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[2014] ZAGPJHC 391
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M v M (17958/13) [2014] ZAGPJHC 391 (28 July 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL DIVISION
JOHANNESBURG)
Case No: 17958/13
DATE: 28 JULY 2014
In the matter between:
[M………….]
[B………..]
[E………..]
......................................
Applicant
And
[M…………]
[P……….]
[P………..]
......................................
Respondent
JUDGMENT
FRANCIS J
1. This is an opposed application in
terms of rule 43 of the Uniform Rules of Court (the rules). The
parties got married in community
of property on 8 December 2002.
There are two minor children born of marriage. The respondent has
instituted a divorce action
against the applicant which is set down
for trial on 21 August 2014.
2. In this application the applicant is
seeking access to the minor children. The respondent has filed a
counterclaim and is seeking
R5000.00 per month maintenance for each
child, and a contribution of R20 000 for her legal costs.
3. The first issue that needs to be
determined is the issue of contact that the applicant should have
with the minor children.
The respondent sought an order that the
applicant should have reasonable rights of contact with the minor
children having regard
to their scholastic, religious and general
well being inter alia that every alternative weekend from 17h00 on
Fridays when the
applicant will collect the minor children from her
residence and return them to her on Sundays at 18h00. The applicant
on the
other hand seeks an order that he should have contact with the
minor children every alternate weekend from 14h00 on Fridays when
he
will collect them
from their school and return them to
school on Monday morning at 7h45. In paragraph 4.1 of the
applicant’s answering affidavit
to the counter claim the
applicant has admitted the contact arrangements proposed by the
respondent. That being the case, there
is nothing unreasonable about
the arrangements proposed by the respondent.
4. This brings me to the respondent’s
claim for R5 000.00 maintenance for each child. I have considered
the means of both
parties and their expenses. It is clear that when
it comes to the issue of maintenance in terms of rule 43 some parties
are in
the habit of inflating their expenses in an attempt to shirk
their responsibilities towards their minor children. Some parties
would use this opportunity to settle old scores against the other and
in the process it is their minor children who suffer. The
minor
children are on the applicant’s medical aid, he is paying their
school fees, school books and uniforms, pocket money,
transport and
clothing. The respondent is employed and is not impecunious. In my
view it would be just and fair to order the
applicant to pay R1
500.00 maintenance for each child.
5. The respondent has not laid any
basis why she is seeking a contribution towards her legal costs. She
has stated as follows in
paragraph 19 of her counterclaim:
“I state that the divorce action
has been set down for trial in the above Honourable Court on the 21st
August 2014 and I do
not have sufficient funds to prosecute this
action against the Applicant. I require a contribution from the
Applicant towards
my
legal costs in the sum of R20 000,00
which amount I believe the Applicant is able to afford”.
6. During the proceedings, the
respondent’s counsel indicated to this court that the
respondent was no longer seeking a contribution
of R20 000,00 but R5
000,00. The respondent has not informed this Court on what basis she
is seeking R20 000,00, for example
how it is arrived at; what unpaid
costs have already been incurred, the projected amount up to and
including the first day of the
trial, etc. The respondent has failed
to set out sufficient facts which if established by her at the trial
on the hearing of the
evidence would justify the court in granting an
order for a contribution towards court. In this regard see Van Zyl v
Van Zyl
1947 (1) SA 251
(T), Nicholson v Nicholson
1998 (1) SA 48
(W).
7. The application succeeds in part and
fails in part too.
8. Both parties are ad idem that costs
should be costs in the cause. I am in agreement with that.
9. In the circumstances I make the
following order pendente lite:
9.1 The respondent will have primary
residence of the minor children.
9.2 The applicant will have the right
to reasonable contact with the minor children, which will include but
not limited to the right
of the minor children with him as follows:
9.2.1 Every alternate weekend from
15h00 on Fridays when the applicant
will collect the minor children from
the respondent’s residence and return them to the respondent on
Sundays at 18h00;
9.2.2 Half of the long school holidays
subject to Christmas, Easter and New Year alternating between the
parties;
9.2.3 Alternate short school holidays;
9.2.4 On the applicant’s
birthday;
9.2.5 On Father’s day;
9.2.6 On alternate Public Holidays that
do not fall on a Friday or Monday from 08h00 to 18h00.
9.3 The applicant is to pay maintenance
for the children in an amount of R1 500.00 per child per month.
9.4 The applicant is to pay the
children’s school fees which include private school fees.
9.5 The applicant is responsible for
the costs of uniforms, books, stationery, school tours, levies, extra
lessons, extramural activities
and equipment relating thereto for the
children.
9.5 The applicant is to retain the
children on his medical aid and is liable for the contributions
payable to such medical aid scheme.
Any medical excesses not covered
by the applicant’s medical aid scheme to be paid by the
applicant.
9.6 Costs are costs in the cause.
FRANCIS J
HIGH COURT JUDGE
FOR APPLICANT : C MARYNOWSKI
INSTRUCTED BY XULU ATTORNEYS INC
FOR RESPONDENT : G HARDY INSTRUCTED
BY CLORINDA SCALCO ATTORNEYS
DATE OF HEARING : 21 JULY 2014
DATE OF JUDGMENT: 28 JULY 2014