About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2019
>>
[2019] ZAGPJHC 339
|
|
AK v RK (10644/2019) [2019] ZAGPJHC 339 (14 August 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10644/2019
In
the matter between:
K:
A APPLICANT
AND
K:
R RESPONDENT
JUDGMENT
TWALA
J
[1]
In this opposed application, the applicant seeks an order against the
respondent for maintenance for herself and the two adult
children
born of the marriage together with other ancillary orders.
[2]
It is common cause that on the 28
th
of June 1996 the applicant and the respondent were married to each
other out of community of property in terms of an antenuptial
contract. Further, two children were born of the marriage and are
presently residing with the applicant. It is not in dispute that
the
parties have not been living together as man and wife since March
2017 when the applicant left the common home. It is further
not in
dispute that during the course of the marriage whilst the parties
were living together, the applicant was running a catering
business
and that she left her catering equipment at the common home when she
left in March 2017.
[3]
The respondent make issue with the applicant in that it brought a
Rule 43 in the form of a Rule 6 application and argues that
the
application should therefore be dismissed for non-compliance with the
rules of Court. Further, so it is contended by the respondent,
that
the applicant failed to attach its bank statements to its founding
papers to show what her earnings are and where and how
much money she
receives as assistance as she alleges. There will be the reduction in
the maintenance she requires for the children
if the children were
allowed to live with the respondent and the respondent wants the
children to come back and live with him.
[4]
Counsel for the respondent contended further that the respondent’s
employer has started preparations for retrenchments
and the
respondent might be affected thereby since he has been with the
company for only 4 years. The expenses as listed by the
respondent
are necessary living expenses. The respondent tenders the return of
the catering equipment to the applicant to alleviate
the problem of
her income.
[5]
In
Khunou & Others v Fihrer & Son 1982 (3) SA (WLD)
the
Court stated the following:
“
The proper
function of a Court is to try disputes between litigants who have
real grievances and so see to it that justice is done.
The rules of
civil procedure exist in order to enable Courts to perform this duty
with which, in turn, the orderly functioning,
and indeed the very
existence, of society is inextricably interwoven. The Rules of Court
are in a sense merely a refinement of
the general rule of civil
procedure. They are designed not only to allow litigants to come to
grips as expeditiously and as inexpensively
as possible with the real
issues between them, but also to ensure that the Courts dispense
justice uniformly and fairly, and that
the true issues aforementioned
are clarified and tried in a just manner.”
[6]
In
Trans-African Insurance Co Ltd v Maluleka
1956 (2) SA 273
(A)
which was quoted with approval in
Life Healthcare Group (Pty) Ltd
v Mdladla & Another (42156/2013) [2014] ZAGPJHC 20 (10 FEBRUARY
2014)
the court stated the following:
“
No doubt
parties and their legal advisers should not be encouraged to become
slack in the observance of the Rules, which are an
important element
in the machinery for the administration of justice. But on the other
hand technical objections to less than perfect
procedural steps
should not be permitted, in the absence of prejudice, to interfere
with the expeditious and, if possible, inexpensive
decision of cases
on their real merits.”
[7]
I understand the above authorities to say that the Rules of Court are
the most important element in the machinery for the administration
of
justice. However, in the absence of substantial prejudice to be
suffered by the other party, a slack in the observance of the
Rules
can be allowed by the Court exercising its discretion to expedite
and, in an inexpensive manner, the finalisation of the
real merits of
the case. It is my respectful view therefore that, although the
applicant brought the application in terms of Rule
6, the respondent
is fully aware of the issues he has to meet. I therefore conclude
that the respondent has failed to establish
that it will suffer any
prejudice if the non-compliance with the rules is condoned. It is my
considered view therefore that it
is not in the interest of justice
that this Court should prefer form over substance and dismiss the
application.
[8]
I find myself in agreement with counsel for the applicant that, the
applicant seeks an order pendente lite and that the children
cannot
be uprooted and be forced to live with the respondent. Further, I
accept that the applicant is not employed and does not
earn an
income. It is on record that the catering equipment for her catering
business is in the possession of the respondent who
has now tendered
its return to the applicant.
[9]
It is trite that both parents have a duty to maintain their children
even if the children are of age as long as they are not
self-supporting. It is further trite that the other spouse can
institute maintenance proceedings on their behalf if they are still
attending school. It is on record that the two children of the
parties are still attending school and therefore I hold the
view,
that the applicant is competent to act on their behalf in these
maintenance proceedings.
[10]
I am in agreement with counsel for the applicant that the respondent
has the means to afford buying the applicant a motor vehicle.
It
appears from the bank statements of the respondent that he transfers
between R8000 – R9000 per month to an investment
account.
Further, he owns 3 properties and has sold one and has invested
R400 000 from the sale of one of his properties.
[11]
It is undesirable for parties in divorce proceedings to drag the case
longer than it is necessary for it is costly to run such
cases in the
High Court. It is on record that the divorce proceedings were
instituted in May 2017 and the parties are still involved
in
mediation. The respondent alleges that he has been paying his legal
fees at the rate of R3000 per month as it appears on his
bank
statement. However, he argues that the applicant would always want
senior counsel to preside on the mediation process and
therefore the
applicant has the means and does not need any contribution towards
her legal costs. It is further submitted that
the applicant has
received a large sum of money from her mother’s estate.
[12]
I do not agree. It is on record that the applicant receives
assistance from her brother although she does not state how much
exactly and from her eldest son who was born before the marriage to
the respondent. She testified that she used all her savings
and paid
the enrolment fees for the children in the sum of R15 000 at
beginning of 2019. She denied having inherited large
sums of money
from her mother’s estate since, in terms of Islam only male
issues are entitled to inheritance.
[13]
I agree with counsel for the applicant that both the brother and her
son do not owe a duty to maintain the applicant. The respondent
does
not dispute that she paid a sum of R15 000 for the enrolment of
the two children at school but says there is no proof
thereof.
However, the respondent does not deny that the children are so
enrolled nor does he say that he paid for the enrolment
of the
children. The irresistible conclusion is therefore that the applicant
paid for the children and that she is entitled to
be refunded her
money by the respondent.
[14]
I am in agreement with counsel for the respondent that once the
applicant receives the catering equipment she will be able
to earn a
living. I am of the respectful view therefore that the applicant will
be able to maintain herself except for the motor
vehicle and
accommodation. However, I accept that she will not be able to
immediately secure business that would pay her that much
but would do
so after some time and a period of 6 months is not unreasonable in
the circumstances.
[15]
In the circumstances, I make the following order:
The
draft order marked “X” as amended and annexed hereto is
made an order of Court.
__________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 29
th
July 2019
Date
of Judgment: 14
th
August 2019
For
the Applicant: Adv C Van Der Merwe
Instructed
by: KG Tserkezis Inc
Tel:
011 886 0000
For
the Respondents: Adv. PJ Kok
Instructed
by: Nozuko Nxusani Inc
Tel:
011 838 7131