IN THE HIGH COURT OF ESWATINI
Held at Mbabane Case No.: 32/2019
In the matter between
SAMKELISIWE DLAMINI Applicant
SKHUMBUZO DLAMINI Respondent
Neutral Citation: Samkelisiwe Dlamini Vs Skhumbuzo Dlamini (32/2019)  SZHC 216 ( 19th November 2019)
Coram: Hlophe J.
For the Plaintiff: Mr S. Dlamini
For the Defendants: Mr W. Maseko
(later B.S. Dlamini)
Date Judgment Handed Down:- 19th November 2019
Application Proceedings – Custody of minor children born of married Parents – Previous consent order awarded custody to the Applicant who had to agree to the removal of any of the three children from her custody – Respondent refusing to return one of the children despite demand by applicant and contrary to the consent order.
Order for the return of child concerned together with an interdict sought against the Respondent – Interim order for the return of child granted whilst other orders postponed to return date.
Respondent failing to comply with order of court – Respondent notes an appeal against the interim order after a few days of failure to comply therewith – Effect of noted appeal is to suspend operation or execution of order appealed against.
Applicant files application seeking inter alia an order preventing Respondent from being heard following his alleged violation of the doctrine of clean hands and another one allowing execution of the interim order notwithstanding the appeal noted.
Doctrine of clean hands, its application and effect discussed -Whether or not doctrine applicable in present matter – Doctrine found applicable with regards a subsequent application by Respondent seeking certain reliefs in his favour.
Orders sought in the main application confirmed – Appeal noted against confirmed orders – Application for the removal of automatic stay of execution applied for and granted.
Interpretation of judgement or order of court sought – Principles entailing same discussed – Order interpreted and given meaning.
 The Applicant brought these proceedings under a certificate of urgency seeking the following reliefs:
1. Dispensing with the usual forms and procedures relating to the institution of proceedings and allowing this matter to be heard as one of urgency.
2. Pending determination of these proceedings, an interim order issues operating with immediate effect in terms of which:
2.1. The Respondent is directed to forthwith return the minor child Kylah Dlamini to the custody of the Applicant at the parties’ matrimonial home at plot 434, Mbabane Township, Umphohlo Street, Thirty five, District of Hhohho.
2.2. Interdicting and restraining the Respondent from interfering with the established circumstances of the education and residence of all three (3) of the parties’ minor children, namely: Zoe, Kaylah and Hadassah.
3. The Respondent shows cause on a date to be determined by this Honourable Court why the interim orders stipulated in prayers 2 and the sub prayers thereunder should not be made final.
4. Committing the Respondent to gaol(prison) for a period of thirty (30) days for contempt of court.
5. Directing the Respondent to pay maintenance of the parties’ three minor children in the sum of E14,875.00 per month effective from November 2018.
6. Directing the Respondent to continue paying the school fees and medical expenses of all the minor children of the marriage.
7. Directing the Respondent to pay costs of suit at attorney and client scale.
8. Further or alternative relief.
 I must mention at this stage that although the matter started off as a simple one where the above reliefs were sought, it later developed into a multi-faceted one after several interlocutory applications were instituted, seeking various reliefs as dictated to by the peculiar circumstances of the matter. Owing to the urgency involved in each relief, coupled with peculiarity of the reliefs sought (most of which were matters that concerned the livelihood of the applicant involved), I had issued extempore rulings with a view to have the full reasons availed in due course. It is for this reason therefore that the text of this Judgement is not only about the reasons to the main application but about all the various applications (including the interlocutory ones), that were moved and decided by this court extempore. I clarify that for better management of it, I have tried the best I can to segment it.
II. Background Facts
 The background to the matter as disclosed in the papers filed of record was that whereas the applicant and Respondent were husband and wife, their marriage was undergoing a strain. In fact there had already been heard and finalized divorce proceedings at the Mbabane Magistrate’s Court which had been dismissed at their conclusion. This however does not seem to have brought any relief in the deterioration of their relationship.
 The Respondent is shown to have left the matrimonial home and was staying at Tubungu Estate in Matsapha, whilst the applicant, the wife, had remained in the matrimonial home at Queensgate area, Mbabane.
 It was also revealed that whilst the divorce proceedings were pending before the Magistrate’s Court, the current applicant had instituted application proceedings before this court where she sought among other reliefs maintenance contribution for her and the children as well as the custody of the said children. This matter, it is common cause, had been concluded amicably through the parties agreeing on a consent order which was eventually endorsed by this court per Judge Maseko. Owing to the indelible effect the terms of this agreement have on the matter including on the current proceedings, it is important I here state verbatim those terms:-
.1. The Respondent is hereby interdicted from the disposal of assets jointly owned by the parties in their marriage in community of property.
.2. The Respondent is directed to fully disclose to the applicant all assets of the matrimonial joint estate which are either registered in his name or over which he has control including leases, investments and insurance policies by the Respondent.
.3. The Respondent is interdicted and restrained from giving anyone access (in his absence) to the parties’ matrimonial home at Plot 434, Mbabane Township. Umphohlo Street in the location known as Thirty Five in the District of Hhohho.
.4. The Respondent is interdicted and restrained from taking away the parties’ children without the applicant’s consent.
.5. The Respondent is interdicted and restrained from exposing the parties’ children to his intimate affairs with other women including sleep overs in his absence.’
. The parties’ children had always stayed in the matrimonial home in Mbabane and they also attended school in this town. In fact, when the Respondent allegedly moved out of the matrimonial home, it is not in dispute that the children had remained residing and schooling in Mbabane as alluded to in the foregoing paragraphs.
 On the 11th December 2018, the applicant took the children (all three of them) for a visit. It is unclear whether this ‘taking’ of the children had been agreed or consented to by the applicant in view of the express terms of the consent order, particularly order 4 thereof, which had been issued by this court on the 26th July 2018 as a consent order and as can be seen above. I say it is uncertain whether there had been consent because whereas the applicant contends there was no such; the Respondent contends otherwise. What is certain though is that the children spent sometime with the applicant who only returned two of them, Zoe and Hadassah, on the 27th December 2018. He retained Kaylah, as he puts it, because she chose to remain with him or refused to be returned to the Applicant.
 Kylah had therefore remained with the Respondent up to the time these proceedings were instituted in mid-January 2019. The schools had already commenced for the first term of 2019 when this application was moved on the 17th January 2019. In terms of the e-mails exchanged between the parties, the schools opened on or around 15th January 2019. It is clear from the correspondence, particularly the emails exchanged between the 4th January 2019 and the 10th January 2019, that although the Respondent indicated he wanted to take the children so they could school where he had since chosen, the applicant had always objected thereto and had insisted throughout that the children, particularly the one that had not been returned by the Respondent, should be returned to her so that they could all pursue their education in Mbabane.
 What is certain is that unlike the Respondent who claims that the children should stay with him because he was their father and that failure to release them to him was proof that he was not their father and therefore he would not pay any maintenance contribution towards their upkeep. This he had contended would be the position unless the request for him to contribute towards that cause, was accompanied by unequivocal proof that he was their father. The applicant insisted that they all be returned to her so they could continue schooling where they had always done so as supported by the consent order referred to above.
 Clearly order 4 of the consent order (that is order 4 above), issued on the 26th July 2018, made an express provision, that the Respondent was interdicted from taking away the children without the consent of the applicant. Certainly in refusing to return Kylah to the applicant after she insisted the child be returned, the Respondent cannot realistically be heard to be saying that he did not violate the consent order when he failed to return the child to the Applicant.
 The foregoing facts were at play when the application was instituted on the 17th January 2019 seeking the reliefs referred to in paragraph 1 above, which were sought on an urgent basis with the rider they be granted on an immediate and interim basis.
 When the matter was mentioned before me on the 18th January 2019 in the course of discharging my duties as Duty Judge of that week, I, after hearing both parties, at least with regards the urgency of the matter, granted an interim order in terms of the then prayer 2.1, which had effectively sought an immediate return of the child that remained with the Respondent, Kylah, pending finalization of the matter.
 Given the undisputed fact that the school, to which the child had been enrolled, had already opened such that she was missing out on her education, taken together with the fact that she had not been taken from the applicant’s custody with the consent of the applicant as provided for in order 4 of the consent order agreed to by the parties, as well as the fact that she was still of a tender age and hardly knew what choosing between her two parents really, entailed, particularly on the face of the court order; I issued the rule nisi in question for it to operate with immediate effect.
 To avoid any hardships being visited on the Respondent or even on any of the parties, I postponed all the other prayers to the return date. That interim order further called upon the Respondent to show cause why that order could not be confirmed on the return date. Because the applicant had also asked for leave to file a supplementary affidavit to clarify why it was convinced that the Respondent was in contempt, I granted the applicant such leave and provided what I considered a fair and reasonable opportunity for the Respondent to respond to the papers filed including the intended supplementary affidavit. I had otherwise set the 6th February 2019, to be the return date on the 18th January 2019.
 I have left out the fact that although it had been contended before I could issue the interim order referred to above that the child, who remained in the custody of the Respondent contrary to an order of this court, had allegedly refused to return to the applicant’s custody, I had issued the order concerned nonetheless as I believed, at least prima facie, that it was in her best interests to remain with her mother, particularly because her alleged contrary behaviour was in contravention of an order of court which could not be countenanced. I had therefore expected that the answering affidavit to be filed was going to go in detail and explain why in light of the order of court, her age as well as the fact that her school had already opened and she was missing out on schooling, I should not confirm such an order.
 It transpired later that the Respondent had, not withstanding the apparent urgency of the order, decided to defy it as he had not “forthwith” (that is as of the 18th January 2019) returned the child to the applicant. Instead he had purported to, on the 21st January 2019, after he had already shown contempt to the order of court, noted an appeal to the Supreme Court. The grounds were in summary that this court had granted the interim order it had without having heard him; that this court had failed to consider the best interests of the child and that this court had not taken into account the fact that the parties were still married to each other and therefore that he was also a guardian entitled to custody of the child. I mention in passing that I have a dim view of the unwarranted intervention by some police officers in the matter which had the unenviable effect of assisting him defeat an order of court. It should be known that for the sake of order in society court orders should be respected by all and should only be challenged through the proper and lawful channels where a legitimate cause exists to do so. Owing to this view that I had formed with regards the intervention by the police I found it unnecessary to give credence to the report they had made to try and justify the defeating of the court order. It suffices to say in a befitting matter such conduct could get them into trouble.
III. Interlocutory Application seeking Inter alia execution of the Interim Order Pending The Noted Appeal And The Alleged Failure To Observe The Doctrine of Clean Hands.
 Although the said grounds appeared palpably weak on their face, the circumstances of the matter, taken together with the fact that the order concerned was obviously not appealable as of right at that stage as it apparently required leave of court for it to be; I steered clear of making a decision on those issues as I took the view that they were matters for the Supreme Court to pronounce upon. Had the applicant accepted that there was now an appeal and did nothing, that would have possibly signaled the stalling of the matter for it to await pronouncement by the Supreme Court. This was however not the case as the applicant’s attorney answered by filing an urgent application in terms of which he sought an order inter alia, precluding the Respondent from being heard in his defence or opposition to the application concerned on the grounds that he had failed to observe the doctrine of clean hands in so far as he wanted this court to hear him when he had not complied, or was refusing to comply, with its orders.
 He also sought an order confirming the interim order concerned and the other prayers made. In the alternative he had sought orders directing the first Respondent to comply with the order of court notwithstanding the appeal noted. This prayer although stated in a somewhat confusing manner, is effectively a prayer for an order allowing execution of a judgement or court order notwithstanding the appeal filed, which is a competent relief to seek before the court that granted the order being challenged. It further sought payment of maintenance among the other reliefs including costs of that application at a punitive scale.
 I allowed the parties to file the necessary papers so that the matters could be dealt with wholistically on the return date I had allocated the main matter. As I did so I had my reservations about the propriety of the prayer contending that the Respondent had approached the court with dirty hands, often referred to by its converse as the doctrine of clean hands. Whereas the Applicant sought to have the Respondent prevented or precluded from raising his defence, this, as I understand it, is not how the doctrine applies. I understand it to be a bar to a person who does not comply with Court orders yet he seeks to institute proceedings in Court so as to be granted an order. It is not a bar to one defending proceedings. See in this regard Photo Agencies (PTY) LTD V The Commissioner of The Swaziland Royal Police and The Government of Swaziland 1970-76 S.L.R 398 at 407; Mulligan V Mulligan 1925 WLD 164; S V Nkosi 1963 (4) SA 87 (T), The Swaziland Government Vs Ray Gwebu and Another, High Court Case No.3699/2002, and Dibona Vs Dibona 1993 (2) SA 628 (c).
 This point was made in the following words in Dibona V Dibona (Supra):-
“The General rule is that orders of court must be obeyed. Were this not so, the protection of the rights of persons and the resolution of disputes by recourse to the Court which is established for that purpose, would be of little if any, effect and the community would be deprived of the proper administration of justice.
Contempt of an order of Court is therefore a grave matter…The consequence of the rule is that anyone who disobeys an order of court is in contempt of court and may be punished by arrest of his person and by committal to prison and secondly, that no application to the court by a person in contempt will be entertained until he or she has purged the contempt.” (underlining added)
 In S V Nkosi 1963 (4) SA 87 (T), the following excerpt was quoted from the case of Mulligan V Mulligan 1925 WLD 164 at Page 167 – 168 which in my view confirms the same position as that referred above :-
“Before a person seeks to establish his rights in a court of law he must approach the court with clean hands; where he himself, through his own conduct makes it impossible for the processes of the Court (whether criminal or civil) to be given effect to, he cannot ask the Court to set its machinery in motion to protect his civil rights and interests..Were the court to entertain a suit at the instance of such a litigant it would be stultifying its own processes and it would, moreover, be conniving at and condoning the conduct of a person, who through his flight from justice, sets the law and order in defiance.” (underlining added)
 Had the applicant sought to rely on this doctrine on the grounds that the Respondent merely sought to oppose the proceedings, it is clear there would have been no basis for this court to uphold the applicant’s application. I do not think a party can be lawfully prevented from defending himself unlike when he seeks an order in his favour yet he himself does not want to comply with court orders.
 Certain developments occurred which in my view changed the colour of the matter in this regard. Whilst I had postponed the interlocutory application on its last mention in Court on the 28th day of January, 2019 to the 6th day of February 2019 (which was also the date for hearing the main matter) with a rider that all the papers should have been exchanged by the latter date for the matter to proceed, it happened that on the 5th February 2019, just a day before the return date for the applications already serving before court, the Respondent filed an application in terms of which he sought an order inter alia joining The Social Welfare Department as the second Respondent in the proceedings, together with another prayer seeking that the latter department be directed to conduct the necessary investigations in terms of Section 22(1) of the Children Protection And Welfare Act of 2012 and file a report on how the best interests of the child would be served in these circumstances. Clearly the intention of the Respondent was to ensure that he retains the custody of the child notwithstanding the specific provisions of the consent order.
 I clarify that as these orders were sought there was not even an attempt to comply with the previously issued order of court. The Respondents seemed to have contented themselves with the view that simply because they were now against the consent order, they would be allowed to ignore it and instead simply file their own proceedings in terms of which they obviously expected the applicant to subject herself to those proceedings without asking any question. I have no hesitation this was an erroneous view by the Respondent as he has no power in law to ignore an order of court whatever his views about it unless he had challenged it through the proper channels, and had it set aside or varied or unless he was authorized by the court to act in a particular way contrary to the court order or Judgement.
 When the Applicant’s objection to have the Respondent heard without him having purged his contempt was raised, I sustained it on the ground that the Respondent had indeed failed to comply with an order of court yet he sought to be heard and granted an order in his favour by the same court. The main reason why the Respondent had failed to do so was because of the order issued by consent before Maseko J, in terms of which the parties had consented to the custody of the children, including Kaylah, being kept by the Applicant. The Respondent’s actions were therefore ignoring this order and treating it with contempt.
 I accordingly, upheld the objection that the Respondent was approaching this Court with dirty hands. His application was therefore dismissed, which paved the way for hearing the Applicant’s application to allow execution of the judgement for maintenance, which was by its very nature an urgent remedy, and that it therefore had to be paid in the interim. Furtherstill at that point the maintenance was the one agreed upon between the parties themselves – that is the sum of E3500.00 which the Respondent had unilaterally decided to withhold despite a specific order it be paid.
IV. The Merits Of The Main Application.
 Turning to the merits of the application, I found that the Respondent was in contempt of Court by keeping the minor child Kaylah much against the consent order. I directed that he forthwith purges his said contempt by dropping the child in question, Kaylah with the Applicant forthwith and in any event by close of business that day, at their matrimonial home at Queen’s Gate – Mbabane. I so ordered after I had found no merit in the Respondent’s contention that the child refused and cried when he tried to drop her with her mother and he had thus decided to leave with her. I found this to be a fanciful explanation devoid of any truth or seriousness particularly if juxta posed against a Court Order. I was convinced that what had happened was machination aimed at defeating the Court Order, which I could not allow.
 I further ordered that, because of the unreasonable manner in which the First Respondent had handled himself in the matter including the various incidents of deliberate disregard of the court order, he was to pay costs of the applications at attorney and client scale. I did this to record the court’s disapproval of the Respondent’s conduct.
 I also ordered that the interim order I had issued on the 28th January 2019, compelling the Respondent to pay school fees for all his three children was being confirmed. The school was ordered to file a deposition confirming that there was an agreement on what was to be paid as school fees including that a method of its payment had been agreed between the parties. This was necessitated by the Respondent having contended that the payment of school fees had been agreed between himself and the applicant, yet I had nothing to show for it.
 I went on to direct further that from the 1st of March 2019, the Respondent was obliged to pay a sum of E8000.00 per month. This I did on the 6th February 2019. The background to that order is that as at the time the Respondent was paying a sum of E3500.00 as maintenance. It is also common cause this amount was payable, per practice, by the 25th day of each month; which means that the payment from the 1st of March 2019 would have been after the payment of the February 2019 contribution which was to have been paid by the 25th of the month in terms of the prevailing practice. To me the sum of E8000.00 as a maintenance contribution was fair. It was somewhat the middle line between the applicant’s claim and itself. I was of the view the applicant would contribute whatever would be in excess.
 Having noted, this time mero mutu, that there was still a need for the Social Welfare Department to determine the place at which the interests of the child would best be served with regards her custody, I ordered that prayer 2.2 of the Notice of Motion in the main application, to the effect that the Respondent was not going to interfere with the children including their place of residence and schooling, was to remain in place until a Social Welfare Report indicating the contrary was availed, after which the matter would be set down for an appropriate order as at that stage.
V. Application For The Payment of Maintenance Contribution Pending The Noted Appeal.
 I had taken the matter to be resolved after I had issued the above orders on the 6th February 2019. In fact I thought it was awaiting a pronouncement by the Supreme Court on the appeal that I had been informed, on the papers, had been noted to the interim order. This was however not the case because on the 12 March 2019, there was placed before me an application by the applicant seeking to execute the judgement or orders I have referred to above, pending the appeal that hand been noted against the order I had made on the 6th February 2019. This application disclosed that the Respondent had since filed or noted an appeal to the orders of the 6th February 2019. In fact the execution sought in the interim, related only to the maintenance aspect of the judgement or order issued on the 6th February 2019. The applicant was saying that owing to the fact that maintenance was a matter of livelihood, the Respondent had to be ordered to contribute the determined maintenance contribution. I clarify that although this application was brought under a different case number from all the others, I have decided to have the reasons for the decision I made incorporated in this one because of the closeness of the matters.
 It was disclosed that in the proceedings in terms of Rule 43, which were pending the finalization of the divorce proceedings, the Respondent had actually offered a sum of E5500-00 per month as a maintenance contribution before turning around to offer only E3500.00 which he had gone on to pay.
 Although the Respondent had opposed the proceedings for the execution of the maintenance order notwithstanding the noted appeal, I noted that there was no dispute that all the children in question were his nor was there any denial that he was earning a net salary of around E85000.00 odd. I was convinced that there was no sound basis for the refusal to contribute a reasonable sum towards the maintenance of the parties concerned. Although the applicant herself wanted the Respondent to contribute a sum of over E14000-00 odd per month based on what the Respondent was said to be earning, considered against what the Respondent had once offered, I was convinced that it was reasonable in the circumstances for the Respondent to contribute a sum of E8000.00 monthly, as a maintenance contribution. Although I felt at the time that the Respondent was being unduly difficult in maintaining his own children; I ordered that costs of that application were to be costs in the course, in an attempt to try and have the parties cooperate for the sake of their own children.
 I further granted the order sought on the understanding that maintenance could not be postponed as it concerned the livelihood of those concerned.
VI. Application for the Interpretation of the Court’s Order
 It was only months afterwards that I became aware of another application between the same parties in terms of which this court was being asked to interpret the order it had made on the 6th February 2019 with regards the commencement date for paying the maintenance contribution of E8000.00. This had become necessary because whereas the applicant was of the view it had to commence and include the period 6th February 2019 to 1st March 2019, the Respondent contended that it had to commence from the 1st March 2019 onwards. The Respondent contended further therefore that the period between the 6th February 2019 and 1st March 2019 should be catered for by the maintenance contribution that was paid before it was varied to E8000.00 on the 6th February 2019 said to have been the sum of E3500.00.
 I must say that when I received the application for consideration as a matter that had started before me, which in terms of the Chief Justice’s directive I had to see through, I was initially of the view that the Respondent was being unnecessarily difficult as I casually took it to be obvious that I could have only meant the next contribution due if I issued the order on the 6th February 2019. I had at some point, without having been fully addressed, asked the parties to go and resolve the matter amicably.
 Although the parties had attempted to do so, I was informed they could not agree on when exactly the E8000.00 contribution towards maintenance was to commence being paid. That is, was it before or after the 1st March 2019, and if it was from this latter date whether it could ever be said that the Respondent was in contempt of the order of court, if before the end of February 2019 he paid or offered the sum of E3500.00 he had always paid but same was rejected?
 I was in fact informed that soon after the parties counsels had appeared before me and had been directed to resolve the matter amicably as set out above, the Respondent’s Counsel had offered the sum of E8000.00 by means of a cheque in settlement of all the issues then pending before court. This I was informed was rejected by the Applicant’s counsel who had insisted on a tender for costs as well which was not acceptable to the Respondent. This then necessitated that a decision as envisaged by the law on interpretation of judgments or orders be made.
 The order I had issued on the 6th of March 2019, read as follows in its paragraph or order 5:-
“The First Respondent shall from the 1st March 2019, contribute a sum of E8000.00 per month to the Applicant towards her maintenance and that of the children.”(underlining has been added)
 The position on the interpretation of judgements is a crisp legal issue captured in the following words in Herbstein and Van Winsen’s, The Civil Practice Of The Supreme Court of South Africa, 4th Edition, Juta and Company, at page 689:-
“The basic rules for interpreting the judgement or order of a Court are no different from those applicable to the construction of documents. The Court’s intention has to be ascertained primarily from the language of the judgement or order as construed according to the usual well-known rules. The judgement or order and the court’s reasons for giving it must be read as a whole in order to ascertain its intention. If on such a reading the meaning of the Judgement or order is clear and unambiguous, no extrinsic fact or evidence is admissible to contradict, vary, qualify or supplement it. But if any uncertainty in meaning emerges, the extrinsic circumstances surrounding or leading up to the court’s grant of the judgement or order may be investigated and taken into account in order to clarify it. The rule that no evidence is admissible to contradict, amend or add to an order which is clear and unambiguous is a rule of law, not merely a rule of evidence that can be waived by the parties.”(underlining added)
 Considering this position of the law towards the interpretation of judgements, it seems to me that it did not matter much what I may have personally intended as at the time I made the judgement if the words used therein did not capture well that intended meaning. Clearly in the matter at present the words used were that the sum of E8000.00 as a maintenance contribution was to be payable from (that is after) the 1st March 2019. This, naturally means that if there was any sum payable before the 1st March 2019, that sum was to remain payable until the 1st of March 2019. It does not seem to be in dispute that the sum payable as a maintenance contribution before then was thus the sum of E3500.00. The sum of E8000.00 was therefore to be payable as from that date onwards.
 Following this principle, the Respondent could not be expected to pay an amount equaling E8000.00 before the 1st of March 2019, because the order in its natural meaning had said that would be payable from that day.
 Consequently the Respondent, for the period before or until the 1st March 2019, was required to pay the sum he was hitherto paying, namely the sum of E3500.00 and only pay the sum of E8000.00 after that date going forward. I thereafter ordered each party to bear its costs in an attempt to minimize the acrimony between the parties who I took the view will forever require each other’s cooperation going forward in view of the children they parented together.
 The foregoing has captured all the reasons that made me issue the various rulings I did in the matter and its several interlocutory applications.
N. J. HLOPHE
JUDGE – HIGH COURT