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[2020] ZAGPJHC 35
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K N v R N (38941/2019) [2020] ZAGPJHC 35 (31 January 2020)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 38941/2019
IN
THE MATTER BETWEEN:
N
K
AND
N
R
JUDGEMENT
CORAM:
MALUNGANA AJ
[1]
This is an application for relief
pendente
lite
in terms of Rule 43 of the Uniform
Rules of the Court. It is a common cause that the applicant and
the respondent were married
to each other in accordance with the
Hindu Rites in 2005. Two minor children were born out of the said
marriage, namely A, a girl
born 14 January 2005, and S, a boy born on
18 November 2013. The children currently reside with the applicant.
[2]
The respondent instituted divorce proceedings against the respondent
out of this Court, and the matter as I understand, is still
pending.
The applicant now seeks
inter alia
an
order directing the respondent to pay a contribution of R10 000,00
as maintenance for the minor children, and the
R10 000,00
towards the applicant for herself (spousal maintenance).
[3]
The applicant also seeks contribution towards divorce legal costs in
the sum of R50 000,00; parental rights and access
as
contemplated in section 18(2)(b) of the Children’s Act 38 of
2005, as well contribution by the respondent of all reasonable
medical expenses incurred in respect of the minor children whilst she
retains them as dependents in her medical aid scheme.
[4]
The first issue to be considered is the entitlement of the applicant
to claim spousal maintenance
pendente
lite
as raised by the respondent during
the hearing. It was argued by counsel for the respondent that since
the applicant and the respondent
have concluded their marriage in
terms of the Hindu rites, and the divorce court still has to
determine the validity of such marriage,
the applicant is not
entitled to spousal maintenance. In dealing with this issue, the
starting point is section 9 of the Constitution
which provides that:
‘
(1)
Everyone is equal before the law and has the right to equal
protection and the benefit of the law.
(2) Equality includes
the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative
and other measures designed
to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
(3) The State
not unfairly discriminate directly or indirectly against anyone on
one or more grounds, including race, gender,
sex, pregnancy, marital
status, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief,
culture, language and
birth.
(4)
No
person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
’
[5]
In
Dawood
and Another v Minister of Home Affairs and Others
[1]
O’Regan notes that:
“
Marriage
and family are social institutions of vital importance….
…
The
celebration of a marriage gives rise to moral and legal obligations,
particularly the reciprocal duty of support placed upon
spouses,
joint responsibility for
supporting
and
raising children born of the marriage. These legal obligations
perform an important social function. This importance is symbolically
acknowledged in part by the fact that marriage is celebrated
generally in a public ceremony, often before family and close
friends.”
[6]
Structural dependence of women in marriage and in relationships of
heterosexual unmarried couples is a reality in our country
and in
other countries. One of the most invariable consequences of a
marriage is the reciprocal duty of support. It is an integral
part of
the marriage contract and has immense value not only to the partners
themselves but to their families and also broader
community. (See
Dawood
case
referred to above).
[7]
The Constitutional Court in
Daniel
v Campbell No and Others
[2]
in considering the rights to inherit of a spouse married in
accordance with the Muslim rights in a
de
facto monogamous union
interpreted
the word ‘spouse’ in the context of the law:
“
[19]
The word “spouse” in its
ordinary meaning includes parties to a Muslim marriage. Such a
reading is not linguistically
strained from a linguistic point of
view to exclude parties to a Muslim marriage from the word “spouse”
than to include
them. Such exclusion as was effected in the past did
not flow from courts giving the word “spouse” its
ordinary meaning.
Rather, it emanated from a linguistically strained
use of the word flowing from a culturally and racially hegemonic
appropriation
of it. Such interpretation owed more to the artifice
prejudice than to the dictates of the English language. Both in
intent and
impact the restricted interpretation was discriminatory,
expressly exalting a particular concept of marriage, flowing from a
particular
world-view, as the ideal against which Muslim marriages
were measured and found to be wanting.”
[8]
In paragraph 20 thereof, the Court went on to say that discriminatory
interpretations deeply injurious to those negatively affected
were
conditions of the time widely accepted in the courts. They are no
longer sustainable in the light of our Constitution.
[9]
In
Suchitra
Singh v Jailall Ramparsad
[3]
Patel
J in dealing with the dissolution of a Hindu marriage remarked in
paragraph 38 as follows:
“
Our
courts have, since the advert of the Constitution, consistently come
to the aid of spouses and their children if the marriage
was one of
the common law if there was a need, especially if unfairness would
result by application of the strict letter of the
law….”
[10]
I am alive to the fact that this court is not called upon to
adjudicate on the validity of the marriage between the applicant
and
the respondent. The central issue for determination is whether the
applicant is entitled to spousal maintenance in the context
of Rule
43. In my view a party married in accordance with Hindu rites is
entitled to claim spousal maintenance for purposes of
Rule 43. This
accord with the spirit, object and purport of our constitution.
[11]
I now proceed to consider whether the applicant has made out a case
for the relief set out in the Rule 43 application.
[12]
The applicant’ expenses are set out in the financial disclosure
form as follows:
EXPENDITURE
SELF
CHILD/REN
TOTAL
Lodging(bond repayment
,levy, rental,board
R2300
R4600
R6900
Food, Groceries &
Cleaning Materials
R2000
R4000
R6000
Toiletries(including hair
care, cosmetics;make up
R1000
R700
R1700
Water
R170
R340
R510
Electricity/Gas/Paraffin
R630
R1260
R 1890
Cell
Phone
R600
R500
R1100
Domestic Worker
R1000
R2000
R3000
Clothing
R1000
R1000
R2000
School Uniforms
R400
R400
Transport: Car
Installments
R2900
R1100
3600
Fuel
R2000
R1000
R3000
Licenses
R20
R40
R60
Insurance
R400
R800
R1200
Educational Expenses:
School Fees
R7700
R7700
Stationery
R3000
R3000
Outings
R420
R420
Other
Educational
Expenditure-wifi
R600
R600
Medical Expenditure:
Medical Aid
R3021
R2418
R5439
Doctor
R90
R180
R270
Insurance: Life
R1725.71
R1725
Pocket Money/Allowances
R1000
R1000
Holidays
R400
800
R1200
House Maintenance
(plumber, handyman,
electrician,
painter)
R170
R340
R510
Repair & Replacement
of items: Household
appliances
R200
R400
R600
Kitchenware
R200
R400
R600
M-Net/
DSTV
R230
R460
R690
Personal
Loans
R2000
R2000
TV Licence
R20
R20
TOTAL
EXPENDITURE
R22346,71
R36798
R59144,71
[13]
Her current monthly expenses for herself and the minor children as
set out in the founding affidavit amount to R52 904-00.
Her net
monthly income is R16 586-34.
[14] According to the
applicant, the respondent used to hire a driver to transport her and
the minor children when they were living
together. Their lifestyle
have changed since she left the matrimonial home as she now has to
carry the burden of the bulk of expenses
for herself and the minor
children without the assistance of the respondent.
[15]
According to the applicant, the respondent is an astute businessman
who runs a logistic company as well as a wholesale fruit
and
vegetable. He spends the majority of his money in cash buying
designer clothing, shoes and jewellery costing R10 000 and
R20 000,00 per month. He has acquired a fleet of about 20 -30
vehicles for his business. She was kept in the dark about his
finances when they stayed together.
[16]
In support of her claim for R 50 000,00 contribution towards
legal costs for her divorce action, she provided me with
a bill of
costs prepared by her attorneys of record totaling R144 254.85.
In this regard she contends that she was fooled
into thinking that
the parental plan concluded in August 2018 would cater for the
maintenance needs of the minor children. It turned
out that it did
not. Her attorneys subsequently wrote a letter to the respondent
requesting that the issue of maintenance be adequately
addressed in
the parental plan.
[17]
The respondent has filed an opposing affidavit in which he disputes
most of the items listed in the applicant’s expenditure
disclosure form. He contends that in terms of the parental plan he is
liable to 50% of the children’s casual clothing and
does not
spend R3000 per month as alleged by the applicant. He estimates his
spending to be around R2000,00 in a month. He also
dispute the
amounts which the applicant spends on transport costs for the
children. He acknowledges, however, that the parental
plan makes no
provision for the transport of the applicant and the minor children.
[18]
In terms of the parental plan which is annexed to the opposing
affidavit, the respondent is liable for the school fees and
extra
mural in the amount of R7 275,00 and R420,00 per month
respectively. He contends that these amounts should not have
been
included in the applicant’s schedule of expenses. He also
argues that the applicant pays an amount of R 1 857,00
in
respect of medical aid premium and not R5 439,00 as she claims.
[19]
The respondent contends that his monthly income is about R 30 000,00.
He no longer owns any businesses as alleged by the
applicant. He
further states that he was sequestrated in 2011. No documentary proof
of his monthly income in the form of bank statement
or IRP 5 has been
attached save for the letter from Simic Consultancy (Accountants).
[20]
On papers before me it is clear that the applicant’s income has
drastically been reduced after she became separated from
the
respondent, and this has had a major impact on her lifestyle
including those of the minor children who used to enjoy being
chauffeured around. The respondent appears to concede that he was
able to afford their lifestyle prior to his sequestration. However,
it is trite that in our law that insolvency does not terminate the
party’s obligations for maintenance.
[4]
[21]
It is not necessary for purposes of Rule 43 application for me to
deal with the issues raised in the respondent regarding the
cause of
separation. The arrangements contained in the parental plan agreement
dated the 27
th
March 2018 regarding the parental rights and access appear to be
reasonable and working for both parties. Accordingly I do not
deem it
necessary to amend the parental rights and access stipulated in that
agreement
[22]
In applications of these nature, this court has inherent common law
powers as upper guardian of all minors to make an order
which it
deems fit in the best interests of the child, and that power include
every other arrangement which it considers not in
the best interest
of the child. With that prelude I proceed to consider whether the
respondent should in addition make a further
financial contribution
towards the minor children.
[23]
It is evident that the applicant can no longer maintain the living
standard which has been brought to bear by the acrimony
of the
separation with the respondent. Unfortunately the children have to
endure the brunt of such action. Such consequences should
not be
visited upon the minor children. The best interests of the children
are paramount in all matters concerning the care, protection
and
well-being of a child including the standard. Sub-rule (5) of rule 43
provides a sufficiently flexible platform to enable the
court to give
due regard to the paramount importance of a child’s best
interests and respect the best interests of a child’s
living
standard as required by ss 2(b) and 6(2) as read with s 7 of the
Children’s Act.
[24]
However, Rule 43 was not envisaged to give an interim meal-ticket to
women who would quite clearly at the trial would not be
able to
establish a right to maintenance. It was created to provide a
temporary relief for women who had given up careers or potential
careers for the sake of matrimony. In my view the respondent has
failed to make a proper disclosure of his financial affairs. I
have
mentioned earlier that the only proof of his income is the letter
from his accountant. Without a proper up-front disclosure
judicial
officers may be compelled to elevate an anomaly in one party’s
papers to an overall adverse credibility finding
which impacts on the
maintenance to be paid. That said, I am compelled to find that the
respondent should make additional financial
contribution towards the
maintenance of the children and the applicant.
[25]
On the issue of contribution towards legal costs it was submitted
from the bar that the validity of the marriage between the
parties is
being challenged, which factor may impact on the expeditious
finalization of the divorce action. Taking this into consideration,
the applicant is entitled to some kind of financial contribution.
[24]
Accordingly, the order I make
pendente
lite,
is as follows:
1.
The respondent is ordered to continue
paying all school fees and extra mural expenses of the minor
children.
2.
The Respondent is ordered to contribute an
amount of R10 000,00 per month towards the maintenance for the
applicant and the
minor children, payable on the 1
st
day of each month from the date of this order.
3.
The Respondent is ordered to contribute an
amount of R25 000,00 towards the legal costs of the Applicant to
be paid within
30 days of the date of this order.
4.
Costs of the application will be costs in
the divorce action.
______________________
P
MALUNGANA
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
Held on: 28 January 2020
Delivered on: 31 January
2020
[1]
2000(8)
BCLR 837(2000 (3) SA 936) (CC)
[2]
2004(7)
BCLR 735 (CC)
[3]
Case
No. 564/2002, delivered on 22 January 2007 (Durban and Coast Local
Division)
[4]
Weinerberg
v Weinberg,
158 (2) SA 618
( C )