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[2021] ZAGPJHC 76
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A.J v G.J.J (10690/18) [2021] ZAGPJHC 76 (20 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED.
DATE:
20 MAY 2021
Case
No: 10690/18
In the matter between:
A J
(BORN A
E)
Applicant
and
G J
J
Respondent
JUDGMENT:
APPLICATION IN TERMS OF RULE 43
WILSON
AJ
:
1
The applicant (“Ms. J”) seeks an order directing
the respondent (“Mr. J”) to pay interim maintenance, and
an order regulating the care of their minor child (“L”),
aged 8, pending the determination of an action for divorce.
2
Actions for divorce are by their nature emotionally fraught
and potentially rancorous. The separation of two people who once
loved
each other - or who perhaps still do, but not in a manner that
allows them to remain married – is a complex proceeding, one
that requires the utmost care and attention.
3
One critical function of the courts in these proceedings is to
ensure that neither party is prejudiced by a lack of resources –
whether to pursue their claims in the action itself, or to look after
themselves and their children while the action proceeds.
Another
function, of at least equal importance, is to ensure that appropriate
arrangements are made for the interim care of affected
minor
children.
4
These are the two purposes of Uniform Rule 43 that are
relevant to this application. Unfortunately, however, in the
affidavits before
me, each party has sought, to some extent, to
introduce material that is not relevant to these issues, and which
impugns the general
honesty or good faith of the other party. In
applications of this nature, that sort of conduct is not as rare as
it should be (
E v E
2019 (5) SA 566
(GJ), para 62).
5
Happily, it is not necessary for me to deal with these
allegations in any detail, because counsel who appeared before me
accepted,
for the most part, that this material should be
disregarded. After a brief debate, Ms. Carstens, who appeared for Mr.
J, also abandoned
a point
in limine
to the effect that Ms. J’s
affidavit had not been properly commissioned, and that, as a result,
the entire application is
a nullity. The abandonment was both wise
(the point had no merit) and responsible, given that it is inherently
undesirable for
a matter of this nature to be determined on that sort
of technicality.
6
It was ultimately agreed by both counsel that my focus should
be on the appropriateness of the interim care and contact regime for
L, the nature and extent of Ms. J’s reasonable maintenance
needs, and the ability of Mr. J to meet those needs, having regard
to
the parties’ general standard of living. This is consistent
with the relevant case law (on interim maintenance see
Taute v
Taute
1974 (2) SA 675
(E), 676D-H).
7
I will first address the care arrangements to be made for L,
and then turn to the appropriate maintenance order.
Interim care
of L
8
The interim care of L was largely agreed before argument
commenced. The report of the Family Advocate records that the parties
have
reached agreement that L should reside with Ms. J, with Mr. J
having supervised contact with L on Wednesdays, one day every weekend
and by telephone three times a week. Unsupervised contact will be
phased back in subject to the recommendation of Ms. Tanya Kriel,
a
social worker. If either party objects to Ms. Kriel’s
recommendation, they may approach the court for further relief at
that stage.
9
This regime seems to me to be appropriate, having regard to
the level of estrangement between Mr. J and L evidenced on the
papers,
and I will make an order on these terms. I hope that Mr. J
and L will be able to resume ordinary contact as soon as possible, as
it is obviously in L’s best interests to have a normal, healthy
and loving relationship with both parents.
Maintenance
10
There were substantial disputes between the parties relating
to Ms. J’s reasonable needs. Mr. J alleged that Ms. J had
substantial
capital from the sale of a property in Twist Street,
Hillbrow. Mr. J also criticised the decision to sell the property,
arguing
that, if it had not been sold, the rental income from it
would have substantially met Ms. J’s maintenance requirements.
11
Whatever the merits of that claim, the fact is that the
proceeds of the sale of the Twist Street property have now largely
been
dissipated in debt repayments, tax, and the reservation of funds
pending the outcome of a dispute with the City of Johannesburg
about
the rates and utilities owing on the property. On the best evidence
available, the proceeds of the sale now available to
Ms. J amount to
just over R19 000. It is beyond the scope of my role to consider
whether the proceeds of the sale were used
responsibly. Even if it
were not, I can see no obvious profligacy evident on the papers.
12
It was suggested during argument that Ms. J had concealed the
true value realised from the sale of the Twist Street property.
Relying
on an incomplete offer to purchase well in excess of the
purchase price ultimately declared, Ms. Carstens sought to persuade
me
that the property had, in fact, been sold for around R1 million
more than Ms. J had disclosed. When confronted by the fact that
the
offer to purchase did not refer to the Twist Street property –
or indeed any other property at all – Ms. Carstens
was
constrained to accept that I could not reasonably infer that Ms. J
had under-reported the proceeds of the sale. The point was
not
pressed further.
13
Ms. J says that she makes a small living (not more than R5 000
per month) from selling antiques from a Facebook page apparently
set
up for that purpose. Ms. Cartsens submitted that Ms. J had
under-reported that income. This was done on the basis of an
examination
of Ms. J’s bank statements. However, when read as a
whole and in the appropriate context, Ms. Carstens accepted that
these
statements did not disclose any under-reporting. The statements
also satisfied me that Ms. J’s accounts are significantly
in
overdraft.
14
Ms. J’s financial position is to be contrasted with Mr.
J’s. A successful businessman, who, in addition to a recycling
business, owns more than one rental property, Mr. J stated in his
answering affidavit that his income is between R70 000 and R100 000
per month. However, after an examination of his bank statements,
adduced as part of the financial disclosure required in matters
of
this nature, Ms. Strathern, who appeared for Ms. J, submitted that
Mr. J’s income was, on a conservative estimate, significantly
more than that. On the bank statements produced, between March and
September 2020, Mr. J’s income was roughly double the
amount
alleged in his answering affidavit.
15
Ms. Carstens clearly lacked the instructions necessary to
dispute this, and I am constrained to accept that Mr. J’s
income
is well in excess of the amounts originally alleged. It is
very difficult for me to tell how far in excess of the amount
declared
Mr. J’s true income is, however. His income is erratic
(sometimes his monthly income appeared to be as little as R75 000.
At other times it appeared to be in in excess of R300 000). I am
accordingly reluctant to draw conclusions about Mr. J’s
means
solely on the basis of six months’ worth of bank statements.
Ms. Strathern also noted that income from Mr. J’s
five
immovable properties had not been fully disclosed. That, too, gives
me pause when seeking to determine what Mr. J can reasonably
afford.
16
A better starting point seems to me to be the obligations Mr.
J has accepted until now. Mr. J accepts that he is obliged to
maintain
Ms. J and L. He alleges that he currently pays in the region
of R56 000 per month towards their maintenance. He also pays,
in
addition to this, for L’s school fees, school uniform, sports
clothing, and her medical aid contributions. He undertakes
to
continue paying these amounts. His case is, in substance, that he
should be required to do no more than he currently does, and
that
this application is fundamentally unnecessary.
17
The problem with this defence is that Mr. J’s payments
to Ms. J have been made in dribs and drabs. Ms J incurs an expense.
She then asks Mr. J to reimburse her. He then does so. It hardly
needs stating that this sort of arrangement is unsustainable pending
the divorce action. Even if I were to conclude that Ms. J is entitled
to no more than she currently receives, this application
would be
necessary to ensure that the amount is paid as of right and in
advance.
18
In any event, the amount in maintenance Mr. J accepts is
necessary was calculated on the basis that the parties will continue
to
share the matrimonial home. In a step that everyone accepts was
necessary, Ms. J and L moved out of the matrimonial home in April
2021. Accordingly, the amount effectively conceded by Mr. J does not
have regard to the rent Ms. J now has to pay, or to the additional
expenses she will now incur because she no longer shares a home with
him.
19
Some advance on the obligations Mr. J accepts accordingly
seems reasonable. Murky though his financial disclosures are, it
seems
to me that a reasonable increment on his current obligations
would be well within Mr. J’s means.
20
Unfortunately, Ms. Carstens was unable to assist me with an
estimate of what the Mr. J believes is reasonable and affordable to
him, having regard to the augmented income revealed in his financial
disclosure forms. Mr. J instead concentrated his opposition
to the
application on a series of assertions about Ms. J’s character
and trustworthiness, and not on a detailed engagement
with what he
considers her reasonable needs to be. As a result, I am constrained
to rely on the documents tendered in the various
financial
disclosures, amplified where necessary with Ms. Strathern’s
submissions.
21
In her founding affidavit, Ms. J originally claimed just over
R132 000 per month in maintenance for herself, for L and for
another minor child (“D”), who has lived with Mr. and
Mrs. J for the duration of the marriage. Ms. J is D’s
biological
mother, but Mr. J is not D’s biological father. I
accept Ms. J’s assertion that Mr. J has cared for and
maintained
D for a considerable period.
22
The figure in the founding affidavit concerns me, because it
is unclear how that figure relates to the amount of R56 000 the
parties agreed had been reimbursed to Ms. J for her expenses before
she moved out of the marital home. There is nothing in the
papers
that indicates that either party thought that R56 000 per month
plus schooling and medical aid costs for Ms. J and
L was in any way
inadequate. The figures that make up the R132 000 claimed in the
founding affidavit appear to go well beyond
the amounts that the
parties apparently considered adequate before the application was
brought.
23
Indeed, Ms. J no longer seeks the R132 000 figure first
specified in her founding affidavit. Cutting her claim down to what
she says is necessary to keep up with her current needs (a large
portion of which involves servicing debt and looking after her
children), Ms. J now seeks a range of contributions which add up to
around R100 000 per month.
24
On the evidence before me, this amounts to over half of Mr.
J’s average monthly income.
25
In reconciling what Mr. J says he is prepared to do, with what
Ms. J says she needs, a reliable path seems to me to start from the
amount the parties appeared to be able to live with before Ms. J
moved out of the marital home, before augmenting it by the additional
expenditure Ms. J will now incur on her own.
26
The starting point, then, must be that R56 000 (excluding
school and medical aid costs) was sufficient to support Ms. J and
L
when they lived with Mr. J. To this must be added the cost of renting
the accommodation Ms. J and L now occupy. This is R15 171.
That
yields a total maintenance contribution of R71 171 per month for
Ms. J and L (excluding L’s school fees and medical
aid).
D’s
position
27
Mr. J asserts that he is not in law required to continue to
maintain D. It is not seriously disputed that D has lived with Mr. J
throughout the marriage, and that, in substance, Mr. J acted
in
loco parentis
of D for as long as they lived together. Mr. J has,
in addition to providing support to Ms. J and L, maintained and
supported D,
paid for his medical aid contributions and paid his
school fees. It is not directly alleged on the papers whether the
R56 000
figure for which Mr. J accepts responsibility includes
his contribution to D. However, since his undertaking to continue
paying
that amount is coupled with a strenuous denial of any
obligation to support D, I must infer that the R56 000 figure
excludes
any contribution to D’s maintenance and support.
28
It is accordingly necessary to consider whether the augmented
amount I have reached based on Ms. J’s needs now that she has
left the family home ought to be enhanced by a contribution to D’s
maintenance.
29
I am sensitive to the fact that, in law, there is no clear
duty of support that Mr. J owes to D, however generously Mr. J
treated
D when they shared a home. D is not Mr. J’s biological
child, and Mr. J. has not adopted him. Indeed, D has a biological
father, who contributes to his upkeep in the sum of R3 000 per month.
30
During argument, Ms. Strathern referred me to the case of
NB
v MB
2010 (3) SA 220
(GSJ). In that matter, Brassey AJ made an
order requiring MB to continue to pay NB’s son’s school
fees, despite the
fact that MB was not the child’s biological
father, and had not adopted him. Brassey AJ held that, despite never
having adopted
NB’s son, MB had held himself out as the child’s
father, a representation upon which NB had relied. Brassey AJ held
that it was not necessary to conclude that MB had
de facto
adopted NB’s son, but that he would have done so had it been
necessary to enforce a duty of support between MB and NB’s
son.
31
I do not think that
NB v MB
provides a happy analogue
with this case. NB’s son’s biological father had died by
the time MB came on to the scene.
MB changed NB’s son’s
surname to his own, initially resolved to adopt NB’s son
(although never actually went
through with it), and, finally, appears
to have held himself out as NB’s son’s father in an
application to have the
boy admitted to a private school.
32
In this case, the allegation that Mr. J treated D as his son
has not been substantiated beyond that fact that Mr. J provided D
with
maintenance and support. But D apparently has a father, and to
suggest that Mr. J ever thought of himself as D’s father is
in
these circumstances artificial.
33
However, I am conscious that my role in these proceedings is
to make an interim order that will preserve a reasonable
status
quo
while action for divorce, in which the rights and obligations
of the parties will be finally determined, is finalised. To make an
order that might have the effect of discontinuing the payment of D’s
school fees and medical aid at this stage of the proceedings
would be
inconsistent with that role, and highly prejudicial to D and Ms. J. I
am also conscious of the fact that D is currently
17 years old. When
he reaches his majority, there may well be reason to alter the
arrangement as it now stands. But, for the time
being, things, in my
view, should stay as they are as much as possible.
34
It is nonetheless appropriate to reflect the maintenance
payments Ms. J receives from D’s biological father in the order
I
make. The amount that I will award in respect of D’s
maintenance will be reduced by the R3 000 Ms. J already receives from
D’s father.
35
This means that R7 000 per month must be added to the R71 171
figure to which I earlier referred (excluding D’s school
fees
and other expenses, which must still be paid directly). This yields a
grand total of R78 171 per month. This is made
up of R46 000
per month to cover Ms. J’s current liabilities and maintenance,
R10 000 per month for L’s maintenance
(the amount that Ms.
J says she needs), R7 000 per month for D’s maintenance
and R15 171 for rent.
36
I would have been happier if the parties were able to provide
a more comprehensive framework for these calculations. However, the
order that I am making appears to me to reasonably reflect both Mr.
J’s means and Ms. J’s, L’s and D’s
needs on
the facts before me.
Costs
37
The parties agreed that, if the application was not dismissed,
then costs should be reserved for determination in the main action.
Order
38
For all these reasons, I make the following order
pendente
lite
–
38.1
In respect of L –
38.1.1
Mr. and Ms. J will exercise
jointly the parental rights and
responsibilities set out in sections 18 (2) (a), 18 (2) (c) and 18
(3) of the Children’s
Act 38 of 2005 (“the Act”).
38.1.2
Mr. and Ms. J’s parental
rights and responsibilities in terms
of section 18 (2) (b) of the Act will be apportioned as follows –
38.1.2.1
L will reside with Ms. J.
38.1.2.2
Mr. J will maintain in-person contact with L every
Wednesday after
school for a period of up to two hours; one day every weekend,
Saturday and Sunday to alternate.
38.1.2.3
Mr. J will maintain telephonic contact with L three
times per week,
on Mondays, Wednesdays and Fridays, between 18h00 and 19h00.
38.1.2.4
Mr. J’s in-person contact with L will take
place under the
supervision of Ms. Tanya Kriel at “Kidsbuzz”, 1 Adriaan
Place, Malanshof, Randburg 2194.
38.1.3
Unsupervised contact between
Mr. J and L will take place to the
extent that Ms. Kriel recommends it. Ms. Kriel will make a
recommendation about the extent of
unsupervised contact between Mr. J
and L not later than 6 weeks from the date of this order.
38.1.4
If either party objects to
Ms. Kriel’s recommendation, they may
apply to court for such further relief as may be appropriate.
38.1.5
The parties may vary or disregard
Ms. Kriel’s recommendation by
agreement.
38.1.6
Mr. J will continue to pay
for L’s school fees, school
uniforms, school outings, extra-mural activities, necessary extra
lessons, stationary, books
and medical aid.
38.1.7
Mr. J will contribute to L’s
maintenance in the sum of R10 000
per month.
38.2
In respect of D –
38.2.1
Mr. J will continue to pay
for D’s school fees, school
uniforms, school outings, extra-mural activities, necessary extra
lessons, stationary, books
and medical aid.
38.2.2
Mr. J will contribute to D’s
maintenance in the sum of R7 000
per month.
38.3
In respect of Ms. J, Mr. J will pay R61 171 per month, in a
contribution
towards debt repayments, rent for Ms. J’s, L’s
and D’s accommodation, and Ms. J’s general maintenance.
38.4
The costs of this application are costs in the divorce action.
S D J WILSON
Acting Judge of
the High Court
This judgment was prepared and
authored by Acting Judge Wilson. It is handed down electronically by
circulation to the parties or
their legal representatives by email
and by uploading it to the electronic file of this matter on
Caselines. The date for hand-down
is deemed to be 20 May 2021.
HEARD
ON:
13 May 2021
DECIDED
ON: 20 May 2021
For the Applicant:
N Strathern
Instructed by Ulrich Roux and
Associates
For the
Respondent:
T
Carstens
Instructed by Olivier and Malan