Application to the Maintenance Court to change an existing maintenance order, and the burden of proof of changed circumstances – Benson v Benson (1549/2012) [2013] ZANWHC 7 (21 January 2013)
In the Maintenance Court, in order to be successful with an application to change an existing maintenance order, all that one has to prove is a change in circumstance, e.g. that one person is earning more than he/she earned at the time of the granting of the original order.
Rule 43 in the High Court is an interim application for maintenance and a contribution towards legal fees. Once the order is granted, it cannot be appealed against, as a Rule 43 application is an “interlocutory” application. Rule 43(6) however provides that if there has been a change in circumstance since the time of granting of the Rule 43 order, one can apply to Court to have the Rule 43 order varied.
One of the recent cases involved in the variation of a Rule 43 order, was that of Benson v Benson (1549/2012) [2013] ZANWHC 7 (21 January 2013). In this case there was an application in terms of Rule 43(6) by the applicant to reduce the maintenance payable in terms of a court order in respect of a minor child from R30 000 to R1500. The applicant on his papers alleged that there had been a change in circumstances because he had lost most of his income from his business which sold motor vehicles and accessories.
On his papers the applicant alleged that his brother-in-law, one Rousseau, had withdrawn his capital from the business shortly after the maintenance order was granted, and that the applicant could no longer purchase stock. The applicant further alleged that his stock was sold in execution and that he could not proceed with the business, and that he had to move to a different premises, and that he had lost business due to the relocation.
The application also involved the striking of two affidavits annexed to the respondent’s answering affidavit. Rule 43(5) disallows the filing of supporting affidavits. One of the affidavits was by Rousseau. The Court found that it was not a supporting affidavit, but was made in inter pleading proceedings, wherein Rousseau claimed ownership of two vehicles, one being a Mazda Bakkie. The second affidavit was made by one RS Matane. The Court also allowed this affidavit to be admitted. In this affidavit Matane, the son of the owner of the Mazda, alleges that he was mandated by his father to sell the vehicle. In this affidavit he affirms that the vehicle was sold to the applicant and not to Rousseau.
The end result of the case was that the application to strike out the affidavits was dismissed, and the application to vary the Rule 43 order was also dismissed. The Court found that there was fraud in this matter. The Court was not prepared to entertain this application where fraudulent conduct was present. There were also not sufficient grounds to vary the order as there had not been a sufficient change in circumstance on the evidence since the time the order was granted.
article written by Cape Town divorce attorney, Peter M Baker
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