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[2016] ZAGPJHC 149
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Vilakazi v Ntshangase (A3024/15) [2016] ZAGPJHC 149 (13 May 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: A3024/15
DATE: 13 MAY 2016
In the matter between:
VILAKAZI,
SELINA
...............................................................................................................
Appellant
And
NTSHANGASE,
JULIUS
......................................................................................................
Respondent
J U D G M E N T
KEIGHTLEY, J
:
[1] This is an appeal against an order of the
maintenance court. The parties are the parents of a boy, “T”,
who was
seven years old at the time the maintenance inquiry was held.
The appellant, who is T’s mother, lives in Johannesburg with
T.
The respondent, who is T’s father, lives in Durban.
[2] Both parties are medical doctors in the employ of
Provincial Health Departments. The appellant’s net salary
from
her employment with the Department is R39 500 per annum, and the
respondent’s is R47 000. I will say more about their
respective means later.
[3] In initiating the maintenance inquiry, the appellant
sought an order that the respondent pay a cash amount of R15 000 per
month
as a contribution to T’s expenses, as well as retaining T
on the respondent’s medical aid, and paying a further amount
of
R2000 per month into a fixed investment account for T’s
benefit. The court ordered respondent to:
[3.1] pay an amount of R5 000 as a monthly cash
contribution towards maintenance,
[3.2] keep T on his medical aid,
[3.3] pay an amount of R2000 per month into the
investment account, and
[3.4] pay for T’s school winter uniform.
[4] The order of the maintenance court was not clear
whether the latter order was intended to be a once-off purchase of
T’s
winter uniform, or an annual obligation. However, in
the hearing before us the parties were agreed that they understood
the
latter to be the case. The parties are also agreed that the
R5 000 ordered by the learned Magistrate was intended to include
the
cost of T’s school fees.
[5] The principles governing the parental responsibility
for maintenance are well established. Both parents have a joint
responsibility
to support their child, and to provide him or her with
everything he or she reasonably needs for his or her upbringing (see
Herfst v Herfst
1964 (4) SA 127
(W) at 130C). The extent
of each parent’s duty is determined by their respective means,
their standard of living and
their station in life. In
addition, the contribution that each parent is obliged to make
depends on each parent’s resources
and their circumstances.
Based on this, the maintenance obligation is apportioned respectively
between them.
[6] The appellant’s complaints on appeal are that:
[6.1] The Magistrate failed to take into account all
relevant items when assessing T’s needs. In particular,
she did
not take into account the financial provision made the
appellant for T’s accommodation, and related expenses, such as
the
cost of home security services. In addition, the Magistrate
did not take into account the financial provision that the appellant
makes for T’s transport, by way of including in the assessment
of his needs an amount based on his proportionate portion
of these
expenses.
[6.2] As regards the issue of means, the appellant
contends on appeal that the Magistrate erred in two major respects:
(a) in the first instance, in failing to take into
account the respondent’s evidence that his monthly income is
boosted by
an amount of R40 000 that he earns by carrying out locums
every weekend; and
(b) in the second instance, the respondent has other
financial resources at his disposal to meet his maintenance
obligations, viz.
a flat, that could be rented out for extra income,
and ownership and use of two vehicles, when one could be sold to
reduce his
monthly costs in favour of contributing to maintenance for
T instead.
[6.3] Finally, the appellant contends that the
Magistrate erred in proceeding on the basis that the apportionment
between the parties
should be fifty/fifty between them. The
appellant submits that the respondent earns more than two times the
appellant’s
monthly salary, and T’s maintenance needs
should be apportioned between them on this basis, and not on a
fifty/fifty basis,
as determined by the Magistrate.
[7] The appropriate place to start is with T’s
maintenance needs. The record of the maintenance inquiry
indicates that
an attempt was made to make some calculation of T’s
reasonable expenses, and that between the Magistrate and the
maintenance
officer, they arrived at an amount of R10 000 per month.
However, it is also clear that in arriving at this figure the
Magistrate
did not take all reasonable expenses into account.
Critically, while she referred to the costs of T’s
accommodation
(as he lives with the appellant), the Magistrate
expressly stated as follows, when challenged by the appellant as to
why she had
not included this cost:
“
No deliberately I have done it deliberately.
It does not include the accommodation …, I did not include it
yes.
Because there is a medical aid which he is paying as
well. You are not contributing for the child is that correct.”
[8] In other words, it appears that the Magistrate
effected some sort of trade-off between the cost of accommodation and
the cost
of the medical aid, and then elected to exclude the
accommodation costs from the calculation of T’s needs on that
basis.
In my view, the Magistrate erred in this regard.
She ought properly to have assessed all of T’s reasonable needs
as
a first stage of the inquiry. From there she could have
calculated and made a determination of each party’s relative
obligation, based on their means, and then worked out what the
respondent’s cash component of his maintenance obligation
ought
to have been.
[9] The appellant submitted that the total cost of T’s
reasonable needs, based on the undisputed evidence was just over R20
000 per month. Some of the component amounts making up the
total figure brook no dispute. T’s schooling and
associated costs (bus to and from school, after-care costs,
extramural costs and summer school uniform) fall into this basket.
These costs alone amount to just over R7 000 per month (including the
aggregated monthly cost of T’s summer school uniform)
[10] In addition to this, the appellant made provision
for T’s school lunch money (R1000), his proportion of
accommodation
and associated costs (being a one-third proportion of
the bond repayments - R2 666, rates, electricity, and ADT security).
T’s proportion of these costs is estimated on the basis of
evidence at the inquiry to be approximately R3 100. Added
to
this, the appellant claims the cost of an Old Mutual education policy
for T (R1 500), and his proportion of the appellant’s
car and
transport costs, including car insurance, tracker etc. She also
includes his proportion of a monthly amount of R5
000 in respect of
which the appellant is paying off a loan for the purposes of buying
furniture for her home.
[11] The appellant did not include the cost of general
groceries, home maintenance, or her personal expenses, such as her
clothing
costs. She did include T’s clothing costs in the
amount of R333 per month.
[12] In the main, most of these items do not appear to
me to be unreasonable for a family (albeit one that does not
co-habit) of
professionals. However, I do tend to agree with
the respondent’s contentions at the hearing that certain items
included
in the appellant’s list of expenses ought properly to
be excluded. I include in this the loan repayments in respect
of the furniture. This is regarded as an ongoing commitment.
However, at some stage the obligation must come to an
end. It
ought not properly to be included in the monthly needs of T, as it is
by nature not one that will recur for the whole
of his childhood.
[13] There is also some merit in the respondent’s
contention that given that the cost of paying for T’s transport
to
school and back (R1 240 per month) is already factored into the
equation, the cost of T’s reliance on the appellant’s
own
motor vehicle should be brought down proportionately. There is
also an argument that the R700 per month provision for
birthday
parties and outings is over-generous.
[14] I do not intend to make a detailed calculation of
each of these items that in my view should be reduced or excluded.
Suffice it to say that I am satisfied that the Magistrate erred in
underestimating T’s monthly maintenance needs. She
left
out key factors that ought to have been taken into account. The
appellant is the primary caregiver and home-provider
for T. She
must meet at least his basic necessities for accommodation and
related services. Even with transport to
school being paid for,
she must drop T at the bus, and transport him after hours and over
weekends. Some provision ought
to have been made for this in
the Magistrate’s calculation.
[15] On my estimation, and taking the above discussion
into account the reasonable cost of T’s maintenance needs is
R16 000
per month.
[16] This takes me to the question of the means of the
parties. Did the Magistrate err in this regard, as submitted by
the
appellant?
[17] As regards the respondent’s earnings, the
clear evidence of the respondent was that he earned an additional R40
000 per
month doing locums. He did not claim that this was a
once-off, or ad hoc arrangement. Indeed, his list of expenses
demonstrates that he could not provide for his own needs unless he
was able to depend on this amount as an additional monthly income.
Further, he would not have been able to obtain finance from the bank
for his motor vehicles and bonds unless he placed reliance
on this
extra income.
[18] I conclude in this regard that the Magistrate erred
by failing to take this additional income into account. She
ought
to have assessed the respondent’s means, in terms of his
net monthly income, at the time of the inquiry, as R87 000 per
month.
Should the respondent’s position change in this
regard it is open to him (as it would also be open to the appellant)
to seek
a variation of the maintenance order based on his changed
circumstances.
[19] The respondent submitted that his net monthly
income is not the only factor to take into consideration. He
submitted
that before apportioning the parties’ respective
maintenance obligations between them, I must consider the
respondent’s
own monthly expenses. Respondent submitted
that if this is taken into account, he cannot afford an increase in
the amount
of cash maintenance he must pay.
[20] The Respondent’s list of monthly expenses is
lengthy and, in my view, in certain respects excessive. He has two
vehicles,
one of which carries with it instalments of R18 000 per
month. He has two bonds on immovable properties, but has elected to
allow
family members to stay in the smaller property free of rental,
rather than to derive a commercial income from the property.
[21] On the evidence, the respondent not only derives
more monthly income than the appellant, but he clearly has more
earning potential
than she does. Even if his monthly expenses
are more than those of the appellant, in my view there is no reason
why he cannot
structure his current income and additional earning
potential to meet both his own needs and his proportionate share of
T’s
needs. If he needs to cut his cloth accordingly, he
must do so. If he needs to reduce his vehicle fleet to one
vehicle,
this ought not to be too much of a hardship.
[22] For all of these reasons, I conclude that the
Magistrate erred in assessing the parties’ means and their
respective proportional
obligations to meet T’s needs on a
50/50 basis. The Magistrate ought to have made her
determination on the basis that
the respondent’s means are 2.23
times those available to the appellant.
[23] The ultimate calculation based on my determinations
must take into account that certain amounts should be deducted from
the
respondent’s proportionate obligation, viz:
[23.1]the amount of R2 000 he has been ordered to pay
towards T’s investment account (the appellant’s
contribution of
R1 500 has been included in the needs calculation);
[23.2]the value of T’s winter uniform (based on
the same amount estimated by appellant to be the monthly amount
accrued for
his summer uniform, being R352); and
[23.3]the aggregated monthly cost of T’s
reasonable travel expenses to visit the respondent four times a year
in Durban.
I estimate the reasonable cost of a return flight to
Durban for T to be R2 500 (assuming it can be booked reasonably well
in advance),
taking the total annual amount to R10 000. Insofar
as the respondent claims additional expenses when T visits, such as
additional
clothes and treats etc, in my view, this is adequately set
off against the hidden costs of appellant’s ongoing parenting
throughout the year.
[24] I accordingly find that the respondent’s
proportion should be calculated on the following basis:
The respondent’s monthly net income, in the amount
of R87 000 x T’s reasonable monthly expenses, in the amount of
R16
000;
Divided by R126 590, being the joint income of the
parties;
Less the sum of R2 000 + R352 + R833 (the latter being
the aggregated travel costs for T to visit the respondent in Durban)
= R3185
TOTAL = R7 811, rounded off to R7 800
[25] Accordingly, I make the following order:
(a) The appeal succeeds with costs.
(b) The amount of R5000 in paragraph 1(a) of the
Maintenance order in terms of
Section 16
of the
Maintenance Act, 1998
granted by the Vereeneging Maintenance Court on 5 February 2015 under
Reference No. 14/3/2-787/14, Case No. 787/14, is set aside
and is
substituted with the amount of R7 800. 00.
R KEIGHTLEY
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
I agree/disagree
M MBONGWE
ACTING JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Date Heard: 10 May 2016
Date of
Judgment: 13 May 2016
Counsel for
the Applicants: Adv S Georgiou
Instructed
by: George Wolfe Attorneys
Counsel for
Respondent: Adv S Martin
Instructed
by: Fiona Marcandonatos Incorporated