Mabule v Mabo (614/2021) [2021] ZAFSHC 194 (9 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: 614/2021

In the matter between:

KEKELETSO

MABULE

MABULE APPLICANT

and

LUMKA

PRINCESS

MABO RESPONDENT

JUDGMENT BY: CHESIWE,

J

HEARD ON: 22 JULY 2021

DELIVERED ON: 9 SEPTEMBER 2021

[1] The Applicant approached this court with an application of contempt of court against the Respondent. The Respondent opposed the application and submitted that it be dismissed with costs.

[2] The Applicant’s notice of motion seeks the following relief:

“1. That the Respondent is found to be in wilful contempt of the court order with an incorporated deed of settlement granted by this honourable court under case number 2563/2016;

2. That the Respondent be imprisoned for a period of 3 (three) months alternatively that the Respondent be sentenced to the payment of a fine to be determined by the above honourable court;

3. That the operation of prayer 2 be suspended conditionally upon the Respondent’s compliance with the court order granted under case number 2563/2016 by allowing the Applicant contact with the minor child telephonically and physical contact and give her full cooperation henceforth in delivering the minor child to the Shell Garage at Kroonstad on the Sunday at 18H00 and to collect same on the Sunday at 18h00 for every alternative weekend starting on the weekend of 5 March 2021;

4. The Applicant is authorised to effect service of this order by way of email transmission to all relevant persons and/or entities;

5. 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 [sic] execution thereof;

6. The Respondent to pay the costs of the application.”

[3] The issue for determination is whether the Respondent acted in a wilful and mala fide manner in not adhering to the court order dated 5 March 2021.

[4] The background briefly on this matter is that the parties were granted a decree of divorce on 5 January 2017 in which the deed of settlement was incorporated. The contact rights of the Applicant are set out in detail in the deed of settlement, in that contact would be the usual alternative week and long and short school holidays to be shared.

[5] After the decree of divorce and the deed of settlement was granted, the Respondent left Bloemfontein and relocated to Pretoria. Prior to the relocation, the parties went into a verbal agreement that the minor child will be dropped off on Friday and collected on Sunday at the Shell Garage in Kroonstad. This arrangement seemed to work well until the 22 August 2019 when the Respondent could not drop off the minor child in Kroonstad due to the child’s ill health.

[6] On 11 October 2019, the child could not be taken to Kroonstad due to a school concert. On 22 November 2019, the Respondent had work responsibilities and could therefore not drive the minor child to Kroonstad. Thereafter, visits were affected even more so as the Covid-19 pandemic hit the country and an alert level 5 lockdown was issued on 26 March 2020, placing restrictions on movement of persons. To date, lockdown regulations are still in effect with the country currently under alert level 3 of the lockdown regulations. As a result, the Applicant last had contact with the minor child in March of 2020.

[7] Adv. Lubbe, Counsel on behalf of the Applicant in oral argument, submitted that the Respondent did not adhere to the existing court order as well as the verbal agreement between the parties that Kroonstad Shell Garage will be the drop-off and collection point between the parties. Counsel submitted that the Respondent having frustrated the Applicant’s contact rights, did not even offer an alternative as to how best the Applicant should exercise his contact rights. Further that, the Respondent failed to allow telephonic contact with a phone that was bought for the minor child by the Applicant. Counsel submitted that the Respondent’s explanation that due to the pandemic, it was difficult to travel with the minor child without a permit. Counsel made mention that Covid-19 regulations permitted co-parental holders to travel with a child or children as long as there was a permit for travelling. Counsel contends that the Respondent’s conduct has shown to be wilful and mala fide and indeed in contempt of court.

[8] Adv. Van der Sandt, Counsel on behalf of the Respondent submitted in oral argument that the Respondent had on several occasions attempted to accommodate the Applicant, that she even offered the Applicant to drive to Bloemfontein to collect the minor child, which offers the Applicant refused to accept. Counsel submitted that the Applicant knows where the Respondent resides and could easily have picked up the minor child if he was interested in exercising his contact right. She mentioned that due to the lockdown regulations, this situation was beyond both parties' control. Counsel mentioned that the Applicant is in a better position as he has a driver at his disposal, whereas the Respondent has to drive the minor child to Kroonstad. Counsel submitted that the matter be referred back to the Family Advocate or be dismissed with costs.

[9] In Protea Holdings v Wright and Another [1], the court explained the principal purpose of contempt of court when an order has been disobeyed, has been held to be the imposition of a penalty to vindicate the court's honour.

[10] The elements of the offence of contempt are set out in Consolidated Fish Distributors (Pty) Ltd v Zive and Others [2] that:

“Contempt of court, in the present context, means the deliberate, intentional (i.e. wilful), disobedience of an order granted by a court of competent jurisdiction.”

[11] The application for committal needs to show:

a) That an order has been granted against the Respondent

b) That the Respondent had knowledge of the order

c) That the Respondent acted in wilful and mala fide manner in not adhering to the court order.

[12] Bearing in mind that contempt of court is a criminal offence and the standard of proof is that of beyond reasonable doubt.

[13] When taking into consideration the overall conduct of the Respondent, that is, having allowed the Applicant to pick up the minor child in Bloemfontein; informing the Applicant at all times when she could not drive the minor child to Kroonstad Shell Garage; that the Applicant is on the WhatsApp group of the child’s class, that shows that the Applicant was fully aware of all the minor child’s circumstance. In my view, that is not a person who is acting wilfully and mala fide. Indeed, the Respondent knows the court order. There are incidences of severe contempt of a court order where one parent alienates the child from the other parent, despite a court order, this matter is not one of those. The Applicant has not shown beyond reasonable doubt that Respondent is in contempt of court.

[14] The court order that the Applicant alleged that the Respondent is in contempt of, that court order does not mention the dropping off and collection of the minor child in Kroonstad. The Respondent cannot be faulted for the parties' verbal agreement about the Kroonstad arrangement. The parties on their own accord went ahead and had an arrangement outside of the court order.

[15] However, what is lacking here is the views of the minor child concerning the alternative weekend travelling and being dropped off and picked up in Kroonstad. Section 10 of the Children’s Act 38 of 2005 provides that where a child is of such age, maturity and stage of development as to be able to participate in any matter concerning the child, the court must give due consideration to the child’s views.

[16] In F v F [3], the court said the following:

“If the court is satisfied that the child in question has the requisite intellectual and emotional maturity to make an informed and intelligent judgment, then the court should give serious consideration to the child’s expressed preference.”

[17] In McCall v McCall [4] the following was said:

“With reference to the child's preference above, if the Court is satisfied that the child has the necessary intellectual and emotional maturity to give in his/her expression of a preference a genuine and accurate reflection of his feelings towards and relationship with each of his parents, in other words to make an informed and intelligent judgment, weight should be given to his/her expressed preference.”

[18] It is therefore paramount and in the minor child’s best interest that he be involved in this matter as he is the one that must be driven to and from Kroonstad on alternative weekends. It is just fair that the minor child’s expressed view be obtained. This means the parties have to be referred to the Family Advocate for an interview with the minor child as well as a parenting plan to resolve issues that do not need to be litigated all the time.

[19] In Girdwood v Girdwood 1995 [5], it is stated that:

“The court, as an upper guardian of all dependent and minor children, has an alienable right and authority to establish what is in the best interests of children, and to make corresponding orders to ensure that such interests are effectively served and safeguarded and that no agreement between the parties can encroach on this authority.”

[20] Indeed, as parents of the minor child, they both love their child, it is therefore important that they minimised their conflict, especially on petty issues as who bought the phone or on whose phone the child must be called on. The minor child must be allowed telephone contact with both parents despite their disputes. The parenting plan will assist them with such small issues.

[21] Without going into detail in this judgment concerning the minor child's best interests, it would be advisable that the court obtains a report from the Family Advocate on the minor child’s wishes, expressed views and participation in this matter concerning the Kroonstad issue.

[22] I would therefore refer this matter to the Family Advocate for a report on the minor child’s best interests, specifically with regard to his expressed view on being dropped off and being picked up at Kroonstad.

[23] While the Family Advocate’s report must still be compiled, it is in the minor child’s best interest that pendente lite contact with the Applicant is maintained, whether through video call, face time or telephone calls, including travelling one weekend every month to Kroonstad.

[24] Accordingly, I order as follows:

1. The application for contempt is dismissed.

2. That the matter is urgently referred to the Office of the Family Advocate to investigate the minor child’s best interest including the minor child’s expressed views.

3. That the parties be allowed to supplement their papers and/or approach the court with the same papers after the Family Advocate has filed his/her report.

4. That the Applicant has contact with the minor child one weekend per month pending the report of the Family Advocate.

5. That the Respondent is to drop off the minor child on a Friday in Kroonstad at Shell Garage and the Applicant to pick up the child at the same garage.

6. That the Applicant is to drop off the minor child on a Sunday in Kroonstad at Shell Garage and the Respondent to pick up the child at the same garage from the date of this order.

7. 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. N van der Sandt

Instructed by: Matsepes Inc.

[1] 1978 (3) SA 865 (W)

[2] 1968 (2) SA 517 (C)

[3] 2006 (3) SA 42 (SCA)

[4] 1994 (3) SA 201 (C) at 207H.

[5] 1995 (4) SA 698 (C) at 708J-709A.