JJ.V.W v N.V.W (2019/26732) [2023] ZAGPJHC 224 (16 March 2023)

JJ.V.W v N.V.W (2019/26732) [2023] ZAGPJHC 224 (16 March 2023)

The application for leave to appeal was struck from the roll because orders made under Rule 43 for interim maintenance are not appealable in terms of section 16(3)(a) of the Superior Courts Act. The Constitutional Court in S v S did not create an exception to this rule, but rather confirmed the statutory limitation...

Source-derived case information.

Citation
[2023] ZAGPJHC 224
Parties
Applicant: JJVW; Respondent: NVW
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 March 2023
Case Number
2019/26732
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Interim Maintenance Order Under Rule 43; Appointment of Supervising Professional for Child Contact.
Outcome
Application for leave to appeal struck from the roll with costs; appointment of supervising professional for child contact confirmed.
Judges
D J Wilson
Legal Topics
Interim Maintenance, Rule 43 Proceedings, Leave to Appeal, Superior Courts Act Section 16 3, Appointment of Supervising Professional
Family and Children Civil Procedure Interim Maintenance Rule 43 Proceedings Leave to Appeal Superior Courts Act Section 16 3 Appointment of Supervising Professional

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Parties

JJVW

Applicant

NVW

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Interim Maintenance Order Under Rule 43; Appointment of Supervising Professional for Child Contact.

Legal Issues

  1. 1 Is an order made under Rule 43 for interim maintenance appealable under section 16(3)(a) of the Superior Courts Act?
  2. 2 Does the Constitutional Court's decision in S v S create an exception permitting appeals against patently unjust and erroneous interim maintenance orders?
  3. 3 Should costs be awarded against the applicant despite the respondent's alleged pro bono representation?

Ratio Decidendi

The application for leave to appeal was struck from the roll because orders made under Rule 43 for interim maintenance are not appealable in terms of section 16(3)(a) of the Superior Courts Act. The Constitutional Court in S v S did not create an exception to this rule, but rather confirmed the statutory limitation and suggested alternative remedies such as varying the order or relying on the court's inherent powers. The applicant's argument that the order was patently unjust and erroneous was rejected, as the evidence relied upon was insufficient and not placed under oath. Costs were awarded against the applicant, as the application was misconceived and contrary to statute, and the...

Court Disposition

Application for leave to appeal struck from the roll with costs; appointment of supervising professional for child contact confirmed.

Orders

  • The application for leave to appeal is struck from the roll with costs.
  • Laura Edmonds is appointed as the supervising professional to manage contact between the respondent and the child, SA, in terms of the order of 18 October 2022.