Defying a court order regarding parental rights may result in jail time

12 February 2024 ,  Rudi Pitts 440

A divorce, by its very nature, may be an acrimonious process that is faced by many people.  Tempers run high and ill-considered decisions are made not only to the detriment of each other but unfortunately to the disadvantage of minor children as well.  

In the recent matter of B.M.G.S v M.B.S and Others (26675/2022) [2024] ZAGPPHC 24 (8 January 2024) this situation presented itself with severe results. In summary:

The Applicant (husband) brought an urgent application to place the First Respondent (wife) in contempt of two court orders related to his right of access and contact to the minor child. 

In terms of the first court order, the Applicant together with the First Respondent were granted full parental rights and responsibilities over their minor child in terms of section 18 of the Children's Act. The Applicant was also "granted reasonable contact to the minor child on every alternate weekend and reasonable consultation and contact at all relevant times to a maximum of two hours per day".

Regardless of the first order, the First Respondent elected to simply disobey the order, refused to comply with the terms of the order and frustrated the Applicant to exercise his parental rights as granted in terms of the order.  As a result of the non-compliance with the aforesaid court order, the Applicant brought an application to have the First Respondent declared in contempt, and accordingly, a second order was granted. The First Respondent was ordered to be committed to imprisonment for a period of thirty days for the contempt of the first order. These two orders form the basis of the current application.

The court emphasized that the duty to observe court orders is a constitutional imperative flowing from the rule of law protected in section 1 of the Constitution of the Republic of South Africa, 1996 and the provisions of section 165, which guarantees judicial authority. The Constitutional Court has recognized "disobedience towards court orders or decisions risks rendering our courts impotent, and judicial authority a mere mockery, and the effectiveness of court orders or decisions is substantially determined by the assurance that they will be enforced".

In the current matter the court remarked that the “child's rights are being violated as he cannot fight for himself” and that “he is being used and robbed of having any chance of knowing his father and forming a relationship with him”. The best interest of the child is a right to have contact with his father.

Having considered the First Respondent’s recalcitrant behaviour the court found that the First Respondent had deliberately disobeyed the two court orders and that an appropriate sentence is to commit the First Respondent to a period of 12 month’s imprisonment.  The First Respondent was further ordered to pay the costs of the application on a punitive attorney and client scale 

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Tags: Family, Law
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