B.A.M v A.M (21530/2009) [2014] ZAGPPHC 70 (28 February 2014)

B.A.M v A.M (21530/2009) [2014] ZAGPPHC 70 (28 February 2014)

The court held that the applicant's entitlement to maintenance under the Rule 43 order lapsed because the Rule 43(6) application was not brought within the three-month period stipulated by the court order of 28 November 2012. The respondent's attempt to challenge the validity of the affidavit under Rule 6(5)(d)(iii) was incompetent, as the alleged defects were factual and required evidence, not a point of law. The service of the application after the deadline indicated the applicant's intention to proceed, but without proper revival, the order had lapsed. The respondent was entitled to set the matter down for finality, and the applicant was ordered to pay the costs occasioned by her late...

Citation
[2014] ZAGPPHC 70
Parties
Applicant: M[…], B[…] A[…][…]; Respondent: M[…], A[…]
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
28 February 2014
Case Number
21530/2009
Procedural Posture
Urgent Application / Rule 43(6) Maintenance Application Post Divorce; Determination of Costs and Lapsing of Interim Maintenance Order
Outcome
The applicant's Rule 43(6) application has lapsed and the applicant is ordered to pay the costs occasioned by her service of the application.
Judges
TM Makgoka
Legal Topics
Maintenance Post Divorce, Rule 43 Applications, Costs Award, Lapse of Interim Orders
Family and Children Civil Procedure Maintenance Post Divorce Rule 43 Applications Costs Award Lapse of Interim Orders

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

M[…], B[…] A[…][…]

Applicant

M[…], A[…]

Respondent

Procedural Posture

Urgent Application / Rule 43(6) Maintenance Application Post Divorce; Determination of Costs and Lapsing of Interim Maintenance Order

Legal Issues

  1. 1 Whether the applicant's entitlement to maintenance under the Rule 43 order lapsed due to late filing of the Rule 43(6) application.
  2. 2 Whether the respondent's reliance on Rule 6(5)(d)(iii) to challenge the affidavit's validity is competent.
  3. 3 Who should bear the costs of the application given the procedural history.

Ratio Decidendi

The court held that the applicant's entitlement to maintenance under the Rule 43 order lapsed because the Rule 43(6) application was not brought within the three-month period stipulated by the court order of 28 November 2012. The respondent's attempt to challenge the validity of the affidavit under Rule 6(5)(d)(iii) was incompetent, as the alleged defects were factual and required evidence, not a point of law. The service of the application after the deadline indicated the applicant's intention to proceed, but without proper revival, the order had lapsed. The respondent was entitled to set the matter down for finality, and the applicant was ordered to pay the costs occasioned by her late...

Court Disposition

The applicant's Rule 43(6) application has lapsed and the applicant is ordered to pay the costs occasioned by her service of the application.

Orders

  • The applicant’s Rule 43(6) order made on 4 March 2011 has lapsed in terms of paragraph 3 of the order issued on 28 November 2012.
  • The applicant is ordered to pay the costs occasioned by her service of her Rule 43(6) application.