A real-life example
This happened very recently, in the case of B.M.G.S. vs. M.B.S., when a mother was found to be in
contravention of two previous court orders concerning parental access and contact with a minor child.
The mother failed to comply despite being obligated to provide the father with reasonable contact, as
granted by the first court order. As a result, the father filed an application to have her declared in
contempt of court for her disobedience and refusal to reinstate contact.
Contempt of court explained
In legal terms, contempt of court is any conduct that disrespects, insults or defies the authority and
dignity of a court. It is designed to safeguard honour and maintain the effectiveness of the judicial
system.
Contempt of court can be either civil or criminal. Civil contempt refers to the wilful disobedience of a
court order. It is not intended to punish, but rather to protect the rights of the party affected by the
order and to ensure compliance. Criminal contempt is the wilful violation of the court’s dignity and
authority. In this case, the primary purpose of the offence is punitive, e.g., imprisonment.
To establish contempt of court, the following elements must be proven beyond a reasonable doubt:
The existence of a court order
The notice of the court order to the alleged person in contempt
The non-compliance with the terms of the order
The deliberate bad faith of the non-compliance
The case B.M.G.S. vs. M.B.S. highlights that wilful disobedience of a court order regarding parental
access rights can lead to a criminal offence. In theory this should ensure compliance with the court order
by the parent in question. After all, if the non-compliant parent is convicted and serves a custodial
sentence, the other parent is highly likely to take over full-time care of the child. Imprisonment of a
parent is rarely in the best interest of the child, which the Children’s Act aims to protect. However, the
court’s primary objective is to uphold the rule of law and ensure compliance with its orders, thereby
preserving the integrity of the judicial system.
Burden of proof
The courts do not like sending parents to jail, at least not for parenting-related “crimes”. (Obviously if a
murderer also happens to be a parent the interests of justice and the safety of society take priority over
parenting concerns!) For a parent to be imprisoned, the disobedience must not only be deliberate but
must also be executed in a mala fide (bad faith) manner. This means the parent has intentionally and in
bad faith disregarded the court order without good reason. Accordingly, the burden of proof for the first
three elements above rests on the the person bringing the charge of contempt of court, while the fourth
element, deliberate bad faith, must be disproved by the respondent, i.e., they must provide evidence
that failure to adhere to the court order was not intentional and was not done in bad faith.
In the case of B.M.G.S. vs. M.B.S., the mother failed to prove her case and was given a prison sentence
of 12 months for her continued non-compliance. The father was granted immediate access to the minor
child.
This case highlights the constitutional duty to obey court orders to uphold the rule of law and the
authority of the judiciary. Equally, it emphasises the importance of prioritising matters concerning a
child, particularly with regard to the best interest principle. Contempt of court in family-related matters
concerns the court and the parent who has contravened the court order and does not materially
concern the relationship between the subsequent parents (though that may be affected by the charge).
The case of B.M.G.S. vs. M.B.S. serves as an important lesson to those who refuse to abide by court
orders.
