A.H v J.H and Another (A84/2019) [2020] ZAFSHC 74 (19 March 2020)

A.H v J.H and Another (A84/2019) [2020] ZAFSHC 74 (19 March 2020)

The Second Respondent committed a gross irregularity by discharging the maintenance order without hearing any evidence from the parties. This irregularity rendered the decision reviewable. The First Respondent, although not responsible for the irregularity, failed to abandon the judgment or refrain from opposing the review application, thereby necessitating the proceedings and incurring costs for the applicant. The maintenance order is reinstated, and the First Respondent is liable for the costs of the application on an unopposed basis.

Citation
[2020] ZAFSHC 74
Parties
Applicant: A H; Respondent: J H; Respondent: Magistrate J Lerotholi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 March 2020
Case Number
A84/2019
Procedural Posture
Review Application / Judgment After Review of Maintenance Court Decision
Outcome
Application for review granted; maintenance order reinstated; First Respondent liable for costs on an unopposed basis.
Judges
Molitsoane, Ramlal
Legal Topics
Maintenance Orders, Review of Magistrate Decisions, Costs Awards, Variation of Orders
Family and Children Civil Procedure Maintenance Orders Review of Magistrate Decisions Costs Awards Variation of Orders

Case Brief

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Parties

A H

Applicant

J H

Respondent

Magistrate J Lerotholi

Respondent

Procedural Posture

Review Application / Judgment After Review of Maintenance Court Decision

Legal Issues

  1. 1 Whether the discharge of the maintenance order by the Second Respondent was grossly irregular and reviewable.
  2. 2 Whether the First Respondent should be liable for the costs of the review application.

Ratio Decidendi

The Second Respondent committed a gross irregularity by discharging the maintenance order without hearing any evidence from the parties. This irregularity rendered the decision reviewable. The First Respondent, although not responsible for the irregularity, failed to abandon the judgment or refrain from opposing the review application, thereby necessitating the proceedings and incurring costs for the applicant. The maintenance order is reinstated, and the First Respondent is liable for the costs of the application on an unopposed basis.

Court Disposition

Application for review granted; maintenance order reinstated; First Respondent liable for costs on an unopposed basis.

Orders

  • The decision of the Second Respondent delivered on 6 March 2019 regarding the discharge of the maintenance order under case number 01411MAI000013 is reviewed and set aside.
  • The maintenance order effective 1 July 2014, for payment of R500 per month per child by the First Respondent to the Applicant, is reinstated.