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2021
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[2021] ZAGPJHC 151
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AJ v GJJ (10690/18) [2021] ZAGPJHC 151 (20 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
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