O.L.J v O.L.A (1370/2018) [2020] ZAECGHC 94 (3 August 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case No.: 1370/2018

Date Heard: 30 July 2020

Date Delivered: 3 August 2020

In the matter between:

O[…] L J

Applicant

and

O[…] L A

Respondent

JUDGMENT

KROON AJ:

INTRODUCTION

[1] This is an opposed application brought in terms of rule 43(6) in which the Applicant seeks to be awarded primary care of the two minor children born of the marriage. Their ages are 4 and 6 respectively.

[2] The parties have agreed that Dr Zendre Swanepoel, a forensic psychologist, will conduct an evaluation of the two minor children and produce a report with a view to assisting the Court to make a determination as to what is in the best interest of the two minor children. The parties have also agreed that the Applicant will be responsible for the costs incurred by Dr Swanepoel.

[3] The background to this agreement is that, by way of a joint Practice Note, the parties requested me to issue a mandamus requiring Dr Swanepoel to produce the report in question. I informed them that, leaving aside the circumstance that Dr Swanepoel was not a party to the proceedings, this would not be appropriate. Upon enquiries by me as to which party was going to be liable for the costs of the report of Dr Swanepoel and what practical arrangements had been made in this regard, I was informed at the hearing that Dr Swanepoel had in fact already been engaged and that she had accepted her mandate and that she would commence her investigation today, namely Monday, 3 August 2020. I was further informed that it was envisaged that the report should

be available in approximately 30 days.

[4] An aspect which arose in this application is that the report of the Family Advocate was compiled more than a year ago.

[5] In response to the application, the Family Advocate delivered a memorandum which was handed up to me at the hearing in terms of which it was recorded as follows:

“2.1 I have read the Application in terms of Rule 43.

2.2 The Family Advocate conducted an inquiry and compiled a report in the divorce matter on 15 April 2019, which was filed in the court file. The recommendation confirmed therein was based on the information available at that stage.

2.3 The Family Advocate is not in a position to evaluate whether the relief sought by the Applicant in this Application is in the best interests of the children without further investigation due to the long period which has passed since the filing of the Family Advocate’s report, as aforesaid.”

[6] As will appear from what is set out below this application was regrettably overshadowed by the circumstance that it was common cause that the Applicant was in contempt of the Court and that, despite an invitation extended by the Court to him to review and reconsider his stance, the Applicant refused to do so.

THE COURT PROCESS

[7] The Court process is substantial. The founding affidavit is 152 pages (inclusive of annexures) and the replying affidavit is 110 pages (inclusive of annexures). Both affidavits contain unhelpful ad hominem attacks by the respective parties on each other.

[8] In the light of conclusion which I have reached, it is not necessary for me to dwell on the extent of the respective affidavits.

[9] The Applicant also sought leave for a further affidavit comprising some 60 pages (inclusive of annexures) to be admitted. This request is dealt with at the end of this judgment.

FACTUAL MATRI

[10] Pursuant to an unopposed rule 43 application my brother Bloem, on 28 August 2018, granted, by agreement, an order in the following terms:

“1. THAT this Application be and is hereby postponed sine die with the Respondent having the right to re-enrol these proceedings (upon notice) within TEN (10) days of receipt of the report of the Family Advocate referred to hereunder.

2. THAT the Family Advocate is to conduct, on an urgent basis, an investigation into the circumstances and well-being of the minor children K[…] M[…] O[…] and L[…] D[…] J[…] O[…] and, to deliver her report containing her findings and recommendations.

3. THAT pending the finalisation of this application it is further agreed that:-

3.1 the Respondent is not to permit, allow or facilitate any contact whatsoever between the minor children aforementioned and one R[…] D[…];

3.2 the Applicant shall have the right to access to and contact with the said minor children in Port Alfred on alternate weekends commencing from 14h00 on the Friday and terminating on 17h00 on the Sunday following; this right to commence on Friday the 31st of August 2018;

3.3 the Applicant will furthermore have the right to have the said minor children in his care, custody and control for alternate school holidays, commencing with the forthcoming Christmas Holiday and alternating thereafter;

3.4 the Applicant undertakes to return the said minor children into the care, custody and control of the Respondent two (2) days prior to the end of the holiday in question (unless otherwise explicitly agreed in writing);

3.5 the Applicant shall have contact with the minor children on their birthdays, on the Applicant’s birthday and on Father’s Day for not less than three (3) hours alternatively, such longer period as may be agreed to in writing;

3.6 reasonable telephonic contact at a reasonable time on a daily basis.

.....”

[11] I will hereinafter refer to the order by Bloem J as (“the first order”).

[12] In short, Bloem J granted, by agreement, interim relief that the primary care of the minor children would remain vested in the Respondent but that the Applicant would be entitled to reasonable access on the terms set out in the order.

[13] Pursuant to the first order, the Family Advocate produced a substantial report which was filed with the Court on 15 April 2019.

[14] This report culminated in the following recommendation:

“7.1 After careful consideration of the Court documents of record, Annexures “A”, “MEP” and “MEP1”

as well as the relevant Sections of the Constitution and the Children’s Act as referred to, it is respectfully recommended

that:

7.1.1 The parties remain co-holders of full parental responsibilities and rights in respect of the minor children, as defined in Section 18 of the Children’s Act, Act 38 of 2005.

7.1.2 The children shall primarily reside with the Plaintiff.

7.1.3 The Defendant is to have reasonable contact with the minor children, which shall be structured, but not limited to:

7.1.3.2 Contact every short school holiday.

7.1.3.3 Contact every June/July school holiday.

7.1.3.4 Contact for half of every December/January holiday in such a way that Christmas rotates between the parties.

7.1.3.5 Daily telephonic / skype contact.

7.1.3.6 The children shall spend Fathers’ Day with the Defendant and Mother’s Day with the Plaintiff. The parties shall swop weekend contact in order to facilitate such an arrangement, if need be.

7.1.3.7 The children shall spend at least three hours in the care of either party on the occasion of the child’s birthday, if this should be practically possible.

7.1.4 The children shall receive therapeutic intervention in order to deal with the trauma of the divorce and other unresolved emotional issues.

7.1.5 The parties shall receive therapeutic intervention focusing on enhancing their co-parental relationship.

7.1.6 The parties shall at all times first seek to resolve the conflict between them regarding the exercising of their parental responsibilities and rights through a co-operative process of mediation before they approach the Honourable Court for relief.”

(own underlining)

[15] Thus the Family Advocate confirmed, in substance, that the status quo envisaged by the first order, namely that the primary care of the two minor children is to be with the Applicant, should remain in place.

[16] On receipt of the report of the Family Advocate, the Respondent did not re-enrol the first application prior to the expiry of the 10 day time period as contained in paragraph 1 of the first order. The Respondent did not re-enrol the matter at all.

[17] The application before Bloem J was thus never “finalised”[1]. Indeed it was not set down again.

[18] The Applicant, through his conduct, appears to have accepted the report of the Family Advocate, albeit tacitly so. I say this because, as will appear from what is set out below, the Applicant took no steps to challenge the report of the Family Advocate for over a year.

[19] That all being said, the concerning feature of this application is that, notwithstanding the first order and the report of the Family Advocate, the two minor children have not been in the primary care of the Respondent since 18 March 2020, being the date when they were placed in the care of the Applicant for the school holidays as required by the first order.

[20] In her replying affidavit the Respondent records that she made several attempts to secure the return of the minor children into her care but that these were all resisted by the Applicant.

[21] The Respondent states as follows at paragraph 11.4 of her affidavit:

“11.4 I submit that the Applicant’s application in terms of Rule 43(6) is an attempt to justify his contempt of court.

11.4.1 On the 18th of March 2020, the Applicant fetched the minor children from East London for the school holiday and to date refused to return them to their primary place of residence.

11.4.2 I have been to the Applicants home in Odendaalsrus twice in an attempt to collect the minor children, but Applicant refused to let them go.

11.4.3 I opened three criminal cases regarding the Applicants contempt of court. Two cases were opened at SAPS Odendaalsrus on the 03rd of May 2020 and on the 08th of May 2020. Odendaalsrus CAS 106/05/2020 bears reference.

11.4.4 Once case of contempt was opened in Komga. Find attached hereto a copy of proof of registration, Komga CAS 58/04/2020 marked as “LAO2””

[22] In the further affidavit which the Applicant sought leave to have admitted, he admits at paragraph 12.1 that the Respondent made several attempts to secure the return the two minor children but chooses to focus on the circumstance that the Respondent enlisted the services of the South African Police Services to assist her in retrieving the two minor children when he refused to return them.

[23] In the further affidavit the Respondent does not furnish any explanation as to why he has not returned the two minor children, other than to contend, in effect, that the Respondent should wait until the outcome of the current application.

[24] At paragraph 12.2 of the further affidavit he records as follows:

“... I informed the Respondent before her attempted removal of the minor children, of my intention to apply to the Honourable Court for an order in terms of rule 43(6). My legal representative also sent an e-mail to the legal representative of the Respondent on 1 May 2020. A copy of the letter is annexed hereto as Annexure “FA4”.”

[25] When I enquired from Mr Brown, who appeared for the Applicant, as to the whereabouts of the children he confirmed that they remained in the care of the Applicant.

[26] In his founding affidavit deposed to on 1 May 2020, the Applicant did not disclose to the Court the circumstance that he had refused to return the minor children and furthermore that he had resisted the attempts by the Respondent to secure their return. This was a material non-disclosure.

[27] What the Applicant did say in his founding affidavit in this regard is revealing. At paragraph 10.1 he recorded as follows:

“The children refuse to go back to the Respondent and wants [sic] to remain on the farm in my primary care surrounded by a stable environment and the house on the farm that they know.”

[28] In my view the only reason why the Applicant made the statement to the effect that the children allegedly did not want to return to their mother, was that the Applicant well knew that he was obliged to return the children. There could be no other conceivable reason for making this allegation.

[29] At the end of her replying affidavit, the Respondent concluded as follows:

“65.1 I deny that Applicant is entitled to be granted the orders prayed for in the abovementioned paragraphs.

65.2 I submit and pray that the honourable court order the Applicant to return the minor children to me at their primary place of residence immediately.

65.3 I submit and pray that the honourable court order that the SAPS or Sheriff with jurisdiction be authorised to assist me to get my children from the Applicant whenever he is not entitled to retain them.

65.4 I submit and pray that the honourable court order review and amend the Applicant access to the minor children to order that Applicant may have access to the minor children once a month under supervision.”

[30] In the further affidavit which the Applicant sought to have admitted, he did not in any way respond to these prayers.

[31] I would immediately record that when, during argument, Mr Brown was about to address the prayers set out in 65.2 to 65.4 he received a note from his opponent, Ms Beard, and pursuant to having read it, if I understood him correctly, he conveyed to me that he had been informed that the Respondent would not be persisting with these prayers and accordingly it would not be necessary for him to address me on them. He indeed did not address me on them and when Ms Beard addressed me on the merits of the application, she also did not make any submissions on these prayers.

[32] Returning to the allegations made in the founding affidavit, when the report of the Family Advocate was eventually challenged therein, the criticisms were not limited to allegations that the Family Advocate had erred. The Applicant went further. He accused the Family Advocate of not having performed her functions properly and in certain instances of having abdicated her responsibilities. As stated above, the report of the Family Advocate was filed with the Court on 15 April 2019 and it was not challenged for more than a year.

[33] Given the conclusion to which I ultimately come, it is not necessary in this application for me to make definitive findings on the allegations made in the founding affidavit regarding the report of the Family Advocate and the merits of the matter. I do, however, think it is appropriate to express some disquiet at the manner and formulation of the criticisms levelled against the Family Advocate.

[34] There is also no explanation in the affidavit as to why, if the Applicant had genuinely harboured such strong objections to and grievances about the content of the report of the Family Advocate, he did not immediately take issue with the allegedly flawed report.

[35] I should mention further that Mr Brown did not pursue the criticisms of the Family Advocate in argument.

[36] In substance the case advanced by Mr Brown was that the Court should accept that the Respondent is unable to provide a stable environment for the minor children whilst the Applicant is in a position to provide such a stable environment.

[37] The case of the Applicant was based largely on hearsay allegations and no expert report was produced to gainsay the conclusions of the Family Advocate albeit that the report of the Family Advocate had been finalised some time back.

[38] Ms Beard, who appeared on behalf of the Respondent, strenuously opposed the relief sought by the Applicant pointing out, in my view correctly so, that it was not permissible for the Applicant to contend that the two minor children were now well settled with the Applicant.

[39] It does not lie in the mouth of the Applicant to contend, on the back of his breach of the first order (see below), that because the minor children have, because of that breach, now spent time with him that it would be disruptive to return them to the Respondent.

[40] This reasoning cannot be correct. It loses sight of the fact that the two minor children had, with the blessing of this Court, been in the primary care of the Respondent since August 2018 prior to the Respondent refusing to return them to the Applicant.

THE CONTEMPT OF COURT

[41] After I had made my preliminary ruling in respect of the admission of the further affidavit (see below), I enquired of Mr Brown, before he commenced his address on the merits of the application, as to whether he conceded that the Applicant was in contempt of court as this was an issue which was touched upon obliquely during argument about the admission of the further affidavit.

[42] He quite correctly conceded that the Applicant was indeed in contempt of court.

[43] When it comes to the question of contempt of the Applicant, the operative provision in the first order is as follows:

“3.4 the Applicant undertakes to return the said minor children into the care, custody and control of the Respondent two (2) days prior to the end of the holiday in question (unless otherwise explicitly agreed in writing);”

[44] The facts regarding the Applicant’s contempt of court may be summarised as follows:

[45.1] On 18 March 2020 the Applicant collected the minor children for the school holidays.

[45.2] The President thereafter announced that a nationwide lockdown would commence at midnight on 26 March 2020 and would endure until midnight on 16 April 2020.

[45.3] The Applicant did not return the minor children to the Respondent before the commencement of the lockdown.

[45.4] The lockdown was thereafter extended until 1 May 2020.

[45.5] The Applicant did not return the minor children after the adjustment of the lockdown to alert level 4 on 1 May 2020.

[45.6] Rather, the Applicant launched the Rule 43(6) application on 1 May 2020.

[45.7] The Applicant resisted several attempts by the Respondent to have the minor children returned.

[45.8] Pursuant to the lockdown, it was announced that the schools for the minor children would re-open on 6 July 2020.

[45.9] The Applicant did not return the minor children to the Respondent to allow them to resume at the school where they are currently enrolled.

[45.10] The Applicant instead, defiantly so, enrolled the two minor children

at a different school thereby, it would seem, arrogating to himself the primary care of the two minor children in contravention of the first order.

[45] When it came to the period concerning the lockdown, although not alleged by the Applicant in an affidavit, there was a suggestion made by Mr Brown, from the Bar, that perhaps the Applicant was under the impression that he was entitled to keep the minor children with him pursuant to the nationwide lockdown until the schools were re-opened. I have two difficulties with the argument.

[46] The first is that it is not reconcilable with his allegation in his founding papers that the reason why he did not return the minor children was because he contends that they indicated to him that they did not want to go back to the Respondent.

[47] The second is that I do not think that such an interpretation can in good conscience be placed on the order issued by Bloem J. It is trite that orders must be obeyed both in letter and in spirit.

[48] In my view, when the lockdown was announced, the Applicant was then obliged, absent written permission from the Respondent (see paragraph 3.5 of the first order) or an order from this Court, to have returned the minor children to the Respondent who was the primary caregiver authorised by the Court.

[49] The first order envisaged the minor children being in the care of the Applicant during the short holiday period and when the school calendar was, as it were, overtaken by the implementation of the nationwide lockdown, I would have thought that the two minor children fell to be returned to the primary caregiver, namely the Respondent.

[50] It is however not necessary for me to make a finding in this regard because it was correctly conceded that, after it was announced that the schools for the minor children would open on 6 July 2020, the Applicant was then obliged to have returned the two minor children two days before that date, namely by no later than 4 July 2020. He did not do so.

[51] In the light of the concession made by Mr Brown I adjourned the proceedings over the luncheon hour and directed that instructions be taken from the Applicant as to whether, in the light of the concern expressed by the Court about the contempt of the Applicant, he was prepared to reconsider and review his stance of refusing to return the two minor children and, if so, what practical arrangements could be made with a view to returning the minor children safely to the Respondent.

[52] When the hearing resumed after the adjournment, I was informed by Mr Brown that he was in a position to convey his instructions to me regarding Dr Swanepoel and the circumstance that the Applicant had always intended to be responsible for the costs accompanying her investigation and report.

[53] Crucially, he however informed me that he was unable to obtain an instruction from the Applicant that he would comply with the first order and that he would return the two minor children with a view to purging his contempt.

[54] In my view the conduct of the Applicant in this regard is outrageous, shocking and patently unacceptable.

[55] When I asked Mr Brown as to whether there was any explanation for the admitted contempt arising out of the circumstance that the children should have returned, at the very latest by 4 July 2020, he made a statement from the Bar that there was some uncertainty as to when this application would be heard. In fairness to Mr Brown, he did not raise this aspect with any enthusiasm.

[56] I cannot see any connection between the date of the hearing of this application and the Applicant’s contempt of the first order.

[57] In response to the submissions by Mr Brown, Ms Beard submitted that the Applicant was attempting, impermissibly so, to utilise the Rule 43(6) proceedings as a vehicle for “regularising” his contempt.

[58] In my view the submissions made by Ms Beard is valid.

[59] When the facts are assessed cumulatively (including the long delay in the challenging of the report of the Family Advocate, the circumstance that the current application was launched on 1 May 2020, the date upon which it would have been permissible for minor children to return to the Respondent and the approach adopted by the Applicant in his further affidavit, namely that he would not return the minor children until this application is heard), I am driven to the conclusion that it is indeed so that the Applicant is refusing to release the minor children in the hope that this would influence the Court to come to his assistance in these proceedings.

[60] The conduct of the Applicant is clearly an abuse of the Court process.

[61] In the matter of SS v VVS 2018 (6) BCLR 671 (CC), a decision to which I will refer to at some length, the Constitutional Court expressed itself as follows:

“... It can only be described as unconscionable when a party seeks to invoke the authority and protection of this Court to assert and protect a right it has, but in the same breath is contemptuous of that very same authority in the manner in which it fails and refuses to honour and comply with the obligations issued in terms of a court order...”

[62] Litigants are thus generally required to purge themselves of their contempt prior to approaching the Court for relief.

SHOULD THE APPLICATION BE ENTERTAINED?

[63] In the light of the concession that the Applicant was in contempt of Court, I enquired from Mr Brown as to whether I should entertain the application at all given the doctrine that a Court will not readily hear a litigant who has come to the Court with “unclean hands”.

[64] In response Mr Brown submitted that given that the matter concerned the interests of minor children I should proceed to entertain the merits of the application notwithstanding the admitted contempt of Court.

[65] It is true that the Court retains a discretion to entertain the application notwithstanding the circumstance that the Applicant has approached the Court with unclean hands in a matter which concerns the welfare of minor children.

[66] That however should only occur if the Court is of the view that if the matter is not entertained, the interests of the minor children will be detrimentally affected.

[67] This is because Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child and accordingly the overarching duty of this Court, as the upper guardian of children, is to ensure that its concern is the best interests of the two minor children.

[68] In SS v VVS it emerged during the hearing that the Applicant was in substantial arrears when it came to the payment of maintenance. The

question arose as to whether the Court should entertain the application whilst the Applicant remained in default of its admitted

maintenance obligations.

[69] The Court held as follows:

“[18] While it is so that the proceedings in this Court on 29 August 2017 were not contempt proceedings, the concession of non-payment of the basic maintenance obligations, which was never in dispute, cannot simply pass without consequence. The judicial authority vested in all courts,[2] obliges courts to ensure that there is compliance with court orders to safeguard and enhance their integrity, efficiency, and effective functioning. To this extent, the views expressed by our courts on compliance with court orders remain relevant in these proceedings.

[19] In Matjhabeng, this Court expressed itself on the matter in the following terms:

“Section 165 of the Constitution, indeed, vouchsafes judicial authority. This section must be read with the supremacy clause of the Constitution. It provides that courts are vested with judicial authority, and that no person or organ of state may interfere with the functioning of the courts. The Constitution enjoins organs of state to assist and protect the courts to ensure, among other things, their dignity and effectiveness.

To ensure that courts’ authority is effective, section 165(5) makes orders of court binding on ‘all persons to whom and organs of state to which it applies’. The purpose of a finding of contempt is to protect the fount of justice by preventing unlawful disdain for judicial authority. Discernibly, continual non-compliance with court orders imperils judicial authority.”[3] (Footnotes omitted.)

[20] Further in Fakie, the Supreme Court of Appeal, per Cameron JA, held:

“It is a crime unlawfully and intentionally to disobey a court order. This type of contempt of court is part of a broader offence, which can take many forms, but the essence of which lies in violating the dignity, repute or authority of the court. The offence has, in general terms, received a constitutional ‘stamp of approval’, since the rule of law – a founding value of the Constitution – ‘requires that the dignity and authority of the courts, as well as their capacity to carry out their functions, should always be maintained’.”[4] (Footnotes omitted.)

[21] The applicant does not face the consequences of either a finding of civil or criminal contempt but his conduct, if left unaddressed by this Court, would undermine judicial integrity. Analogous considerations to formal contempt proceedings arise. In this regard, counsel for the applicant was certainly amenable to the matter being postponed to enable the applicant to remedy the consequences of his failure to pay. It was a stance which was wisely and correctly taken given the significant and ongoing nature of the failure by the applicant to comply with his maintenance obligation towards his minor child. A court’s role is more than that of a mere umpire of technical rules, it is “an administrator of justice . . . [it] has not only to direct and control the proceedings according to recognised rules of procedure but to see that justice is done”.[5]

[22] A further factor which fortifies the conclusion that this Court was not only entitled but obliged to have raised and dealt with the non-compliance with the Order by the applicant, lies in the nature of the obligations that the Order and the settlement agreement which accompanied it evidenced.

[23] All court orders must be complied with diligently, both in form and spirit, to honour the judicial authority of courts. There is a further and heightened obligation where court orders touch interests lying much closer to the heart of the kind of society we seek to establish and may activate greater diligence on the part of all. Those interests include the protection of the rights of children and the collective ability of our nation to “free the potential of each person”[6] including its children, which ring quite powerfully true in this context.

[24] Thus, when courts act as the upper guardian of each child they do so not only to comply with the form that the Constitution enjoins us to be loyal to, [7] but with the very spirit that is encapsulated in the provisions of section 28(2) of the Constitution that “a child’s best interests are of paramount importance in every matter concerning the child”.

[25] This is precisely such a matter. The Order was about ensuring the best means of protecting and enhancing the interests of the minor child, and the scope and the breadth of the provisions of the settlement agreement appear to compellingly underscore that objective. The High Court, when it granted the decree of divorce, must then have been satisfied that the interests of the minor child were well catered for.”

[70] The Court then went on to conclude as follows:

“[34] Under the circumstances and for the reasons given, I conclude that on what is before us, there is no evidence that the applicant had remedied his conduct. This conclusion then leads to the question as to whether the interests of justice are served by allowing the applicant to ventilate his argument in respect of the merits of the appeal.

[35] Those interests will not be best served and will be undermined if the applicant is allowed to proceed and deal with the merits of the appeal in the absence of him remedying his conduct by complying with the August Order. It will dilute the potency of the judicial authority and it will send a chilling message to litigants that orders of court may well be ignored with no consequence. At the same time, it will signal to those who are the beneficiaries of such orders that their interests may be secondary and that the value and certainty that a court order brings counts for little. For all these reasons, and in particular that the subject matter of this litigation involves the best interests of the child, the interests of justice strongly militate against the applicant’s pursuing his application. Proceeding with the hearing of this matter, where adequate compliance with the August Order, which sought to ensure payment of the basic maintenance for K, is in doubt, would create “[c]ontinued uncertainty . . . [which] cannot be in the interests of the child”[8] and does not further the interests of justice.”

[71] I thus allowed the parties to address me on the merits of the matter so that I could satisfy myself that there would be no prejudice to the minor children were I of the mind to dismiss the application on the basis of the Applicant having come to Court with “unclean hands”.

[72] Having done so, I have satisfied myself that if the application were to be dismissed without hearing the merits of the matter, this would not prejudice the interests of the minor children. It follows that it is not in the interests of justice that the Applicant be entitled to pursue his application.

[73] It follows that the appropriate order to make regarding the Rule 43(6) application would be to dismiss it.

RELIEF TO BE GRANTED TO THE RESPONDENT?

[74] After Mr Brown had delivered his reply during which it had been confirmed that the Applicant was not prepared to make any arrangements for the return of the minor children notwithstanding the concerns of the Court which had been conveyed to him Ms Beard applied, from the Bar, for an order that the Applicant be directed to return the minor children forthwith.

[75] In this context she pointed out that it was the understanding, from what had been conveyed to me after the luncheon adjournment, that both the Applicant and the Respondent as well as the minor children were going to be present during the first three days of the investigation of Dr Swanepoel which is set to commence today, 3 August 2020. She stated that this would be the ideal opportunity for the minor children to be returned by the Applicant to the Respondent.

[76] In response I expressed the preliminary view that this would not be appropriate. I drew to her attention that it was open to the Respondent to have brought a substantive counter application if that was the relief which she sought. I also drew to her attention that, as I understood it, she had, during the course of the address of Mr Brown, indicated that she would not be seeking any such relief. Mr Brown in turn opposed this relief sought submitting that what was before me was a rule 43 application and nothing more.

[77] Having reflected on the matter, I have come to the realization that my initial view did not give sufficient weight to either the dignity of the Court or the interests of the minor children.

[78] The gravity of the current sorry state of affairs cannot be overemphasized. The conduct of the Applicant constitutes self-help of the worst kind because it has been perpetrated at the expense of the minor children. The other point is that if every parent could rely on his or her own ipse dixit as a license to ignore Court orders this would cause chaos within the administration of justice.

[79] I would add only that in my view the Applicant has had ample opportunity to address his contempt in his founding affidavit as well as in his further affidavit after it was squarely raised by the Respondent in the replying papers. He could of course also have engaged with the Court when he was invited to do so over the adjournment. All of these opportunities have been spurned by the Applicant.

[80] In these circumstances it would not be sufficient to simply refuse the application without more.

[81] In all the circumstances I intend to issue a compliance order in the terms set out below.

[82] I do so mindful of the circumstance that, in matters of this nature, the Court is possessed of wide powers. These powers must be read together with the power of the Court to initiate, mero motu, contempt of Court proceedings.

[83] In the matter of Pheko and Others v Ekurhuleni Metropolitan Municipality (No 2)[9] the Constitutional Court held as follows:

“[1] The rule of law, a foundational value of the Constitution, requires that the dignity and authority of the courts be upheld. This is crucial, as the capacity of the courts to carry out their functions depends upon it. As the Constitution commands, orders and decisions issued by a court bind all persons to whom and organs of state to which they apply, and no person or organ of state may interfere, in any manner, with the functioning of the courts. It follows from this that disobedience towards court orders or decisions risks rendering our courts impotent and judicial authority a mere mockery. The effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced.

[2] Courts have the power to ensure that their decisions or orders are complied with by all and sundry, including organs of state. In doing so, courts are not only giving effect to the rights of the successful litigant but also and more importantly, by acting as guardians of the Constitution, asserting their authority in the public interest. It is thus unsurprising that courts may, as is the position in this case, raise the issue of civil contempt of their own accord.

...

[30] ...However, under the discretion of the presiding officer, when contempt occurs a court may initiate contempt proceedings mero motu.

[37] However, where a court finds a recalcitrant litigant to be possessed of malice on balance, civil contempt remedies other than committal may still be employed. These include any remedy that would ensure compliance such as declaratory relief,[10] a mandamus demanding the contemnor to behave in a particular manner,[11] a fine[12] and any further order that would have the effect of coercing compliance.[13]”

FILING OF THE FURTHER AFFIDAVIT

[84] Lastly, I turn to the application by the Applicant to file a further affidavit.

[85] When the matter was heard last week on 31 July 2020, I ruled that the replying affidavit be disallowed and indicated that I would furnish my reasons in my judgment.

[86] At the commencement of the application the parties informed me that there was an agreement between them, subject to my approval, that the dispute as to whether the further affidavit should be admitted should be determined separately and at the outset of the proceedings.

[87] When I expressed reluctance to adopt this approach I was informed by Ms Beard that, in the light of the contents of the further affidavit, she would have to seek a postponement as she would want to strike out certain allegations in the replying affidavit were it to be admitted.

[88] In the light of the agreement between the parties, I was ultimately persuaded to deal with the replying affidavit upfront.

[89] The filing of the substantial further affidavit was unsurprisingly vigorously opposed.

[90] As was pointed out by my brother Lowe in the matter of Chantel Barclay v Bruce Clive Barclay[14], it is not permitted to file a replying affidavit under the guise of seeking to adduce further evidence in terms of Rule 43(5).

[91] Having considered the contents of the replying affidavit, in my view Ms Beard is correct in her submission that it contains largely irrelevant, argumentative or repetitive material. It does not take the matter any further.

[92] There are even a number of paragraphs where the deponent does no more than join issue with allegations and facts which are already in issue, something which is not permitted even in a replying affidavit in a normal application.

COSTS

[93] For the reasons set out above the conduct and actions of the Applicant are deserving of the severest censure by this Court.

[94] As in SS v VVS[15], there can be little doubt that this is a case where a punitive costs order is required as a mark of the Court’s displeasure at the conduct of the Applicant.

ORDER

[95] I order as follows:

1. By agreement, the Applicant is to pay the costs consequent upon the engagement of Dr Swanepoel, including the costs of her report.

2. Condonation, insofar as this may be necessary, is granted for the late delivery of the replying affidavit.

3. The Applicant’s application for the admission of further evidence by way of a further affidavit is refused with costs.

4. The Applicant’s rule 43(6) application is struck from the roll with costs.

5. The Applicant is to return the two minor children, K[…] M[…] O[…] and L[…] D[…] J[…] O[…] today, 3 August 2020, to the Respondent at the venue where the investigation to be conducted by Dr Swanepoel is scheduled to commence.

6. Should the Applicant refuse to return the two minor children to the Respondent, the Respondent is authorised to enlist the services of the Sheriff of the High Court, assisted insofar as it may be necessary by the South African Police Services, to ensure that there is compliance by the Applicant with this order.

7. The Applicant is required to furnish this Court, within 7 days, with an affidavit containing an explanation for the non-compliance with the order by Bloem J and an explanation as to why, when the Applicant was requested by the Court at the hearing on 30 July 2020 to reconsider his stance and to return the children, he refused to do so.

8. Such costs as have been occasioned by the Respondent herein are to be paid by the Applicant on a scale as between attorney and client.

P N KROON

ACTING JUDGE OF THE HIGH COURT

Appearances:

For Applicant: Adv Brown instructed by Netteltons

For Respondent: Adv Beard instructed by Cloete & Co

[1] See the introductory part of paragraph 3 of the first order.

[2] Section 165 of the Constitution provides that “[t]he judicial authority of the Republic is vested in the courts”.

[3] Matjhabeng Local Municipality v Eskom Holdings Limited; Mkhonto v Compensation Solutions (Pty) Limited [2017] ZACC 35; 2017 (11) BCLR 1408 (CC) (Matjhabeng) at paras 47-8.

[4] Fakie N.O. v CCII Systems (Pty) Ltd [2006] ZASCA 52; 2006 (4) SA 326 (SCA) (Fakie) at para 6.

[5] Take & Save Trading CC v The Standard Bank of SA Ltd [2004] ZASCA 1; 2004 (4) SA 1 (SCA) at para 3, referencing R v Hepworth 1928 AD 265.

[6] See Preamble of the Constitution.

[7] H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) SA 193 (CC); 2015 (2) BCLR 127 (CC) at para 64 states that: “In South Africa, in addition to section 28(2) of the Constitution, the common law principle that the High Court is the upper guardian of children obliges courts to act in the best interests of the child in all matters involving the child. As upper guardian of all dependent and minor children, courts have a duty and authority to establish what is in the best interests of children.” The Children’s Act 38 of 2005 at section 45(4) further states that “[n]othing in this Act shall be construed as limiting the inherent jurisdiction of the High Court as upper guardian of all children”.

[7] H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) SA 193 (CC); 2015 (2) BCLR 127 (CC) at para 64 states that:

“In South Africa, in addition to section 28(2) of the Constitution, the common law principle that the High Court is the upper guardian of children obliges courts to act in the best interests of the child in all matters involving the child. As upper guardian of all dependent and minor children, courts have a duty and authority to establish what is in the best interests of children.”

The Children’s Act 38 of 2005 at section 45(4) further states that “[n]othing in this Act shall be construed as limiting the inherent jurisdiction of the High Court as upper guardian of all children”.

[8] Fraser v Naude [1998] ZACC 13; 1999 (1) SA 1 (CC); 1998 (11) BCLR 1357 (CC) at para 9.

[9] 2015 (6) BCLR 711 (CC)

[10] See, for example, York Timbers above n 35 at 506C-D.

[11] See, for example, MEC, Department of Welfare, Eastern Cape v Kate [2006] ZASCA 49; 2006 (4) SA 478 (SCA) and Kate v MEC for the Department of Welfare Eastern Cape 2005 (1) SA 141 (SE) at para 21.

[12] See, for example, Jeebhai v Minister of Home Affairs and Another 2007 (4) SA 294 (T) at para 54 and S v Mkize 1963 (3) SA 218 (N).

[13] Some of the mechanisms employed in other jurisdictions include community service, striking a written submission, an order that the contemnor tender security for compliance and sequestering the contemnor’s property. See, Lowe and Suffrin above n 29 at 557; Miller above n 42 at 129.

[14]In the High Court of South Africa (East London Circuit Local Division): Case No. EL961/2019 as delivered on 31 March 2020 at paragraph [40]

[15] At paragraph [41]