A senior Durban magistrate and his wife, an attorney, have been held in contempt of court for “aiding and abetting” their daughter to defy a court order — and if they continue with their conduct, they could be jailed.
Their daughter has a two-year-old child — but in spite of the father of the child securing a high order granting him visitation and access rights, he says he was blocked from seeing her.
The magistrate and his wife, Durban High Court acting judge Ranjiv Nirghin has now ruled, were complicit in their daughter’s contempt.
The parties cannot be named to protect the identity of the minor child.
The contempt case first came to court in May this year, when Durban high court judge Bruce Bedderson granted an interim rule, giving the daughter and her parents an opportunity to say why they should not be found to be in contempt of a previous court order, granted in March, and should go to jail for 30 days.
The March order provided that the father of the child, who lives in Johannesburg, have in-person contact with her on alternative weekends and daily telephone contact.
But after the mother of the child, with his consent, went to Durban to visit her parents and returned alone, he claims he was prevented from seeing his daughter by her and her parents.
“They detest me,” the father, a software engineer, says in his affidavits before the courts.
This is because he is Tsonga and she and her family are Zulu.
In an interview with the magistrate, a private social worker reported that he told her that in his culture, when a child is born out of wedlock “it belongs to the maternal family”.
He said the only way to rectify this was that the child’s surname must be changed to theirs and the father’s family must pay damages.
The father believes these cultural differences are at the root of his access problems — and the grandparents desire to get him out of the child’s life also resulted in them making false accusations that he had sexually molested her.
He says the grandmother is “effectively parenting the child” because his estranged girlfriend, an actress, is actually living in Johannesburg.
In an interview with the private social worker, both grandparents refused to answer any questions relating to the sexual abuse allegations. But she followed up with the police, who confirmed that charges had been laid but a decision had been taken not to prosecute “for lack of medical evidence”.
She also interviewed a paediatrician who examined the child after a doctor at Addington hospital had noted no sign of sexual abuse. The specialist said a couple “who said they were the mother and father”, had brought the child to her. She had noted some irregularities and recorded signs of possible abuse, but nothing definite.
The social worker reported that the father had a good and loving relationship with his daughter.
She was comfortable and at ease in his presence. She did not present with any sexualised behaviour while in his care. She did not flinch or move away when he carried her or held her hands.
In opposing the contempt application before judge Nirghin, the mother of the child said she had not wilfully withheld access but had acted in the best interest of her child. She said she had never outright accused the father of sexual assault “but had noted a pattern which deserved to be taken seriously”.
She denied living in Johannesburg and said she had had a part-time, five-month contract with a television company.
The grandmother, in her affidavit, said it was not fair for her and her husband to be held in contempt of court.
She said they had no ill feelings towards the father, in fact they barely knew him.
Their only concern was to protect their granddaughter and “until the truth is revealed I cannot comprehend a scenario where my daughter, my husband or myself is to be incarcerated”.
Nirghin, in his ruling, said the findings of the paediatrician, as contained in a letter, were not a medical-legal report, had not been confirmed by an affidavit and had been obtained by two people “posing as the parents of the child”.
“It is clear that the allegations of sexual assault are unsubstantiated and appear to be a ruse to deprive the father of his rights to contact. This supports the findings that the (magistrate) and his wife aided and abetted their (daughter) in her contemptuous conduct,” he said, confirming the interim rule granted by Judge Bedderson.
Should they continue to deny the father access to the child, his lawyers can make a court application that they be sent to jail for 30 days.
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