Dijkstra v Brinkhuis (16193/2008) [2011] ZAWCHC 236 (25 May 2011)

Dijkstra v Brinkhuis (16193/2008) [2011] ZAWCHC 236 (25 May 2011)

The court finds that there is no reasonable prospect that another court would hold that the respondent is entitled only to rehabilitative maintenance for a fixed period or uphold the complaints raised by the respondent. The application for leave to appeal is refused with costs. The omission to grant a decree of divorce in the original judgment is corrected under Rule 42, and a decree of divorce is now granted. The applicant will remain bound by the existing Rule 43 order pending any petition, making an application under Rule 49(11) unnecessary.

Citation
[2011] ZAWCHC 236
Parties
Plaintiff: Dirk Jan Dijkstra; Defendant: Vivienne Getrude Brinkhuis
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
25 May 2011
Case Number
16193/2008
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Judgment
Outcome
Application for leave to appeal refused with costs. Decree of divorce granted and incorporated into the judgment.
Judges
Weinkove, AJ
Legal Topics
Divorce, Maintenance, Leave to Appeal, Rule 42 Correction, Rule 43 Interim Orders
Family and Children Divorce Maintenance Leave to Appeal Rule 42 Correction Rule 43 Interim Orders

Case Brief

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Parties

Dirk Jan Dijkstra

Plaintiff

Vivienne Getrude Brinkhuis

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Judgment

Legal Issues

  1. 1 Whether the respondent is entitled only to rehabilitative maintenance for a fixed period.
  2. 2 Whether the complaints raised by the respondent warrant leave to appeal.
  3. 3 Whether the omission to grant a decree of divorce should be corrected under Rule 42.

Ratio Decidendi

The court finds that there is no reasonable prospect that another court would hold that the respondent is entitled only to rehabilitative maintenance for a fixed period or uphold the complaints raised by the respondent. The application for leave to appeal is refused with costs. The omission to grant a decree of divorce in the original judgment is corrected under Rule 42, and a decree of divorce is now granted. The applicant will remain bound by the existing Rule 43 order pending any petition, making an application under Rule 49(11) unnecessary.

Court Disposition

Application for leave to appeal refused with costs. Decree of divorce granted and incorporated into the judgment.

Orders

  • The application for leave to appeal is refused with costs.
  • A decree of divorce is granted and incorporated into the judgment.