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[2021] ZAGPJHC 487
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FS v ES (A3038/2020) [2021] ZAGPJHC 487 (18 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A3038/2020
Reportable
No
Of
interest to other Judges No
Revised:
Yes
Date:
18/06/2021
In
the matter between:
FS
Appellant
and
ES
Respondent
J
U D G M E N T
MAIER-FRAWLEY
J (FISHER J CONCURRING):
Introduction
1.
The appellant and the respondent
are the biological parents of a
minor child, a boy, presently aged 12, who resides with the appellant
(mother) and is in her primary
care. It is thus the appellant who
carries the day to day responsibility of paying for the maintenance
needs and requirements of
the minor child, 365 days a year, it being
common cause that the respondent has, for reasons not relevant to
this appeal, not exercised
or maintained physical contact at all with
the minor child since 2011. The amount ordered by the court below to
be payable by the
respondent (father) as a pro rata contribution in
respect of the minor child’s monthly maintenance requirements,
is what
informs the present appeal.
2.
During November 2018, the
appellant lodged a claim for maintenance
against the respondent in the Maintenance Court, Randburg, seeking a
pro-rata contribution
from the respondent in respect of the minor
child’s monthly maintenance requirements, the total cost of
which amounted to
R28,077.82 per month, on the basis that the
respondent was liable to pay, proportional to the parties’
respective means,
two thirds of the total cost, equating to
R19,342.64 per month.
3.
In April 2019, the Maintenance
Court granted a provisional order for
payment of maintenance by the respondent in the amount of R5024.00
per month, excluding medical
aid.
4.
A full maintenance enquiry
in terms of s10 of the Maintenance Act was
thereafter conducted in the Maintenance Court, pursuant to which the
magistrate ordered
the respondent to pay the sum of R6000.00 per
month in respect of maintenance on behalf of the minor child. A
further (and rather
curious) order was granted to the effect that the
respondent is to “
retain the minor child on his medical aid
until the Applicant informs the Respondent in writing 30 days prior
to the transfer of
the minor child from the Respondent’s
medical aid to the Applicant’s medical aid, Should the minor
child be transferred
to the Applicant’s medical aid, the
Respondent shall contribute 50% of the medical aid premium
.”
5.
Aggrieved
by the monetary order, the appellant lodged an appeal on various
grounds, amongst others, that the court below had misdirected
itself
in finding that: (i) the respondent was unable to afford payment of
more than R6000.00 per month, in circumstances where
the respondent
had unequivocally testified under oath that he was able to afford
payment of
any
amount that he may be ordered to pay in respect of his son’s
maintenance, and had left it to the court to determine a fair
and
reasonable amount for such purpose; and (ii) the appellant earned
‘far more’ than R40,000.00 per month as claimed
by her in
her evidence. Further, the complaint is that the court below erred in
law or fact in disallowing or not including, in
the computation of
its award, several expenses such as those pertaining to the minor
child’s accommodation and transport
requirements,
[1]
including excess medical costs incurred in respect of the minor child
(which are not covered by the respondent’s medical
aid) and
more specifically, in not taking into account the full ambit of
expenses pertaining to the minor child’s monthly
educational
costs, most of which were not disputed by the respondent as being
either unreasonable or unnecessary,
[2]
in arriving at a fair and reasonable award.
Factual
Background
6.
The background facts are
uncontentious. The parties were previously
married to each other in terms of Islamic law. The minor child was
born during the subsistence
of the marriage, in 2008. The parties
divorced in 2009, where after the appellant relocated from Kwa-Zulu
Natal to take up residence
in Gauteng. Whilst the respondent retained
ownership and possession of two immovable properties, one of which
included the erstwhile
matrimonial home situate in Durban, the
appellant was obliged to purchase a new home in Gauteng, which was
financed by means of
a home loan. According to the applicant, her new
home was purchased with a view to accommodate the minor child living
in close
proximity to the school he was to attend.
7.
After the parties’
divorce, the respondent remarried, from
which marriage, a further child was born. The respondent presently
lives with his wife,
their son and the respondent’s
step-daughter in Durban in the erstwhile matrimonial home of the
parties. The appellant lives
with her life partner together with the
parties’ minor child in Johannesburg. Both parties are property
owners. The respondent’s
step-daughter attends a private
school, as does the parties’ minor child. Both the applicant’s
partner and the respondent’s
wife are in gainful employ and
contribute financially towards household expenses incurred in the
parties’ respective homes.
8.
The
respondent is employed in an executive position at Nedbank in the
position of Head of Corporate Investment for Kwa-Zulu Natal,
earning
a net income of R76,714.83 per month. In addition to his salary, the
respondent receives an annual bonus. Whilst the bonus
is
discretionary and dependant on the bank’s performance as well
as the respondent’s own performance every year, the
respondent
has, save for the year 2013, received such bonus every other year
during the course of his employment at Nedbank. The
bonus is made up
of a cash component (ranging between R500,000.00
[3]
to R680,000.00
[4]
or more per
annum)
[5]
as well as a share
component whereby the respondent is allocated Nedbank shares to which
he obtains a right after the lapse of
a 3 year vesting period in
respect of each annual share bonus. The value of his vested shares
was not disclosed by the respondent
in the maintenance proceedings
conducted in the court below.
9.
Until March 2018, the applicant
was employed at Vodacom in the
position of sales manager/area manager, earning a nett income of
R45,000.00 per month. According
to the applicant, she resigned from
such employment due to an inability to cope with work demands whilst
having to attend to all
the minor child’s daily needs,
including the management of her household, all of which (on her
unrefuted version) put her
personal health under strain. She however
continued to derive an income in an amount of R40,000.00 per month
from renting out two
trucks owned by her. In addition, she obtains a
further sporadic income, the amount of which was not disclosed, in
respect of private
‘ISP’ consultancy work that she
performs ‘as and when’ she ‘gets it.’ She
also receives ‘gifts’
comprising of cash monies in some
months from her partner, which are bestowed at his discretion.
10.
As is
apparent from their respective lists of monthly expenses and
disclosed assets, the parties live comparatively similar lifestyles
and enjoy a comparatively similar standard of living. The applicant’s
declared monthly household expenditure (including amounts
which she
expends on the minor child’s monthly requirements), as at the
time of the maintenance enquiry, amounted to the
sum of
R69,296.21,
[6]
whilst that in
respect of the respondent’s household amounted to R76,455.00
per month.
[7]
The parties each
maintain immovable properties, which are respectively equipped with a
garden and swimming pool; they each employ
domestic workers in their
homes, drive luxurious motor vehicles and afford vacations away from
home from time to time, albeit not
every year. The value of the
respondent’s disclosed assets during the maintenance enquiry,
comprising of a fixed property,
investments, tax free savings, and
motor vehicle (including Nedbank shares, the value of which, however,
remained undisclosed),
totalled R2 851 737.00, whilst the value
of the applicant’s disclosed assets, comprising of a fixed
property, investments,
savings and 2 private motor vehicles owned by
her – a BMW and Etios, totalled R1 091 036.00, which
amount excludes
the value of the trucks owed by her from which she
generates a monthly income, as earlier mentioned.
11.
Just as the respondent has gifted his present wife
with cash monies
monthly from time to time, so too, the applicant’s partner has
gifted her with cash monies from time to
time, to do therewith as she
pleases.
12.
On the appellant’s undisputed and unrefuted
version, the minor
child has, to date, excelled academically at school; he has
furthermore shown creative aptitude by having one
of his poems
published, and has otherwise adapted to the separation and divorce of
his parents. He is a growing adolescent, who,
according to the
appellant, eats as much as any adult does and who utilises and
partakes in all the benefits and amenities available
in the home in
which he resides. Both parties share the common view, as is apparent
from the record of their evidence, that their
son deserves a quality
standard of education, commensurate with that which is offered in the
private sphere, and which, as conceded
by the respondent in evidence
at the maintenance enquiry, he is able to financially contribute
towards. [The evidence in any event
revealed that the financial
resources of the parents allow for the minor child to attend a
private school].
Evaluation
of grounds of appeal in the light of relevant legal principles
13.
Section 28(2) of the Constitution dictates that
the best interests of a child are of paramount importance in every
matter concerning
the child
.
14.
It is the
duty of both parents to support their child. Their obligations in
this regard are to be apportioned between them according
to their
respective means.
[8]
Support
includes that which a child reasonably requires for his or her proper
living and upbringing, which includes the provision
of food,
clothing, accommodation, medical care and education.
[9]
In determining the amount reasonably required by a child for his or
her support, having regard to the financial means of the parents
and
the apportionment of liability between them according to their
respective means, the Maintenance Court is enjoined by statute
to
award an amount which it considers what fair in all the circumstances
of the case.
[10]
15.
To the
extent that the appellant asks this court to interfere with the
Maintenance Court’s award – the making of which
involved
the exercise of a discretion - the approach adopted in
Vedovato
[11]
is to be followed, namely,
that
an appeal court will not interfere with the discretion of the lower
court if it has given proper consideration to all relevant
factors.
16.
The
circumstances in which an appeal court may interfere with the factual
findings of a lower court have been held to be a misdirection
on the
facts and/or a finding that is clearly wrong
.
[12]
17.
The long
established common law principle, namely, that maintenance is
considered to be a first charge against a parent’s
estate, was
aptly restated in
VVS,
[13]
where the following was said:
“
There
can be no denying that the maintenance of a child is an aspect that
goes into the best interests of the child. When ordered
to provide
maintenance for a child,
a parent is required to prioritise the
interests of such child above all other financial obligations he/she
may have.
It does not avail a parent to say that he does not have
the money to pay maintenance whilst at the same time the parent is
able
to pay for holidays, cars, and all else.” (emphasis added)
18.
The
evidence revealed that the respondent received a substantial cash
bonus in the amount of R680,000.00 in March 2019, which he
chose to
repay to his present wife, notwithstanding that maintenance
proceedings were then pending in the Maintenance Court in
respect of
the minor child. The magistrate appears to have been significantly
influenced by the small surplus available to the
respondent on a
monthly basis, after subtracting the amount of his declared monthly
expenses (R76,455.00) from the amount of his
net monthly salary
(R76,714.83), without, however, taking account of the fact that the
respondent had received additional and substantial
annual cash
bonuses every year since 2013, which were reflected in the
respondent’s declared income to SARS.
[14]
The magistrate’s approach was made plain during an oral
discourse in court when she endeavoured to explain to the parties
how
she had arrived at the amount of the award. The following extract
from the record is illustrative of the point: The magistrate
explained that “
Now
the reason for the R6000, I know ma’am you had asked for quite
a bit more is
because
the respondent is already over indebted
.
His expenses are equivalent to how much he earns, and I have gone
through his bank statements and as much as he lives rather lavishly,
he needs to cut it down. This unfortunately is not an insolvency
court. It is not a debt review court. I cannot tell him stop paying
his credit card and now pay the maintenance to the minor child. He
needs to make arrangements so that he can lesson (sic) his debt
and
you can apply again in 6 to 8 months for an increase in the
maintenance. Right now, he is over indebted. I cannot draw blood
from
a stone. The court has to look at the reasonable and necessary
expenses of a minor child which I have discussed in my judgment
and
thereafter it is weighed against the affordability of the other side.
In
as much as he does earn R77 000 his expenses are the same amount
of money that [he] earns. So he is currently over indebted,
and he
needs to cut down on it
.”
(own
emphasis)
19.
In her written judgment, the magistrate reasoned
that “
the
court assesses the needs of the children against the affordability of
the parent liable for the maintenance. If an order is
granted in an
amount that the parent cannot pay, it, in essence is an ‘empty
order’ if he cannot afford to fulfil his
financial obligations
as per the Order of Court.”
20.
The respondent’s direct testimony at the
enquiry, namely, that
his ‘affordability to pay maintenance’ was not in dispute
in that he could afford to pay whatever
amount the court deemed
appropriate – whether it was R20,000.00 or R25,000.00 or
R15,000.00 - by the re-arrangement of his
expenses, was in sharp
contradistinction to the conclusion arrived at by the magistrate,
namely, that the respondent was over-indebted
and thus unable to
afford paying any higher amount than that which was awarded by the
court. The conclusion of the court below
was in any event not
grounded in fact. The facts plainly showed the extent of the
additional source/s of income available to the
respondent through
cash bonuses paid to him annually. He had also obtained a salary
increase in 2019, despite a demotion in title
at the bank. In this
regard, the magistrate committed a material misdirection on the facts
and thereby reached a conclusion that
the respondent was unable to
pay more than R6,000.00 per month in maintenance, which was clearly
wrong.
21.
It bears
mentioning that the respondent reflected a monthly expense in the
amount of R15,407.69, referred to as ‘
Mortgage
Bond Instalments/Rent
’,
on his schedule of expenses. The evidence, however, revealed that the
respondent’s bond liability had been discharged
in full by
February 2019 and that the alleged rental expense was not in fact
being incurred by him on a recurring monthly basis.
The evidence
further revealed that the respondent had sold his immovable property
to a family Trust for ‘estate planning
purposes’ in
circumstances where the Trust could not afford the relevant purchase
price and had not paid any monies to the
respondent, notwithstanding
which, the respondent deemed it appropriate to assume liability for
payment of rental to the Trust
in the sum of R15,407.69 whilst at the
same time retaining liability for all expenses associated with the
upkeep of the home.
[15]
Whilst
the shifting of assets into the name of the Trust may have occurred
for beneficial estate planning reasons, the timing thereof
was
questionable, given that the respondent was facing a pending claim
for an increase in maintenance payable by him, in which
proceedings
his monthly expenses would ordinarily be scrutinised for purposes of
assessing his ability to pay. The inference is
inescapable that the
amount so stipulated as a rental expense was contrived for the sole
purpose of inflating the respondent’s
monthly expenses.
22.
The
applicant’s schedule of expenses, as confirmed in her evidence,
reflects that he minor child’s educational expenses
alone
amount to R8,243.33 per month.
[16]
The amount of R8,243.33 includes provision for the purchase of new
uniforms annually at a cost of R400.00 per month. Accepting
that new
school uniforms could more reasonably be budgeted for every two years
(as opposed to annually), even in respect of a growing
child, the
monthly cost amounts to no less than R8,043,33. Whilst the respondent
testified that he had not initially consented
to the minor child
attending a private school, he readily conceded that the quality of
education his son currently enjoys is not
something on which the
parties should compromise.
[17]
This was an important concession, which was wholly overlooked by the
magistrate when making her award. In that regard, the magistrate
failed to have regard to the largely undisputed evidence of the
applicant vis-a-vis this item of expense and in so doing, she erred.
23.
The
magistrate reasoned in her judgment that the ‘
parties
do not agree on whether the child shall attend a private school. The
Court therefore will not assess the school fees that
are claimed but
will assess the monthly maintenance payable by the Respondent which
will incorporate a contribution towards school
fees’.
A
reading of the judgment reveals that the magistrate considered an
amount of “R3,800.00” to be reasonable in respect
of the
(proportionate) expenses incurred on behalf of the minor child for
groceries (R1500.00), water and electricity (R400.00),
lodging
(R1500.00), Telkom (R300.00), vitamins (R200.00) and clothing
(R400.00).
[18]
These amounts
in fact total the sum of R4300.00 and not R3800.00 as erroneously
calculated by the magistrate in the judgment. The
magistrate
disallowed several expenses that were apportioned by the applicant to
the minor child’s proportionate usage, enjoyment
or benefit
therefrom, on the basis that such costs ‘
would
have accrued to the applicant irrespective of the child’s
purported usage’,
[19]
thereby excluding an amount of R6142.04 appearing on the applicant’s
schedule of expenses for purposes of computing the award.
24.
Since the total amount of R6000.00 was awarded
in the judgment, one
is left to speculate as to what the balance of the award in the sum
of R1700.00 (i.e., R6000 – 4300
= R1700) was meant to cover.
Items such as the cost of Islamic education (which both parties
agreed were necessary and reasonable),
the cost of domestic
assistance (which both parties utilise in their respective homes),
reading materials for the minor child and
all the various components
included in the minor child’s educational costs were not
specifically mentioned or apparently
considered by the magistrate
when making her award. As indicated above, the minor child’s
reasonable monthly educational
costs alone amount to R8043.33 per
month. Even on a 50:50 pro rata split, the respondent’s
liability would amount to R4121,66
per month in respect of this
requirement alone. Assuming that the amount of R1700.00 was meant to
cover the respondent’s
pro rata liability in respect of the
minor child’s educational expenses, and given that the
respondent agreed, during the
course of his testimony, to pay an
amount of R3000.00 in respect of school fees alone, the magistrate’s
decision to order
the respondent to pay only an amount of R1700.00 in
respect of the minor child’s educational costs is thus
manifestly clearly
wrong, entitling this court to interfere with the
award apropos such item.
25.
As regards
the amount of each party’s pro rata liability in respect of
maintenance, the appellant contends that an apportionment
of
one-third (for appellant) and two-thirds (for respondent) is fair and
reasonable. She argues that her income was correctly disclosed
by her
as being no more than R40,000.00 per month. On her own version,
however, she failed to disclose the amount she earns from
performing
private consultancy work, albeit on ‘as and when’ she
‘gets it’ basis. In addition, she receives
cash payments
from her partner from time to time, in undisclosed amounts, the full
extent of which is incapable of precise assessment,
given that
financial disclosure in respect thereof was made for a limited period
only and without specificity of detail. The record
reveals that an
amount of R1 million rand was deposited into one or another of the
appellant’s banking accounts during an
8 month period between
January 2018 and September 2018. According to the appellant, the
amount of R1 million incorporated: (i)
savings given to her by
undisclosed person/s for her sister’s wedding; (ii) cash monies
given to her by her partner; (iii)
income derived from her employment
at Vodacom; (iv) maintenance paid by the respondent; and (v) income
derived from renting out
her trucks.
[20]
Whilst the various payments do not all comprise employment earnings,
the fact that the appellant receives cash payments from different
sources from time to time, cannot simply be ignored. Such cash
injections form part of her overall means. The magistrate’s
conclusion, namely, that the appellant earns more than the amount of
R40,000.00 claimed by her, was therefore not entirely unjustified
on
the evidence.
26.
By the same token, as indicated earlier, the evidence
revealed that
the respondent has been receiving large lump sums in respect of his
annual performance bonus, in addition to his
monthly salary, albeit
that the amount thereof fluctuates from year to year. The respondent
contends that as such bonuses are not
‘guaranteed’ they
should therefore be left out of account. This reasoning is flawed. On
the respondent’s own
version, he has from time to time,
invested amounts so received over the years in an investment account
or has utilised such monies
as and when needed. Amounts so obtained
by him likewise form part of his overall means. In his written
argument, the respondent
contended that an apportionment of
two-thirds (for appellant) and one-third (for respondent) is aposite
on the basis that the applicant’s
monthly income, as calculated
by him in reference to debits and credits appearing in her bank
accounts, amounts to R144,000.00
per month. The respondent’s
calculations in this regard were not found by the magistrate to be
either accurate or reliable
in the judgment. Had they so been, no
doubt this would have been mentioned in the judgment. As this
argument was not pursued during
oral argument presented at the
hearing of the appeal, it need not detain us further.
27.
Having regard to the misdirections highlighted
above, including the
palpably wrong finding apropos the respondent’s ability to pay
maintenance, and taking account of the
error in calculation in the
judgment of the aggregate total amount considered by the court below
to be reasonable in respect of
certain of the minor child’s
apportioned expenses, we are at liberty to interfere with the amount
awarded by the court below.
28.
The record reflects that various expenses appearing
on the
appellant’s schedule of expenses were demonstrated in the court
below to be unreasonable. Certain other expenses were
not objectively
verified by the documents submitted into evidence by the appellant.
29.
In
our view, upon a consideration of all the relevant circumstances,
[21]
a fair and reasonable amount that ought properly to have been awarded
in respect of maintenance, is the sum of R12 000.00 per month.
The
amount so determined is not capable of precise mathematical
calculation (on a strict pro-rata apportionment basis) given that
the
appellant’s means are incapable of determination with any
measure of precision.
30.
The appeal
should accordingly succeed. There was no real dispute that the order
we intend making should have retrospective effect.
[22]
In our view, the effective date should be the date on which the
maintenance court finally determined the factual position relating
to
the maintenance needs of the minor child, i.e., 13 March 2020.
31.
The general rule is that costs follow the result.
We see no reason to
depart therefrom. Both parties were able to afford legal
representation, both in the court below and in the
appeal. Moreover,
the respondent had the benefit of and indeed took advantage of a
bargain award to which he has since been found
not to have been
entitled to. It is common cause that the respondent has paid
R6,000.00 per month in respect of maintenance since
the grant of the
maintenance order.
32.
For all the reasons given, the following order
is granted:
ORDER:
1.
The appeal is upheld with costs.
2.
The order of the maintenance court is set aside and replaced
with the
following order:
“
The
Respondent is hereby ordered to pay:-
(i)
An amount of R12 000.00 per month, as a cash portion of
maintenance on behalf of the minor child, commencing on the 30
th
June 2021 and thereafter on the last day of each and every succeeding
month, which amount is to increase annually in accordance
with the
consumer price index;
(ii)
The respondent is to retain the minor child on his medical aid
and is to pay the monthly premiums associated therewith. In the event
that the applicant wishes to transfer the minor child onto her
medical aid, she is to give the respondent 30 days’ notice
of
her intention to do so. Should the minor child thereafter be
transferred onto the applicant’s medical aid, the respondent
shall contribute 50% of the cost of the monthly premium payable by
the applicant in respect thereof
. ”
3.
The respondent is ordered to pay an amount of R96,000.00 in
respect
of accrued past maintenance, calculated at the rate of R6000.00 per
month and which amount is payable retrospectively from
3 March 2020
to date of judgment (16 months).
4.
The respondent is to pay the amount referred to in paragraph
3 above
to the applicant within a period of 90 days from date of this
judgment.
A.
MAIER-FRAWLEY
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANESBURG
I
agree, and it is so ordered:
D.
FISHER
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANESBURG
Date
of virtual hearing:
31 May 2021
Judgment
delivered
18 June 2021
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on
Caselines and release to SAFLII. The date and time for hand-down is
deemed to be have been at 10h00 on 18 June 2021.
APPEARANCES:
Counsel
for Appellant:
Mr
DJ Combrink
Attorneys
for Appellant
Du Toit
Attorneys
c/o
Keith Sutcliffe and Associates Inc
Counsel
for Respondent:
Mr AP Van Der Westhuizen
Attorneys
for Respondent:
K Govender Attorneys
[1]
The ‘
accommodation
requirements’ are made up of amounts apportioned by the
appellant to the minor child’s proportional
use and enjoyment
of the immovable property in which he resides, such as the monthly
bond liability, house insurance, alarm and
the like. ‘Transport
requirements’ include expenses apportioned to the minor child
in respect of the appellant’s
monthly vehicle costs, including
petrol consumption, motor plan, car insurance and vehicle license.
[2]
The full scope or compass of these expenses were
left
out of account by the magistrate ostensibly on the basis that the
respondent had not (on his version) agreed, at the outset,
to the
minor child attending a
private
school and, by extension, to being responsible for payment of the
higher school fees and ancilliary costs and charges levied
by such
an institution.
[3]
Amount
(pre-tax) received by the respondent 2018.
[4]
Net
Amount received by the respondent in March 2019.
[5]
In
2017, the pre-tax amount of the bonus was R1.18 million and in 2016
the pre-tax amount received by the respondent was R1.15
million.
[6]
Some
of the expenses listed in the applicant’s schedule, such as a
motor plan for her BMW motor vehicle, which she uses
to convey the
minor child, including an education policy for the benefit of the
minor child’s future tertiary education
and the cost of an
e-device required by the minor child during his secondary schooling,
whilst not yet incurred monthly, were
included in her computation of
the amount of R69,296.21.
[7]
The amount of R76,455.00 ostensibly includes amounts expended on the
maintenance requirements of the two minor children who reside
with
the respondent but excludes the educational costs and other
unspecified generalised expenses pertaining to his stepdaughter
- in
the aggregate total sum of R8500.00 per month – which the
respondent’s wife personally pays.
[8]
Section
15(3) of the Maintenance Act, 99 of 1998 (‘the Act’).
[9]
Section
15(2) of Act. The legislature listed the broad categories of
provision that are required for the support of a child without
prescribing what a child’s reasonable requirements for his/her
proper living and upbringing may be, as this is determined
on a case
to case basis, depending on the standard of living and the financial
ability of the parents to meet those requirements.
This has always
been the common law position. See, for example, Spiro, ‘The
law of Parent and Child in South Africa”
(1985) 397 where the
learned author points out that ‘
maintenance
does not only embrace the necessities of life, such as food,
clothing and shelter, but also extends to education and
care in
sickness, and the child must be provided with all those things that
are required for its proper upbringing.’
See
too:
Scott v Scott
1946
WLD 399
at 401;
Watson v Watson
1979
(2) SA 854
(A) at 860D.
.
[10]
Section
15(3) of the Act.
[11]
Vedovato
v Vedovato
1980
(1) SA 772
(TPD) at 774 where the court held that the approach on
appeal in matters like the present is the same as when a court is
asked
to interfere with the estimate of the trial court in
compensation cases
[12]
See:
Bernert
v Absa Bank Ltd
2011
(3) SA 92
(CC), para 106, where the following was said:
“
…
The
principle that an appellate court will not ordinarily interfere with
a factual finding by a trial court is not an inflexible
rule. It is
a recognition of the advantages that the trial court enjoys which
the appellate court does not. These advantages
flow from observing
and hearing witnesses as opposed to reading “the cold printed
word.” The main advantage being
the opportunity to observe the
demeanour of the witnesses. But this rule of practice should not be
used to “tie the hands
of appellate courts”. It should
be used to assist, and not to hamper, an appellate court to do
justice to the case before
it. Thus, where there is a misdirection
on the facts by the trial court, the appellate court is entitled to
disregard the findings
on facts and come to its own conclusion on
the facts as they appear on the record. Similarly, where the
appellate court is convinced
that the conclusion reached by the
trial court is clearly wrong, it will reverse it.”
(footnotes omitted).
[13]
VVS
v SES
2015
JDR 1770 Gauteng, at para 13
[14]
During the 2016 tax year, the record reflects that the respondent’s
declared income was approximately R3.08 million whilst
that of the
applicant was R751 180.00. During the 2017 tax year, the
respondent’s declared income was approximately
R3 million
whilst that of the applicant was R847 023.00. During the 2018
tax year, the respondent’s declared income
was approximately
R4.1 million whilst that of the applicant was approximately
R744 195.00. During the 2019 tax year, the
respondent’s
declared income was R3.3 million whilst the applicant testified that
she was earning R40 000.00 per month
(R480 000.00 per
annum, excluding additional (undisclosed) income derived from
consultancy work).
[15]
In
simple terms, the respondent sold an asset that was owned by him, in
respect of which he was incurring no bond or rental liability,
in
order to incur a monthly rental liability without having received
payment for the asset sold by him.
[16]
This amount excludes a once off cost for an E Book device (excluding
the cost of software and warranty) required for the minor
child’s
schooling in 2020, and also excludes the cost of mobile data
utilised by the minor child for the completion of
school assignments
that require internet usage. Re mobile data, the magistrate allowed
a composite sum of R300.00 for Telkom
costs, as apportioned to the
minor child’s reasonable usage, which was considered to be a
reasonable amount for such item.
[17]
The respondent however suggested that his son’s education
costs should be measured against what his wife currently pays
for
his stepdaughter’s private schooling. This type of reasoning
is flawed, firstly because the minor child and the respondent’s
step-daughter are not in the same grade; secondly, they attend
different schools in different provinces where the costs levied
at
the different institutions are not necessarily equivalent. Thirdly,
different schools have different prerequisites in respect
of
uniforms, text books and stationery requirements, to mention but a
few differences relating to the educational costs of these
children.
[18]
Presumably
this was a reference to casual clothing, and not school uniforms
where the cost is the fixed retail price charged by
the particular
school supplier.
[19]
Excluded
expenses included apportioned costs: House alarm (R167.20); Car
insurance (R516.84): BMW Motorplan (R537); BMW Motor
vehicle licence
(R350): Etios motor vehicle licence; Garden Services (R267); Old
Mutual Insurance; household maintenance (R334);
insurance homeloan
(R83.09); and over the counter medication (R500).
[20]
The
amounts so received by the appellant, on her own version (during the
relevant 8 month period)
are
easily calculable:
Trucking income
(R40 000 x 8 =
R320,000.00
); plus
maintenance from the respondent
-
an amount of R4740.00 was paid monthly by the respondent during
2018) i.e.,(R4740 x 8 =
R37,920.00
); plus
Vodacom salary
March 2018 (
R45,000.00
) - applicant left the employ of
Vodacom at the end of March 2018. The aggregate total of these
amounts equals the sum of R402,920.00.
The balance of R1 million
deposited therefore ostensibly comprises cash monies received by the
appellant in the amount of R R597,080.00
(R1 million –
R402,920.00 =
R597, 080.00
). This means that over an 8 month
period the appellant’s income was supplemented by receipt of
an average monthly cash
amount of R74,635.00 (R597,080.00 divided by
8 equals R74,645.00). According to the appellant, she utilized part
of the cash,
inter alia
, to settle the outstanding liability
on her BMW motor vehicle and to made a cash injection of R60,000.00
into her Old Mutual
policy.
[21]
Further r
elevant
circumstances (apart from those mentioned in para 28 above) include
the apparent lavish lifestyle enjoyed by both parties,
the fact that
the appellant has managed to maintain such a lifestyle with little
assistance from the respondent since 2012, the
reasonable
requirements of the minor child, and the respondent’s ability
to pay maintenance.
[22]
See
in this regard:
Horwitz
v Horwitz
1976
(4) SA 586
CPD at 588 E.