J v L (1274/2019) [2019] ZAFSHC 225 (29 November 2019)

J v L (1274/2019) [2019] ZAFSHC 225 (29 November 2019)

The court found that the respondent failed to comply with the method of payment prescribed in the maintenance order, specifically by not paying the monthly instalment directly to the applicant and not adhering to the escalation clause. The respondent's claim of consensual variation was rejected both on legal and factual grounds, as the Shifren clause required written agreement and no such variation was proven. The evidence was insufficient to determine the quantum of arrears due to unreliable calculations and lack of clarity. The court held that contempt was established regarding the method of payment, but not the amount in arrears. The respondent was declared in contempt and sentenced to...

Citation
[2019] ZAFSHC 225
Parties
Applicant: ZJ; Respondent: LL
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 November 2019
Case Number
1274/2019
Procedural Posture
Contempt Application / Final Judgment
Outcome
The respondent is declared in contempt of the maintenance order regarding the method of payment and sentenced to ninety days' imprisonment, wholly suspended for three years on condition of compliance. The dispute regarding arrears is referred for trial. Each party to pay their own costs.
Judges
Opperman
Legal Topics
Maintenance Orders, Contempt of Court, Non Variation Clauses, Best Interests of Child, Motion Proceedings, Arrear Calculation
Family and Children Civil Procedure Maintenance Orders Contempt of Court Non Variation Clauses Best Interests of Child Motion Proceedings Arrear Calculation

Case Brief

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Parties

ZJ

Applicant

LL

Respondent

Procedural Posture

Contempt Application / Final Judgment

Legal Issues

  1. 1 Whether the respondent is in contempt of the maintenance order dated 21 October 2010.
  2. 2 Whether oral or informal variations of the maintenance order are legally valid in light of the Shifren principle.
  3. 3 Whether the respondent is in arrears with maintenance payments and the quantum thereof.

Ratio Decidendi

The court found that the respondent failed to comply with the method of payment prescribed in the maintenance order, specifically by not paying the monthly instalment directly to the applicant and not adhering to the escalation clause. The respondent's claim of consensual variation was rejected both on legal and factual grounds, as the Shifren clause required written agreement and no such variation was proven. The evidence was insufficient to determine the quantum of arrears due to unreliable calculations and lack of clarity. The court held that contempt was established regarding the method of payment, but not the amount in arrears. The respondent was declared in contempt and sentenced to...

Court Disposition

The respondent is declared in contempt of the maintenance order regarding the method of payment and sentenced to ninety days' imprisonment, wholly suspended for three years on condition of compliance. The dispute regarding arrears is referred for trial. Each party to pay their own costs.

Orders

  • The respondent is declared to be in contempt of the court order dated 21 October 2010 under case 4839/2010 and committed to imprisonment for ninety days, wholly suspended for three years on condition of compliance with the method of payment as decreed in the court order.
  • The instalment, including the escalation, must be paid on or before 1 December 2019 and thereafter on or before the first of each subsequent month.