Mutale v Goldner (A129/14) [2014] ZAGPPHC 637 (25 August 2014)

Mutale v Goldner (A129/14) [2014] ZAGPPHC 637 (25 August 2014)

The court held that section 10 of the Domestic Violence Act empowers the magistrate to vary or set aside its own protection order. The order for emergency monetary relief in paragraph 3.1.2.10 was not competent as it amounted to maintenance, which is not covered by the definition of emergency monetary relief under the Act. The magistrate did not err in amending the order by deleting the paragraph, as it was null and void. The grounds raised by the appellant were review grounds and not grounds of appeal, and no good cause needed to be shown for the variation since the order was invalid ab initio.

Citation
[2014] ZAGPPHC 637
Parties
Appellant: Constance Mutale; Respondent: Peter Göldner
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 August 2014
Case Number
A129/14
Procedural Posture
Civil Appeal / Appeal From Domestic Violence Court Order
Outcome
The appeal is dismissed with costs.
Judges
S. Potterill, J.W. Louw
Legal Topics
Domestic Violence Act, Variation of Protection Order, Emergency Monetary Relief, Maintenance Orders
Family and Children Civil Procedure Domestic Violence Act Variation of Protection Order Emergency Monetary Relief Maintenance Orders

Case Brief

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Parties

Constance Mutale

Appellant

Peter Göldner

Respondent

Procedural Posture

Civil Appeal / Appeal From Domestic Violence Court Order

Legal Issues

  1. 1 Whether the magistrate had the power to vary or set aside its own protection order under section 10 of the Domestic Violence Act.
  2. 2 Whether the deletion of paragraph 3.1.2.10, relating to emergency monetary relief, was competent and justified.
  3. 3 Whether the order for emergency monetary relief constituted maintenance and was thus improperly granted.

Ratio Decidendi

The court held that section 10 of the Domestic Violence Act empowers the magistrate to vary or set aside its own protection order. The order for emergency monetary relief in paragraph 3.1.2.10 was not competent as it amounted to maintenance, which is not covered by the definition of emergency monetary relief under the Act. The magistrate did not err in amending the order by deleting the paragraph, as it was null and void. The grounds raised by the appellant were review grounds and not grounds of appeal, and no good cause needed to be shown for the variation since the order was invalid ab initio.

Court Disposition

The appeal is dismissed with costs.

Orders

  • The appeal is dismissed with costs.