MN v SN (10540-16)  ZAWCHC 157 (13 November 2020)
Court: Western Cape Division, Cape Town
Case No: 10540/16
Date heard: 2 November 2020
Delivered: 13 November 2020
Judge: Rogers, J
Contempt of court – Where the husband breached a rule 43 order – The court recognized that the business that he worked for had experienced financial hardships due to covid – The husband did not earn a salary during some months – Despite the fact that he co-owned a fully paid house with his new partner well worth R3,5 million – It was held that he could not be expected to
force her to agree to sell a portion of the house – It was held that his contempt was not intentional and mala fide.
The wife (applicant) wanted to hold her husband (the respondent) in contempt for violating a rule 43 order that was reached by agreement between the parties. It was common cause that the husband knew about the order and its provisions. The only thing that had to be decided was whether he transgressed the order willfully and with mala fides. If not, then he could not be found in contempt. (See Fakie No v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) para 14.
The matter was enrolled on the urgent court roll. Nevertheless, the parties had it postponed twice by agreement even though it was ready for hearing. The respondent contended that the court ought to strike the matter off the roll for lack of urgency on that basis. The court turned down his arguments. It was held that contempt proceedings are urgent by their nature simply because the vindication of the court’s authority is at stake (See Protea Holdings Ltd v Wriwt & another 1978 (3) SA 865 (W) at 868B-869A).
It was also reasoned that they are especially urgent mainly because it is often women and children who are in the care of the breached orders.
A technical argument for non-compliance with Rule 41A was also raised. This new rule calls for parties to try and mediate before coming court. The court refused the argument considering the legal representatives for the respondent did not persist on mediation throughout the exchange of the various notices. It was argued that there was a verbal agreement in which the parties consented that the husband would temporarily stop paying money for the domestic worker. A recording was made available as evidence, but the court found that the only impression drawn from the recording was that the husband was manipulative. The wife replied to his statements, spontaneously and emotionally.
Counsel for the husband also attempted to bring arguments based on set-off, as the wife owed some money to the husband’s family business. But the court found that an obligation to pay maintenance in respect of a wife and children is not susceptible to set-off (See Tregonong v Tregonong 1914 WLD 93, and Hodges v Coubrough NO 1990 (3) SA 58 (D) at 65A-B). Before concluding, the court observed that the family business encountered some severe financial difficulties due to COVID.
The husband used to own interests in the family business but was compelled to dispose of
them because of extensive borrowings from the company. Recently, there were some months in which he did not get a salary at all, and in other months he received TERS payment of around R6000,00. Even though he co-owned a R3,5 million property that was completely paid with his new partner, the court found it was unrealistic to have expected him to force his partner to agree to sell a portion of the house.
In summary, it was held that the husband could not be found in contempt. The costs of the suit were reserved for determination in the divorce trial.
The increased use of Information and Communication Technology in the past ten years has added to the increase of a new form of Gender-Based Violence. Because of to the increasing use of technology and the internet, women are more susceptible than ever to abuse and violence. Women encounter several forms of technology-related violence such as non-consensual intimate images commonly known as “revenge pornography”, doxxing, extortion, bullying, stalking, and sexual harassment. The degree to which women are violated online is not known since most cases go unreported. Research conducted by WOUGNET on technology-related violence against women in 3 peri-urban districts of Uganda revealed that 74% of respondents might report technology-related violence against women to the police, 2% to social media owners, parents, or local leaders, 9% to the Ministry of Information and Communications Technology, and 11% said they wouldn’t know where to report. 65% of respondents were women, while 35% were men.
The world of divorce can be a dirty and terrifying place and as soon as the love is lost, it can develop into a dirty fight. Revenge porn is the act of posting private or sexual photos or videos of a person, usually an ex-partner, without their consent. Individuals who engage in this conduct do so with the intention to humiliate and threaten the victim, but what happens when the person leaking your photographs is your former spouse? Revenge porn in divorce cases is a increasing issue in family law that we are witnessing more frequently, and people must be mindful of the consequences one may deal with if you indulge in the act. Unfortunately, a divorce can generate much resentment in an already overwhelming process, and spreading images as revenge porn during the course of divorce proceedings is a contemporary addition to the many intimidating and spiteful actions many people may choose to take. Revenge pornography fundamentally deals about stalking or misusing personal and private data. It is the distribution of sexually explicit images or videos without their consent. It is also a domestic violence against women. The objective of the perpetrator is to shame the victim, to disturb them or even as a vengeance. Although both men and women could possibly be victims, women are exceptionally becoming the targets. In most cases, it is women who consensually share their nude images and videos to the person they are in love with which becomes a self-trap for themselves.
Nearly one in ten Brits have had their naked pictures or videos shared without their permission, new research has shown. The vast majority of victims, 81 percent, stated they knew who the culprit was, with one in three being their ex-partners in an act of ‘revenge porn’. Nearly one in five (17 percent) stated the crime was committed by a ‘friend.’
The vast majority of the victims had been women who said the material was used as a form of coercion or control, with one half of victims being threatened prior to the image was released.
Attempts were made to extort them beforehand by demanding money, threatening to show the images to family or friends or attempting to control them or force them back into a relationship after a separation.
Motivated by vengeance, ex-spouses have been known to withhold kids from their former partner, alienate kids from the other parent and even cause the court process to go on for longer so that their former partner has to spend more money.
Social Media has the power of distributing the news and information both in positive or negative ways. It acts not only as a tool for communicating but also as a platform for exchanging and sharing information. Thus, the very first source for revenge porn to become viral is social media. If social media is under control, then the problems of revenge porn will be decreased to a great extent. Revenge porn begin with cyberbullying. The person who bullies will immediately circulate it in the social media as his next move. Companies such as Facebook, Twitter and Google have launched some steps they’re taking in order to fight the growing issue. According to NBC News, Facebook built a team of people to fight against the non-consensual posting of inappropriate pictures and videos. The company, which also owns Instagram, evaluates almost half a million revenge porn reports in order to rapidly remove the content. Facebook also uses artificial intelligence to identify the images. In 2015, Twitter modified its rules pertaining to revenge porn on its platform, saying that users may not post intimate pictures or videos without the subject’s approval. The platform also enables users to report tweets that may include inappropriate content. The same year, Google took a stand against the issue, saying it would honor any demands made to eliminate intimate pictures or videos of their search results.
South Africa's current criminal law remedies provide a charge of crimen injuria, criminal defamation, or even extortion, whilst civil remedies incorporate damages for defamation or an interdict based on a infringement of copyright (where the victim took the photograph themselves). Revenge porn is defined by the Film and Publication Bill of 2015, as the sharing or distribution of any nude or sexually explicit material without permission or consent with the express purpose of humiliating the victim or to make a profit. The Protection of Personal Information Act 4 of 2013 (POPI) provides victims of revenge pornography the relief to initiate a civil claim for damages against a perpetrator. Section 99(1) of POPI expressly allows a victim the right to claim non-patrimonial damages against the responsible party. The accused can be charged with the intentional distribution of private sexual photographs or films without the prior consent of the individual and/or distributing the sexual photos and films to cause harm and emotional distress to the victim. If the perpetrator is convicted of any of these charges, he/she can be sentenced to a maximum sentence of two years or a fine of up to R 150 000.00. If the victim is identified by being named or the footage is not blurred, this sentence can increase to a maximum of four years in prison or a fine of up to R 300 000.00
The Protection from Harassment Act 17 of 2011 also allows a victim of revenge pornography to apply for a protection order, which in turn is paired with a suspended warrant of arrest.
Bertus Preller is a Family Law and Divorce Law Attorney at Maurice Phillips Wisenberg in Cape Town.