Mother who denied father access gets 12 month jail term
IT WAS a bad start to the year for a mother who has to serve 12 months in jail for contempt of court after ignoring two court orders granting her former husband access to their child.
The Gauteng High Court, Pretoria, ordered the mother to report within 24 hours after the latest order to the Pretoria Central Police Station, from where she would be taken to the Kgosi Mampuru Prison to start serving jail time. The mother must also deliver the child to the father and if she failed to do so, the sheriff, accompanied by the police, were authorised by the court to fetch the child.
The father turned to the court for an order holding the mother in contempt as she ignored the two previous court orders in his favour.
To make matters worse, she and her attorney ignored this latest contempt of court application, although they were alerted to it. The matter went ahead without the mother defending the legal action.
A judge ordered in favour of the father in August 2021 – an order which the mother ignored. He again turned to court in a bid to see his child in June 2022, and while he again received an order in his favour, the mother still ignored the order. During the latter order the mother was also declared to be in contempt of court.
This is in spite of the fact that the father diligently paid R15 000 maintenance a month towards the child’s upkeep.
The father stated in his affidavit that he had been attempting to get access to and have contact with his child (no age given), whose primary residence and care is with the mother. His attempts were fruitless.
Judge Portia Phahlane noted that even with the 2022 contempt of court order against her, with a looming prison sentence if she did not adhere to it, the mother refused the father access to the child.
The father’s legal team even sent messages to the mother’s lawyer regarding the court orders, but to no avail.
Neither the mother nor her attorney responded to this correspondence and remained disobedient towards the orders, rendering the decision of the court impotent and the judicial authority a mere mockery, the court was told.
Judge Phahlane said there was no doubt in her mind that the jurisdictional requirements necessary to hold the mother in contempt of court were met.
“Similarly, the first respondent (mother) is fully aware of the contempt order granted against her and she is determined to frustrate the applicant (father) and rob him of his relationship with the child,” she said.
The judge said the child’s rights were being violated because he could not fight for himself, and he was being used and robbed of having any chance of knowing his father and forming a relationship with him.
“One would have expected the first respondent as the mother of the minor child to make decisions which would serve the best interests of the child as they are of paramount importance.
“The best interest of the child in this case is the child’s right to have a relationship with his father.
“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 judge added that it was obvious that the mother had no intention to comply with the court’s orders.
The judge also commented on the conduct of the mother’s attorney.
In this regard, she said legal practitioners were officers of the court and did not owe a duty to their clients only, but to the courts and the legal system.
“It is therefore important to always bear in mind that legal practitioners have an ethical duty to advise their clients to obey court orders, whether the client agrees with such an order or not.”
Judge Phahlane added that it is concerning that legal practitioners find themselves in situations where their profession would be compromised, considering that there was failure to advise the mother to comply with the court orders.
She said the mother was either ill advised by her attorney or not advised at all, or that her attorney was making common cause with her unlawful conduct of disregarding the rule of law.
The judge said that under the circumstances, a 12-month prison sentence for the mother was fitting.