M v B and Another (2328/1993) [2022] ZAGPJHC 804 (14 October 2022)

M v B and Another (2328/1993) [2022] ZAGPJHC 804 (14 October 2022)

The court found that the applicant failed to raise any new issues or genuine disputes regarding his liability for arrear maintenance or the quantum claimed. The applicant's denial was not substantiated by engagement with the detailed calculations and evidence provided by the first respondent. The alleged waiver by the now major child did not constitute a valid defence to the maintenance claim under the divorce order. Applying the higher threshold for leave to appeal under section 17(1)(a)(i) of the Superior Courts Act, the court concluded that there were no reasonable prospects of success and refused leave to appeal.

Citation
[2022] ZAGPJHC 804
Parties
Applicant: M [....], J [....] P [....]; Respondent: B [....] (previously M [....]), M [....] 1 A [....]; Respondent: THE SHERIFF OF THE COURT, RANDBURG SOUTHWEST
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 October 2022
Case Number
2328/1993
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Application to Set Aside Writ of Execution
Outcome
Application for leave to appeal dismissed with costs.
Judges
L R Adams
Legal Topics
Maintenance Enforcement, Leave to Appeal Threshold, Warrant of Execution, Arrear Maintenance, Divorce Order
Family and Children Civil Procedure Maintenance Enforcement Leave to Appeal Threshold Warrant of Execution Arrear Maintenance Divorce Order

Case Brief

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Parties

M [....], J [....] P [....]

Applicant

B [....] (previously M [....]), M [....] 1 A [....]

Respondent

THE SHERIFF OF THE COURT, RANDBURG SOUTHWEST

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Application to Set Aside Writ of Execution

Legal Issues

  1. 1 Whether the applicant has established reasonable prospects of success for leave to appeal against the dismissal of his application to set aside a writ of execution for arrear maintenance.
  2. 2 Whether the applicant genuinely and bona fide disputed his indebtedness and the quantum of arrear maintenance claimed by the first respondent.
  3. 3 Whether the alleged waiver by the now major child constitutes a valid defence to the maintenance claim.

Ratio Decidendi

The court found that the applicant failed to raise any new issues or genuine disputes regarding his liability for arrear maintenance or the quantum claimed. The applicant's denial was not substantiated by engagement with the detailed calculations and evidence provided by the first respondent. The alleged waiver by the now major child did not constitute a valid defence to the maintenance claim under the divorce order. Applying the higher threshold for leave to appeal under section 17(1)(a)(i) of the Superior Courts Act, the court concluded that there were no reasonable prospects of success and refused leave to appeal.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The applicant’s application for leave to appeal is dismissed with costs.