Dijkstra v Brinkhuis (16193/2008) [2011] ZAWCHC 236 (25 May 2011)
- Citation
- [2011] ZAWCHC 236
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Western Cape High Court, Cape Town
- Panel
- Weinkove, AJ
- Case number
- 16193/2008
More details
- Court
- Western Cape High Court, Cape Town
- Panel
- Weinkove, AJ
- Case number
- 16193/2008
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
- The applicant will remain bound by the existing Rule 43 order pending any petition.
- No application under Rule 49(11) for leave to execute is necessary.
02
Material facts
Parties
Dirk Jan Dijkstra
PlaintiffVivienne Getrude Brinkhuis
Defendant03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal After Judgment
04
Questions and positions
Legal issues
- 01
Whether the respondent is entitled only to rehabilitative maintenance for a fixed period.
- 02
Whether the complaints raised by the respondent warrant leave to appeal.
- 03
Whether the omission to grant a decree of divorce should be corrected under Rule 42.
Party arguments
- Applicant
- The applicant contends that the respondent's complaints do not raise prospects of success on appeal and that the maintenance order should stand as previously determined. The applicant further submits that the omission of the divorce decree should be rectified under Rule 42.
- Respondent
- The respondent argues that she is entitled to rehabilitative maintenance for a fixed period and raises complaints regarding the judgment, seeking leave to appeal. She also queries the omission of the divorce decree in the original order.
05
Court’s reasoning
Legal principles
- 01
Section 17(1) of the Superior Courts Act
Leave to appeal will only be granted if there is a reasonable prospect that another court may come to a different conclusion.
- 02
Rule 42 of the Uniform Rules of Court
A court may correct an order or judgment in terms of Rule 42 if there is an omission or error.
06
Ratio, limits and disposition
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.
Obiter and limits
- The respondent's counsel recorded that, should a petition be filed, the applicant will consider himself bound by the provisions of the existing Rule 43 order.
- There is no need for an application in terms of Rule 49(11) for leave to execute pending the decision of a court on a petition.
Court disposition
Application for leave to appeal refused with costs. Decree of divorce granted and incorporated into the judgment.
- The application for leave to appeal is refused with costs.
- A decree of divorce is granted and incorporated into the judgment.
- The applicant will remain bound by the existing Rule 43 order pending any petition.
- No application under Rule 49(11) for leave to execute is necessary.
Source and reliance status
Western Cape High Court, Cape Town
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Western Cape High Court, Cape Town
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: 16193/2008
DATE: 25 MAY 2011
In the matter between:
DIRK JAN DIJKSTRA …...............................................................................Plaintiff and
VIVIENNE GETRUDE
BRINKHUIS ….....................................................Defendant
In the matter between:
DIRK JAN DIJKSTRA …...............................................................................Plaintiff
and
VIVIENNE GETRUDE
BRINKHUIS ….....................................................Defendant
JUDGMENT WEINKOVE, AJ: In this matter I gave very full reasons for judgment in an ordinary matrimonial matter and I have reconsidered my judgment in the light of the application for leave to appeal and I do not consider that there is any prospect that another Court will hold that the respondent is only entitled to receive rehabilitative maintenance for a fixed period and I do not consider that another court will uphold the complaints raised by the respondent in this matter. I am informed furthermore that I omitted in giving my judgment to grant a decree of divorce and in order to correct that mistake in my order in terms of Rule 42, there will be a decree of divorce and that will be incorporated in my reasons for judgment. The application for leave to appeal is REFUSED WITH COSTS and I record that the respondent counsel has placed on record that in the event of a petition being filed, the applicant (Plaintiff) will consider himself bound by the provisions of the existing Rule 43 order so that there is no need for the grant of a application in terms of Rule 49(11) for leave to execute pending the decision of a court on a petition. WEINKOVE,
AJ
JUDGMENT
WEINKOVE, AJ:
In this matter I gave very full reasons for judgment in an ordinary matrimonial matter and I have reconsidered my judgment in the light of the application for leave to appeal and I do not consider that there is any prospect that another Court will hold that the respondent is only entitled to receive rehabilitative maintenance for a fixed period and I do not consider that another court will uphold the complaints raised by the respondent in this matter.
I am informed furthermore that I omitted in giving my judgment to grant a decree of divorce and in order to correct that mistake in my order in terms of Rule 42, there will be a decree of divorce and that will be incorporated in my reasons for judgment.
The application for leave to appeal is REFUSED WITH COSTS and I record that the respondent counsel has placed on record that in the event of a petition being filed, the applicant (Plaintiff) will consider himself bound by the provisions of the existing Rule 43 order so that there is no need for the grant of a application in terms of Rule 49(11) for leave to execute pending the decision of a court on a petition.
WEINKOVE, AJ
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