B.J.P v L.M.P (9052/2008) [2009] ZAKZDHC 19 (11 June 2009)

B.J.P v L.M.P (9052/2008) [2009] ZAKZDHC 19 (11 June 2009)

The court found that the Bethal Magistrate's Court order did not substitute the High Court order in its entirety, but only varied the cash maintenance component. The applicant's obligations regarding medical and educational expenses remained in force, as the consent order did not expressly or by necessary implication revoke those provisions. The evidence showed that the parties did not intend to vary the non-cash components, and the applicant continued to pay some of those expenses after the Bethal order. The warrant of execution was therefore valid, and the application to set it aside was dismissed. The court relied on the principles established in Cohen v Cohen and Bannatyne v...

Citation
[2009] ZAKZDHC 19
Parties
Applicant: B J P; Respondent: L M P
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
11 June 2009
Case Number
9052/2008
Procedural Posture
Urgent Application / Application to Set Aside Warrant of Execution
Outcome
Application dismissed with costs.
Judges
Sishi
Legal Topics
Maintenance Orders, Variation of Court Orders, Warrant of Execution, Consent Orders
Family and Children Civil Procedure Maintenance Orders Variation of Court Orders Warrant of Execution Consent Orders

Case Brief

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Parties

B J P

Applicant

L M P

Respondent

Procedural Posture

Urgent Application / Application to Set Aside Warrant of Execution

Legal Issues

  1. 1 Whether the maintenance order issued by the Bethal Magistrate's Court substituted the High Court order in its entirety.
  2. 2 Whether the applicant remains liable for medical and educational expenses of the minor child after the Magistrate's Court order.
  3. 3 Whether the warrant of execution issued on the High Court order was valid.

Ratio Decidendi

The court found that the Bethal Magistrate's Court order did not substitute the High Court order in its entirety, but only varied the cash maintenance component. The applicant's obligations regarding medical and educational expenses remained in force, as the consent order did not expressly or by necessary implication revoke those provisions. The evidence showed that the parties did not intend to vary the non-cash components, and the applicant continued to pay some of those expenses after the Bethal order. The warrant of execution was therefore valid, and the application to set it aside was dismissed. The court relied on the principles established in Cohen v Cohen and Bannatyne v...

Court Disposition

Application dismissed with costs.

Orders

  • The applicant's application is dismissed with costs.