B v B (51721/2011) [2015] ZAGPPHC 785 (16 September 2015)

B v B (51721/2011) [2015] ZAGPPHC 785 (16 September 2015)

The respondent was ordered by the court to pay R7000.00 per month for the maintenance of the two minor children, subject to annual increases. He unilaterally reduced the payment to R4500.00 without a valid written agreement signed by both parties, as required by the settlement agreement and established legal principles. The respondent's reliance on an affidavit and alleged legal advice does not constitute a lawful variation of the court order. The respondent admitted knowledge of the order and non-compliance. He failed to discharge the burden of proving absence of willfulness or bad faith. The respondent's counter-application to vary the maintenance order was procedurally defective and...

Citation
[2015] ZAGPPHC 785
Parties
Applicant: [A……] [M……] [C……] (Formerly [B……]); Respondent: [F……..] [J……] [B……]
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 September 2015
Case Number
51721/2011
Procedural Posture
Contempt Application / Final Judgment
Outcome
The respondent is found to be in contempt of the court order and is committed to prison for 30 days, suspended for one year on condition of compliance. The respondent's counter-application is dismissed with costs. The respondent is ordered to pay the costs of this application.
Judges
Msimeki
Legal Topics
Maintenance Order, Contempt of Court, Variation of Settlement Agreement, Best Interests of Child
Family and Children Civil Procedure Maintenance Order Contempt of Court Variation of Settlement Agreement Best Interests of Child

Case Brief

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Parties

[A……] [M……] [C……] (Formerly [B……])

Applicant

[F……..] [J……] [B……]

Respondent

Procedural Posture

Contempt Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent has complied with the maintenance order issued by the court.
  2. 2 Whether the respondent's payment of R4500.00 instead of R7000.00 constitutes contempt of court.
  3. 3 Whether the respondent's affidavit or alleged advice from a lawyer validly varies the settlement agreement.

Ratio Decidendi

The respondent was ordered by the court to pay R7000.00 per month for the maintenance of the two minor children, subject to annual increases. He unilaterally reduced the payment to R4500.00 without a valid written agreement signed by both parties, as required by the settlement agreement and established legal principles. The respondent's reliance on an affidavit and alleged legal advice does not constitute a lawful variation of the court order. The respondent admitted knowledge of the order and non-compliance. He failed to discharge the burden of proving absence of willfulness or bad faith. The respondent's counter-application to vary the maintenance order was procedurally defective and...

Court Disposition

The respondent is found to be in contempt of the court order and is committed to prison for 30 days, suspended for one year on condition of compliance. The respondent's counter-application is dismissed with costs. The respondent is ordered to pay the costs of this application.

Orders

  • The respondent is found to be in contempt of the court order issued on 6 October 2011.
  • The respondent is committed to prison for 30 days, suspended for one year on condition that he complies with the order within six months.