B v B (05/2030) [2005] ZAGPHC 358; 2005 (5) SA 228 (W) (5 May 2005)

B v B (05/2030) [2005] ZAGPHC 358; 2005 (5) SA 228 (W) (5 May 2005)

The High Court does not have jurisdiction to vary a maintenance order made by the maintenance court except by way of appeal or review. The applicant's obligation to pay maintenance to the respondent, as set out in the original settlement agreement and subsequent court orders, remains in force. The maintenance court's variation affected only the quantum, not the duration, of the maintenance. There is no compelling evidence that the maintenance was intended to be rehabilitative or that circumstances justify limiting the duration of the applicant's obligation. The principle of pacta sunt servanda applies, and the agreement solemnly entered into by the parties must be observed. The...

Citation
[2005] ZAGPHC 358
Parties
Applicant: JB; Respondent: MB
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
5 May 2005
Case Number
05/2030
Procedural Posture
Variation Application / Judgment
Outcome
Application to limit the applicant's obligation to pay maintenance for the respondent is dismissed. Custody of the minor child is awarded to the applicant, subject to the respondent's rights of reasonable access. The applicant is ordered to pay the costs of the application.
Judges
N.P. Willis
Legal Topics
Variation of Maintenance Order, Custody of Minor Child, Rehabilitative Maintenance, Divorce Settlement, Maintenance Act Application
Family and Children Variation of Maintenance Order Custody of Minor Child Rehabilitative Maintenance Divorce Settlement Maintenance Act Application

Case Brief

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Parties

JB

Applicant

MB

Respondent

Procedural Posture

Variation Application / Judgment

Legal Issues

  1. 1 Whether the High Court has jurisdiction to vary a maintenance order made by the maintenance court.
  2. 2 Whether the applicant's obligation to pay maintenance to the respondent should be limited to five years from the date of first payment.
  3. 3 Whether the maintenance order was intended to be rehabilitative in nature.

Ratio Decidendi

The High Court does not have jurisdiction to vary a maintenance order made by the maintenance court except by way of appeal or review. The applicant's obligation to pay maintenance to the respondent, as set out in the original settlement agreement and subsequent court orders, remains in force. The maintenance court's variation affected only the quantum, not the duration, of the maintenance. There is no compelling evidence that the maintenance was intended to be rehabilitative or that circumstances justify limiting the duration of the applicant's obligation. The principle of pacta sunt servanda applies, and the agreement solemnly entered into by the parties must be observed. The...

Court Disposition

Application to limit the applicant's obligation to pay maintenance for the respondent is dismissed. Custody of the minor child is awarded to the applicant, subject to the respondent's rights of reasonable access. The applicant is ordered to pay the costs of the application.

Orders

  • The agreement of settlement dated 24 March 2002 and endorsed by an order of Court dated 12 April 2002 under case no. 2002/3546 is varied by awarding custody of S A B to the applicant, subject to the respondent's rights of reasonable access.
  • It is noted that the respondent has waived her right to receive maintenance in respect of S A B provided the applicant fully supports this child.