Van Der Merwe v Van Der Merwe (3627/09) [2009] ZAGPJHC 89 (8 October 2009)

Van Der Merwe v Van Der Merwe (3627/09) [2009] ZAGPJHC 89 (8 October 2009)

The court finds that, while the respondent's conduct appears to be in contempt of the Rule 43 order on a balance of probabilities, the seriousness of a contempt finding requires proof beyond reasonable doubt, including consideration of intention. Given the existence of disputes of fact, the court exercises its discretion to refer the matter to oral evidence rather than making a final determination on motion. The parties are afforded an opportunity to settle the terms of referral, failing which the court will intervene. Costs are reserved pending the outcome of the oral evidence.

Citation
[2009] ZAGPJHC 89
Parties
Applicant: Morne van der Merwe; Respondent: Louisa van der Merwe
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 October 2009
Case Number
3627/09
Procedural Posture
Urgent Application / Referral to Oral Evidence in Contempt Application Under Rule 43
Outcome
Matter referred to oral evidence; costs reserved.
Judges
Willis
Legal Topics
Rule 43 Interim Relief, Contempt of Court, Custody and Access, Disputes of Fact, Costs Reservation
Family and Children Civil Procedure Rule 43 Interim Relief Contempt of Court Custody and Access Disputes of Fact Costs Reservation

Case Brief

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Parties

Morne van der Merwe

Applicant

Louisa van der Merwe

Respondent

Procedural Posture

Urgent Application / Referral to Oral Evidence in Contempt Application Under Rule 43

Legal Issues

  1. 1 Whether the respondent is in contempt of the Rule 43 order dated 29 July 2008.
  2. 2 Whether the matter should be determined on motion or referred to oral evidence.
  3. 3 Whether costs should be awarded at this stage.

Ratio Decidendi

The court finds that, while the respondent's conduct appears to be in contempt of the Rule 43 order on a balance of probabilities, the seriousness of a contempt finding requires proof beyond reasonable doubt, including consideration of intention. Given the existence of disputes of fact, the court exercises its discretion to refer the matter to oral evidence rather than making a final determination on motion. The parties are afforded an opportunity to settle the terms of referral, failing which the court will intervene. Costs are reserved pending the outcome of the oral evidence.

Court Disposition

Matter referred to oral evidence; costs reserved.

Orders

  • The dispute as to whether the respondent is in contempt of the order granted on 29 July 2008 is referred to oral evidence.
  • The parties are given two weeks from the date of judgment to settle the terms of referral to oral evidence.