B K v C K and Other (259/2018) [2019] ZAFSHC 268 (17 December 2019)

B K v C K and Other (259/2018) [2019] ZAFSHC 268 (17 December 2019)

The court found that the suspension order of 29 September 2017 had become moot due to the subsequent antedating and variation of the maintenance order, rendering any review of that order without practical effect. The applicant failed to establish a factual basis for bias or gross irregularity by the magistrates. Her challenge was directed at the correctness of the maintenance reduction, which is properly addressed by appeal, not review. The application for review was therefore dismissed. The court also noted that the minor children were no longer within its jurisdiction, and in the interests of justice, ordered each party to bear their own costs.

Citation
[2019] ZAFSHC 268
Parties
Applicant: B K; Respondent: C K; Respondent: MAGISTRATE B. MLANGENI; Respondent: MAGISTRATE HMJ BOTHMA
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 December 2019
Case Number
259/2018
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed.
Judges
MHLAMBI, MOLITSOANE
Legal Topics
Maintenance Variation, Review Vs Appeal, Best Interests of Child
Family and Children Civil Procedure Maintenance Variation Review Vs Appeal Best Interests of Child

Case Brief

Summary, issues, holding and outcome

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Parties

B K

Applicant

C K

Respondent

MAGISTRATE B. MLANGENI

Respondent

MAGISTRATE HMJ BOTHMA

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the orders of the Bethlehem Magistrate Court regarding maintenance should be reviewed and set aside.
  2. 2 Whether the suspension and reduction of maintenance were procedurally and substantively correct.
  3. 3 Whether the applicant should have proceeded by way of appeal rather than review.

Ratio Decidendi

The court found that the suspension order of 29 September 2017 had become moot due to the subsequent antedating and variation of the maintenance order, rendering any review of that order without practical effect. The applicant failed to establish a factual basis for bias or gross irregularity by the magistrates. Her challenge was directed at the correctness of the maintenance reduction, which is properly addressed by appeal, not review. The application for review was therefore dismissed. The court also noted that the minor children were no longer within its jurisdiction, and in the interests of justice, ordered each party to bear their own costs.

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • Each party to bear his/her own costs.