In this case the question was the question whether a plaintiff, the mother, who appeared in person in a divorce matter, was guilty of contempt of court where the presiding judge gave the mother directions in terms of Uniform Rule 37(8)(c), but she failed to adhere to.
The main issue in the divorce was the care and contact arrangements in relations to the parties’ minor son (the son). The son was living with the mother. At a pre-trial hearing in November 2015 the court directed the mother in terms of r 37(8)(c) to facilitate a meeting with a representative of the family advocate’s office in order to allow the latter to complete an assessment of the son in his domestic environment. The mother failed to adhere to the direction.
The mother was ordered to appear before the present court to answer to charges of contempt of court for her failure to answer to the direction given by the court. In the contempt of court charge the mother was represented by an advocate who appeared amicus curiae. It was argued on her behalf that a direction in terms of r 37(8)(c) is not an order of court and that contempt proceedings were accordingly not appropriate.
Gamble J held that, provided the mother has acted with wilfulness or mala fides, her failure to adhere to the direction given in November 2015 is indeed capable of being addressed through contempt proceedings.
The mother’s assumptions of bias on the part of the representative of the office of the family advocate were manifestly unreasonable in the context of clear directions to participate in the obligatory investigation being conducted by the family advocate.
The court accordingly held that the mother acted in contempt of court. It decided to afford an opportunity to the parties to address the court afresh on the aspect of an appropriate sanction, before handing down such action. The matter was accordingly postponed to a later fixed date.
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Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.