De Wet v Hartmut (30867/07) [2007] ZAGPHC 214 (19 September 2007)

De Wet v Hartmut (30867/07) [2007] ZAGPHC 214 (19 September 2007)

The court found that the respondent was in contempt of the Rule 43(5) order by making unauthorized deductions for medical expenses from the maintenance amounts. There was no agreement permitting such deductions, and the respondent failed to provide evidence of the applicant's alleged additional income. The deductions resulted in the applicant bearing medical costs, which constituted a material change in circumstances. The applicant was therefore entitled to a variation of the maintenance order to include payment of reasonable medical expenses by the respondent. The court also found that the circumstances justified uplifting the restrictions on costs under Rule 43(7) and (8), awarding...

Citation
[2007] ZAGPHC 214
Parties
Applicant: Esther De Wet; Respondent: Hartmut
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
19 September 2007
Case Number
30867/07
Procedural Posture
Urgent Application / Application to Vary Rule 43(5) Maintenance Order Under Rule 43(6)
Outcome
Application granted; Rule 43(5) order varied to include payment of medical expenses; costs awarded to applicant.
Judges
N M Mavundla
Legal Topics
Maintenance Variation, Rule 43 Applications, Changed Circumstances, Medical Expenses, Costs Award
Family and Children Civil Procedure Maintenance Variation Rule 43 Applications Changed Circumstances Medical Expenses Costs Award

Case Brief

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Parties

Esther De Wet

Applicant

Hartmut

Respondent

Procedural Posture

Urgent Application / Application to Vary Rule 43(5) Maintenance Order Under Rule 43(6)

Legal Issues

  1. 1 Whether the applicant has established a material change in circumstances justifying variation of the Rule 43(5) maintenance order.
  2. 2 Whether the respondent is entitled to deduct medical expenses from the maintenance amount without a court order.
  3. 3 Whether the applicant approached the court on the correct procedure for the relief sought.

Ratio Decidendi

The court found that the respondent was in contempt of the Rule 43(5) order by making unauthorized deductions for medical expenses from the maintenance amounts. There was no agreement permitting such deductions, and the respondent failed to provide evidence of the applicant's alleged additional income. The deductions resulted in the applicant bearing medical costs, which constituted a material change in circumstances. The applicant was therefore entitled to a variation of the maintenance order to include payment of reasonable medical expenses by the respondent. The court also found that the circumstances justified uplifting the restrictions on costs under Rule 43(7) and (8), awarding...

Court Disposition

Application granted; Rule 43(5) order varied to include payment of medical expenses; costs awarded to applicant.

Orders

  • The order in terms of Rule 43(5) granted on 22 November 2006 under case number 34631/2006 is varied to include: 'The respondent is ordered to pay all reasonable medical expenses of the applicant, as well as those of the minor children.'
  • The restrictions on costs as provided in Rule 43(7) and (8) are uplifted.