Thomas v Balepile (61/2021; CA&R 68/23) [2024] ZANCHC 4 (26 January 2024)

Thomas v Balepile (61/2021; CA&R 68/23) [2024] ZANCHC 4 (26 January 2024)

The Maintenance Act expressly prescribes a special remedy for persons against whom default orders have been made, namely, an application to the Maintenance Court for variation or setting aside of such orders under Section 18. The intention of the Legislature, as determined by the language and scope of the Act, is to confine parties seeking to impugn a default order to this statutory remedy. The special review procedure is not appropriate where the Act provides a specific remedy. The absence of records and the circumstances of the granting of the order do not justify bypassing the statutory procedure. Accordingly, the application for special review is refused, and the respondent must...

Citation
[2024] ZANCHC 4
Parties
Applicant: Thomas, Centricia Gomolemo; Respondent: Balepile, Goitsemodimo Godfery
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
26 January 2024
Case Number
CA&R 68/23
Procedural Posture
Special Review / Review of Default Maintenance Order
Outcome
Special review application refused.
Judges
Nxumalo
Legal Topics
Maintenance Act Section 18, Default Orders, Special Review Procedure
Family and Children Civil Procedure Maintenance Act Section 18 Default Orders Special Review Procedure

Case Brief

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Parties

Thomas, Centricia Gomolemo

Applicant

Balepile, Goitsemodimo Godfery

Respondent

Procedural Posture

Special Review / Review of Default Maintenance Order

Legal Issues

  1. 1 Whether the impugned default maintenance order was erroneously granted in the absence of the respondent.
  2. 2 Whether the special review procedure is available or appropriate in light of the statutory remedies under the Maintenance Act.
  3. 3 Whether the respondent should be advised to apply for variation or setting aside of the order under Section 18(4) of the Maintenance Act.

Ratio Decidendi

The Maintenance Act expressly prescribes a special remedy for persons against whom default orders have been made, namely, an application to the Maintenance Court for variation or setting aside of such orders under Section 18. The intention of the Legislature, as determined by the language and scope of the Act, is to confine parties seeking to impugn a default order to this statutory remedy. The special review procedure is not appropriate where the Act provides a specific remedy. The absence of records and the circumstances of the granting of the order do not justify bypassing the statutory procedure. Accordingly, the application for special review is refused, and the respondent must...

Court Disposition

Special review application refused.

Orders

  • The special review application is hereby refused.