Strydom N.O v Kruger and Another (68/2019) [2020] ZANCHC 80 (4 December 2020)

Strydom N.O v Kruger and Another (68/2019) [2020] ZANCHC 80 (4 December 2020)

The court found that the maintenance order from the divorce remains valid and enforceable. The first respondent did not take steps to vary or enforce the order during the deceased's lifetime, nor did she provide an explanation for the delay. However, the court declined to quash the claim for arrear maintenance, finding no authority in L v L for such a drastic remedy. The claim for arrear maintenance must be calculated according to the original court order and settlement agreement, with appropriate documentary proof required for school fees and medical expenses. The court exercised its discretion on costs, ordering each party to bear their own costs due to the personal nature of the...

Citation
[2020] ZANCHC 80
Parties
Applicant: Magdaleen Strydom N.O.; Respondent: Amanda Kruger; Respondent: Master of the High Court, Kimberley
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
4 December 2020
Case Number
68/2019
Procedural Posture
Civil Application / Judgment After Opposed Application and Counter Application
Outcome
The first respondent is entitled to recover arrear maintenance from the estate, calculated in accordance with the original divorce order and settlement agreement, supported by documentary proof. Each party is to bear their own costs.
Judges
Lever
Legal Topics
Arrear Maintenance, Divorce Settlement, Maintenance Order Enforcement, Adoption Effect on Maintenance
Family and Children Arrear Maintenance Divorce Settlement Maintenance Order Enforcement Adoption Effect on Maintenance

Case Brief

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Parties

Magdaleen Strydom N.O.

Applicant

Amanda Kruger

Respondent

Master of the High Court, Kimberley

Respondent

Procedural Posture

Civil Application / Judgment After Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the first respondent forfeited the right to recover arrear maintenance unpaid since 2011 due to her conduct.
  2. 2 Whether arrear maintenance remains payable and, if so, the method of calculation to be applied.

Ratio Decidendi

The court found that the maintenance order from the divorce remains valid and enforceable. The first respondent did not take steps to vary or enforce the order during the deceased's lifetime, nor did she provide an explanation for the delay. However, the court declined to quash the claim for arrear maintenance, finding no authority in L v L for such a drastic remedy. The claim for arrear maintenance must be calculated according to the original court order and settlement agreement, with appropriate documentary proof required for school fees and medical expenses. The court exercised its discretion on costs, ordering each party to bear their own costs due to the personal nature of the...

Court Disposition

The first respondent is entitled to recover arrear maintenance from the estate, calculated in accordance with the original divorce order and settlement agreement, supported by documentary proof. Each party is to bear their own costs.

Orders

  • The first respondent can recover arrear maintenance from the applicant in her capacity as executrix of the estate of the late Roberto Nel.
  • Arrear maintenance is to be calculated in accordance with prayer 3 of the court order issued on 29 June 2005 under case number 872/05, as read with the deed of settlement dated 8 June 2005.