30/04/2024 Bertus Preller Adversarial Legal System, Children, Divorce, Hostile Family Lawyers, Maintenance, Settlement agreements attorney behavior, attorney-client relationship, case analysis, child maintenance, conflict resolution in family law, courtroom behavior, D v D, effective dispute resolution, emotive language, ethical practice, family court conduct, Family Law, family law attorneys, High Court Johannesburg, impact of decorum, judicial guidance, judicial opinions, legal decorum, Legal Ethics, legal professionalism, legal representatives, non-hostile conduct, professional behavior, settlement agreement, South African Family Law, strategic legal practice, ZAGPJHC 1688 Encouraging Decorum: The Importance of Non-Hostile Conduct Among Family Law Attorneys in D v D (2021/23816) [2024] ZAGPJHC 1688 (26 April 2024). Introduction In the case of D v D (2021/23816) ZAGPJHC 1688 (26 April 2024), the crux of the matter stemmed from the respondent's decision to issue a writ of execution… READ MORE
30/04/2024 Bertus Preller Children, Conduct of Childcare Experts abuse of process, child care cases, Children’s Court, conflicts of interest, counselling psychologist, Dickinson v Fisher's Executors 1914 AD 424, disciplinary inquiries, disciplinary proceedings, disciplinary sanctions, Els v Health Professions Council of South Africa and Others (965/2023) [2024] ZAWCHC 112, ethical violations, exploitation, facilitator, HPCSA, interlocutory appeal, mental health professionals, multiple relationships, piecemeal appeals, power imbalance, professional boundaries, professional ethics, professional misconduct, Regulation 11, Stalingrad tactics, therapeutic relationship, therapeutic services, unprofessional conduct, vulnerable clients, Wahlhaus principle, Zuma v Downer 2024 (2) SA 356 (SCA) Crossing Boundaries: The Perils of Multiple Relationships in Child Care Cases – Els v Health Professions Council of South Africa and Others (965/2023) [2024] ZAWCHC 112 (25 April 2024) Introduction The Western Cape High Court recently delivered a significant judgment in the case of Els v Health Professions Council of South Africa and Others (965/2023) ZAWCHC 112 (25 April… READ MORE
27/04/2024 Bertus Preller Accrual Calculation, Divorce, Hiding Assets, Marital Regimes, Trusts, Trusts accrual system, alter ego, asset protection, Badenhorst v Badenhorst, best interests of children, Constitution, Divorce, economic inequality, equality, estate planning, fact-specific enquiry, gender, Judicial Discretion, Matrimonial Property Act 88 of 1984, piercing the trust veneer, RP v DP, sections 9 and 28, sham trust, substantive equality, transformative constitutionalism, trusts, unfair discrimination, Van Zyl v Kaye Piercing the Trust Veneer in Divorce: A Constitutional Approach to Achieving Equity (Matrimonial Property Act 88 of 1984; Badenhorst v Badenhorst 2006 (2) SA 255 (SCA); RP v DP 2014 (6) SA 243 (ECP)). Introduction The accrual system, as set out in the Matrimonial Property Act 88 of 1984 (hereafter referred to as the MPA), is a matrimonial property regime that aims to recognise… READ MORE
27/04/2024 Bertus Preller Appeal, Divorce, Maintenance, Procedural Law, Review, Rule 43 2019 (6) SA 1 (CC), access to courts, appealability, best interests of the child, constitutionality, contributions towards costs, differentiation, divorce proceedings, equality before the law, Equality of Arms, inherent power, interests of justice, interim care, interim contact, interim matrimonial matters, interim orders, legitimate government purpose, maintenance pendente lite, non-appealability, rationality test, regulate own processes, Rule 43, S v S and Another (Centre for Child Law as Amicus Curiae), section 16(3), Superior Courts Act 10 of 2013, Uniform Rules of Court, urgent relief, variation of order Constitutionality of Barring Appeals Against Rule 43 Orders: S v S and Another (Centre for Child Law as Amicus Curiae) 2019 (6) SA 1 (CC). Introduction: The Facts and Procedural History of S v S and Another The Constitutional Court case of S v S and Another (Centre for Child Law as Amicus Curiae) 2019… READ MORE
23/04/2024 Bertus Preller Costs 2022/18404, Access to Justice, complexity, costs order, counsel's fees, High Court, importance, jurisdiction, Labour Court, Legal Fees, Mashavha v Enaex Africa (Pty) Ltd, party and party costs, prospective application, Rule 67A, scale of costs, standing, Uniform Rules of Court, value, ZAGPJHC 387 Mashavha v Enaex Africa (Pty) Ltd (2022/18404) [2024] ZAGPJHC 387 (22 April 2024): Application of New Rule 67A on Party and Party Costs in the High Court. Facts of the Case In the case of Mashavha v Enaex Africa (Pty) Ltd (2022/18404) ZAGPJHC 387 (22 April 2024), the applicant, Lucky Ephraim Mashavha, brought an application against several… READ MORE
23/04/2024 Bertus Preller Appeal, Divorce, In Community of Property, Procedural Law appeal upheld, appealability, compelling discovery, divorce proceedings, doctrine of finality, H.J v P.J, High Court, interests of justice, interlocutory orders, precedent, Rall v Rall, regional court, section 168(3) Constitution, striking off the roll, Superior Courts Act, ZASCA H.J v P.J (285/2023) [2024] ZASCA 55 (19 April 2024): Supreme Court of Appeal Rules on Appealability of Interlocutory Orders in Divorce Proceedings. Divorce Proceedings and Request for Further Particulars in H.J v P.J The case of H.J v P.J (285/2023) ZASCA 55 (19 April 2024) revolves around a divorce dispute between the… READ MORE
22/04/2024 Bertus Preller Arrears, Child Maintenance, Children, Divorce, Maintenance, Procedure arrears, attachment of assets, costs order, counsel's fees, discretion, divorce order, factual basis, Family Law, High Court, inherent jurisdiction, injustice, maintenance court, maintenance enforcement, movable property, new costs rules, oppressive conduct, post-divorce dispute, precedent, right of election, self-supporting children, settlement agreement, stay of execution, substantive engagement, taxation, trust funds, Writ of Execution High Court Upholds Writ of Execution for Unpaid Maintenance Despite Forum Challenge. – M.R v L.O and Others (2023/070007) [2024] ZAGPJHC 371, (16 April 2024). Facts of the Case M.R v L.O and Others revolves around a dispute between former spouses over allegedly unpaid child maintenance. When the parties divorced, their divorce order incorporated a… READ MORE
19/04/2024 Bertus Preller Best Interests of the Child, Children, Parental Rights 14667/2022, best interests of the child, Child Custody, child development, child protection, child well-being, co-parenting, Court Directives, court-appointed expert, Divorce, domestic violence, drug testing, emotional instability, Family Court, family dispute resolution, Family Law, high-conflict custody, individual therapy, parental accountability, parental alienation, parental progress, Parental Rights, parenting coordinator, parenting deficiencies, parenting plan, phased approach, shared care arrangement, substance abuse, TH v CH, ZAWCHC Balancing Parental Rights and the Best Interests of the Child in High-Conflict Care and Contact Cases. – TH v CH (14667/2022) [2024] ZAWCHC 100 (9 April 2024). Introduction In TH v CH (14667/2022) ZAWCHC 100 (9 April 2024), the Western Cape High Court heard a case between divorced parents, TH (the father and applicant) and CH (the… READ MORE
18/04/2024 Bertus Preller Arrears, Division of Estate, Divorce, Forfeiture of Benefits, In Community of Property, Maintenance Arrear Maintenance, child maintenance, community of property, division of assets, Divorce, forfeiture, joint estate, matrimonial property system, misconduct, parental rights and responsibilities, pension fund benefits High Court Addresses Pension Fund Benefits and Arrear Maintenance, Forfeiture Not Applied in K.B.P v T.L.P (DIV 155/2014) [2024] ZANWHC 105 (17 April 2024). Introduction The High Court of North West, Mahikeng, heard an opposed divorce case between Mrs. B.P. (plaintiff) and Mr. L.P. (defendant), who were married in community of property on 11th… READ MORE
11/04/2024 Bertus Preller Alimony, Costs, Divorce, Maintenance, Rule 43, Rule 43 Cost Contributions, Spousal Maintenance abuse of court process, appetite for litigation, caution, clear cases, community of property, contribution, court order, Divorce, equal footing, expenses, finality, financial positions, inherent power, installments, insufficient means, interim relief, judicial officer, Legal Costs, litigation, loans, maintenance, marital regime, Pendente Lite, prima facie case, pursuit of truth, relocation, Rule 43 Application, Settlement, trust account High Court Rules on Maintenance and Legal Costs Contribution in Acrimonious Divorce Case. – H.K v C.K (15793/2023) [2024] ZAWCHC 99 (10 April 2024). Background of the Parties and Their Marriage The parties in this case, H.K. (the applicant) and C.K. (the respondent), were married on 5 October 1996. At the time of their… READ MORE