IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CASE
NO. 665/04
In
the matter between :
NIGEL
ALFRED TAFT APPLICANT
VS
JACQUELINE
TAFT (BORN GREY) RESPONDENT
CORAM SHABANGU
AJ
FOR
APPLICANT MRS. CURRIE
FOR
RESPONDENT MR. JOHN E. KENWOOD
JUDGEMENT
16th July, 2004
The
applicant seeks an order in the following terms:
That
the Applicant be allowed reasonable access to the minor child Gary
Taft presently in the custody of the Respondent, such access to be
exercised every alternative weekend commencing at 5.00 p.m. on the
Friday and terminating at 5.00 p.m. on the Sunday.
In
so far as it is necessary, an order directing the Applicant to pay
all the school and medical expenses relating to the minor child.
That
the Applicant be ordered to pay maintenance to the Respondent in the
sum of E1,050-00 (One thousand and fifty emalangeni).
That
the Respondent be ordered to pay the costs of this application.
Further
and or alternative relief."
The
application is described in the heading as a "notice of
application in terms of rule 43." A similar application (that
is, a rule 43 application) was brought under case number 370 of 2003
between the same parties. In the former application the present
respondent was the applicant. The result of the earlier application
under case number 370/03 was a ruling delivered on 22nd August, 2003,
wherein and order was made in the following terms :
"(a)
The interim custody of the minor child is awarded to the applicant
subject to the respondent's rights of reasonable access, to be
exercised as follows: between the hours of 0900 hours to 18.00 hours
on the Saturday and Sunday of every second weekend.
The
respondent is directed to contribute to the maintenance of the
applicant and the minor child in the amount of E6, 350-00 per month
payable monthly in advance not later than the 7th day of each month.
The
respondent is directed to pay all school expenses relating to the
minor child.
The
respondent is directed to ensure that the Landrover and petrol
expenses in respect of the Landrover currently being used by the
applicant is not disturbed, but that in the event it becomes
necessary for any reason that the applicant should be deprived of
the Landrover and the provision of the petrol in respect thereof,
the respondent shall approach this court before the implementation
of any such new arrangement or otherwise, for variation of this
aspect of the order.
The
respondent is directed to contribute to the applicants' legal costs
in the amount of E20, 000 (Twenty thousand emalangeni).
The
costs of this application shall be costs in the cause, "
The
present applicant seeks in effect to vary the terms of the earlier
order. First. regarding the present applicant's rights of access to
the minor child in terms of prayer (a) the applicant wishes to have
access every alternate weekend commencing at 5.00 p.m. on Friday and
terminating at 5.00 p.m on the Sunday. The difference between the
earlier order and the present prayer (a) is that the applicant would
not be required to return the minor to the respondent on Saturday at
18.00 hours, (b) In so far as prayer (b) of the present application
the applicant would be responsible not only for the school fees but
also for the medical expenses relating to the minor child, (c) Prayer
(c) of the present
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application
would reduce the applicants monthly contribution to the respondent
from E6,350 per month to E1050-00.
The
respondent has taken a preliminary objection to the application, to
the effect that the applicant is in contempt regarding a number of
certain specific aspects of the order of 22nd August, 2003. The
respondent avers that because of the alleged contempt of court the
applicant is seeking to approach the court with unclean hands with
the result that the present application ought to be dismissed.
Relying on the case of SOLLER V. SOLLER 2001(1) SA 570 (C) Ms. Van
der Walt has made the submission that the applicant is barred from
re-entering the halls of justice to seek relief because of the
various instances amounting to contempt of court in relation to the
order of 22nd August, 2003.
At
paragraph 5.3 of the respondents answering affidavit the alleged
contempt is set out as follows,
"5,3
The applicant is in contempt of paragraph 1 (d) of the order in that
he has failed to provide petrol for the Landrover as ordered, but
instead, unilaterally, decided on a petrol allowance, as appears from
paragraph 12 (c) of the founding affidavit itself
Not
only do I not receive any 'allowance' for petrol up front, but have
to pay for it myself and only then 'claim' it back from the
applicant. This is not provision for petrol, as was ordered by the
above Honourable court.
In
addition, since the applicant introduced this new unilateral
arrangement, he refused to refund me in full for the petrol
purchases I had to make out of my pocket.
Paragraph
l(d) of the order reads specifically that the Applicant shall
approach the above Honourable court before the implementation of any
new agreement. This the Applicant simple ignored. "
Then
in paragraph 5.5 of the respondents answering affidavit the
respondents avers that "5.5 The applicant is in contempt of
Paragraph I (a) of the order in that he has taken our minor child
away overnight and intimidated me from stopping him to do so,
6.
The Applicant has been warned as early as December 2003 that he was
in contempt of court as regards the issue of maintenance and I
respectfully refer to 9.1 of my
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attorney's
letter to the Applicant's attorney dated 12th December, 2003 headed
"with prejudice" a copy of which is attached hereto as
annexure "JT2"
6.1
Despite the latter pointing out the unlawfulness of his conduct, the
Applicant continued, with impunity, to perpetuate his contempt of
court as regards the sum of maintenance.
6.2
In another flagrant disregard of the authority of the above
Honourable Court, the Applicant defied the Order in the further
respects set but above, "
Regarding
the maintenance aspect of the order dated 22nd August, 2003 the
applicant is alleged to have reduced the amount he was ordered to pay
to the Respondent as monthly maintenance from E6350 to E3450-00. He
has persisted in this conduct inspite of the letter which is annexure
"JT2" dated 12th December, 2003, wherein he was advised
that he has no right to unilaterally vary the terms of the court
order. The applicant has not responded to the allegations of contempt
referred to above. There can be no doubt that the applicant has by
his aforesaid conduct disobeyed the orders which this court made on
22nd August, 2003. The aforementioned conduct is a clear violation of
at least the authority of this court in that its order are being
disregarded or varied at whim by the applicant. The courts dignity
and reputation is also being violated in that it gives an impression
to the general public and especially to the respondent that a high
court order does not deserve to be respected and it is up to the
litigant against who it is awarded to simple ignore the order and do
what his personal whims dictate to him. If this were to be allowed
there would come a time when orders of the court will be considered
not to be worth even the paper they are written on.
In
SOLLER V. SOLLER 2001 (1) SA 570 @ 573 the learned judge Thring J,
observed;
"Notwithstanding
his contemptuous attitude, the applicant has the temerity to continue
to seek relief in this court. Indeed, in the present matter he seeks
relief as a matter of urgency, and he asks 'that the normal rules
relating to notice and set down be dispensed with...' It is not
lightly that this court will close its doors to a litigant. However,
a litigant who has contemptuously turned his back on those doors and
has repeatedly treated with contumely the judges who sit within them,
as the applicant has done, must not be surprised if, when he attempts
to re-enter the halls of justice to seek relief, he finds the way
barred to him until he has purged his contempt for the very tribunal
from which he now seeks justice. This I will give the applicant an
opportunity to do."
In
the present case I am also going to give the applicant an opportunity
to purge his contempt.
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In
the circumstances the order I make is that the proceedings are stayed
pending the purging of the contempt by the applicant who is required
in doing so to
provide
petrol to the respondent for the Landrover which the respondent uses
without giving her just a mere allowance.
To
refund the applicant in full for the petrol purchases the respondent
has had to make out of her pocket since the order of 22nd August,
2003 was issued.
Comply
with all the requirements of the order of the court made on 22nd
August, 2003.
ALEX
S. SHABANGU
ACTING
JUDGE
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