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[2021] ZAGPJHC 158
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D.L v L.R.L (31153/2017) [2021] ZAGPJHC 158 (25 May 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 31153/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
25
May 2021
In
the matter between:
L[....],
D[....]
Applicant
And
L[....],
L[....]
R[....]
Respondent
(born
A[....])
JUDGMENT
Mdalana-Mayisela
J
(1)
The applicant has brought an application in terms of
rule 43 of the Uniform Rules of Court for interim relief, pending
final determination
of the opposed divorce action instituted by the
respondent on 21 August 2017. The applicant seeks orders as follow.
That the Contact
and Parent Coordinator Agreement (“the
Agreement”) be made an order of the Court; and that the
respondent be ordered
to pay costs of this application.
(2)
The respondent is opposing the application and has filed
a counter-application seeking orders in the following terms. That
both
parties shall remain co-holders of parenting responsibilities
and rights in respect of the two minor children, subject to the minor
children being primarily resident with the respondent and further
subject to the applicant exercising reasonable rights of contact
to
the minor children; that the applicant shall exercise contact to the
minor children having regard to their scholastic, social
and sporting
activities and routines; that the applicant shall not be under the
influence of alcohol and shall not use alcohol
for the duration of
time spent with the minor children; that the applicant shall not
carry a firearm or weapon on his person or
have a firearm or weapon
in his possession for the duration of the time spent with the minor
children; that Heidi Reynolds be appointed
as the parenting
coordinator in this matter with powers and duties set out in annexure
X; that the applicant pays maintenance to
the respondent in the sum
of R36 320.43 with effect from the 1
st
month following the granting of the divorce order and on
the 1
st
day of
each and every succeeding month; that the applicant shall pay the
educational costs for the minor children including but
not limited to
the private school fees, uniform, books, stationery, outings, tours,
extra lessons and remedial lessons; that the
applicant shall be
liable for 100% of the medical expenses of the minor children; that
the applicant shall make an initial contribution
towards legal costs
of the respondent in the sum of R15,000.00; and that the applicant
shall pay the costs of this application
on an attorney-client scale.
The applicant filed a sworn reply opposing respondent’s
counter-application.
(3)
At the commencement of the Court proceedings I admitted
as evidence respondent’s supplementary affirmation dated 10
July 2020,
applicant’s answering affidavit to respondent’s
supplementary affirmation dated 31 July 2020, applicant’s
further
affidavit to the report of Brenda Anderson dated 1 December
2020 and respondent’s answering affirmation to applicant’s
further affidavit dated 11 January 2021.
(4)
The parties were married to each other on 3 April 2011
out of community of property, with the exclusion of accrual system
and the
marriage still subsists. Two minor children, a boy aged 7
years and a girl aged 5 years, were born from the marriage. The
marriage
between the parties has broken down irretrievably and they
are involved in a contested divorce. The parties separated in
September
2016. The respondent and the minor children moved out of
their matrimonial home. It is common cause between the parties that
at
the time this application was brought the applicant was not
permitted full, unrestricted and unsupervised contact with the minor
children. Mr David Barlin was mandated to supervise the contact
between the applicant and the minor children.
(5)
The applicant has sought to make a draft Contact and
Parent Coordinator Agreement (“Annexure A”) an order of
the Court.
Annexure A was signed by the applicant but not signed by
the respondent. The respondent contends that Annexure A is not the
agreement
between the parties and that this application is premature
as she was still in the process of amending Annexure A. I cannot make
Annexure A the order of Court because it does not comply with the
prescribed formalities of a written agreement.
(6)
The respondent has submitted a draft Parenting Plan and
is asking that it be made the order of the Court. During the hearing
of
the application, Counsel for the applicant submitted that the
applicant agrees to the contents of a draft Parenting Plan excluding
clause 10.3. A draft Parenting Plan is signed by the respondent but
not signed by the applicant. Section 34(1)(a) of the Children’s
Act 38 of 2005 provides that a Parenting Plan must be in writing and
signed by the parties to the agreement. The draft Parenting
Plan
submitted by the respondent does not comply with the requirements of
section 34(1)(a) and therefore it cannot be made the
order of the
Court.
(7)
The parties during argument in Court agreed on the
following rights and obligations in respect of the minor children and
have asked
their agreement be made the order of the Court: that the
parties shall be co-holders of parental responsibilities and rights
in
respect of the minor children as contemplated in sections 18(2),
(3), (4) and (5) of the Children’s Act; that the parties
shall
make joint decisions in relation to major decisions about the minor
children’s schooling, tertiary education, extra
murals, mental
health care, medical care (save in the case of emergency), contact
between the children and the parents, permanent
removal of the minor
children from Gauteng Province, international travelling, holidays,
the minor children’s living conditions
and wellbeing;
co-operation and communication between the parties; primary residence
of the minor children; care and contact (including
makeup contact);
access to schools, activities and children’s welfare; dispute
resolution; that the applicant shall not be
under the influence of
alcohol and shall not use alcohol during the duration of the time
spent with the minor children; that when
necessary, either party
shall be referred to random alcohol or drug testing; and that at all
times when the minor children are
with the applicant, he shall ensure
that all his firearms are locked and secured in an appropriate gun
safe.
(8)
There is only one issue in dispute between the parties
in respect of applicant’s contact with the minor children. The
respondent
submits that when the minor children are in applicant’s
care, he shall ensure that they have their own bedroom/shared bedroom
where no other person shall sleep other than the children and/or the
applicant. The respondent alleges that it is not safe for
the minor
children to share a bedroom with a 14 years old boy at the
applicant’s residence. The applicant disputes this allegation.
He submits that he cannot afford to rent a bigger place to
accommodate this request and further that this request is not
practical
and it will also affect the holiday arrangement with the
minor children.
(9)
The respondent has not made this request in her
answering affidavit. This request is contained in the draft Parenting
Plan and was
also made in Court during argument. The respondent has
not presented any evidence showing that a 14 years old boy who
resides with
the applicant has done anything to endanger or harm the
minor children when he was sharing a bedroom with them. I am
satisfied
that the applicant is a responsible parent who has the
interest of his minor children, including their safety. It will be
inappropriate
for this Court to be prescriptive and make the order as
requested by the respondent without any evidence showing that a 14
years
old boy is a danger to the minor children. This request is
refused.
COUNTER-CLAIM
(10)
The respondent in her counter-claim is seeking an order
that Ms Heidi Reynolds be appointed as the parenting coordinator in
this
matter with powers and duties set out in annexure X. The parties
have agreed on her appointment as well as her powers and duties.
(11)
The respondent is further seeking an order that the
applicant pays maintenance to the respondent in the sum of R36 320.43
with effect
from the 1
st
month
following the granting of the divorce order and on the 1
st
day of each and every succeeding month. This is a Rule
43 application for the granting of the interim relief pending the
finalization
of a divorce action. I invited the parties to make
submissions on the prayer made in the respondent’s
counter-claim that
the maintenance order be granted with effect from
the 1
st
month
following the granting of a divorce order. The respondent submitted
that this prayer is erroneous and that it should be with
effect from
the 1
st
month
following the granting of the Rule 43 order and on the 1
st
day of each and every succeeding month. The applicant
left it in the discretion of the Court. I accept that this is a
patent error
and I am satisfied that if the maintenance order is
granted it should be with effect from the 1
st
month following the granting of the Rule 43 order.
(12)
The respondent is employed as a full time teacher at The
Torah Academy School. Her monthly net salary was R11 298.35, and as a
result
of the COVID19 pandemic her salary was reduced to R9828.48.
The applicant is a businessman, with a Bachelor of Commerce Degree in
Business Management qualification. He is the sole shareholder and
director of a company, Digital Ops (Pty) Ltd (“Digital
Ops”).
(13)
The respondent avers that whilst the parties resided
together, the applicant made payment of all the household expenses
and living
costs of the respondent and the children. The applicant
gave her a cash amount of R24 995.00 which she used to pay for
medical
aid premiums, food and ad hoc expenses. The respondent was
not employed and was not required to work.
(14)
The parties separated in September 2016. The respondent
avers that from that time until October 2017, the applicant continued
to
maintain the respondent and the children by making payment of the
direct expenses, including the bond repayment of R18 000.00 on
the
respondent’s immovable property, utility bills at the former
matrimonial home, domestic worker’s salary, children’s
private school fees and extra mural activities together with the cash
amount of R24 995.00.
(15)
From November 2017 until September 2018 the applicant
ceased paying maintenance for the respondent and the children in
totality.
During that period the respondent utilised the proceeds
from the sale of her immovable property to fund her monthly expenses.
These
funds are now depleted. In addition, she relied on the
financial assistance from her father to cover her monthly shortfall.
From
October 2018, the applicant began contributing monthly an amount
of R5000.00 per child for maintenance. The respondent submits that
this amount is inadequate.
(16)
The respondent seeks the order that the applicant shall
pay the educational costs for the minor children including but not
limited
to the private school fees, uniform, books, stationery,
outings, tours, extra lessons and remedial lessons; that the
applicant
shall be liable for 100% of the medical expenses of the
minor children. She further seeks the order that the respondent pays
a
cash component of R36 320.43.
(17)
The respondent has filed schedules of monthly expenses
dated 2 December 2019 and 10 July 2020 respectively. The schedule of
monthly
expenses filed in July 2020 differs materially from the
December 2019 schedule. The respondent explains that the difference
between
the two schedules is that the monthly medical aid premium of
R8726.00 and the average monthly medical excesses of R4280.00 were
erroneously omitted from the December 2019 schedule, the expenses set
out in December 2020 schedule are actual expenses extrapolated
from
her bank statements, and certain expenses have naturally increased
with effluxion of time. The respondent submits that the
expenses are
reasonable, legitimate and factually verifiable.
(18)
The applicant agrees that he shall pay the educational
costs for the minor children including but not limited to the private
school
fees, uniform, books, stationery, outings, tours, extra
lessons and remedial lessons. I am of the view that the applicant
should
continue paying the educational costs directly to the service
providers. In his papers he contends that the extra mural activities
have been suspended by the school due to COVID19 pandemic and
therefore this expense should not be allowed. During the argument
in
Court the applicant tendered R1000.00 for extra-mural activities and
this amount should be paid directly to the service providers.
(19)
The respondent is claiming the amounts of R8 725.00 for
medical aid contribution and R6 453.00 for medical costs (excess).
The applicant
is not tendering these costs. In my view these are
necessary costs, however, the monthly amount claimed for excess is
excessive.
In her heads of argument, she submits that the average
monthly medical excess is R4 280.00. In my view the applicant should
make
monthly payment directly to the service providers for medical
aid contribution and the payable excess amount as and when required.
(20)
The respondent is claiming monthly amounts of R1787.00
for levies, R300 for cell phone allowance, R25.00 for Liberty
endowment,
R439.33 for car maintenance, R758.00 for Eskom, R1372.66
for entertainment, R288.33 for personal care, and R320.67 for
hairdresser.
The applicant is not disputing these expenses and the
amounts. In my view they are reasonable and necessary expenses and I
will
allow them.
(21)
The respondent is claiming monthly amounts of R9123.21
for groceries (food and cleaning materials), R3 302.05 for clothing,
R1307.11
for gifts, R503.29 for toys, R1 936.97 for petrol, R1 500.00
for holidays, R2 264.64 for insurance. The applicant is disputing
these amounts on the basis that they are excessive. I agree with
applicant that these amounts are excessive and they need to reduced.
(22)
The respondent is further claiming monthly amounts of
R264.67 for home repairs and R4 013.92 for City of Johannesburg. The
applicant
is disputing these expenses on the basis that they are
consequences of ownership and must be provided by the respondent.
(23)
The respondent is claiming monthly amounts of R503.00 /
R604.94 for birthday parties, R333.33 for charity, and R50.00 for car
license.
The applicant is disputing these expenses on the basis that
they are not monthly expenses.
(24)
The respondent is claiming R900.00 for DSTV. The
applicant is disputing this expense and contends that the applicant
is not subscribed
to DSTV.
(25)
The respondent is claiming monthly amounts of R400.00
for babysitter, and R5300.00 for a domestic worker. The applicant is
disputing
these expenses on the basis that they are not necessary as
the respondent works limited hours per day and that a babysitter
allowance
is a new expense.
(26)
The respondent is claiming monthly amounts of R560.00
for security and R566.67 for a gardener. The applicant is disputing
these
expenses and contends that they are not necessary because the
respondent lives in a secure complex and has a miniscule garden. I
agree that these expenses are not necessary.
(27)
The parties have appointed experts who compiled reports
on applicant’s financial position. The experts are Mr Steven
Harcourt-Cooke
for applicant and Ms Brenda Anderson for respondent.
The experts have met and compiled a joint minute. In their joint
minute they
agree that the review period would be 1 December 2019 to
June 2020. They don’t agree on the applicant’s income.
(28)
Mr Harcourt-Cooke is of the view that only one
month of historical income need be considered and that on the basis
of the June 2020
income, the applicant earns a net salary of R42
848.75. He states that the applicant’s monthly expenses are R47
078.45 and
the applicant accordingly has a shortfall of R4 229. 70.
(29)
Ms Anderson is of the view that the average of the
applicant’s historical income for the agreed review period need
be considered
to reach an average of the applicant’s net
income. She concludes that the applicant earns an average net salary
of R90 788.49
per month. She further concludes that the applicant’s
average monthly expenses for the agreed review period are R66 540.51.
She opines that the applicant accordingly has a surplus of R21 247.98
per month. This surplus is computed after the applicant has
made the
payment of some expenses including the children’s school fees,
cash maintenance of R10 000.00, legal fees, rent,
medical aid
contributions, vehicle insurance, retirement annuity, life insurance,
applicant’s cell phone and motor vehicle
expenditure.
(30)
I do not accept Mr Harcourt-Cooke’s opinion on the
income and expenditure of the applicant for the agreed review period.
The
reason being that his assumptions are incorrect and the
calculations are inaccurate. He considered only one month of
historical
income and not the average monthly income. When computing
income, he considered only the applicant’s monthly salary from
business and ignored the indirect income that the applicant earns by
virtue of personal expenses paid through the business. When
computing
average monthly expenses, he took into account the expenses which are
paid from both the applicant’s personal bank
account and those
paid on his behalf by the business.
(31)
I accept Ms Anderson’s opinion on the income and
expenditure of the applicant. I find that her assumptions are correct
and
the calculations are more accurate. She considered the average of
the applicant’s historical income and expenditure for the
agreed review period. When computing applicant’s income and
expenditure, she took into account the actual income and expenses
derived from the bank accounts for the agreed period; the salary, as
well as indirect income in the form of personal expenses paid
through
the business.
(32)
I have considered the papers, including the experts’
reports, the parties’ financial disclosure forms, the parties’
income and expenditure, and Counsel’s submissions. In my view
the reasonable monthly maintenance to be paid to the respondent
in
the form of a cash contribution by the applicant is R14 000.00. I am
also of the view that the applicant can afford to pay this
amount to
the respondent.
LEGAL
COSTS CONTRIBUTION
(33)
The respondent is claiming the initial sum of R15,000.00
for contribution towards legal costs. The respondent has not provided
a
pro-forma bill of costs to enable this Court to consider if the
amount claimed is justifiable. The respondent avers that her attorney
charges R2 000.00 per hour and no further details are provided as to
how the amount of R15 000.00 is made up. The applicant is
not
tendering any amount on the initial contribution towards legal costs.
The respondent failed to set out the essential disbursements
in order
for this Court to consider what the nature and extent of
disbursements would be, including in respect of witness fees,
preparation of bundles, attendance of pre-trial conference etc. The
respondent has failed to make out a case for contribution towards
legal costs. Accordingly, this claim is dismissed.
COSTS
(34)
The applicant seeks costs against the respondent. The
respondent is substantially successful in her counter-claim. The
respondent
seeks costs against the applicant on an attorney-client
scale. It is common cause between the parties that when the applicant
brought
this application he was not permitted full, unrestricted and
unsupervised contact with the minor children. I find no justification
to order punitive costs against the applicant. I am of the view that
the costs of this application be in the cause.
(35)
In the circumstances, I make the following order:
Pendente
lite
,
35
by agreement between the parties,
it
is ordered that:
35.1.1
The parties shall retain the co-guardianship over the
minor children and shall remain co-holders of parental
responsibilities and
rights in respect of the minor children, as
contemplated in sections 18(2), 18(3), 18(4) and 18(5) of the
Children’s Act,
38 of 2005;
35.1.2
The parties shall make joint decisions in relation to
the aspects of the minor children’s schooling, tertiary
education, extra
mural activities; mental health care and medical
care (save in case of emergency); contact between the children and
the parents
or either of them; living conditions, health, personal
relations with a family member, or generally, on their wellbeing;
35.1.3
Neither party shall be entitled to permanently remove
the minor children without the other party’s written consent
from Gauteng
Province, which consent shall not be unreasonably
withheld;
35.1.4
Neither party shall be entitled to travel
internationally with the minor children without the other party’s
written consent,
which consent shall not be unreasonably withheld;
35.1.5
Should either party decide to take the minor children
away on holiday that is not scheduled as provided for below, the
other party
must be notified in writing no less than 14 days before
the time. To the extent that such holiday should interfere with the
other
party’s contact arrangements, the consent of the other
parent shall be obtained, which consent shall not be unreasonably
withheld. Information to be included in writing is a mode of
transport, accommodation details, in case of emergency contact
details
and that the party so notifying the other will be
accompanying the children. The parent taking the minor children on
holiday, shall
notify the other parent via SMS or WhatsApp when the
minor children depart and when they arrive safely and
vice
versa
on return. Holidays should be scheduled
to avoid the minor children losing out on schooling and any family
events;
35.1.6
The parties undertake to maintain reasonable
communication with each other and not to obstruct each other in the
exercise of contact
with the minor children. If the parties are
unable to verbally communicate with each other, in such event the
parties undertake
to correspond with each other by email, SMS or
WhatsApp. The party sending email should notify the other by SMS or
WhatsApp to
ensure a speedy response. The other party shall respond
promptly according to the circumstances;
35.1.7
Subject to the contact rights of the applicant, the
minor children will have their primary residence with the respondent;
35.1.8
The applicant shall exercise the contact as set out
hereunder, subject to the minor children’s scholastic,
therapeutic, social
and sporting requirements and routines;
35.1.9
The applicant shall have the unsupervised contact with
the minor children as follows:
35.1.9.1
Every Tuesday from 16h00 to 18h00;
35.1.9.2
On alternative weekends from Friday 15h30 until Sunday
at 17h00;
35.1.9.3
During the week the applicant shall not exercise
sleepover contact, he shall be entitled to exercise contact to the
minor children
on Thursday from 16h00 to 18h00;
35.1.9.4
The parties shall agree on and compile an annual
calendar setting out the applicant’s allotted contact times, in
November
each year;
35.1.9.5
Once the applicant has moved to Johannesburg, the
alternative weeks will accordingly be Tuesday from 16h00 to Thursday
08h00, taking
into account that he will drop them at school the next
morning;
35.1.10
The above contact schedule shall be interrupted, when
required, to accommodate the following:
35.1.10.1
School holidays, public holidays and Jewish holidays
which shall be shared equally between the parents, as set out more
fully hereunder;
35.1.10.2
On the minor children’s respective birthdays, the
respondent will enjoy contact the night before and morning of. The
applicant
will enjoy contact from after school on the day of (or at
13h00 on weekends) until the next morning when he will drop them at
school
(or at the respondent’s home at 10h00 if it is a
weekend);
35.1.10.3
The applicant shall exercise contact to the minor
children on his Birthday and Father’s Day from 17h00 on the
previous evening
to 17h00 the next day and shall as required drop
them at school and collect them after school (including any
extra-murals);
35.1.10.4
The respondent shall have the minor children with her on
her Birthday and on Mother’s Day from 17h00 on the previous
evening
to 17h00 and shall as required drop them at school and
collect them after school (including any extra-murals);
35.1.10.5
Both parties shall equally share the security duties at
the minor children’s schools;
35.1.11
In the event of any emergency, or unseen event that
renders the scheduled contact impractical, unreasonable or
significantly inconvenient,
temporarily or permanently, the parties
undertake to negotiate with one another, in good faith for any
temporary or permanent variation
to the schedule. Should no agreement
be arrived at either party may approach the Court. The parties
further agree to attempt to
engage in urgent mediation, prior to
approaching Court;
35.1.12
The respondent shall have reasonable video telephonic
contact on Monday and Wednesdays at 18h00 and on Fridays at 17h00.
The respondent
shall have reasonable video telephonic contact at
17h00 on Friday and 17h30 on Saturday, whilst the minor children are
in the applicant’s
care;
35.1.13
For the purposes of such telephonic contact, each of the
applicant and respondent shall provide a cell phone and sufficient
data,
at their homes for the minor children’s use and shall
ensure that the phones are charged and switched on;
35.1.14
Holiday contact will be scheduled in writing and
reviewed as required, taking into account the allocations of the
previous year
schedule, as soon as an annual calendar of school
holidays is available, provided that the applicant shall have the
minor children
for a period of 5 to 7 days during short holidays and
7 to 14 days during long holidays. During such holiday periods with
the applicant,
the respondent shall have reasonable telephone or
video calls with the minor children;
35.1.15
Provided the occurrence of a family function is
communicated at least 7 days prior to the event and provided the
parties agree thereto,
the parent whose family function it is shall
collect the minor children (if with the other parent) and return them
at reasonable
time having regard to the nature of the function.
Should the function be at night, the minor children will sleep with
the parent
and be dropped at school the following morning. Family
function will take priority over social events. Should a family
function
occur on a weekend and thus interfere with either party’s
weekend contact, that party will be given alternative options to
make
up such lost weekend contact;
35.1.16
Public holidays shall be shared equally, according to a
schedule to be agreed. The minor children may be collected at 16h00
on the
previous day and returned by 17h00 on the public holiday;
35.1.17
Jewish holiday contact will be scheduled in writing and
reviewed as required, taking into account the allocations of the
previous
year schedule, as soon as an annual calendar is available
and provided that Jewish holidays shall be shared between the parties
in line with the enclosed schedule, unless otherwise agreed between
the parties. The applicant is entitled to attend the shuls
where the
minor children will be attending on all Jewish holidays;
35.1.18
Such other contact as may be arranged by agreement
between the parties considering the minor children’s activities
and wishes.
The parties record their intention to facilitate the
minor children’s relationship with each of the parents;
35.1.19
The respondent undertakes to provide the applicant and
to update from time to time and the applicant undertakes to provide
the respondent,
all relevant information regarding the minor
children’s doctors and other professional service providers;
medications and
allergies as may be necessary to ensure the continued
welfare of the minor children. Both parties undertake to inform the
other
party as soon as reasonably possible should there be any
medical emergency with regards to the minor children. Both parties
should
be informed of any medical appointments and either party may
take the minor children to such appointments, with prior arrangement;
35.1.20
Both parties will have full access to the schools and
the minor children’s teachers, including extra-mural teachers,
to obtain
information concerning the minor children’s welfare.
Both parties may send or receive emails in this regard. Both parties
will be and remain involved in and support and encourage the minor
children’s progress at school and participation in extra
mural
activities. In order to facilitate this both parents are entitled to
attend any school or extra mural function;
35.1.21
Any school which the minor children, or each of them,
may attend, shall be informed that the parties are co-holders of
parental
rights and therefore are jointly involved in all educational
issues concerning the minor children and that each party is entitled
to discuss issues relating to the minor children, directly with any
teacher concerned and shall be entitled to receive school reports
and
assessments and notices and attend upon all school related events and
extra mural activities. The parties agree to share the
minor
children’s artwork equally between them;
35.1.22
The parties undertake to advise each other should the
minor children become ill or suffer any injury or welfare event
whilst in
their care, as soon as reasonably possible if it’s a
serious emergency;
35.1.23
The respondent, as the parent of primary residence,
shall attend to the day to day concerns of the minor children or
raised by the
minor children’s teachers from time to time and
shall keep the applicant informed of any matters of concern;
35.1.24
Should the dispute arise between the parties in
connection with any material matter relating to the minor children
including, but
not limited to a dispute regarding the sharing of
Jewish and/or school holidays, the dispute shall be referred to a
suitably qualified
family law mediator with no less than ten years,
experience in family law matters, agreed to between the parties, who
shall be
the mediator/facilitator (“the facilitator”);
35.1.25
The facilitator shall endeavour to resolve the dispute
between the parties through mediation, failing which the parties
shall then
be entitled to take such further steps to enforce their
rights and those of the minor children, as they may deem necessary;
35.1.26
Notwithstanding the aforesaid, the parties shall not be
precluded from approaching the relevant Courts having jurisdiction in
the
circumstances to seek appropriate relief in matters of urgency;
35.1.27
The costs of any facilitator shall be shared equally
between the parties irrespective of the outcome of the mediation and
irrespective
of whether the parties follow the recommendation of such
facilitator, unless a mediator makes a recommendation to the contrary
by virtue of unnecessary referral to mediation or the obstructive
attitude of either party to the process;
35.1.28
Should the parties fail to agree on the identity of the
facilitator, the parties shall approach the Johannesburg Bar
alternatively
to the Arbitration Foundation of South Africa (AFSA) to
appoint a suitably qualified facilitator with the necessary
experience
in family law;
35.1.29
The parties agree that the facilitator may, should it be
necessary, refer the minor children to a suitable professional to
ascertain
the views and wishes of the children in terms of section 10
of the Children’s Act, having regard to the minor children’s
ages, maturity and stage of development and in order to ensure that
any amicable attempt to resolve conflict protects the best
interests
of the minor children;
35.1.30
The applicant shall not be under the influence of
alcohol and shall not use alcohol for the duration of the time spent
with the
minor children. To avoid any unnecessary acrimony on this
issue, any suspected use and/or abuse of alcohol and/or drugs, by
either
party, shall be referred to the facilitator to verify any
allegations in this regard which verification can include
inter
alia,
random alcohol and/or drug testing;
35.1.31
The applicant is a sports shooter and, for that purpose,
owns a number of firearms. He will follow all provisions required by
the
law of South Africa in terms of the Firearms Control Act 60 of
2000 (“the Act”). He further undertakes that at all times
when the children are with him, he shall ensure that all of his
firearms are locked and secured in an appropriate gun safe in line
with all the provisions of the Act;
35.1.32
Ms Heidi Reynolds is appointed as the Parenting
Co-ordinator in this matter with the powers and duties, as set out in
Annexure “X”
to the answering affidavit.
36
The applicant shall pay interim maintenance to the
respondent in the sum of R14 000.00 per month with effect from 1 June
2021 and
on the first day of each and every succeeding month.
37
The applicant shall maintain the minor children on a
fully comprehensive medical aid scheme and make payment of the
monthly premiums.
In addition, the applicant shall make payment of
all excess expenses not paid by the medical aid scheme within three
days of presentation
of invoice to this effect;
38
The applicant shall make payment directly to the service
providers of all the costs in respect of the minor children’s
education,
be it at school or remotely, including but not limited to
private school fees, uniform, books, stationery, outings, tours,
extra
lessons, remedial lessons and R1000.00 for extra mural
activities
39
The respondent’s claim of R15 000.00 for initial
contribution towards legal costs is dismissed.
40
The costs of this application are costs in the divorce
action.
MMP
Mdalana-Mayisela
Judge
of the High Court
Gauteng
Division
(Electronically
submitted by uploading on Caselines and emailing to parties)
Date
of judgment:
25 May 2021
Counsel
for the Applicant:
Adv M Feinstein
Instructed
by:
Knowles Husain Lindsay Attorneys
Counsel
for the respondent:
Adv L Segal SC
Instructed
by:
Yosef Shishler Attorneys