Lowe v Lowe (26004/2009) [2011] ZAWCHC 68 (10 March 2011)

Lowe v Lowe (26004/2009) [2011] ZAWCHC 68 (10 March 2011)

The court found that the obligations under the consent paper, including maintenance and related expenses, were sufficiently certain and ascertainable to be enforced by writ of execution. The applicant's argument that the order was ad factum praestandum and thus not enforceable by writ was rejected, with reference to established case law. The applicant failed to provide evidence that the expenses claimed were unreasonable or not incurred, despite having access to relevant documentation and the opportunity to present countervailing medical reports. The Magistrates Court order did not retrospectively alter the applicant's obligations under the consent paper. No real or substantial prejudice...

Citation
[2011] ZAWCHC 68
Parties
Applicant: Terence Alfred Lowe; Respondent: Mehliss Catherine Lowe
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
10 March 2011
Case Number
26004/2009
Procedural Posture
Stay Application / Application to Stay Writ of Execution Post Divorce Order
Outcome
Application dismissed with costs.
Judges
MIA
Legal Topics
Maintenance Enforcement, Writ of Execution, Consent Paper, Reasonableness of Expenses, Arrear Maintenance
Family and Children Civil Procedure Maintenance Enforcement Writ of Execution Consent Paper Reasonableness of Expenses Arrear Maintenance

Case Brief

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Parties

Terence Alfred Lowe

Applicant

Mehliss Catherine Lowe

Respondent

Procedural Posture

Stay Application / Application to Stay Writ of Execution Post Divorce Order

Legal Issues

  1. 1 Whether the writ of execution issued against the applicant should be stayed pending further proceedings.
  2. 2 Whether the maintenance and related obligations in the consent paper are enforceable by writ of execution or only by contempt proceedings.
  3. 3 Whether the amounts claimed by the respondent under the writ are reasonable and ascertainable.

Ratio Decidendi

The court found that the obligations under the consent paper, including maintenance and related expenses, were sufficiently certain and ascertainable to be enforced by writ of execution. The applicant's argument that the order was ad factum praestandum and thus not enforceable by writ was rejected, with reference to established case law. The applicant failed to provide evidence that the expenses claimed were unreasonable or not incurred, despite having access to relevant documentation and the opportunity to present countervailing medical reports. The Magistrates Court order did not retrospectively alter the applicant's obligations under the consent paper. No real or substantial prejudice...

Court Disposition

Application dismissed with costs.

Orders

  • The application to stay the writ of execution is dismissed.
  • The applicant is ordered to pay the costs of the application.