B v B (38752/2016) [2022] ZAGPJHC 748 (27 September 2022)

B v B (38752/2016) [2022] ZAGPJHC 748 (27 September 2022)

The applicant failed to establish any legal or factual basis for the variation or rescission of the Rule 43 order under Rule 42 or the common law. His allegations of error and fraud were unsupported by evidence and contradicted by the record and the respondent's detailed answering affidavit. The application was also not brought within a reasonable time. The respondent proved entitlement to arrear maintenance in the amount claimed, and the requirements for termination of co-ownership and sale of the property were satisfied. The court declined to grant a contempt order in the terms sought but provided for enforcement if arrear maintenance remained unpaid. Costs were awarded on a party and...

Citation
[2022] ZAGPJHC 748
Parties
Applicant: R [....] B [....]; Respondent: N [....] B [....]
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
27 September 2022
Case Number
38752/2016
Procedural Posture
Civil Application / Final Judgment After Hearing of Application and Counter Application
Outcome
Application for variation of the Rule 43 order dismissed with costs. Counter-application granted in respect of arrear maintenance and sale of property. Costs awarded on a party and party scale.
Judges
Wanless
Legal Topics
Rule 43 Maintenance, Contempt of Court, Variation of Court Order, Co Ownership Termination, Arrear Maintenance, Sale of Joint Property
Family and Children Civil Procedure Land and Property Rule 43 Maintenance Contempt of Court Variation of Court Order Co Ownership Termination Arrear Maintenance +1 more

Case Brief

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Parties

R [....] B [....]

Applicant

N [....] B [....]

Respondent

Procedural Posture

Civil Application / Final Judgment After Hearing of Application and Counter Application

Legal Issues

  1. 1 Whether the applicant has established grounds for variation or rescission of the Rule 43 maintenance order.
  2. 2 Whether the respondent is entitled to payment of arrear maintenance and an order for contempt if unpaid.
  3. 3 Whether the respondent is entitled to an order for the sale of the jointly owned immovable property and distribution of proceeds.

Ratio Decidendi

The applicant failed to establish any legal or factual basis for the variation or rescission of the Rule 43 order under Rule 42 or the common law. His allegations of error and fraud were unsupported by evidence and contradicted by the record and the respondent's detailed answering affidavit. The application was also not brought within a reasonable time. The respondent proved entitlement to arrear maintenance in the amount claimed, and the requirements for termination of co-ownership and sale of the property were satisfied. The court declined to grant a contempt order in the terms sought but provided for enforcement if arrear maintenance remained unpaid. Costs were awarded on a party and...

Court Disposition

Application for variation of the Rule 43 order dismissed with costs. Counter-application granted in respect of arrear maintenance and sale of property. Costs awarded on a party and party scale.

Orders

  • The application by Mr. B for variation or rescission of the Rule 43 order is dismissed with costs.
  • Mr. B is ordered to pay to Mrs B arrear maintenance in terms of the Rule 43 order in the sum of R285,966.18.