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[2018] ZAGPJHC 22
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H v H (43860/2017) [2018] ZAGPJHC 22 (5 February 2018)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 43860/2017
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
H:
Y
APPLICANT
And
H:
M
RESPONDENT
JUDGMENT
TWALA
J
:
[1]
The applicant in this case seeks spousal maintenance
pendente
lite
in
the sum of R20 000 together with a contribution towards her
legal costs in the sum of R20 000.
[2]
It is common cause that on the 9
th
of March 2002 the parties were married to each other out of community
of property in terms of an ante nuptial contract with the
express
exclusion of the accrual system and the marriage between them still
subsists. There are no minor children born of the marriage
between
the parties.
[3]
It is contended by counsel for the applicant that the applicant has
an income of R14 824 per month whilst her expenses
amount to
R34 709. Whilst she was living with the respondent, the
respondent would pay for all the household necessities
which were
then about R25 000 per month. The respondent earns about
R350 000 per month and pays some of his expenses
through his
business account. The respondent has a duty to maintain the applicant
and the applicant does not have to liquidate
her assets in order to
maintain herself. The respondent is a man of means and has sufficient
capital to pay the interim maintenance
and to make the contribution
towards the applicant’s legal costs.
[4]
Counsel for the applicant further contended that the respondent has
failed to take the Court into his confidence. He has been
very
economical with information relating to his earnings. He refers to
tax returns which he submitted in 2015 and 2016. He presently
does
not know how much he earns and is awaiting his accountant to finalise
his books whereafter he would be able to know his earnings.
[5]
Counsel for the respondent contended that the applicant has
exaggerated the earnings of the respondent based on wrong
information.
The person alleged by the applicant to have compiled the
invoices of the respondent and made the calculations has denied
having
done so. The applicant, it so argued, is not truthful with the
Court and has deliberately gave wrong information to bolster her
case. She has failed to take the Court into her confidence and the
Court should take a dim view of the applicant in this regard.
Spousal
maintenance is not just for the taking, the applicant has to show
that she needs it and that the respondent has the means
to pay it.
[6]
It is contended further by counsel for the respondent that the
applicant has inflated her monthly expenses in terms of the list
attached to her affidavit. It cannot be said that, it is so argued,
her water and lights account is R3 750, petrol R2 500,
medication over and above medical aid R5 990 and groceries for
R6 000. The applicant has testified in her affidavit that
she is
a pensioner but has not laid any basis for such a huge monthly
medical bill and for the petrol. The respondent has not disclosed
his
earnings because he is still awaiting his accountant who is currently
busy with his books. The profit he made in the one business
is eroded
by the other as he is operating same at a loss. The applicant has
more assets than the responded and has not disclosed
some of her
investments including the tax rebates she is receiving from SARS
every year.
[7]
I am unable to disagree with counsel for the respondent that spousal
maintenance is not for the taking but the party who applies
for it
must show the Court that she needs it. Further, that the other party
has a duty to maintain and the means to
do so.
[8]
I applaud the responded for being a good citizen of this Country and
paying his taxes. It is on record that he has an account
which is
dedicated to value added tax only. Although the respondent does not
deny that whilst they were living together he paid
all the household
expenses, he insists in not committing himself to any particular
salary per month. I have more than once asked
counsel for the
respondent to disclose the salary or amounts he had withdrawn from
his business in the past three months without
success.
[9]
I hold the view that, although the person alleged to have compiled
the invoices of the responded disputed that she had
done so,
the tax returns of 2015 and 2016 put the earnings of the respondent
at about R30 000 per month. The amount of R30 000
does not
take into account the profit made by his businesses and what he
receives from his investments. In my view, the respondent
has a duty
and the means to maintain the applicant whose standard of living
should more or less be the same as when she was living
with the
responded. The respondent never disputed that he was responsible and
he paid all household necessities whilst living together
with the
applicant. However, the applicant also has a duty not to be
extravagant but to try and scale down within reason. It is
my
considered view therefore that a sum of R12 500 per month maintenance
pendete
lite
is
fair and reasonable under the circumstances.
[10]
It is accepted that litigation in the High Court is quite expensive.
To be involved in protracted litigation in the High Court
costs a
fortune. However, there is a lot involved in this case. The parties
have been married for fifteen years and have been living
quite a
decent lifestyle. It is on record that the divorce action was
enrolled for hearing in August 2017 but had to be postponed
because
certain experts were necessary to determine certain issues including
the financial position of the respondent as he has
up to now failed
to disclose his income. Experts do not come cheap in these
situations.
[11]
It is trite that parties to a divorce action should have equal access
to legal representation. I hold the view therefore that
the applicant
is entitled to the initial contribution to her legal costs and a sum
of R10 000 appears to be fair and reasonable
in this case.
[12]
In the circumstances, I make the following order:
I.
The
respondent is liable to pay maintenance
pendente
lite
to
the applicant in the sum of R12 500 per month from the 1
st
March 2018 and on the 1
st
of every succeeding month. The amount of R12 500 shall be paid
directly into the bank account of the applicant ;
II.
The
respondent is liable to pay a sum of R10 000 as a contribution
towards the legal costs of the respondent. The amount of
R10 000
shall be paid directly into the Trust Account of the attorney of the
applicant within 15 days from the date of this
order;
III.
Costs to be
costs in the course.
________________________
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Counsel
for the Applicant: F. BEZUIDENHOUT
Instructed
by: YOSEF SHISHLER ATTORNEYS
TEL:
010 599 5950
Counsel
for the Respondent: R. ADAMS
Instructed
by: RAMSDEN SMALL ATTORNEYS
TEL:
011 615 1932
Date
of Hearing: 30 January 2018
Date
of Judgment: 05 February 2018