Republic of South Africa 
IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case Number: 7308/2010
In the matter between:

and

JUDGMENT DELIVERED ON 20 MARCH 2012

ZONDI, J:
[1] The applicant seeks an order declaring that the respondent is in contempt of an Court Order made by this Court on 1 September 2010 and that the respondent be committed to prison for a period of 30 days alternatively conditionally Suspending the committal for a period of one year.

[2] The respondent opposes the application and has filed a counter-application seeking an order that the applicant be ordered to furnish security for the respondent's costs and that the proceedings be stayed pending the final determination of the security for costs application.

[4] The parties' relationship has irretrievably broken down and they have been living apart since April 2008. On separation the respondent retained custody of the two minor children but she allowed the applicant telephonic contact with them which arrangement continued until the respondent terminated it in February 2009. This forced the applicant to bring an application on an urgent basis on 13 May 2010 for an order granting him contact with the minor children.

[5] On 1 September 2010 Desai, J granted an order which was by agreement between the parties, in terms of which the applicant was allowed contact with the minor children twice per month for a period of six months which would thereafter be reviewed by the facilitator to be appointed by the parties. The order provided for contact to take place in Mossel Bay for three hours of one weekend day, by the applicant only and without the respondent being present.

[6] In terms of clause 2 of the Court order the contact by the applicant with the minor children would initially be under the supervision of Ms Anita Rautenbach, a social worker at the applicant's expenses and the social worker was required to provide feedback in respect of each of the aforementioned contact sessions to the facilitator appointed by the parties. In this regard the parties agreed to appoint a facilitator who would be a qualified and registered clinical psychologist with at least five years' experience of working with children and families and who is a member of FAMAC.

[7]     Clause 7 of the Court Order authorised the facilitator to:

7.2. make recommendations in respect of any issue concerning the welfare and/or affecting the best interests of the minor children;
7.3. issue directives binding on the parties in any issue concerning the minor children's welfare and/or affecting their best interests (subject to a Court of competent jurisidiction holding that such directive is not in the minor children's best interests);
7.4. co-opt the services of a co-facilitator when reasonably necessary.
7.5. Insofar as the facilitator has the power to make decisions in respect of the minor children, the power shall be exercised in the best interests of the minor children and shall be binding on the parties, unless the High Court, as upper guardian of the minor children, orders otherwise.
7.6. The facilitator's services involve elements of mediation, expert opinion and counselling, but do not purely fall into any of these categories. The facilitator is not appointed as a psychotherapist, counsellor or attorney for the minor children or parties. No psychotherapist/ patient or attorney/ client relationship is created by this appointment or otherwise exists between the facilitator and any or the parties or minor children."
[8] In terms of clause 10 of the Court order if the facilitator was unable to resolve a dispute by way of mediation, he/she could resolve it by issuing a directive which would be binding on the parties. Clause 18 of the Court order required the parties to provide the facilitator with all information he or she required relating to the minor children.

[9] The applicant alleges that it became necessary for the parties to appoint a facilitator to regulate the contact arrangements as he and the respondent were unable to agree on their implementation. He points out that the facilitators who were appointed to do so attempted to mediate the dispute between the parties and issued directives but all their attempts were in vain as the respondent lacked a will to cooperate. A lack of co-operation on the part of the respondent forced the facilitators to withdraw from the process. The applicant alleges that the facilitators issued directives on 10 June 2011 and 22 August 2011 directing that he be allowed to have contact with the minor children as it was in their best interest that they bonded with him. In this regard the applicant refers to a letter addresses to the respondent by the facilitator on 24 June 2011 expressing his concern that the respondent had failed to honour the appointment he had with the respondent.

[10] The applicant further alleges that the respondent is in breach of the Court order of 31 August 2010 and in support of that allegation he refers to the letters sent to the respondent by the facilitators on 5 May 2011 and 25 August 2011 respectively. He also relies on a letter addressed to the respondent by his former attorney of record on 5 September 2011.

[12] In reply thereto the respondent sent an email to the facilitator informing him as follows:
"DearKarol
Of course you are fully at liberty to speak with your attorney on whatever you wish, but in the meantime I must draw your attention again to the fact that you, yourself, are disregarding the Court Order in certain matters, one of which is that you are persistently failing to copy communications to the other party as is clearly mandated in the Court Order, despite the fact that I have pointed this out to you on more than one occasion. I am sure your attorney will confirm this. There are other matters which I could raise but as I have just returned to Cape Town I will not deal with them now as I am hoping to finalise with you and the other party the arrangements for meetings next week and there will be opportunities therefore to discuss them face to face. In the meantime please urgently respond to the question of available dates as it is already too late for the first possible date and I have to assume from your reply that you in fact to advise dates to Ms Bok as timeously requested by me. I look forward to your prompt reply."

[14] In response to the applicant's application the respondent, on 11 January 2012, brought on an urgent basis an application for hearing on 17 January 2012, being the date on which the applicant's application was set down, for an order, first, directing the applicant to furnish security for her costs in the sum of R150 000.00 within 10 days of the granting of the order and secondly, staying the applicant's application for contempt of Court pending the determination of the security for costs application. The applicant opposes the respondent's application for the security for costs.

[15] The application for the security for costs and the stay of the contempt of court proceedings is brought on the basis that the respondent should not be called upon to defend the application which amounts to nothing else but an abuse by the applicant of the Court's process and in circumstances where she would not be able to recover her costs should she succeed in defending it.

[19] The respondent points out further that simultaneously with the application for her removal as a trustee, the applicant launched a further application against her for the contact with the minor children which application she opposed. By agreement between the parties an interim order was taken on 1 September 2010 affording the applicant certain supervised contact with the minor children. The interim order was to be reviewed after a period of 12 months and a facilitator appointed in the interim. That application has not been finally determined.

[20] The respondent further alleges that it is for these reasons that she, on 15 December 2011, caused a notice in terms of Rule 47 to be served on the applicant calling on him to put up security in an amount of R150 000.00 for her costs of opposing the contempt of Court proceedings.

[21] In response thereto, the applicant filed a notice in terms of Rule 47(3) contesting his liability to furnish security for her costs. Thereafter on 14 December 2011 the respondent's attorneys of record wrote to the applicant's attorneys of record suggesting to them that the contempt of Court proceedings be stayed pending the final determination of the application which the respondent intended to bring to compel the applicant to furnish security for her costs. The applicant in a letter dated 21 December
2011 rejected the respondent's suggestion for the stay.

[23] In opposing the respondent's application for security for costs the applicant denies that the application was urgent and goes on to say the following in paras 6-9 of his answering affidavits:
"6. I take notice of the contents of these paragraphs but state that it is totally irrelevant. The allegation's relate to another cause of action under another case number and has nothing to do with the Applicants continuous and mala fide failure to obey the Court order granted under this very case number on 31 August 2010 to afford me contact with the minor children. I deny that I am factually insolvent, or that I have committed an act of Insolvency. I was advised that the Applicant is the author of her own urgency in that my application granted her ample time to oppose, which should have taken place on or before 28 November 2011, after being served on her attorneys on 16 November 2011. 7. Applicant only served a notice to oppose my application on 29 November 2011, and has ample time to bring an Application for security. I was advised that even if the present application to compel me to furnish security to the amount of R150 000 was brought timeously, it would still have been without any basis whatsoever.
7. By entertaining the present application before Court, the Honourable Court would in effect, by granting the prayer for security to be furnished and staying the proceedings regarding the Applicant's contempt of this Court, divest himself of the power to investigate alleged contempt of its Orders, unless money is paid, thereby making it even more difficult to have contact with the children as ordered and so protecting the Applicant to remain in further contempt of the Order granted.
8. I have no doubt at all that the application for security is brought to frustrate my desire to have contact with the children, as the documents presented to the Honourable Court will prove."

[24] The applicant rejects the suggestion that he is insolvent or has committed an act of insolvency. To substantiate his denial he has this to say in para 10 of his affidavit:
"10. If annexure "B" of the Application for security is perused, i.e. the so called Nulla Bona return of service by the Sheriff of Court, it can be seen that the Sheriff of Court wrote: "DO NOT OWN IMMOVABLE PROPERTY". My wife has given a statement to the Sheriff of Court and I am the owner of a variety of very valuable movable antique property. Annexure F and G to my own application is annexed hereto for the benefit of the Court, indicating that both the Applicant and her attorneys are very much aware that I am the owner of movable property. As stated, I am not sequestrated or insolvent and there is no reason why I should be expected to furnish any security at all. All I ask is that Applicant adheres to the Court order granted by this Honourable court on 31 August 2010. I have tried my utmost to be in a position to have contact with the children, together with the help of the appointed facilitators but because of Applicants wilful failure to co-operate, had no choice but to approach Court for relief, especially after the facilitators have resigned in desperation. The court may verify this in my application, and refer to the annexures thereto."

[25] The issue to be determined is whether the applicant should be ordered to furnish security for the respondent's costs in the contempt proceedings and whether the contempt proceedings should be stayed.

"The law, however, relating to the provision by a plaintiff (or applicant) security for the costs of the opposing party is well-settled in our law and may be succinctly stated as follows, viz no hurdle should be permitted to stand in the way of any person's access to a court in seeking relief at its hands, and no court should - in the case of an impecunious litigant - by requiring him as plaintiff, or applicant, to provide security for his opponent's costs, lend support to the canard which likens its doors to those of the Ritz Hotel. To the general principle, enunciated over a century and a half ago in Witham v Venables (1828) 1 Menzies 291, there are a number of well - recognised exceptions to be found both in the common law and as laid down by statute.

[28] The learned Judge pointed out that the well-recognised exceptions under the common law are, peregrine plaintiffs, persons bent on pursuing vexatious and reckless actions and those who resort to proceedings which are an abuse of the process of the court. He further pointed out that the mere fact that a party suing is an insolvent is no ground for obliging him to provide security for his opponent's costs. In his view the test whether or not an insolvent plaintiff should be compelled to furnish security for costs is whether his action is vexatious or reckless or amounts to an abuse of the Court's process.

[30] In my view, on the papers, there is no factual support for the finding that the applicant is a person who is bent on pursuing vexatious and reckless actions or that the three applications he had brought against the respondent are an abuse of the Court's process. In relation to the contact application the applicant succeeding in persuading the respondent to agree to an interim order affording him contact with the minor children. The trust application was postponed and has not been finalised. In the circumstances there can be no basis for compelling him to furnish security on the ground that the applicant is bent on pursuing vexatious and reckless actions.

[35]    In the result the following order is made:
1. a stay of the applicant's contempt of Court proceedings is ordered pending payment by the applicant of the respondent's taxed costs relating to the trust application which the applicant brought also under case number 7308/2010.
2. the applicant is ordered to pay the costs of this application.

ZONDI DH