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[2010] ZAGPPHC 557
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R.K v D.K (52871/2008) [2010] ZAGPPHC 557 (24 February 2010)
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REPUBLIC
OF SOUTH AFRICA
NORTH
GAUTENG HIGH GOURT, PRETORIA
CASE NO: 52871/2008
DATE: 24 FEBRUARY
2010
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
R[...] K[...]
…........................................................................................................................................
Applicant
and
D[...] K[...]
….....................................................................................................................................
Respondent
JUDGMENT
MAKGOKA.
J
:
[1] This is an
opposed application in terms of rule 43 of the Uniform Rules of
Court. The parties are married to each other in community
of
property, out of which a minor child. N[...], a girl aged 5, was
born. A divorce action is pending before this court.
[2] The applicant in
her supplementary affidavit claims the following:
(a) Primary
residency of N[...];
(b) Parental
responsibilities with regard to care of the minor child be awarded to
both parties jointly;
(c) That the
respondent be ordered to pay arrear maintenance to the applicant in
the amount of R18 000.00, payable in instalments
of R3000.00 per
month;
(d) The respondent
to have reasonable rights of contact with N[...] and spent time with
her every alternate weekend from Friday
18H00 to Sunday 18H00;
(e) Payment of an
amount of R3 288.05 as maintenance for N[...];
(f) That the
respondent be ordered to maintain N[...] on his medical aid scheme;
(g) Contribution
towards her legal costs in the amount of R3000.00.
[3] Before I
consider the merits of the application, I have to deal with an aspect
argued by counsel, that of arrear payments allegedly
owed by the
respondent. What triggered this prayer, contained in the applicant’s
replying affidavit, is the following: the
application was initially
enrolled for 2 December 2008. The respondent’s opposing
affidavit was served on 1 December and
filed on 2 December 2008.
Apparently the affidavit did not find its way to the presiding Judge.
On the day of the hearing, 2 December
2008, there was no appearance
for the respondent, and the respondent’s affidavit was not on
file. It appears that the learned
Judge was not informed that the
respondent had served an opposing affidavit, albeit late. The
application was thus considered on
a unopposed basis. The late
Vilakazi AJ, ordered the respondent to pay an amount of R3 288.05 per
month to the applicant as maintenance
for N[...] On 3 September 2009,
the order of Vilakazi AJ was rescinded.
[4] The application
for rescission of the order by Vilakazi AJ, was served on the
applicant’s attorney on 13 January 2009.
The application was
not opposed. For some reason, which is not explained on the papers,
the application was only heard on 3 September
2009, over 8 months
after the application was launched. In my view, the launching of the
applicant for rescission did not affect
the operation of the order of
Vilakazi AJ.
[5]
Section 25 (3) of
Maintenance Act, 99 of 1998
, provides that an
appeal against an order for maintenance, shall not suspend the
payment of maintenance in terms of an order by
the maintenance court.
By way of analogy, I do not see any reason why an order made pursuant
to a
rule 43
application, should be placed on a different footing to
an order made by a maintenance court. In my view therefore, the
service
of the application for rescission of the order of Vilakazi
AJ, did not suspend its operation and until the order was rescinded
on 3 September 2009, the respondent was obliged to comply with the
terms thereof. See in any event,
United
Reflective Converters (Pty) Ltd v Levine
1988
(4) SA 460
(W) at 463 J-464 B.
[7]
It seems to be common cause that, for the duration of the operation
of the order, the respondent made payments totalling only
R5000.00.
Counsel for the applicant, Mr.
Schoeman,
has
put forth an amount of R18 000.00 as the “arrear” amount.
In my calculation I come to an amount of R24 500.00, which
is higher
than that requested by the applicant. As a result, I would stick to
the amount claimed, being the lesser amount. Given
the views
expressed above regarding the enforceability and validity of the
order of Vilakazi AJ, I find that the respondent is
in arrears in the
amount of R18 000.00 being maintenance payable for the period January
2009 to 1 September 2009.
[9] I turn now to
consider the application in terms of
rule 43.
The applicant is
employed, earning a nett salary of R8 779.66. Her and N[...]’s
monthly expenses are stated as amounting
to R10 982.00. She alleges
that she used to earn over-time remuneration, but as a result of her
new position, this is no longer
the case.
[10] The respondent
is also a salaried employee earning a nett salary of R13 276.00 per
month. His estimated monthly expenses amount
to R15 980.00. This
amount is inclusive of R1000.00 which he offers as maintenance for
N[...]. The four items of expenditure open
for critisism are, in my
view, clothing accounts (R1 100) and credit cards (R2 750.00).
[11] In my
assessment of the reasonable and fair amount payable by the
respondent, I would apportion the applicant’s expenses
from
that of the minor child, as she is not claiming maintenance for
herself. I would allow an amount of R1000.00 of accommodation,
R30.00
for hair, R400.00 for transport, R500.00 for food, R200.00 for milk ,
fruits etc, R100.00 for medication not covered by
the medical aid,
R100.00 for car insurance, R100.00 for clothes, R70.00 for toys,
outings and entertainment, as well as R250.00
for the creche
programmes. The total amount of fair and reasonable expenses is, to
my mind, R2 750.00, based on the above calculations.
[12] Taking into
account the earning capacities of the parties, their financial
obligations and the reasonable needs of their minor
child N[...], I
deem it fair that the respondent be ordered to contribute an amount
of R1 200.00.
[13] With regard to
contribution towards costs, the issues in dispute between the parties
in the main divorce action have not been
set out. The parties are
married in community of property. There is no suggestion that there
is a prayer for forfeiture or any
other potentially contentious claim
filed by any of the parties. The dispute relating to the permanent
residency of the minor child
having been conceded by the respondent
(at least in this application) there does not seem to be any reason
why this matter should
not be settled. I also take into account that
the order I am about to make against the respondent with regard to
arrear maintenance,
would put added pressure on his finances, which
he would radically have to adjust.
[14] Given these
considerations and what I deem fair, I do not intend to make any
order at this stage, for contribution towards
costs in favour of the
applicant.
[15] Lastly, I need
to say something about the conduct of both the applicant and
respondent’s attorneys. In my view, the order
granted in
default by Vilakazi AJ resulted from dereliction of duty on the part
of both attorneys. First, the respondent’s
attorneys, having
received the notice in terms of
rule 43
, clearly stipulating that the
application was set down for 2 December 2008, failed to ensure that
there was appearance on behalf
of the respondent at the hearing. It
does not matter what his views were about the supposed defect in the
notice in terms of
rule 43.
Whatever his views, he should have
ensured that the respondent was represented at the hearing. On the
other hand, there was a duty
on the applicant’s attorney, to
instruct counsel to convey to court, that an opposing affidavit had
been served the previous
day, which most certainly would not have
found its way to the court file.
[16]
Having considered all the relevant factors in this application I make
the following order,
pendete
life:
1. Joint parental
rights and responsibilities of the minor child N[...] is to be vested
in both parties, with primary residency
of the minor child to be with
the applicant;
2. The respondent is
awarded rights of reasonable contact with the minor child to be
exercised as follows:
2.1 Spending time
with the minor child every alternative weekend from Friday at 18H00
to Sunday at 18H00;
2.2 Spending time
with the minor child every alternative long and short school
holidays, with Christmas to alternate between the
parties;
3. The respondent is
ordered to pay maintenance in respect of the minor child, to the
applicant in the amount of R1250.00, with
effect from 1 March 2010.
4. It is declared
that the respondent is in arrears in the amount of R18 000.00,
arising from his failure to comply with the order
of this court made
on 2 December 2008.
5. The respondent is
ordered to pay the said arrears in monthly payments of R750. 00 per
month with effect from 1 March 2010.
6. The costs hereof
are to be costs in the main action, inclusive of the costs reserved
on 28 September 2009:
T M MAKGOKA
JUDGE OF THE HIGH
COURT
DATE HEARD: 1
DECEMBER 2009
JUDGEMENT
DELIVERED: 24 FEBRUARY 2010
FOR THE
APPLICANT: ADVZSCHOEMAN
INSTRUCTED
BY:
PIERRE KRYNAUWATTORNEYS,
PRETORIA
FOR THE
DEFENDANT: ADV J POTGIETER
INSTRUCTED
BY:
ERASMUS INC,
PRETORIA