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 -
that an order was granted against the respondent;
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
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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ME Teele
EX OFFICIO JUDGE OF APPEAL
For the appellant: Adv N Pule
No appearance for the Respondent
