C of A
(CIV) NO15/2005

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

'MAMPHELI
MOROESI SEFEANE Appellant

and

TSEPO
SEFEANE Respondent

13-20
October 2005

Coram:
Steyn P

Grosskopf JA

Teele J

JUDGMENT

Contempt
of Court - Appeal against finding of contempt - Question whether
appellant was informed of order against her - Only reasonable

inference that she knew of custody order in favour of respondent

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GROSSKOPF
JA

[1] The
appellant and the respondent, who had been married to each other,
were divorced by the High Court on 10 December 2001. The
respondent
was the plaintiff in the divorce action. He also claimed custody of
the two minor children born of the marriage. The
appellant initially
opposed the respondent's claim for custody but subsequently withdrew
her opposition. It is common cause that
the respondent filed a deed
of settlement which was made an order of court. One of the provisions
of the deed of settlement was
that the custody of the minor children
was granted to the respondent, with reasonable access to the
appellant.

[2] The
appellant resided in South Africa at the time when the divorce
proceedings were initiated in the High Court and she still
lives in
South Africa. Her two minor children, Mpheli aged 16 and Kori aged
11, visited her in South Africa in December 2004. When
the schools in
Lesotho reopened in January 2005 the appellant returned the elder
child, Mpheli, to the respondent but

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kept the
younger child, Kori, in South Africa and enrolled him in a South
African school.

[3] The
respondent instituted proceedings in South Africa to try and regain
custody of the younger child, but those proceedings
were still
pending in April 2005 when the respondent heard that the appellant's
elder sister had died. The respondent concluded
that the appellant
would attend her sister's funeral in Lesotho. He then brought an
urgent ex parte application to arrest the appellant
while in Lesotho
in order to found jurisdiction, and to have the appellant committed
to prison for contempt of court. The High
Court granted the
application on 20 April 2005 and the appellant was thereafter
arrested on 30 April 2005 when she attended her
late sister's
funeral.

[4] The
appellant opposed the respondent's application for committal for
contempt of court, but the court a quo granted the application
with
costs on 11 May 2005 and ordered the appellant to restore custody of
the minor child, Kori, to the respondent with immediate
effect. The
court a quo did not, however, impose a fine or a

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sentence
of imprisonment. The appellant appealed against the finding of the
court a quo that she committed contempt of court. There
is no
appearance for the respondent who abides the decision of the court.

[5] The
appellant denies that she signed the deed of settlement but she does
not specifically deny the respondent's allegation that
the custody of
the minor children had been granted to him in terms of the court
order. The question whether the appellant knew
that that was court's
order is left unanswered in her answering affidavit, but it is common
cause, as pointed out above, that the
deed of settlement was made an
order of court. The appellant however maintained that her signature
on the deed of settlement had
been forged and that she saw the deed
of settlement for the first time when she was arrested on 30 April
2005.

[6] It
can safely be accepted in my view that the appellant did not
personally sign the deed of settlement and that she saw it for
the
first time on 30 April 2005. She was not frank on the other hand

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when she
alleged that her signature had been forged on the deed of settlement,
and when she failed to admit that she knew that the
custody of the
children had been granted to the respondent in terms of the court
order. This in my view is the only reasonable
conclusion that can be
drawn from the evidence of her erstwhile attorney, Mr Mafisa, and
from the fact that for four years she
seemed to accept that the
respondent was legally entitled to the custody of the children.

[7] The
appellant asked the court a quo to call Mr Mafisa as a witness to
explain who had signed the deed of settlement. Mr Mafisa
testified
that "custody of the children was a hot issue" and that the
appellant was adamant at the outset that she should
be granted
custody of the children. Her sister eventually persuaded her to agree
to an order granting custody of the children to
the respondent but
allowing her reasonable access. Appellant then left for South Africa
before the court granted the divorce order,
but after she had
authorised her sister to sign the deed of settlement on her behalf.
Mr Mafisa maintained that the appellant was
fully aware of the terms
of the deed of settlement

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and that
she had agreed thereto. This evidence of Mr Mafisa was not challenged
by the appellant and the appellant did not apply
to the court a quo
to allow her to give a different version of the events.

[8] It
was proved that the parties had agreed that custody of the minor
children would be granted to the respondent. The appellant
knew that
this agreement would be incorporated in the deed of settlement. It is
further common cause that the deed of settlement
was in fact made on
order of court. The appellant neither admitted nor denied that she
knew that the deed of settlement had been
made an order of court. In
my view she must have known this. On what other authority did she
think the respondent exercised his
rights of custody? She never
questioned the respondent's rights in this regard but actually
acknowledged these by allowing the
children to live with the
respondent in Lesotho for four years. It is true that the appellant
was never served with the court order
which incorporated the deed of
settlement, but the only reasonable inference is that she

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knew all
along that the respondent was exercising his rights of custody on the
strength of a court order to which she had agreed.

[9] The
requisites for granting an order of committal are set out as follows
by Herbstein and Van Winsen, The Civil Practice of
the Supreme Court
of South Africa. 4th ed. (1997) at p. 825:

"An applicant for an order of committal must show -

1. that
   an order was granted against the respondent;

   
   

2. that
   the respondent was either served with the order or informed of the
   grant of the order against him and can have no reasonable
   ground for
   disbelieving that information; and

   
   

3. that
   the respondent has either disobeyed the order or neglected to comply
   with it."

   
   

(Cf.
Sakoane v Sakoane & Others CiV/APN/156/2004 at p.9; Consolidated
Fish Distributors (Pty) Ltd v Zive and Others 1968 (2)
SA 517 (C) at
p.522 E - H.)

Once it
is shown that an order was granted and that the respondent has
disobeyed or neglected to comply with it, witfulness will
normally be
inferred. {Consolidated Fish Distributors, supra, p. 522 H.) It has
not been argued on

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behalf of
the appellant that should we find that she had knowingly disobeyed
the court's order, such disobedience was bona fide
and not wilful.

[10] It
is common cause that the respondent proved requirements (a) and (c)
and I have indicated above why it should be accepted
that requirement
(b) has also been complied with. The appellant's appeal cannot
therefore succeed. There was no appearance on behalf
of the
respondent in this Court and it is therefore not necessary to make
any cost order.

[11] The
following order is made :

The
appellant's appeal is dismissed.

FH
Grosskopf

JUDGE OF
APPEAL

I agree

JH Steyn

PRESIDENT
OF THE COURT OF APPEAL

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I agree

ME Teele

EX
OFFICIO JUDGE OF APPEAL

For the
appellant: Adv N Pule

No
appearance for the Respondent