T.M.R v M.R.R - Reasons (184/2004) [2024] ZALMPTHC 2 (16 January 2024)

T.M.R v M.R.R - Reasons (184/2004) [2024] ZALMPTHC 2 (16 January 2024)

The applicant failed to bring the variation application within a reasonable time, launching it seventeen years after the divorce order. No substantive application for condonation was made, and the founding affidavit did not set out the requirements for condonation. A conditional prayer for condonation in the notice of motion does not suffice. The court is bound by the pleadings and cannot exercise discretion to grant condonation in the absence of a proper application. The respondent's point in limine for lack of condonation succeeds, and the application is dismissed with costs.

Citation
[2024] ZALMPTHC 2
Parties
Applicant: T[…] M[…] R[…]; Respondent: M[…] R[…] R[…]
Court
Limpopo High Court, Thohoyandou
Jurisdiction
South Africa
Judgment Date
16 January 2024
Case Number
184/2004
Procedural Posture
Variation Application / Reasons for Judgment Following Upholding of Point in Limine
Outcome
Application dismissed; point in limine of lack of condonation upheld with costs.
Judges
IM Khosa
Legal Topics
Condonation, Variation of Court Order, Deed of Settlement, Delay in Application
Civil Procedure Condonation Variation of Court Order Deed of Settlement Delay in Application

Case Brief

Summary, issues, holding and outcome

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Parties

T[…] M[…] R[…]

Applicant

M[…] R[…] R[…]

Respondent

Procedural Posture

Variation Application / Reasons for Judgment Following Upholding of Point in Limine

Legal Issues

  1. 1 Whether the applicant failed to apply for condonation for the delay in launching the variation application.
  2. 2 Whether a conditional prayer for condonation in the notice of motion constitutes a substantive condonation application.
  3. 3 Whether the application for variation of the divorce order was brought within a reasonable period.

Ratio Decidendi

The applicant failed to bring the variation application within a reasonable time, launching it seventeen years after the divorce order. No substantive application for condonation was made, and the founding affidavit did not set out the requirements for condonation. A conditional prayer for condonation in the notice of motion does not suffice. The court is bound by the pleadings and cannot exercise discretion to grant condonation in the absence of a proper application. The respondent's point in limine for lack of condonation succeeds, and the application is dismissed with costs.

Court Disposition

Application dismissed; point in limine of lack of condonation upheld with costs.

Orders

  • The point in limine of lack of condonation application is upheld with costs.