Strydom v Strydom (AR 598/2011) [2012] ZAKZPHC 21; 2012 (6) SA 482 (KZP) (3 April 2012)

Strydom v Strydom (AR 598/2011) [2012] ZAKZPHC 21; 2012 (6) SA 482 (KZP) (3 April 2012)

The court found that the appellant failed to demonstrate a true inability to pay the original maintenance, as his claimed expenses could reasonably be suspended or reduced in favour of supporting his minor children. The magistrate erred in disregarding these potential savings and in reducing the maintenance payable. Further, new evidence of substantial payments into the appellant's account, including salary increases and a SARS refund, was admitted on appeal due to the exceptional circumstances and the urgent need to safeguard the children's interests. The court, as upper guardian, restored the original maintenance order and dismissed the appellant's application for variation, upholding...

Citation
[2012] ZAKZPHC 21
Parties
Appellant: Martin Deon Strydom; Respondent: Kim Ethne Strydom
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
3 April 2012
Case Number
AR 598/2011
Procedural Posture
Civil Appeal / Appeal and Cross Appeal From Magistrate's Maintenance Order
Outcome
Appeal dismissed with costs; cross-appeal upheld with costs; original maintenance order restored.
Judges
Swain, Mnguni
Legal Topics
Variation of Maintenance Order, Best Interests of Child, Arrear Maintenance, Ability to Pay, Admission of Further Evidence
Family and Children Variation of Maintenance Order Best Interests of Child Arrear Maintenance Ability to Pay Admission of Further Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Martin Deon Strydom

Appellant

Kim Ethne Strydom

Respondent

Procedural Posture

Civil Appeal / Appeal and Cross Appeal From Magistrate's Maintenance Order

Legal Issues

  1. 1 Whether the appellant demonstrated sufficient inability to pay the original maintenance ordered for his minor children.
  2. 2 Whether the magistrate erred in reducing the maintenance payable by the appellant.
  3. 3 Whether further evidence regarding the appellant's financial position should be admitted on appeal.

Ratio Decidendi

The court found that the appellant failed to demonstrate a true inability to pay the original maintenance, as his claimed expenses could reasonably be suspended or reduced in favour of supporting his minor children. The magistrate erred in disregarding these potential savings and in reducing the maintenance payable. Further, new evidence of substantial payments into the appellant's account, including salary increases and a SARS refund, was admitted on appeal due to the exceptional circumstances and the urgent need to safeguard the children's interests. The court, as upper guardian, restored the original maintenance order and dismissed the appellant's application for variation, upholding...

Court Disposition

Appeal dismissed with costs; cross-appeal upheld with costs; original maintenance order restored.

Orders

  • The evidence contained in Annexures 'FA1', 'FA2' and 'FA3' to the respondent's founding affidavit is received as evidence in the appeal.
  • The appeal is dismissed with costs.