Cooper v The State

The appellant, Mr N C Cooper, was in a relationship with the complainant and they had a child together. When the complainant moved to Melkbosstrand in August 2014, a dispute arose about which school the child should attend. A facilitator issued a directive on 3 November 2014 that the child should attend Melkbosstrand Private School. Both parties accepted this directive as binding. On 21 November 2014, the Children's Court issued an interim order requiring the father (appellant) to pay additional fees to enroll the child at Melkbosstrand Private School. The appellant was charged with two counts of contempt of court for contravening sections 305(1)(q) and 395(6) of the Children's Act 38 of 2005. Count 1 related to the period 21 November 2014 to 15 April 2015. Count 2 related to the period from 16 April 2015 onward. The appellant filed a notice of appeal on 25 November 2014 seeking to appeal the 21 November 2014 order. On 8 April 2015 he withdrew the appeal and brought a high court application to set aside the facilitator's directive. On 15 April 2015 the Children's Court suspended its 21 November 2014 order. The high court dismissed his application on 22 June 2015. On 16 July 2015 the Children's Court reinstated its 21 November 2014 order. The appellant was convicted on both counts on 21 November 2014 (this appears to be an error in the judgment) and sentenced to one year periodical imprisonment. The matter was referred for special review and the sentence was altered to 2000 hours periodical imprisonment. Leave to appeal was refused by both the magistrate and the high court.

• Whether the appellant had reasonable prospects of success on appeal against his convictions for contempt of court on counts 1 and 2
• Whether the State proved beyond reasonable doubt the three requisites for contempt of court: (a) the order; (b) service or notice on the accused; and (c) non-compliance by the accused
• Whether the appellant's non-compliance was wilful and mala fide in respect of both counts
• Whether leave to appeal should be granted in respect of count 1 where the court order was suspended during the relevant period
• Whether leave to appeal should be granted in respect of count 2 where the appellant demonstrated willful refusal to comply with the court order
• Whether leave to appeal against sentence should be granted

1. The appeal is upheld to the extent reflected below. 2. The order of the high court dismissing the applicant's petition for leave to appeal against count 1 is set aside and substituted with the following order: 'The applicant is granted leave to appeal to the Western Cape Division of the High Court, Cape Town against his conviction in respect of count 1 and the sentence imposed in the Magistrate's Court, Cape Town.'

1. For contempt of court to be established, the State must prove beyond reasonable doubt: (a) the order; (b) service or notice on the accused; and (c) non-compliance. Once these are proved, the respondent bears the evidential burden regarding wilfulness and mala fides. 2. Where a court order has been suspended during the relevant period of alleged contempt, and the accused acted on legal advice (even if ill-advised), the requisite malice for contempt of court may not be established beyond reasonable doubt. 3. Wilful and mala fide non-compliance with a court order can be established through the accused's communications and conduct demonstrating a deliberate refusal to comply, rather than inability to comply. 4. An accused cannot rely on impossibility of compliance within a short timeframe where they made no request for additional time and their subsequent conduct demonstrates deliberate refusal to comply with the court order. 5. Where leave to appeal is granted only in respect of one count of conviction, it is appropriate to grant leave to appeal against sentence to enable the court to determine what sentence would be appropriate in light of the potential overturning of one conviction.

The court observed that the appellant's default was not occasioned by lack of affordability - what he wanted was for the child to attend a private school of his choice (Parklands Private School) which was closer to his home, giving no due regard to the fact that this school was far from the complainant who was the primary care giver of the minor child. This observation emphasizes that personal convenience and preferences of a non-custodial parent cannot override court orders made in consideration of the child's interests and the practical circumstances of the primary caregiver.

This case is significant in South African law for: (1) Clarifying the application of the test for contempt of court in the context of Children's Court orders, particularly regarding the burden of proof on wilfulness and mala fides; (2) Demonstrating that where a court order is suspended (even if the underlying appeal/review processes lack merit), and a party acts on legal advice, the requisite malice for contempt may not be established; (3) Illustrating that actual conduct and communications (such as emails) can demonstrate wilful and mala fide non-compliance with court orders, regardless of token compliance efforts; (4) Reinforcing that in Children's Act matters, a parent's personal preferences regarding schooling must yield to court orders, particularly where those orders consider the interests of the primary caregiver; (5) Providing guidance on when leave to appeal should be granted against sentence where conviction on only some counts is potentially overturned.