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[2018] ZAGPJHC 20
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D v D (41659/2017) [2018] ZAGPJHC 20 (8 February 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 41659/2017
In
the matter between:
I
D (NEE
H)
APPLICANT
And
J
D
RESPONDENT
JUDGMENT
TWALA
J
:
[1]
The applicant in this case seeks maintenance for the minor child born
of the marriage
pendente
lite
in
the sum of R17 500 together with other ancillary orders pertaining to
the school and extra mural activities of the minor child.
Further,
she seeks and order for 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, profit and loss in terms of an ante nuptial
contract
which includes the accrual system and the marriage between them still
subsists. There is one minor child born of the marriage
between the
parties, a daughter, Z, born on the 7
th
of September 2000 and who is presently living with the applicant.
[3]
It is not in dispute that the respondent currently pays for all the
minor child’s school fees and extra mural activities.
Further,
it is not in dispute that the respondent pays a sum of R7 000
towards maintenance of the minor child.
[4]
It is contended by counsel for the applicant that the applicant has
an income of R28 257.79 per month whilst her expenses
amount to
R45 327. The applicant has a shortfall of R16 400 every
month. Whilst living together with the applicant, the
respondent, so
the argument goes, paid for all the household expenses. The
respondent is living a lavished lifestyle spending more
than R14 000
per month on restaurants and pubs.
[5]
Counsel for the applicant further contended that the respondent’s
earnings, as calculated from his bank statements dating
from June
2016 to April 2017 average a sum of R118 000 net per month. The
respondent does not earn R79 600 as he alleges
in his answering
affidavit. He is a man of means and can afford to pay the maintenance
of the minor child in the sum of R16 400.
The applicant, so it
is contended, is not litigating on the same level as the respondent
due to her income. She needs a contribution
towards her legal costs
and a sum of R20 000 is fair and reasonable in the circumstances
of this case.
[6]
Counsel for the respondent contended that the applicant has not taken
the Court into its confidence. The applicant earns three
more bonuses
per annum other than her salary and receives tax rebates from SARS
every year as the respondent does her tax returns.
The respondent, so
it is argued on behalf of the respondent, is paying everything that
relates to the minor child including for
her horse riding lessons and
for her horse. The applicant seeks maintenance for herself under the
guise that it is for the minor
child. The respondent is paying R7 000
towards maintenance of the minor child. The applicant has failed to
show why she needs
an extra R9 000 since the respondent is
paying all the other expenses relating to the minor child.
[7]
The respondent paid R30 000 to the applicant at the start of the
divorce to assist her in instituting the divorce proceedings.
There
are no issues to be determined in this divorce and the minor child is
reaching the age of maturity in September 2018. There
is nothing
contentious that justifies a further contribution towards her legal
costs.
[8]
It is trite law that the right to claim interim maintenance in terms
of Rule 43 should be subjected to the principle of reasonableness,
the parties’ standard of living during the course of the
marriage and the respondent’s ability to pay the required
maintenance. The maintenance
pendete
lite
is
not meant to place the other party in a better position than she was
whilst the parties were living together but to put her
in the same
position as she was during the good times in the marriage. Both
parties are equally liable for the maintenance of the
minor child and
their contribution is dependent on their respective incomes.
[9]
I am unable to disagree with counsel for the respondent that the
applicant has not shown why she has a shortfall of R16 400
with
regard to maintenance of the minor child. The applicant has, in terms
of her list of expenses, postulated to share certain
expenses with
the minor child at 50%. For example, she stated the rental amount for
her accommodation as the sum of R11 000
and allocated a sum of
R5 500 to be contribution of the minor child. The same applies
to her credit card which is said to
be R4 000 and 50% thereof is
allocated to the minor child at R2 000.
[10]
It is my respectful view that the applicant is also obliged to
contribute 50% to each of the above amounts. She cannot expect
the
respondent to be liable for 100% of the minor child’s
maintenance. She should contribute 50% to the costs associated
with
the minor child as stated above that both parties are equally liable
for the maintenance of the minor child depended on their
respective
incomes. I am therefore persuaded by counsel for the respondent that
the shortfall shown by the applicant in her list
of expenses is her
own creation meant to mislead the Court to benefit her.
[11]
However, I agree with counsel for the applicant that the income and
the list of expenses compiled by the respondent do not
make any
sense. If the respondent is able to spend R14 000 per month in
restaurants and pubs, which has not been disputed
by the responded as
it appears on his bank statements, then his earnings are far more
than R79 600. The respondent paid for
the minor child’s
school fees in advance in the sum of R102 000 and this was never
disputed by the respondent. Further, the
respondent has failed to
disclose the income he receives from his third business, being Tank
Containers. I am accordingly satisfied
that the respondent has failed
to take this Court into his confidence in this regard. I can
therefore not disagree with counsel
for the applicant that the
respondent, as an accountant, has created his own document showing
his income and expenses with a clear
intention to mislead the Court.
I am of the view therefore that the respondent earns more than
R79 600.
[12]
It is uncontroverted evidence that the respondent paid the applicant
a sum of R30 000 when the divorce started as a contribution
towards her legal costs or as an amount to enable her to start the
divorce proceedings. It is on record that there are no issues
in this
divorce and it could be settled very soon. I hold the view therefore
that the applicant, having regard to her salary, has
not shown the
need for assistance with legal costs.
[13]
It is undesirable for litigants not to be honest with the Court in
order to get more money from the other or to deprive the
other the
benefit she/he deserves. The applicant in this case made an attempt
to obtain maintenance for herself from the respondent.
The
respondent, in turn presented fictitious figures with regard to his
income to avoid paying maintenance to which the minor is
entitled to.
[14]
It is my considered view that the minor child has been living a good
life with her parents being provided for by the respondent.
The
respondent still provides for the minor child with all of her
necessities. The respondent is a man of means and the minor child
should not suffer because of the problems her parents are having. I
am of the view therefore that the respondent is able to pay
maintenance of the minor child and a sum of R10 000 is fair and
reasonable taking into account that the respondent will continue
paying for the other necessities of the minor child.
[15]
In the circumstances, I accordingly make the following order:
I.
The draft
order marked “X” annexed hereto as amended is made an
order of Court.
________________________
TWALA
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
Counsel
for the Applicant: L. SEGAL
Instructed
by: HELEN ELLIS ATTORNEY
TEL:
011 807 3925
Counsel
for the Respondent: M. FABRICIUS
Instructed
by: VAN ZYL’SINCORPORATED
TEL:
012 667 5111
Date
of Hearing: January 2018
Date
of Judgment: February 2018