicant holding the minor child and the respondent on the other side of the fence. In my view, both parties acted irresponsibly as the minor child was in their presence. One party could have acted maturely and walked away, but it seems both parties failed to act in the minor child’s best interest.

[13] On the other hand, the detailed explanation by the applicant in the founding affidavit, stating to the minute when the Respondent brought the minor child home, to the extent the applicant had to threatened the Respondent that the minor child will be collected with the assistance of the police. The parties indeed need assistance with their parenting skills. With the divorce having been finalised in February of 2021, within three months, the applicant approached court for a relief sought in part A which was not yet finalised when the applicant approached court for part B.

[14] The Respondent correctly stated that in Part A, the parties have to attend sessions with Me Heidi Joubert and Adv. Dorrette Van Zyl including the investigation by the Family Advocate. Those reports are still outstanding. If the parties could attend these sessions, this might assist them in minimising their conflict and how to handle their conflict concerning the minor child.

[15] The Respondent further contends that Part B was not opposed as he was under the impression that Part A should first be finalised and nor was he given an opportunity to respond to the allegations raised in Part B, concerning the contempt of court. Correspondence between the Attorneys indicated that there were roundtable discussions on 14 April 2021 to resolve the disputes between the parties, but these were in vain. The letter on page 59 reads as follows: “It must be borne in mind that the roundtable discussions which were initiated by our client and which were held on 14 April 2021, were with the best intention of resolving the various issues between the parties, but it was your client who insisted that she would no longer comply with the court order and would no longer allow our client contact unless under supervision.”

[16] Contempt of court is an issue between the party who has not complied with a court order and it is for the court to decide and taking into consideration all the circumstances in dealing with the contempt of court. (Victoria Park Ratepayers Association v Greyvenouw CC and Others[3]) Not every disobedience or disregard of a court order justify the remedy sought in a contempt of a court order. The Respondent was not given an opportunity to respond to the contempt allegations. It would therefore not be fair and justify to grant an order where a person did not have an opportunity to respond to serious allegations against him. If committal for civil contempt is a criminal offence, then it follows that the Respondent will be regarded as an ‘accused person’ and therefore has to be afforded the opportunity to have his side heard, that is, the audi alteram partem rule has to come into play.

[17] In S v Beyers,[4] the following was said: “In navolging van die Engelse reg word minagting dan beskryf as siviele minagting. Dit is egter ewe duidelik dat hierdie vorm van minagting nie deurgaans ʼn strafregtelike inhoud ontsê is nie. Dit word telkens beskryf en behandel as ʼn misdaad met geen aanduiding dat dit anders as die gemeenregtelike minagting van die hof beskou word nie.”

[18] It is therefore required that in motion proceedings for contempt, the court has to ensure that the proceedings are fair and in accordance with constitutional rights of the Respondent. It is therefore only fair that the Respondent has the opportunity, if he so wishes, to explain his side in his opposing affidavit, which has not been filed as the Respondent was still under the impression that Part A of the Notice of Motion still has to be finalised.

[19] Indeed, it is such that the Applicant has to show beyond reasonable doubt that there was a court order; the Respondent had knowledge of the order and that the Respondent acted in wilful and mala fide manner by not adhering to the court order and the non-compliance thereof. In my view, it appears the applicant acted in mala fide. As stated above, the Applicant has been litigating since the parties’ divorced. The Applicant has approached the court without attempting to have matters resolved amicably between herself and the Respondent. Within three (3) months of the divorce, the Applicant launched an urgent application in which she wanted to vary the court order dated 11 February 2021. Thereafter, within two (2) months, the Applicant approached court with part B for contempt of a court order. The Applicant’s conduct in my view is questionable and she is therefore not acting in the minor child’s best interests with this continuous litigation.

[20] In Matjhabeng Local Municipality v Eskom Holdings Ltd and Others Limited,[5] the Constitutional Court confirmed that not all contempt of court, even civil contempt of court may be punishable as a crime, the following was said:

“Not every court order warrants committal for contempt of court in civil proceedings. The relief in civil contempt proceedings can take a variety of forms other than criminal sanctions such as declaratory orders, mandamus and structural interdicts… Their objective is to compel parties to comply with a court order.”

[21] It is imperative that the parties as parents of the minor child get along and resolves any dispute without going for litigation. They may be acting in the minor child’s best interests, but going about it the wrong way. It will be of great assistance to them as parents to attend the mediation and parenting skills as ordered in the court order dated 14 May 2021. Ordering a committal of one parent, will not be in the minor child’s best interests and the conflict between them is bound to continue, be it a committal order, suspended sentence or the imposition of a fine. Bearing in mind that contempt of court is a criminal offence and the standard of proof is that of beyond reasonable doubt.

[22] I have no doubt that Part B will even be necessary if the parties could adhere to the court order dated 14 May 2021. In my view, there are worse cases of contempt of court and this is not one of them. I am therefore not satisfied that the Respondent has wilfully and with mala fide acted in contempt of a court order. I am therefore inclined not to grant the relief sought by the Applicant in Part B and ought to dismiss the application.

Costs

[23] The applicant seeks costs against the respondent. The general rule is that costs follow the successful party. The purpose of costs being to indemnify the successful party for having been put through to oppose/defend himself/herself. However, this being a family dispute, the Applicant cannot be faulted for having approached court to protect the minor child’s best interests. Exercising my judicial discretion, and upon consideration of the family dispute, it is in my view that each party pays their own costs.

Order

[24] Accordingly, the following order is made:

1. The application is dismissed.

2. Both parties to comply with the court order dated 14 May 2021.

3. Each party to pay their own costs.

CHESIWE, J

On behalf of the Applicant: Adv. EG Lubbe

Instructed by: McIntyre van der Post

Bloemfontein

On behalf of the Respondent: Adv. DC Hattingh

Instructed by: Kruger Venter Inc.

[1] 1994 (2) SA 1 (A)

[2] 2006 (4) SA 326 (SCA)

[3] 511/03 [2003] ZAECHC 19 (11 April 2003)

[4] 1968 (3) SA 70 (A)

[5] (CCT 217/15; CCT 99/16) [2017] ZACC 35; 2017 (11) BCLR 1408 (CC); 2018 (1) SA 1 (CC)