L v L (26758/2014) [2019] ZAGPPHC 352 (3 July 2019)

L v L (26758/2014) [2019] ZAGPPHC 352 (3 July 2019)

The court found that the previous order was patently erroneous as it failed to grant the decree of divorce and address ancillary issues such as custody, control, and maintenance of the minor child, despite the parties having reached agreement on these matters. Under Rule 42 and the common law exceptions to the functus officio rule, the court is empowered to supplement or clarify its judgment to correct such omissions, provided the sense and substance of the original order are not altered. The applicant is therefore entitled to have the order amended to include the dissolution of marriage and the agreed arrangements regarding the minor child and division of the joint estate.

Citation
[2019] ZAGPPHC 352
Parties
Applicant: L[….] L[….] P[….]; Respondent: L[….] B[…] S[….]
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 July 2019
Case Number
26758/2014
Procedural Posture
Civil Appeal / Appeal Against Partial Forfeiture Order; Application to Amend Divorce Order
Outcome
Appeal dismissed with costs; previous order amended to include decree of divorce and ancillary relief.
Judges
Lukhaimane
Legal Topics
Divorce Act Section 9, Forfeiture of Matrimonial Benefits, Variation of Court Order, Maintenance of Minor Child, Parental Rights and Responsibilities
Family and Children Civil Procedure Divorce Act Section 9 Forfeiture of Matrimonial Benefits Variation of Court Order Maintenance of Minor Child Parental Rights and Responsibilities

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Parties

L[….] L[….] P[….]

Applicant

L[….] B[…] S[….]

Respondent

Procedural Posture

Civil Appeal / Appeal Against Partial Forfeiture Order; Application to Amend Divorce Order

Legal Issues

  1. 1 Whether the court may vary or supplement an existing divorce order to include omitted prayers such as the decree of divorce and ancillary relief.
  2. 2 Whether the omission of the dissolution of marriage and maintenance orders constitutes a patent error or omission under Rule 42.
  3. 3 Whether the applicant is entitled to supplement the decree of divorce to reflect the parties' agreement on custody, control, and maintenance of the minor child.

Ratio Decidendi

The court found that the previous order was patently erroneous as it failed to grant the decree of divorce and address ancillary issues such as custody, control, and maintenance of the minor child, despite the parties having reached agreement on these matters. Under Rule 42 and the common law exceptions to the functus officio rule, the court is empowered to supplement or clarify its judgment to correct such omissions, provided the sense and substance of the original order are not altered. The applicant is therefore entitled to have the order amended to include the dissolution of marriage and the agreed arrangements regarding the minor child and division of the joint estate.

Court Disposition

Appeal dismissed with costs; previous order amended to include decree of divorce and ancillary relief.

Orders

  • The appeal is dismissed with costs.
  • The order granted on 13 December 2018 is amended to grant a decree of divorce.