Volker v Volker and Another (AR155/2020) [2021] ZAKZPHC 71 (3 March 2021)

Volker v Volker and Another (AR155/2020) [2021] ZAKZPHC 71 (3 March 2021)

The court granted condonation for the late filing of the appeal, finding the explanation reasonable and the delay not prejudicial. It held that a rule 43 maintenance order is a 'maintenance order' under the Maintenance Act and that arrear maintenance up to the admitted capital amount was proved. However, the respondent failed to establish the claim for interest due to unsatisfactory evidence and calculation errors, including contravention of the in duplum rule. The court confirmed that only annuity income, not the capital, is attachable for maintenance arrears and that the non-joinder of Old Mutual Life Assurance Company SA Limited was not fatal, as Old Mutual Investment Services was...

Citation
[2021] ZAKZPHC 71
Parties
Appellant: Thomas Wilhelm Volker; Respondent: Renata Mignon Volker; Respondent: Old Mutual Investment Services
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
3 March 2021
Case Number
AR155/2020
Procedural Posture
Civil Appeal / Appeal From the Maintenance Court, Paulpietersburg
Outcome
Condonation for late delivery of the appeal is granted. The appeal is dismissed except as set out below. Each party is to pay their own costs. The order of the maintenance court is set aside and substituted as specified.
Judges
Koen, Mossop
Legal Topics
Maintenance Order Enforcement, Arrear Maintenance, Attachment of Annuity, Condonation for Late Appeal
Family and Children Civil Procedure Maintenance Order Enforcement Arrear Maintenance Attachment of Annuity Condonation for Late Appeal

Case Brief

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Parties

Thomas Wilhelm Volker

Appellant

Renata Mignon Volker

Respondent

Old Mutual Investment Services

Respondent

Procedural Posture

Civil Appeal / Appeal From the Maintenance Court, Paulpietersburg

Legal Issues

  1. 1 Whether condonation for the late delivery of the appeal should be granted.
  2. 2 Whether a rule 43 maintenance order qualifies as a 'maintenance order' under the Maintenance Act.
  3. 3 Whether the quantum of unpaid arrear maintenance and interest was proved.

Ratio Decidendi

The court granted condonation for the late filing of the appeal, finding the explanation reasonable and the delay not prejudicial. It held that a rule 43 maintenance order is a 'maintenance order' under the Maintenance Act and that arrear maintenance up to the admitted capital amount was proved. However, the respondent failed to establish the claim for interest due to unsatisfactory evidence and calculation errors, including contravention of the in duplum rule. The court confirmed that only annuity income, not the capital, is attachable for maintenance arrears and that the non-joinder of Old Mutual Life Assurance Company SA Limited was not fatal, as Old Mutual Investment Services was...

Court Disposition

Condonation for late delivery of the appeal is granted. The appeal is dismissed except as set out below. Each party is to pay their own costs. The order of the maintenance court is set aside and substituted as specified.

Orders

  • Condonation for the late delivery of the appeal is granted.
  • Subject to the substituted order, the appeal is dismissed and each party is directed to pay his/her and its own costs.