L v L (2017/6235) [2018] ZAGPJHC 101 (29 March 2018)

L v L (2017/6235) [2018] ZAGPJHC 101 (29 March 2018)

The court found that the Rule 43 order could not co-exist with the full court judgment ordering the return of the children to Norway, where maintenance and legal costs were provided for. The respondent's failure to disclose her employment status and subsequent fraudulent misrepresentation constituted improper and unlawful conduct. The applicant's non-compliance with the Rule 43 order was not condoned, but the respondent's prejudicial conduct justified partial relief for the applicant. The Rule 43 order was discharged in respect of the respondent's maintenance from 21 August 2015 and in respect of the children from 19 March 2018, the date of their return to Norway. The respondent was...

Citation
[2018] ZAGPJHC 101
Parties
Applicant: L F; Respondent: L A
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
29 March 2018
Case Number
2017/6235
Procedural Posture
Urgent Application / Application to Set Aside or Discharge a Rule 43 Maintenance Order
Outcome
The application partially succeeded. The Rule 43 order was discharged in respect of the respondent's maintenance from 21 August 2015 and in respect of the children from 19 March 2018. The respondent was referred to SAICA and the Office of the Director of Public Prosecutions. Punitive costs were awarded against the...
Judges
L T Modiba
Legal Topics
Rule 43 Maintenance, Non Disclosure, Pendente Lite Maintenance, Habitual Residence, Hague Convention, Costs Order
Family and Children Civil Procedure Rule 43 Maintenance Non Disclosure Pendente Lite Maintenance Habitual Residence Hague Convention Costs Order

Case Brief

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Parties

L F

Applicant

L A

Respondent

Procedural Posture

Urgent Application / Application to Set Aside or Discharge a Rule 43 Maintenance Order

Legal Issues

  1. 1 Whether the Rule 43 maintenance order granted on 21 August 2015 should be set aside, discharged, or declared void.
  2. 2 Whether the respondent is disentitled to claim arrear maintenance amounts under the Rule 43 order.
  3. 3 Whether the respondent's conduct in failing to disclose employment status constitutes fraudulent misrepresentation.

Ratio Decidendi

The court found that the Rule 43 order could not co-exist with the full court judgment ordering the return of the children to Norway, where maintenance and legal costs were provided for. The respondent's failure to disclose her employment status and subsequent fraudulent misrepresentation constituted improper and unlawful conduct. The applicant's non-compliance with the Rule 43 order was not condoned, but the respondent's prejudicial conduct justified partial relief for the applicant. The Rule 43 order was discharged in respect of the respondent's maintenance from 21 August 2015 and in respect of the children from 19 March 2018, the date of their return to Norway. The respondent was...

Court Disposition

The application partially succeeded. The Rule 43 order was discharged in respect of the respondent's maintenance from 21 August 2015 and in respect of the children from 19 March 2018. The respondent was referred to SAICA and the Office of the Director of Public Prosecutions. Punitive costs were awarded against the...

Orders

  • The Rule 43 order handed down by Mahalelo AJ dated 21 August 2015 is discharged.
  • The applicant is ordered to pay the respondent pendente lite maintenance for the two minor children from 21 August 2015 until 19 March 2018 at R20,763.13 per month per child, less any amounts already paid.