T.M and P.M and Another (2025/243240) [2025] ZAGPJHC 1319 (19 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1319 | Noteup | LawCite sino index ## T.M and P.M and Another (2025/243240) [2025] ZAGPJHC 1319 (19 December 2025) T.M and P.M and Another (2025/243240) [2025] ZAGPJHC 1319 (19 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1319.html sino date 19 December 2025 FLYNOTES: FAMILY – Children – Contempt – Attempted to exercise contact rights as per court order – Access was refused on two occasions – Admitted knowledge of order – Dissatisfaction with order did not justify disobedience – Suspension application failed – No evidence that father posed any risk to child – Conduct demonstrated deliberate and mala fide non compliance – Father entitled to coercive relief compelling immediate compliance – Mother declared in contempt of court. REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NUMBER: 2025-243240 1.REPORTABLE:  NO 2.OF INTEREST TO OTHER JUDGES:  NO 3.REVISED:  NO 19 DECEMBER 2025              Judge Dippenaar In the matter between: T M (BORN M)                                                                            APPLICANT AND P M                                                                                             1ST RESPONDENT MAGISTRATE Y. NANA                                                             2ND RESPONDENT OF THE CHILDREN’S COURT FOR THE DISTRICT OF EKURHULENI SOUTH-EAST HELD AT BENONI AND CASE NO: 2025-241086 In the matter between: P M                                                                                             APPLICANT AND T M                                                                                             RESPONDENT JUDGMENT Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by e-mail and uploading it onto the electronic platform. The date and time for hand-down is deemed to be 09h30 on the 19th of DECEMBER 2025. DIPPENAAR J : [1] There are two related urgent applications between the same parties enrolled for hearing on the urgent court roll. The first, an application launched by Mrs M in which the suspension of an order granted in the Children’s Court is sought, pending the determination of a review of the proceedings in the Children’s Court (‘the suspension application’). [2] The second, a contempt application launched by Mr M launched on 9 December 2025 (‘the contempt application’). Both applications are opposed. As the facts underpinning both applications are substantially the same, it is convenient to deal with both applications in one judgment. [3] The genesis of both applications lies in an order granted by the Children’s Court in Benoni. In relevant part, the order directed: (i) that primary residence of the parties’ minor child (‘PM’), a daughter born on 19 January 2025, would remain with the applicant’; (ii) the respondent would have unsupervised contact with the child for four hours every alternative weekend either on a Saturday or a Sunday, the respondent to collect or drop the child as per agreement between the parties, the first contact being on 30 November 2025 from 2 to 4 pm; (iii) the respondent would be entitled to arrange to visit the child at the applicant’s residence or a mutually agreed venue at other times; (iv) no photos of the child were to be posted on social media by the parents or third parties. The matter was remanded to 5 February 2026 for a progress report. The presiding officer in the Children’s court, the second respondent, exercised his discretion in awarding Mr M unsupervised contact, pending further investigation. It was common cause that a social worker provided a report on the day of the hearing recommending that the matter be referred to the Family Advocate for investigation. [4] It was undisputed that Mr M sought to exercise his contact to PM in accordance with the order both on 30 November and 7 December 2025 but that contact was refused by Mrs M. This resulted in the launching of the contempt proceedings, followed shortly by the suspension and review application. Against this backdrop, I turn to the merits of the applications. [5] It is convenient to deal with the suspension application first. That application was launched by Mrs M on 10 December 2025. In part A, she seeks an order suspending the enforcement of the interim order granted by the Children’s Court on 27 November 2025. Mr M is cited as the first respondent pending a review and setting aside of that order in Part B of the application. The second respondent is Magistrate Y Nana of the Children’s Court for the District of Ekurhuleni South East, held at Benoni. No proof was provided that the application was ever served on the second respondent. That is a fatal defect. [6] Mr M opposed the application. Mrs M elected not to deliver any replying affidavit. The facts contained in Mr M’s affidavit were thus not disputed. [7] The respondent challenged the urgency of the application on the basis that it was self-created due to the applicant’s own conduct and actions by not complying with the order. The application was launched on very attenuated time periods about a week after an unissued application was sent to the respondent after Mr M had threatened to institute contempt proceedings if Mrs M continued her refusal to comply with the order.  There is merit in Mr M’s contention that the application was a knee-jerk reaction to Mr M’s notification that he intended issuing a contempt application. The present application was preceded by an unissued urgent application which was due to be heard on 12 December 2025. That application was not issued nor heard. [8]  Were it not for the pending contempt application, I would have been inclined to strike it from the urgent court roll, given that on the applicant’s part, urgency was self- created. However, adopting a holistic approach, it is in the interests of justice to consider the applications together.  However, this issue has a bearing on costs. [9] A suspension of the interim order would effectively result in a stay of Mr M’s rights of access to the minor child. The applicant’s papers did not tender any contact to Mr M until the review application was determined. In argument, Mrs M’s counsel sought to proffer evidence from the bar and submitted that such relief could be granted under the rubric ‘further or alternative relief’. [10] It is well established that to succeed with a suspension or stay of the order, the applicant must illustrate both grounds for interim interdictory relief and that such a stay is in the interests of justice. [1] The requirements for interim interdictory relief are trite. [2] [11] I am mindful not to prejudge the pending review proceedings. I intend to adopt the approach of Malan J in Johannesburg Municipal Pension Fund [3] in considering whether Mrs M has illustrated a prima facie right although open to some doubt. It is only necessary for the applicant to illustrate a prospect of success in the pending review application to meet that threshold or whether the review application is frivolous or vexatious. [4] Put differently, is there a serious issue to be tried in the review application? [12] A large portion of Mrs M’s complaints relate to the report of the social worker. Significantly, however, the only recommendation made by the social worker is that the matter must be referred to the Family Advocate for investigation. In argument, Mrs M’s counsel stated that the applicant had no objection to such referral. Objectively speaking, there is no basis for any such objection. The case for review made out by Mrs M in her founding affidavit is scant and I tend to agree with the respondent’s counsel that the present review has little to no prospects of success. Significantly, no case is made out or even alleged in the applicant’s papers that Mr M is a threat to the minor child or that he is not competent to exercise unsupervised access. But even if I accept, as I for present purposes do, that there is some prospect of success in the review, that is not the end of the enquiry. [13] Turning to the risk of irreparable harm, which must be of an ongoing nature, [5] Mrs M must establish a well grounded apprehension of irreparable harm if the interim relief is not granted and she ultimately succeeds in establishing her right. Here the applicant’s case falters. From the papers it is clear that Mrs M focuses on her rights, ignores the rights of Mr M and entirely disregards the best interests of PM, whose rights are of paramount importance. [6] It does not appear from the papers that Mrs M has given due regard to the minor child’s right of contact with her father. Her case also disregards that given the history of the matter, contact is being phased in between the minor child and Mr M. No facts have been presented that Mr M is unable to properly care for the minor child during his unsupervised access. [14] No case has been made out on the papers that the minor child is in need of care and protection from Mr M or that her safety is of great concern. The high water mark of her case is the uncorroborated contention that Mr M’s family has used vulgar language in front of the minor and her reliance on a heated family dispute involving both her and Mr M’s family members during March 2025. [15] In an application for an interim interdict, the balance of convenience is often the decisive factor, given that it is a discretionary remedy. [7] In considering the balance of convenience, the prejudice to Mrs M if relief is refused must be weighed against the prejudice to Mr M if it is granted. Of paramount consideration in the balancing of the parties’ respective interests is the interests of the minor child, who is some eleven months old. In considering such balance, the principles enunciated in Olympic Passenger Services [8] must be applied. [9] [16] In this context, it is important to bear in mind that in a previous social worker’s report in other proceedings (which were withdrawn by the applicant but which were placed before this court) a recommendation of joint residency with phased in contact. Considering all the facts and the relevant principles, and specifically the best interests of the minor child, the balance of convenience substantially favours the refusal of relief.  The prejudice to PM and Mr M far outweights any prejudice Mrs M may suffer if relief is refused. [17] It is in PM’s best interests that she fosters a loving relationship not only with her mother and her maternal family members, but also with her father and paternal family members. Granting the relief in the terms sought by Mrs M, would substantially and detrimentally affect PM’s best interests and effectively sterilise contact between her and Mr M until the review proceedings are finalized. This could take a substantial period of time and is clearly not in the minor child’s best interests. [18] In relation to the absence of a suitable alternative remedy, I am not persuaded that the applicant has established this requirement. It is clear that the order granted in the Children’s court is an interim one, subject to alteration or variation in those proceedings, if good grounds are found to exist. Objectively viewed, the approach to the High Court was not the only, nor the most suitable remedy in the circumstances, unless its purpose was to frustrate Mr M’s contact with his daughter, as submitted by the respondent. [19] It follows that the application must fail. I later deal with the costs. [20] I turn to deal with the contempt application. The parties agreed that the application is urgent. I agree that the applicant, Mr M made out a proper case for the hearing of the application on the urgent court roll and established on his papers that he would not obtain substantial redress at a hearing in due course. [10] [21] Mrs M raised various points in limine, which can be disposed of succinctly. The first is lis alibi pendens . On closer interrogation, it was made clear by her counsel that the submission was no more than that the two applications were related and should be heard together, with the interdict application considered first. The lis pendens doctrine has no application, given that the proceedings, albeit between the same parties and based on the same factual matrix, are based on different causes of action and seek substantially different relief. [11] The submission that the contempt proceedings should be suspended pending the outcome of the ‘urgent review’ application, lacks merit. [22] The second is that the contempt application is based on ‘defective evidence’ as Mr M relied on a typed version of the order of 27 November 2025 which was not in Mrs M’s possession. This contention lacks merit. Although the typed version of the order contained a typographical error, [12] Mr M placed reliance on the handwritten version of the order, as did Mrs M herself. The parties were thus in no doubt as to what order was in issue in the two applications. Mrs M further contended that Mr M was ‘blowing hot and cold’, put differently, that he was taking up two positions which are inconsistent with each other, or approbating and reprobating. [13] That submission does not bear scrutiny for the reasons already provided. [23] Third, it was contended by Mrs M that the relief sought was defective as Mr M seeks relief that Mrs M be imprisoned. This contention is based on a misreading of the relief sought by Mr M. In the present proceedings, a coercive order is sought directing Mrs M to comply with the order of 27 November 2025, not for any order of incarceration. [24] The requirements of civil contempt are well established and it is not necessary to repeat them. [14] The existence of the order is common cause and both parties refer thereto in their respective applications. It is undisputed that Mrs M has knowledge of the order, as she was present during the proceedings in the Children’s court and was at all times legally represented. Ultimately, there is no dispute that the handwritten order was granted in its terms.  It is further common cause that Mrs M did not comply with the order and did not grant Mr M contact to the minor child as directed therein. [25] The question which arises is whether Mrs M has presented cogent evidence rebutting any inference that her non- compliance with the order was wilful and mala fide. Disobedience of a court order constitutes contempt if committed deliberately and in bad faith. [15] [26]  On Mrs M’s own version read in context, the suspension and review application was launched as a result of Mr M’s representatives threatening to launch and indeed launching this contempt application. That concession is significant as it appears that Mrs M was well aware of the binding nature of the court order and that she needed to comply with it as long as it was extant. It was only when contempt proceedings were threatened that she took any steps to have it reviewed and to suspend its operation. However, she did not at any stage seek to comply with the order, leading to the irresistible inference that she was deliberately disregarding it. Her own concession also brings into question whether the review proceedings are indeed a bona fide attempt to legitimately remedy a procedural wrong, or whether it was launched with an ulterior purpose, being to defeat the contempt application. That would render the entire review application an abuse. [16] It is not necessary for present purposes to make any definitive finding regarding the review application. For present purposes it suffices to consider Mrs M’s attitude in relation to complying with the court order. [27] Ultimately, the highwater mark of her case is that she is not mala fide as she had ‘issues with the order, both regarding the contents of the order and the procedure which led to the order being granted’. [17] Dissatisfaction with a court order is no excuse to simply disobey it. It is trite that a court order must be obeyed until it is set aside. [18] Respect for the authority of the courts is foundational to the rule of law. Civil contempt is thus not solely inter partes but also an issue between the courts and any party who has failed to comply with its orders. [19] [28] Mrs M’s explanation simply does not pass muster.  From a conspectus of all the facts, it must be concluded that Mrs M wilfully and mala fide ignored and did not comply with the court order of 27 November 2025. I am thus persuaded that the requirements for contempt have been established. [29] Mr M is thus entitled to relief. I am not persuaded that the extensive order sought should be granted in its terms. Given that the issues between the parties are clearly fraught with emotion, an opportunity should be afforded to Mrs M to reflect and adjust her approach. It is not for this court to bind the discretion of a future urgent court in relation to urgency. It should further be left to a future court to determine an appropriate sanction if Mrs M does not comply with the order I intend to grant. If there is still no compliance, Mrs M would be the author of her own misfortune in respect of whatever consequences may follow. [30] On the issue of costs, it is convenient to consider the applications holistically to come to an appropriate order. Mr M was substantially successful in both applications. Mrs M contended that no adverse costs orders should be granted as the applications ultimately concern a minor child. Given the facts, I am not persuaded that this argument avails her. There is no reason to deviate from the normal principle that costs follow the result of the respective applications. [31] In his papers, Mr M seeks punitive costs on scale C against Mrs M. Costs on an attorney and client scale were not sought. In the alternative, he sought a similar costs order against Mrs M’s attorney of record, Ms Baloyi in both applications. In support of the latter order, reliance was placed on Kenton on Sea Ratepayers v Ndlambe Municipality [20] in arguing that the improper and unreasonable conduct of the attorney and her lack of bona fides, which deviates from the standards required by her office, justifies such an order. The conduct of the attorney must be unreasonable, reckless or dishonest. [32] It is trite that litigation is not a game where a party may seek tactical advantages by occasioning unnecessary costs. [21] The conduct of Mrs M in both these proceedings in my view justifies the granting of punitive orders on Scale C as sought by Mr M. It would further be unjust for Mr M to be left out of pocket [22] in opposing the suspension application and in launching the contempt application. Litigation could have been avoided if Mrs M simply adopted a reasonable approach and complied with the order which was granted. Mrs M’s approach was neither reasonable, nor justifiable in the circumstances. [23] [33] The question is whether Mrs M’s attorney of record, Ms Baloyi, who represented her in all the legal proceedings thus far, should be mulcted in costs. Despite knowledge that such an order would be sought, Ms Baloyi did not deliver any affidavit explaining her position. It would have been of assistance if she had done so and this court is left to speculate. [34] As held in Kenton on Sea Ratepayers: ‘An order for costs de bonis propriis is unusual and applies only to a person who litigates in a representative capacity. There must be good reasons for such an order such as improper or unreasonable conduct or lack of bona fides. It is suggested that the rational for such an order is a material departure from the responsibility of office’. [35] Stripped of inference and speculation, there is insufficient cogent evidence to justify the granting of an order against Ms Baloyi. Although the procedures involved would not be matters of which a lay litigant has knowledge, it cannot confidently be concluded that Ms Baloyi was the author of the stratagem she is accused of being the author of by her opponents. [36] Two further issues require consideration. It is clear from the facts that the parties are at loggerheads regarding Mr M’s contact with PM. Although the social worker on 27 November 2025 recommended that the matter be referred to the Family Advocate for investigation, no such order was granted. It would be in PM’s best interests that such an investigation be conducted sooner rather than later and in her best interests an order will be granted directing the family Advocate to conduct such an investigation. At the hearing, the parties agreed that such an investigation is necessary and the granting of such order is not contentious. [37] In terms of the order of 27 November 2025, Mr M is to have contact with PM every alternative weekend on either a Saturday or a Sunday from 12h00 to 16h00. At the hearing I directed the parties to try and agree on a schedule of contact. They have been unable to reach any agreement. The parties are urged to adopt a rational and sensible approach in the best interests of the minor child and reach agreement on the issue. It would be sensible if Mr M was to exercise his first contact on a Saturday, his second contact on a Sunday and this pattern to repeat so that there is clarity between the parties. [38] I grant the following orders: CASE NUMBER 2025 – 243240 [1]  The application is enrolled and determined as an urgent application in terms of rule 6(12) and non-compliance with the relevant time periods is condoned; [2]  The application is dismissed; [3] The applicant is directed to pay the costs of the application on scale C; [4] The Family Advocate is requested to conduct an investigation into the best interests of the minor child, PM, including her primary residence and contact and to provide the parties and the second respondent with its report. [39] CASE NUMBER 2025 – 241086 [ 1] The application is enrolled and determined as an urgent application in terms of rule 6(12) and non-compliance with the relevant time periods is condoned; [2] The respondent is held to have contravened and be in contempt of the order granted by Magistrate Y Nana, on the 27th of November 2025, under case number: 14/1/4-84/2025 in the Children’s Court held in Benoni (‘the order’). [3] The respondent is directed to forthwith comply with the order for as long as the order remains extant. Such compliance must include that the applicant grants the respondent unsupervised contact to the minor child PM on the 21st of December 2025, from 12h00 until 16h00 and every alternative weekend on a Saturday and/or Sunday thereafter. The applicant is to collect the minor child from the respondent’s residence and return the minor child to the care of the respondent at said residence. [4] Should the respondent fail to comply with this Order, the applicant is authorised to approach the Court on the same papers, supplemented if necessary, seeking  appropriate relief, which may include the additional relief in the notice of motion or an order that the respondent be committed to prison for a period of three months or another period deemed appropriate by the Court [5] The respondent is directed to pay the costs of this application including the costs of counsel on scale C. EF DIPPENAAR JUDGE OF THE HIGH COURT GAUTENG JOHANNESBURG HEARING DATE OF HEARING : 15 DECEMBER 2025 DATE OF JUDGMENT : 19 DECEMBER 2025 APPEARANCES CASE NUMBER 2025 - 243240 APPLICANTS’ COUNSEL : ADV K M CHOEU APLLICANTS’ ATTORNEYS : BALOYI SM ATTORNEYS INCORPORATED RESPONDENTS’ COUNSEL : ADV N SMIT RESPONDENTS’ ATTORNEYS : NDG ATTORNEYS HEARING DATE OF HEARING : 15 DECEMBER 2025 DATE OF JUDGMENT : 19 DECEMBER 2025 APPEARANCES CASE NUMBER 2025 - 241086 APPLICANTS’ COUNSEL : ADV N SMIT APLLICANTS’ ATTORNEYS : NDG ATTORNEYS RESPONDENTS’ COUNSEL : ADV K M CHOEU RESPONDENTS’ ATTORNEYS : BALOYI SM ATTORNEYS INCORPORATED [1] Gois t/a Shakespeare’s Pub v Van Zyl and Others 2011 (1) SA 148 (LC) para 37; Newnet Properties (Pty) Ltd t/a Sunshine Hospital v Road Accident Fund [2025] ZASCA 19 , para 26. [2] Setlogelo v Setlogelo 2014 AD 211. [3] Johannesburg Municipal Pension Fund and Others v City of Johannesburg 2005 (6) SA 273 (W) at 281-282 [4] Eskom Holdings SOC Ltd v Lekwa Ratepayers Association NPC and Others and a Similar Matter 2022 (4) SA 78 (SCA) para [21] and the authorities cited therein [5] Tshwane City v Afriforum 2016 (6) SA 279 (CC) para [55] [6] Section 9 of the Children’s Act 38 of 2005 and s 28 of the Constitution. [7] Erikson Motors (Welkom) Ltd v Protea Motors, Warrenton & Another 1973 (3) SA 685 (A) [8] Olympic Passenger Services v Ramlagan 1957 (2) SA 382 (D) 383F; Cipla Nedpro (Pty) Ltd v Aventis Pharma SA 2013 (4) SA 579 (SCA) para [40]. [9] LF Bosshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C) at 267A-F. [10] East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd [2011] ZAGPJHC 196. [11] A copy of the founding papers in the first urgent application was attached to the respondents’ answering papers. [12] The remand date being stated as 5 February 2025 instead of 2026. [13] Hlatshwayo Appellant v Mare and Deas Respondents 1912 AD 242 ; Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others [2021] ZACC 28 para 101. [14] Fakie NO v CCII Systems (Pty) Ltd [2006] ZASCA 52 ; 2006 (4) SA 326 (SCA); Pheko and Others v Ehurhuleni Metropolitan Municipality 2015 (5) SA 600 (CC). [15] Fakie , supra, paras 10 to 12. [16] Binash v Wixley [1997] ZASCA 32 ; 1997 (3) SA 721 (SCA); Villa Corp Protection (Pty) Ltd v Bayer Intellectual Property GMBH 2024 (1) SA 331 (CC) para 77. [17] Respondent’s heads of argument para 51. [18] RMM v MNK and Others (8125/2021) [2021] ZAGPPHC 395 para 12 and the authorities cited therein; Department of Transport and Others v Tasima (Pty) Ltd [2016] ZACC 39. [19] Gauteng Province Driving School Association and Others v Amaryllis Investments (Pty) Ltd and Others (006/2011) [2011] ZASCA 237 para 19. [20] Kenton on Sea Ratepayers v Ndlambe Municipality 2017 (2) SA 86 (ECG) para 112 [21] Juliana and Associates CC v Fikeni NO and Others, para 19.3 and the authorities referred to in fn9 [22] Nel v Waterberg Landbouers Ko-op Vereeniging 1946 AD 597 at 607; Swartbooi & Others v Brink 2006 (1) SA 203 (CC) [23] Villa Corp Protection (Pty) Ltd v Bayer Intellectual Property GMBH 2024 (1) SA 331 (CC) para 77. sino noindex make_database footer start