Benson v Benson (1549/2012) [2013] ZANWHC 7 (21 January 2013)

Benson v Benson (1549/2012) [2013] ZANWHC 7 (21 January 2013)

The court found that the applicant failed to provide a credible explanation for the alleged withdrawal of capital and the ownership of the Mazda Bakkie, with evidence suggesting fabrication and prima facie fraud. The affidavits of Rousseau and Matane were admitted, as the court exercised its discretion under Rule 43(5). Given the presence of unexplained prima facie fraudulent conduct, the court declined to vary the maintenance order. The application to strike out the affidavits was dismissed, and the applicant was ordered to pay costs on an attorney and client scale due to the circumstances.

Citation
[2013] ZANWHC 7
Parties
Applicant: Gerhardus Jacobus Benson; Respondent: Magdalena Susara Judith Benson
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
21 January 2013
Case Number
1549/2012
Procedural Posture
Variation Application / Application to Vary Rule 43 Maintenance Order; Application to Strike Affidavits
Outcome
Application for variation of the Rule 43 maintenance order dismissed; application to strike out affidavits dismissed; punitive costs order granted against applicant.
Judges
A A Landman
Legal Topics
Rule 43 Variation, Maintenance Order, Admission of Affidavits, Fraudulent Conduct
Family and Children Civil Procedure Rule 43 Variation Maintenance Order Admission of Affidavits Fraudulent Conduct

Case Brief

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Parties

Gerhardus Jacobus Benson

Applicant

Magdalena Susara Judith Benson

Respondent

Procedural Posture

Variation Application / Application to Vary Rule 43 Maintenance Order; Application to Strike Affidavits

Legal Issues

  1. 1 Whether the applicant has established grounds to vary the Rule 43 maintenance order.
  2. 2 Whether the affidavits annexed to the respondent's answering affidavit should be struck out.
  3. 3 Whether prima facie evidence of fraud precludes the granting of relief to the applicant.

Ratio Decidendi

The court found that the applicant failed to provide a credible explanation for the alleged withdrawal of capital and the ownership of the Mazda Bakkie, with evidence suggesting fabrication and prima facie fraud. The affidavits of Rousseau and Matane were admitted, as the court exercised its discretion under Rule 43(5). Given the presence of unexplained prima facie fraudulent conduct, the court declined to vary the maintenance order. The application to strike out the affidavits was dismissed, and the applicant was ordered to pay costs on an attorney and client scale due to the circumstances.

Court Disposition

Application for variation of the Rule 43 maintenance order dismissed; application to strike out affidavits dismissed; punitive costs order granted against applicant.

Orders

  • The application to strike out is dismissed with costs.
  • The affidavit of R S Matane is admitted.