In a landmark ruling that has been described as a major victory for fathers, the North Gauteng High Court in Pretoria has jailed a mother for 12 months for denying access his child, despite two court orders.
The judgment, handed down by Judge PD Phahlane earlier this month, has brought to the fore a significant ruling on parental rights and the best interests of the child.
The case involved Mr S, the applicant, who sought enforcement of previous court orders granting him access to his minor child, against the first respondent, the child's mother.
Despite multiple court orders, in August 2021 and June 2022, the mother of the child continuously defied the orders, leading to Mr S filing a contempt of court application.
In a detailed judgment, Judge Phahlane delved into the specifics of the case, noting the mother’s consistent disregard for court orders and the subsequent impact on the minor child’s right to a relationship with the father.
The judge pointed out that the first respondent's actions not only disrespected the court's authority, but also directly violated the child's rights, as protected under the Children's Act and the South African Constitution.
“While courts do not countenance disobedience of judicial authority, it needs to be stressed that contempt of court does not consist of mere disobedience of a court order, but of the contumacious disrespect for judicial authority,” Judge Phahlane said.
“The first respondent displayed herself to be recalcitrant in her behaviour, and it is my view that her continued defiance in respecting the rule of law, and her prolonged violation of her own child's rights and best interests, is something which cannot be ignored by this court.
“The Children's Act provides in Section 7(1)(f) that in determining the best interest of the child, the court must be guided by ‘the child's need’ to maintain a connection with his/her family. In casu, the need for the minor child to maintain a connection with his father is of paramount importance. There is no denying that the applicant has been disadvantaged unfairly while having Court Orders at his disposal. This speaks volumes on how the first respondent has reduced Court Orders into a mere paper that has no value. In my view, this utter disrespect and violation of the Court Orders cannot be tolerated,” Phahlane added.
The court was critical of the woman’s attorney, noting a failure to provide proper legal advice and to ensure compliance with court orders.
In coming to a decision, Judge Phahlane sentenced the mother to 12 months imprisonment for her “wilful and mala fide non-compliance” with the court orders. Additionally, the court ordered that the first respondent bear the costs of the legal proceedings on an attorney and own client scale, including the costs of employing counsel.
This ruling sends a strong message about the consequences of disregarding court orders, especially in cases involving the rights and welfare of children. It reaffirms the judiciary's role in upholding the rule of law and ensuring that the best interests of children are always given paramount importance in legal disputes.
Castro Musinyali of the organisation, We are Fathers, We are Parents - that advocates for parental rights of fathers - said the court ruling was a positive development.
He, however, said that while they welcomed the judgment, it only happened because the father had the means to approach the high court, noting that countless fathers seeking access to their children could not afford to do so.
“Even though the precedent was set here, you might find that there will be resistance by presiding officers at the Children’s Court to follow suit, because they do not want to incarcerate mothers, despite court orders against them.
“We hope this victory sends a strong message to fathers not to give up and to use the courts to reclaim their rights,” he said.