MT v CT

• Jurisdiction: South Africa
• Judge: Gamble J
• Judgment Date: 11 March 2016
• Citation: 2016 (4) SA 193 (WCC)
• Docket Number: 10757/14
• Hearing Date: 12 February 2016
• Counsel: M Holderness for the plaintiff. Defendant in person. M Fourie for the Office of the Family Advocate.
• Court: Western Cape Division, Cape Town

Gamble J:

Background C

[1] This court has been managing, in terms of rule 37(8), the pre-trial procedures relevant to Mr and Mrs T's divorce case which was transferred to this division from the High Court in Durban in 2014. D The matter has a long and chequered history, having commenced in that court in 2009. Both parties were previously represented by attorneys and counsel but these have fallen by the wayside and since the transfer of the matter to this court they have represented themselves in the divorce action. I do not intend to go into any great detail regarding the background circumstances relevant to this matter: that is dealt with in a very comprehensive report (574 pages exclusive of annexures) filed by E the family advocate two days ago.

[2] The plaintiff, Ms MT, presently resides in Somerset West with the parties' 9-year-old minor son E (whom the plaintiff prefers to call 'B'), while the defendant resides in Johannesburg. He travels down to Cape Town F by bus when it is necessary to attend court for a pre-trial hearing, claiming that he is penniless, and when he is in Cape Town puts up at a cheap backpackers' lodge in Long Street not far from the court building.

[3] The principal issue in the main action is the care and contact arrangements in relation to E. The plaintiff has informed the court that G this is the only issue. As far as the defendant is concerned, it is the principal issue, but he says he also has proprietary claims against the plaintiff which he intends pursuing. The clarification of the issues was finalised by this court at a pre-trial hearing conducted on 22 October 2014. Since then the court has been endeavouring to finalise the pre-trial H issues around E so that the matter can go to trial speedily. I must record that the court has dealt with the Ts' pre-trial matter differently to the customary practice: all proceedings have been conducted in open court, on the record and with the judge robed. In addition, a special time slot (usually 11h30 on a Friday) has been allocated for these parties to be heard alone.

I [4] I should perhaps point out, too, at this juncture that the defendant has not had contact with E for the last six years, other than for a short period of about 20 minutes during which it appeared as if the child did not wish to see his father. The defendant contends that the plaintiff has alienated the child from him and has effectively demonised him in the eyes of the child, while the plaintiff says that because J they separated

Gamble J

when the child was still very young (about 18 months old) he does not A know his father who has been an absent figure in his life. She is not at all well disposed towards the defendant and complains bitterly that he is in arrears with his maintenance obligations under a rule 43 order granted in the Durban court, and that such arrears now far exceed R1 million. The plaintiff is convinced that E does not wish to see his father at all and B that it is accordingly in his best interests not to have any such contact with his father. The plaintiff has manifestly not taken any positive steps to encourage the child to have contact with his father. Rather, it seems to me that she consistently places obstacles in the way of the father and son establishing a proper relationship.

[5] It is of great concern to the court that a child allegedly does not wish C to have contact with his father, but that is an issue which will ultimately be determined by the trial court. However, before the trial court can do so it is bound by the provisions of s 6 of the Divorce Act 70 of 1979 (which section has to be read in conjunction with ss 6 – 10 of the Children's Act 38 of 2005), to satisfy itself as to the appropriateness of D the proposed care and contact arrangements and, if an enquiry has been instituted by the family advocate, the trial court must consider the report of that office.

[6] The family advocate, represented in this matter by Adv Fourie of E Somerset West, has been assisting the court for more than two years by endeavouring to complete a report in terms of s 6 in relation to the welfare of E and the recommended care and contact arrangements. In the process of conducting her enquiry, Ms Fourie came to the conclusion that both parents were required to be assessed by an independent psychiatrist before she could complete her report: the F parties' mental health is clearly of some concern to the family advocate. The plaintiff initially expressed reservations about participating in such an assessment and, in particular, the mental health practitioner to be appointed. Ultimately, and after some considerable to-ing and fro-ing on the part of the plaintiff, the parties were referred to Dr Larissa Panieri-Peter, a G forensic psychiatrist now in private practice in Cape Town and formerly attached to the forensic unit at Valkenberg Hospital. At the request of the family advocate, this court gave specific directions to the parties as to when and where they were to consult Dr Panieri-Peter. The parties ultimately agreed to be bound by the court's directions and attended at the psychiatrist as directed. H

Directions given in terms of rule 37(8)

[7] The psychiatric investigation was completed during the latter part of 2015 and Dr Panieri-Peter's report is an annexure to the final report (9 March 2016) of Adv Fourie. However, the family advocate informed I the court at the time that she could not complete her s 6 report (which would include the psychiatrist's report) until she had completed a further assessment of E in his domestic environment. Advocate Fourie also informed the court that she required a full consultation with the plaintiff, the defendant having long since complied with her request in that regard. At a further pre-trial hearing conducted on 6 November 2015 (which the J

Gamble J

A court had anticipated would be the final pre-trial hearing in this matter) these two outstanding issues were raised by Adv Fourie, who has regularly been in attendance at these pre-trial hearings.

[8] After the court had enquired from her what her attitude was in relation thereto, the plaintiff agreed to facilitate a domestic visit at her B place of residence on 9 December 2015 for the assessment of E, and further agreed to attend a consultation with the family advocate in Somerset West at 09h00 on 10 December 2015. These attendances would have put the family advocate in a position to file her final report in terms of s 6 by the end of January 2016, and the matter would have C been ready to go to trial towards the end of the first term of 2016. Despite agreeing thereto a month before, the plaintiff kept neither of these appointments, and on 15 December 2015 the family advocate informed the court of these developments in a further interim report. The failure to stand by her undertakings meant that the plaintiff was holding up the progress of the litigation.

D [9] On Tuesday 12 January 2016 this court's registrar informed the plaintiff by email (the customary form of communication with these unrepresented parties) of the family advocate's communication regarding her lack of cooperation. The plaintiff was directed to appear before this court at 10h00 on Thursday 21 January 2016 to answer charges of E contempt of court in light of her failure to adhere to the directions of 6 November 2015. The plaintiff was informed in that email of her entitlement to legal representation at the hearing on 21 January 2016 and was urged to take the matter seriously. She was also informed that in the event that she wished to reconsider her earlier refusals to participate in the family advocate's investigation, she should contact Adv Fourie F to make new arrangements to consult with her and to permit the domestic visit to take place.

[10] The plaintiff failed to appear before this court on 21 January 2016 and a warrant was issued in terms whereof the sheriff for Somerset West G was directed to take the plaintiff into his custody and bring her through to court at 14h30 the following day. The sheriff was expressly informed that the court did not wish the plaintiff to be held overnight or in police custody.

The plaintiff's response

H [11] At the hearing on Friday 22 January 2016 the plaintiff appeared in the company of the sheriff who had brought her through to Cape Town during the course of that morning. The plaintiff was informed that the court did not intend conducting an enquiry into her non-appearance on that day. The court issued a rule nisi returnable on Friday 12 February 2016 I calling on the plaintiff to show cause why she should not be found to be in contempt of court due to her failure to facilitate the domestic visit on 9 December 2015, to attend the meeting with the family advocate the following day and to appear before this court on 21 January 2016. She was also called upon to show cause why she should not be sentenced to 30 days' imprisonment, and to bear the costs of the sheriff J incurred in securing her attendance at court on 22 January 2016.

Gamble J

[12] Thanks to the intercession of the Cape Bar Council, the plaintiff A was represented at the contempt hearing by Adv Holderness, who appeared as amicus curiae. The court is indebted to Ms Holderness for her assistance in this matter, which is in the finest traditions of the bar.

[13] With the assistance of Ms Holderness the plaintiff filed a detailed B affidavit explaining her failure to comply in December 2015 with the court's directions of 6 November 2015 and her failure to appear on 21 January 2016. In relation to the planned home visit of 9 December 2015 the plaintiff said that E had become increasingly agitated about the prospect of the family advocate interviewing him at home and had expressed himself in strong terms in regard thereto. She said that when C the family advocate and her assistant Ms...