S.K v E.B.K (1228/2024) [2024] ZAFSHC 157 (24 May 2024)

S.K v E.B.K (1228/2024) [2024] ZAFSHC 157 (24 May 2024)

The court found that a material change in circumstances had occurred since the previous rule 43 order, primarily due to the respondent's unilateral actions regarding electricity supply, which amounted to spoliation and self-help. The deterioration in the child's medical condition justified an increase in maintenance. However, the applicant's desire to relocate was not considered a material change, as she had previously elected to remain on the farm and the change was temporary. The appointment of a parenting coordinator was refused due to lack of an approved parental plan and absence of consent. The court held that equality of arms required a further contribution to legal costs, given the...

Citation
[2024] ZAFSHC 157
Parties
Applicant: S[...] K[...]; Respondent: E[...] B[...] K[...]
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 May 2024
Case Number
1228/2024
Procedural Posture
Rule 43 Application / Variation Under Rule 43(6)
Outcome
The rule 43 order is varied to increase maintenance for the child, require restoration of electricity supply and generator repair, and grant a further contribution to legal costs. The application for relocation and appointment of a parenting coordinator is refused. Costs are to be costs in the main action.
Judges
JP Daffue
Legal Topics
Rule 43 Variation, Interim Maintenance, Parenting Coordination, Spoliation, Contribution to Legal Costs
Family and Children Civil Procedure Rule 43 Variation Interim Maintenance Parenting Coordination Spoliation Contribution to Legal Costs

Case Brief

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Parties

S[...] K[...]

Applicant

E[...] B[...] K[...]

Respondent

Procedural Posture

Rule 43 Application / Variation Under Rule 43(6)

Legal Issues

  1. 1 Whether there has been a material change in circumstances justifying variation of the existing rule 43 order.
  2. 2 Whether the applicant is entitled to increased maintenance for the child R[...] due to changed circumstances.
  3. 3 Whether the respondent's conduct regarding electricity supply constitutes spoliation.

Ratio Decidendi

The court found that a material change in circumstances had occurred since the previous rule 43 order, primarily due to the respondent's unilateral actions regarding electricity supply, which amounted to spoliation and self-help. The deterioration in the child's medical condition justified an increase in maintenance. However, the applicant's desire to relocate was not considered a material change, as she had previously elected to remain on the farm and the change was temporary. The appointment of a parenting coordinator was refused due to lack of an approved parental plan and absence of consent. The court held that equality of arms required a further contribution to legal costs, given the...

Court Disposition

The rule 43 order is varied to increase maintenance for the child, require restoration of electricity supply and generator repair, and grant a further contribution to legal costs. The application for relocation and appointment of a parenting coordinator is refused. Costs are to be costs in the main action.

Orders

  • The rule 43 order of 13 October 2023 under case no 4228/2023 is amended to substitute the amount of R 7 000 in paragraph 8 with R 10 000.
  • The respondent shall forthwith repair the generator on the farm for use by the applicant as required.