The courts in our jurisdiction do not tread lightly when it comes to matters concerning the paramount importance of a child’s best interests. In cases where the rights of the child are at stake, our courts will prioritise  the child’s welfare over the interests of the parents. Accordingly, when a parent denies the other parent access and contact with a minor child without valid justification, legal repercussions may ensue.

In a recent judgment of the Pretoria High Court in B.M.G.S v M.B.S and Others (26675/2022) [2024] ZAGPPHC a mother was sentenced to twelve months’ imprisonment for contempt of a court order, stemming from her refusal to grant the father access to the child.

In this case the Applicant (“the Father”) and the First Respondent (“the Mother”) were  biological parents to a minor child who was the centre of a Rule 43 application.

Judge Vaster AJ had previously ordered the Father to pay maintenance of R15,000 per month, granted both the father and mother full parental rights and responsibilities in terms of section 18 of the Children’s Act, and also granted the father reasonable contact with the minor child on every alternate weekend as well as reasonable consultation and contact (“the Vaster Order”).

The mother refused to comply with the Vaster Order, and as a result of her non-compliance, the father approached the court for a contempt of court order. Judge Mosopa ordered the mother to be imprisoned for a period of thirty days for contempt of the Vaster Order (“the Mosopa Order”). Subsequent to the mother wilfully disobeying the Mosopa Order, that necessitated the father to bring an urgent application.

The court held that “the duty to observe court orders is a constitutional imperative flowing from the rule of law protected in section 1 of the Constitution, and the provisions of section 165, which vouchsafe judicial authority.” The court further found that the mother displayed recalcitrant behaviour and her continued defiance in disrespecting the rule of law and prolonged violation of her own child’s rights and interests is something which cannot be ignored by the court. The court affirmed the position that, in term of section 18 of the Children’s act, a parent has a right a to maintain contact with a minor  child. The court found that in this case, the mother has deliberately robbed the father of his right to maintain a connection with the minor child.

The case of B.M.G.S v M.B.S is a clear demonstration that our courts will not tolerate acts which are calculated at defying judicial authority. On the one hand, being in contempt of a court order carries legal ramifications of sanctions such as fines or imprisonment, while on the other hand, depriving a parent of contact with a minor child violates that parent’s rights enshrined in the Bill of Rights of the South African Constitution. In conclusion, parents should carefully consider the implications before intentionally flouting the Rules of Court.

Written by Palesa Marobe, associate, Dispute Resolution, Rams Attorneys. She specialises in general litigation and family law.