G.C (Nee O) v D.S.C and Another (84382/2017) [2018] ZAGPPHC 946 (11 December 2018)

G.C (Nee O) v D.S.C and Another (84382/2017) [2018] ZAGPPHC 946 (11 December 2018)

The magistrate erred in refusing absolution from the instance at the close of the first respondent's case. The first respondent failed to establish any substantial change in circumstances or other grounds to justify a variation of the maintenance order. The reasons advanced were either addressed in the original settlement agreement or disproved by evidence. The magistrate's approach, which required both parties to always be heard regardless of the merits, was grossly irregular and would lead to unnecessary litigation and costs. The decision is reviewable under section 22(1)(d) of the Superior Courts Act. The High Court is competent to substitute its own order, granting absolution from the...

Citation
[2018] ZAGPPHC 946
Parties
Applicant: G[….] C[….] (Nee O[….]); Respondent: D[….] S[….] C[….]; Respondent: Magistrate Ungerer of the Magistrate's Court for the District of Tshwane Central, Held at Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 December 2018
Case Number
84382/2017
Procedural Posture
Review Application / Review of Refusal to Grant Absolution From the Instance in Maintenance Proceedings
Outcome
The order refusing absolution from the instance is set aside and substituted with an order granting absolution from the instance with costs. The first respondent is ordered to pay the costs of the application, and each party shall pay their own costs for the postponement on 4 September 2018.
Judges
Davis
Legal Topics
Maintenance Variation, Absolution From Instance, Settlement Agreement, Changed Circumstances, Costs in Family Law
Family and Children Civil Procedure Maintenance Variation Absolution From Instance Settlement Agreement Changed Circumstances Costs in Family Law

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Parties

G[….] C[….] (Nee O[….])

Applicant

D[….] S[….] C[….]

Respondent

Magistrate Ungerer of the Magistrate's Court for the District of Tshwane Central, Held at Pretoria

Respondent

Procedural Posture

Review Application / Review of Refusal to Grant Absolution From the Instance in Maintenance Proceedings

Legal Issues

  1. 1 Whether a magistrate sitting in the maintenance court is legally competent to grant absolution from the instance.
  2. 2 Whether the refusal to grant absolution from the instance at the close of the applicant's case was correct in law and fact.
  3. 3 Whether the first respondent established sufficient grounds for variation of the maintenance order based on changed circumstances.

Ratio Decidendi

The magistrate erred in refusing absolution from the instance at the close of the first respondent's case. The first respondent failed to establish any substantial change in circumstances or other grounds to justify a variation of the maintenance order. The reasons advanced were either addressed in the original settlement agreement or disproved by evidence. The magistrate's approach, which required both parties to always be heard regardless of the merits, was grossly irregular and would lead to unnecessary litigation and costs. The decision is reviewable under section 22(1)(d) of the Superior Courts Act. The High Court is competent to substitute its own order, granting absolution from the...

Court Disposition

The order refusing absolution from the instance is set aside and substituted with an order granting absolution from the instance with costs. The first respondent is ordered to pay the costs of the application, and each party shall pay their own costs for the postponement on 4 September 2018.

Orders

  • The order of the Second Respondent of 27 November 2017 refusing absolution from the instance is set aside and replaced with an order granting absolution from the instance with costs.
  • The First Respondent is ordered to pay the costs of this application.