BMGS v MBS and Others (GP) (unreported case no 26675/2022, 8-1-2024) (Phahlane J)

On 8 January 2024, Phahlane J sitting in the Gauteng Division of the High Court in Pretoria delivered an exceptional judgment and order, inter alia, reaffirming that ‘a child’s best interests are of paramount importance in every matter concerning the child’ (s 28(2) of the Constitution). The ruling is as a result of the court having heard an urgent application for contempt of two respective court orders.

The court found that the first respondent deliberately disobeyed the two court orders, thus, violating the rights of the applicant and grossly violating the best interests of the child, which is of paramount importance as enshrined in s 28(2) of the Constitution and echoed in s 9 of the Children’s Act 38 of 2005.

The applicant and first respondent are the biological parents of the child who was the centre of an application brought in terms of r 43 of the Uniform Rules of Court. The applicant sought relief to protect his right to maintain contact with the child as provided for in s 18(2)(b) of the Children’s Act. There were two existing court orders which granted and protected the applicant’s rights of access and contact with the child, but the first respondent wilfully and deliberately disobeyed the order. The court noted that the conduct of the first respondent reduced judicial authority and the rule of law into mere mockery. The first respondent, as the holder of primary residence and care of the child frustrated and prohibited the applicant from exercising his rights of access and contact with the child.

The applicant turned to the courts and sought relief to have the first respondent declared in contempt of court for failing to abide by a court order. The court order reaffirmed the applicant’s rights enshrined in s 18 of the Children’s Act. A second court order barring similar contents was subsequently granted in favour of the applicant. Despites the existence of the two court orders, which found the first respondent to be in contempt, she ignored the orders and refused to comply. The first respondent simply ignored correspondence from the applicant. As a result, the first respondent deprived both the child and the applicant of their rights to maintain access and contact with each other.

The High Court, as the upper guardian of all minor children found that the first respondent, with full knowledge of the contempt orders was determined to defy judicial authority. The applicant convinced the court that the first respondent was adamant in ensuring that she denied him access and contact with the child and equally to deprive the child a meaningful relationship with his father. The court criticised the actions of the first respondent and expressed shock at her deliberate and continuous failure to act in the best interests of the child.

Section 28(2) of the Constitution and s 9 of the Children’s Act requires a focused and informed attention to be given to the interests of a child at appropriate moments in every matter concerning the child. Furthermore, s 7 of the Children’s Act provides for the ‘best interests of child standard’ and the right to maintain a connection with family is encapsulated in s 7(1)(f)(ii). The best interests principle was first established in South African law in the 1940s in the case of Fletcher v Fletcher 1948 (1) SA 130 (A) – used in family law and welfare proceedings in which children were involved, for example, care, contact and maintenance.

According to the United Nations Convention on the Rights of the Child, General Comment 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3, para 1), the right can be unpacked into three segments, as follows:

‘(a) A substantive right: The right of the child to have his or her best interests assessed and taken as a primary consideration when different interests are being considered in order to reach a decision on the issue at stake, and the guarantee that this right will be implemented whenever a decision is to be made concerning a child, a group of identified or unidentified children or children in general.

(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child’s best interests should be chosen. The rights enshrined in the Convention and its Optional Protocols provide the framework for interpretation.

(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision-making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees.’

There is no doubt the court in the matter at hand understood the application to be more than an application of contempt of court. The court applied its mind and gave effective weight to the best interests of the child. One also sees the court’s reasoning, namely that the court does not once suggest that everything else is unimportant but rather that nothing is more important than the best interests of the child. This is evident as the court noted that the best interest of the minor takes priority above all. The court applied the three segments of the right as highlighted above, hence the court pronounced that ‘the child’s best interests become of paramount importance in arriving at a just decision’.

The court rightly executed its duties to protect the best interests of the child and the integrity of judicial authority. According to Phahlane J, ‘the best interest of the child in this case is the child’s right to have a relationship with his father.’ The court sentenced the first respondent to a period of 12 months imprisonment for contempt of court.

This article was first published in De Rebus in 2024 (April) DR 31.