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[2016] ZAGPJHC 341
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D v D (20212/2014) [2016] ZAGPJHC 341 (15 December 2016)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO: 20212/2014
15/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
L
S
D
Applicant
and
C
A
D
Respondent
JUDGMENT
VILAKAZI,
AJ
[1]
This is a Rule 43(6) application. The Respondent had obtained an
interim Rule 43 order in this court on 22 October 2014. In
order to
avoid confusion between the applicant and the respondent, I shall
refer to the applicant as "the husband" and
the respondent
as " the wife". The husband is seeking an order to vary
some order on the basis that there is material
change in his
circumstances and the circumstances of the wife.
[2]
For the sake of brevity, the background facts is that the parties got
married out of community of property with the inclusion
of accrual
system. On 10 March 2014, the wife instituted divorce proceedings.
The husband defends the divorce action. The trial
date was on 19 May
2016, however this was beset by the wife' notice of intention to
amend her particulars of claim. The husband
noted an exception on 9
June 2016. There are 3 children born of this marriage. L, a major
child, is a student at Potchefstroom
and lives in an apartment. L and
C, the minor children are in the interim custody of the wife and live
in the matrimonial home,
a farm property situated at [...] D. Avenue,
Glen Austin, in Midrand. (Hereinafter referred to as the "Midrand
property")
[3]
On 22 October 2014, Botes AJ ordered
pendete lite:
a. Primary residence of L, was awarded
to the husband subject to reasonable contact to the wife;
b. Primary residence of L and C, was
awarded to the wife subject to reasonable contact to the husband;
c. The husband to pay maintenance of
R5 000 00 per month per child in respect of L and C with effect from
1 November 2014;
d. The husband to pay for the tuition
fees and extra-mural activities expenses or costs of the minor
children;
e. The husband to pay for the cell
phones of the minor children;
f. The husband to retain and keep the
wife and the minor children as dependants in his medical aid plan and
pay for all expenses
not covered by the medical aid;
g. The husband to pay maintenance for
the wife in the amount of R 6 000 00 per month with effect from 1
November 2014;
h. The husband to pay for the
insurance premiums of the wife' motor vehicle, a Mercedez Benz, with
registration numbers and letter
B[...] GP;
i. The husband to pay for the salaries
of a domestic worker and a gardener and security services of the
wife;
j. The husband to pay for the Telkom
landline of the wife;
k. The husband to pay monthly water,
electricity rates and taxes and monthly in respect of the Midrand
property;
l. The husband to pay the mortgage
bond registered over the Midrand property;
m. The husband to contribute an amount
of R 1 200 per month towards the wife's property;
n. The husband to pay can amount of R
9000 towards contribution of legal costs in instalments of R 1 000
per month with effect from
1 November 2014;
o. The costs of this Rule 43
application were ordered to be costs in the cause of action.
[4]
A variation is sought against the following orders:
i. The husband is ordered to pay an
amount of R 6000 per month towards maintenance of the wife.
ii. Payment of the maintenance by the
husband towards the minor children in the amount of R 5000 per month
per child.
iii. Payment by the husband of the
mortgage bond registered over the Midrand property, water,
electricity and rates and taxes thereon.
iv. The husband was ordered to retain
the wife on his medical aid scheme and to pay the medical costs and
expenses not covered by
the medical aid plan,
v. The husband, to pay the salaries of
a gardener and a domestic worker,
vi. The husband to pay for Telkom
landline and the security services costs.
vii. The husband to pay for the cell
phones of the minor children.
viii. The husband to contribute an
amount of R1200 per month towards payment of the immovable property
of the wife
[5]
On 29 September 2016, the husband instituted an application in terms
of Rule 43(6), seeking a variation of the order of Bates
AJ to an
extent that his maintenance obligations be reduced from R 47 952.15
per month to R27 812.40 per month. This amount is
made out of the
following expenses:
a. Cash maintenance to the wife - R
6000 00
b. Cash maintenance to L- R5000 00
c. Cash maintenance to C - R 5000 00
d. Mortgage loan obligations of the
Midrand property - R 7000 00
e. Water and electricity of the
Midrand property - R 3 898.47
f. Rates and taxes of the Midrand
property - R392.18
g. Medical aid - R 5500
h. Mercedez Benz A-class payments- R
5254 .29
i. Insurance on this motor vehicle- R
1 365 .96
j. Tuition fees for the 2 minor
children - R 3291. 25
k. Domestic worker and gardener - R
2 400
l. Cell phones- for the minor children
- R 1000
m. Security - R150
n. Telkom landline - R 500
o. The amount of R1200, contribution
towards the immovable property of the wife.
[6]
In
Andrade v Andrade
1982 (4)
SA 854
(0)
AT 855F- H Erasmus J discussed the procedure to be followed in Rule
43(6) applications:
"Rule 43 regulates the procedure
to be followed in applications for ancillary relief of an interim
nature in matrimonial matters.
The object of the Rule generally
accepted by the courts is that applications of this kind should be
dealt with inexpensively and
expeditiously as possible.
See
Colman
v Colman
1967 (1) SA 291
(C);
Zaphiriou v
Zaphiriou
1967 (1) SA 342
(W)
Mather v Mather
1970 (4) SA 582
(E) and
Maree v Maree
1972
(1) SA 261(0).
The cases cited above dealt with Rule 43 but in my
view they are equally applicable to Rule 43(6) and Rule 43(6) must be
read subject
to the provisions of Rule 43(1), Rule 43(6) explicitly
says that the court may, on the same procedure vary its decision in
the
event of a material change taking place in the circumstances of
either party or a child or the contribution towards costs proving
inadequate"
[7]
Despite these clear dicta, the Rule 43 (6) application before me has
not been dealt inexpensively or expeditiously. The husband
and the
wife papers inclusive of Annexures runs into 217 pages. It consists
of irrelevant annexures such as letters of authority
of the parties'
family trust, a protection order, and schedule of benefits of a
travel Insurance.
[8]
In order for the husband to succeed, he must show on a balance of
probabilities that there has been a material change in his
circumstances since the hearing of a Rule 43 application before Bates
AJ.
[9]
The husband submits that the material change contemplated in Rule
43(6) is found in his wife's personal circumstances since
the Rule
order of Bates AJ.
[10]
In the Rule 43(6) application the husband states that the Rule 43 did
not order maintenance payments towards L, a major daughter
who is
studying towards a Teaching Degree at Potchefstroom University. He
has expended an amount of R 82 213, 83 during 2016. This
amount
consists of tuition fees and accommodation costs. He provides L with
a subsistence allowance of R3 000 per month.
[11]
The husband further states that he is a trustee of L & C D Family
Trust. According to the him the trust generates income
through cattle
farming, and is trading from the Midrand property and due to the wife
restricting him to have access to the farm,
the trust began to
experience severe cash flow problems. The husband did not indicate
when the said trust started experiencing
financial problems. He
further allege that he is the sole member of D Dental Ceramics close
corporation, a dental technician who
used to trade from the Midrand
property, but due to the acrimonious divorce proceedings and the
domestic interdict against him,
this has placed the finances of his
dental business in a precarious position. He states that the
financial year ending 28 February
2016, the close corporation profit
for the year was R 30 669. He received a net cash flow during the
2014 financial year of R 423
343. His cash flow for the 2016 calendar
year was reduced to R 14 104.00 In support hereof he annexed
financial statements of D
Close corporation and the family trust. F A
J Pienaar, the accountant, signed the said financial statements for
the year-end February
2016.
[12]
The husband states that his wife, who lives in the Midrand property
is leasing out 2 garden flats and collecting rental every
month and
utilises that money to his exclusion. He is not certain of the exact
amount and indicated an amount of R 8000, 00 per
month.
[13].
His wife has been living with a boyfriend, namely Dries Lategan since
2014 in the communal home. The said Mr Lategan and his
wife are
operating a business selling and hiring construction tools and
equipment from the erstwhile matrimonial home.
[14]
It was submitted on behalf of the husband that it is unfair and
unreasonable to expect the husband to provide free accommodation
to
Mr Lategan and continue to pay electricity water that he consumes. It
was further argued that Mr Lategan is a chemical engineer
and
therefore given his professional status he has disposable income and
therefore he should be ordered to make a significant contribution
towards the expenses of the matrimonial home.
[15]
It is common cause that the wife is living with Mr Lategan, her
live-in partner at the Midrand property, which the husband
services the mortgage loan, pays for its utilities, rates and taxes
to the Local Authority and security costs.
[16]
In
EH v SH
2012(4)
SA 164
SCA
Leach JA expressed the view that he does not think that in the
liberal age in which we live, public policy demands that a person
who
cohabits with another should for that reason alone be barred from
claiming maintenance from his or her spouse. Each case must
be
determined by its own facts. Counsel for the husband argued that the
wife ought to have made a full disclosure regarding Mr
Lategan's
financial position.
[17]
It is trite that a person claiming maintenance must establish a need
to be supported. Under common law the reciprocal duty
of support
existing between spouses, of whom provision of maintenance is an
integral part, terminates upon divorce.
[18]
The wife has disclosed that an income of R4500 that she receives
every month from Mr Lategan. In my view the husband cannot
be
exonerated of his duty to support his wife, simply because his wife
is cohabiting with another man. In a marriage relationship,
the
income-earning spouse owes a duty of support to his or her spouse
until conclusion of divorce proceedings. It would be untenable
to
expect Lategan, a stranger to fulfil this obligation of the husband.
[19]
His wife owns a sectional title property in Witbank, which property
is occupied by a tenant. He did not indicate the amount
of
occupational rental collected by his wife.
[20]
The wife in her opposing papers disputes that there has been a
material change in the husband's financial circumstances. Her
principal contention is that her husband has not disclosed the true
financial position of the close corporation and the family
trust. She
contends that her husband is pleading poverty and this is
irreconcilable with his management of the financial affairs
of the
dental practice and the family trust in that in the financial year of
2015 he granted the close corporation a loan of R
76 803 and in
2016,a further loan of R 166 358 and loan of R 60 978. She further
denies that her husband is in financial distress
and pointed to the
financial statements which indicated that in 2014, her husband
granted loans by the Family Trust in the amount
of R 327 949, R546
333 in 2015, however these respective loan amounts are not repayable
in the next 12 months.
[21]
I hold the view that the bare contention by the wife does not shed
light in the absence of proof to the contrary by an accountant.
[22]
The wife concedes that she is renting out the garden flats situated
in the Midrand property, which she collects rental every
month of R
9100.ln respect of the Witbank sectional title property she collects
monthly rental of R 7 300. She avers that due to
the husband'
failure, to comply with a Rue 43 order obligations she was compelled
to look for alternative means to sustain herself
and the children.
She launched contempt of court proceedings against her husband, but
the husband has since complied.
[23]
She denies that she is trading with Lategan from the Midrand property
however; she is exploring ways to earn an income. In
her income
statements she discloses an amount of R4 500 per month that she
receives from Mr Lategan. The total income per month
that is
generated from the letting of the flats in Midrand and the rental
income of the Witbank property is R 16 400. The rental
income
generated from these properties and cash contribution by her
boyfriend comes to a total amount of R 20 900 per month.
[24]
The wife gives an account of her monthly expenses as follows:
a. Groceries - R3 600
b. Meat, fish and poultry - R 2 200
c. Bread milk and vegetables - R 1700
d. Diesel - R2 000
e. Mortgage loan with Standard Bank
(Witbank sectional title property) - R4 800
f. Rates and taxes on Witbank property
- R1 000
g. Levies on the Witbank property -
R1 900
h. L (major child) pocket money - R300
i. Virgin Active - R350
j. Discovery policy - R560
k. Stationery for minor children -
R600
l. School clothes and necessities -
R600
m. Clothing for minor children - R600
n. Clothing for applicant - R600
o. Household appliance- R500
p. DSTV - R900
q. Cell phones for the minor children
- R1 000
r. Data and Internet bundles - R400
s. Pharmacy medical – R800
t. Amway - R200
u. Personal care, hair cuts and
toiletries for minor children - R600
v. Vodacom - R1 200
w. Vet and Pet food - R 200
x. Pocket money for the minor children
- R500
y. Bank charges - R350
z. Personal care and haircut and
toiletries for the wife - R300
aa. Maintenance on the property -
R2 000
bb. Maintenance on vehicle -R450
TOTAL
R29 610.00
[25]
She admits that the Rule 43 did not grant an order to deal with the
maintenance of a major child. She states that finances
permitting,
she sends L R300 per month.
[26]
Regarding the request by the husband to retain her on his medical aid
plan until 30 December 2016, she avers that she is on
prescribed
chronic medication and to secure her own medical aid will be
unaffordable.
[27]
As much as the husband continues with his responsibility to pay for
the insurance of the Mercedez Benz and the insurance premiums
thereon, the vehicle requires maintenance repairs, which cost R 5
907.20 for which she request the husband to take responsibility
thereof.
[28]
In consideration of the facts, I am satisfied that there has been a
material change in the wife' financial circumstances and
further took
into account that the husband is providing adequately for the
maintenance needs of L. The husband has expended approximately
R86
000 during 2016 and gives the said major child a subsistence
allowance of R3 000 per month. The wife did not deny this averment.
[29]
I am satisfied that the circumstances of the wife have changed for
the better.
[30]
The husband has made a tender in respect of a variation order of the
Rule 43 as follows:
1. Payment of maintenance in the
amount of R2 000 per month per child directly into his wife's bank
account;
2. The payment of maintenance in the
amount of R6 000 per month towards his wife be revoked
3. Payment of the mortgage loan
instalments of the Midrand property, the utilities thereon and the
levies to be revoked;
4. Payment of the Telkom landline and
security services costs for the matrimonial be revoked,
5. Payment of the wages of a gardener
and a domestic worker in the total amount of R2 400 be revoked
6. Payment of the cell phone of the 2
minor children be revoked
7. Contribution towards the Witbank
property in the amount of R1 200 be revoked,
8. He will retain the wife on his
medical aid plan until 31 December 2016.
9. He takes responsibility of school
uniform textbooks and stationery extra mural activities, sports
apparels, school and sport
equipment, tours and participation fees in
respect of 2 minor children.
[31]
In the result, it is ordered:
1. That the husband pays maintenance
of R2 500 per month per child towards the two minor children with
effect from 30 December 2016;
2. That the husband is relieved from
his obligation of payment of R6 000 per month as maintenance for the
wife with effect from
30 December 2016;
3. That the husband complies with his
Rule 43 order and retains the wife on his medical aid scheme and pays
for medical costs and
expenses reasonably incurred for and not
covered by the medical aid,
pendete lite
with effect from 1
November 2014;
4. That the husband in so far that he
seeks to revoke payment of the mortgage bond, the rates and taxes,
security services costs
in respect of the Midrand property is
dismissed.
5. The husband is relieved from paying
the salaries of the gardener and a domestic worker, water and
electricity consumed in the
Midrand property with effect from 30
December 2016;
6. The husband in so far as he seeks
to revoke payment of the Telkom landline costs of the Midrand
property is dismissed.
7. That the husband's request to
revoke payment of the cellphones of the minor children is dismissed;
8. The husband is relieved from
contributing R1 200 per month towards the property owned by the wife
with effect from 30 December
2016;
9. It is apparent from the papers that
this divorce proceeding is acrimonious this matter dates back to
March 2014. I am of the
view that it is fair and equitable that each
party pays its own costs in respect of this application;
10. The parties are ordered to prepare
a draft order in accordance with my judgment.
___________________
T.
D. VILAKAZI
ACTING
JUDGE OF THE GAUTENG DIVISION HIGH COURT
ACTING
JUDGE OF THE SOUTH GAUTENG
HIGH
COURT, JOHANNESBURG
DATES
OF HEARING
:
14
NOVEMBER 2016
COUNSEL
FOR PLAINTFF
:
N VAN
NIEKERK
INSTRUCTED
BY
: SANET
DE LANGE INGELYF
COUNSEL
FOR DEFENDANT :
M COETZEE
INSTRUCTED
BY
: SC
VERCUEIL ATTORNEYS