G.J.F v S.L.D.H and Another (6073/2000) [2010] ZAGPPHC 236 (9 December 2010)

G.J.F v S.L.D.H and Another (6073/2000) [2010] ZAGPPHC 236 (9 December 2010)

The court held that while the Shifren principle generally precludes oral variation of contracts containing a non-variation clause, public policy considerations rooted in constitutional values—particularly the best interests of children—may justify a departure in family law matters. The evidence showed that the parties had, by mutual agreement and mediation, varied the residency and maintenance arrangements for the minor children for a period, and that the applicant made payments in accordance with the mediated agreement. The warrant of execution for arrear maintenance was issued for an amount that did not account for these variations and was therefore incorrect. The applicant was found to...

Citation
[2010] ZAGPPHC 236
Parties
Applicant: G J F; Respondent: S L D H; Respondent: The Sheriff of the Court: Sandton; Respondent: Turquoise Moon Trading 309 (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 December 2010
Case Number
6073/2000
Procedural Posture
Civil Application / Final Judgment on Main and Counter Application
Outcome
The warrant of execution is set aside; the applicant is declared in contempt of court and sentenced to six months imprisonment, wholly suspended for three years on condition of payment of arrear maintenance; each party to pay its own costs.
Judges
Kollapen
Legal Topics
Maintenance Order Enforcement, Variation of Settlement Agreement, Contempt of Court, Best Interests of Child
Family and Children Civil Procedure Maintenance Order Enforcement Variation of Settlement Agreement Contempt of Court Best Interests of Child

Case Brief

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Parties

G J F

Applicant

S L D H

Respondent

The Sheriff of the Court: Sandton

Respondent

Turquoise Moon Trading 309 (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Final Judgment on Main and Counter Application

Legal Issues

  1. 1 Whether the maintenance obligations under the divorce order could be varied by a mediated agreement between the parties.
  2. 2 Whether the applicant failed to comply with the maintenance obligations imposed by the divorce order or the mediated agreement.
  3. 3 Whether any non-compliance by the applicant was wilful or mala fide.

Ratio Decidendi

The court held that while the Shifren principle generally precludes oral variation of contracts containing a non-variation clause, public policy considerations rooted in constitutional values—particularly the best interests of children—may justify a departure in family law matters. The evidence showed that the parties had, by mutual agreement and mediation, varied the residency and maintenance arrangements for the minor children for a period, and that the applicant made payments in accordance with the mediated agreement. The warrant of execution for arrear maintenance was issued for an amount that did not account for these variations and was therefore incorrect. The applicant was found to...

Court Disposition

The warrant of execution is set aside; the applicant is declared in contempt of court and sentenced to six months imprisonment, wholly suspended for three years on condition of payment of arrear maintenance; each party to pay its own costs.

Orders

  • The warrant of execution issued under case no 6073/2000 is set aside.
  • The applicant is declared to be in contempt of court in relation to the order of 27 August 2002.