B.J.V.D.W v M.V.D.W (18890/13) [2014] ZAGPPHC 1044 (9 December 2014)

B.J.V.D.W v M.V.D.W (18890/13) [2014] ZAGPPHC 1044 (9 December 2014)

The court found that the application for leave to appeal does not suspend the power of the court to correct its order under Rule 42(1)(b); it merely suspends the execution of the order. The errors and omissions identified—namely, the incorrect period for rehabilitative maintenance, the omission of medical expenses, the Mercedes Benz vehicle, and the Lumislim machine—were apparent from the evidence and pleadings and constituted obvious mistakes or oversights. The court was satisfied that these corrections did not infringe upon the functus officio principle and were within the scope of Rule 42(1)(b). The application for leave to appeal was dismissed as there were no reasonable prospects of...

Citation
[2014] ZAGPPHC 1044
Parties
Applicant: B.J.V.D.W; Respondent: M.V.D.W
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 December 2014
Case Number
18890/13
Procedural Posture
Rule 42 Application / Application for Variation of Divorce Order and Leave to Appeal
Outcome
The Rule 42 application to vary the divorce order is granted; the application for leave to appeal is dismissed with costs.
Judges
S. Potterill
Legal Topics
Maintenance Variation, Rehabilitative Maintenance, Rule 42 Correction, Divorce Order, Functus Officio
Family and Children Maintenance Variation Rehabilitative Maintenance Rule 42 Correction Divorce Order Functus Officio

Case Brief

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Parties

B.J.V.D.W

Applicant

M.V.D.W

Respondent

Procedural Posture

Rule 42 Application / Application for Variation of Divorce Order and Leave to Appeal

Legal Issues

  1. 1 Whether the court may vary its previous divorce order under Rule 42(1)(b) in light of an application for leave to appeal.
  2. 2 Whether the omission of medical expenses, the Mercedes Benz vehicle, and the Lumislim machine from the original order constitutes an obvious error or omission justifying correction.
  3. 3 Whether the application for leave to appeal has reasonable prospects of success.

Ratio Decidendi

The court found that the application for leave to appeal does not suspend the power of the court to correct its order under Rule 42(1)(b); it merely suspends the execution of the order. The errors and omissions identified—namely, the incorrect period for rehabilitative maintenance, the omission of medical expenses, the Mercedes Benz vehicle, and the Lumislim machine—were apparent from the evidence and pleadings and constituted obvious mistakes or oversights. The court was satisfied that these corrections did not infringe upon the functus officio principle and were within the scope of Rule 42(1)(b). The application for leave to appeal was dismissed as there were no reasonable prospects of...

Court Disposition

The Rule 42 application to vary the divorce order is granted; the application for leave to appeal is dismissed with costs.

Orders

  • The amended draft order marked 'X', as varied, is made an order of court.
  • The application for leave to appeal is dismissed with costs.