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South Africa: North Gauteng High Court, Pretoria
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[2011] ZAGPPHC 195
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A.E.P v H.A.S.P (52040/2010) [2011] ZAGPPHC 195 (23 September 2011)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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NOT REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO.: 52040/2010
DATE:23/09/2011
In
the matter between:
A
E
P
.......................................................................................................................
APPLICANT
V
H
AS
P
.....................................................................................................................
RESPONDENT
JUDGMENT
WEBSTER
J
1.
This is an application in terms of Rule 43 of the Uniform Rules of
Court.
2.
The applicant seeks maintenance pendente lite in respect of herself
and three minor children born of their marriage, aged 15
years, 13
years and 4 ½ years, respectively. The total monthly expenses
amount to R26 502.00.
3.
The applicant gives her monthly income as follows:
Nett
Salary
....................................
R8
679.92
Annual
Bonus
...............................
R723.33
(Monthly
salary divided by 12)
Dress
making
.................................
R300.00
(Ballet
costumes)
Private
dancing lessons
...............
R2 000.00
(20
Students at R100 per student) Her monthly expenditure for herself and
the children totals R26 502.00.
4.
The applicant avers that the respondent's income is "...about
R65 000.00".
5.
According to her list of monthly expenditure her personal expenses
which includes shared lodging with her children totals R23
095.00.
She claims maintenance of R6 355.00 in respect of each child. In
total, she claimed R29 450.00.
6.
The applicant further claimed an amount of R31 450 for the
replacement of household furniture and appliances since she moved
out
of the parties' common home, the reasonable medical expenses for
herself and the minor children and a contribution of R5 500
towards
her legal costs.
7.
The respondent pleads figuratively speaking, the proverbial poverty.
He states in his affidavit that his gross income is R25
000 per month
and not the princely sum of R65 000 per month from a legal practice.
8.
At the end of argument I requested counsel for both parties to
provide me with revised monthly expenses as set out in their
respective affidavits as amplified in argument before me. I thank
both counsel for having done so.
9.
In her revised monthly expenses the total amount claimed by the
applicant exclusive of medical expenses, school fees, after
school
care and the replacement of furniture and electrical appliances
totals R26 502.00.
10.
The respondent lists what he considers to be the monthly needs of
the applicant and the children as well as the school fees
and after
school care expenses and comes to a total of R21 516.00. He then
deducts R 11 703.00 being the "Applikant se inkomste"
and
comes to a figure of R9 813.00 being the "shortfall" in his
calculations. He then offers to pay maintenance of R4
000 for each of
the two boys aged 13 and 15 years, respectively, and R2 500.00 for
the four and a half year old daughter, making
a total of R10 500.00
leaving the applicant with a surplus of R687.00 per month. He offers
no explanation of how he arrives at
these figures.
11.
The Rule 43 procedure is a robust procedure to ensure that a
dependent spouse and dependent children of a marriage are provided
for as a matter of urgency as the parties quibble and squabble over
details.
12.
I have considered the needs of the applicant and the children and
save for the following items, viz:.
Parking
............................................
R150.00
Holiday
and entertainment Rl 000.00 I find her monthly expenses to be
reasonable.
13.
Save for the following monthly expenses the respondent has conceded
the reasonableness of the expenses claimed by the applicant:
ITEM
.....................................
AMOUNT
...................................
COUNTER-
…...........................................
CLAIMED
....
…..........................
OFFER
Groceries
...............................
R5
800
......................................
R4
000
Cell phone
............................
Rl 086
........................................
R600
Facials
and manicure
...........
R300
...........................................N
IL
Lunches
................................
Rl 200
.........................................
NIL
Petrol
.....................................
Rl
400
.........................................
Rl
200
Parking
.................................
R150
............................................
NIL
Life
insurance
..................... ..
Rl
200
..........................................
NIL
Holidays
and entertainment
..
Rl
000
...........................................
R500
Religious
contributions
...........
R200
..............................................
NIL
Toiletries
and hair care
..........
R500
.............................................
R850
14.
Having resisted the items set out above the respondent brazenly
claims that on his figures the applicant will end up with a
surplus
of R687.00 instead of a shortfall of R6 036 [E&OE].
15.
In her founding affidavit the applicant challenged the respondent to
produce his income tax returns in support of proof of
his income.
That challenge was not met. Instead, the respondent admits to running
farming activities be it as a hobby than as a
source of income. He
keeps some animals on a small-holding. His monthly expenses with
regard to this "hobby" include
the following:
Tractor
.............................................
R5
524.08
Gadaffi
Salary
..................................
Rl
200.00
Animal
feed
......................................
R200.00
16.
In addition the respondent owns an apartment in Margate for which
his monthly expenses are as follows:
Residence
......................................
Rl 802.33
Levies
............................................
R866.50
Hibuscus
Municipality
....................
R441.98
17.
In argument it was conceded that the apartment in Margate was in a
holiday resort.
18.
The respondent's lifestyle illustrates clearly that his alleged
income, in the absence of cogent proof and failure to produce
income
tax returns from his practice, small-holding and holiday cottage is,
in all probability not a full disclosure. His lifestyle
is not that
of a family man with three children and a wife. That being so the
court's duty is to consider life's needs before investments
and
hobbies. Secondly, there is no logic to impose the burden of
maintenance on the applicant whilst the respondent is free to
pursue
his passions.
19.
19.1 In determining the respondent's contribution towards the
applicant's maintenance and upkeep as well as those of the children
the court is obliged to be robust but realistic.
19.2
I accept that the family's monthly needs can be reduced in respect of
the following items to the respective corresponding amounts:
Cell
phone
.................................
R500.00
Facials
and manicure
................
R300.00
Petrol
.........................................
R200.00
Parking
......................................
R150.00
Holidays.
...................................
R500.00
This
would take care of the respondent's criticism of the applicant's
spending.
19.3
The above amount must be deducted from R26 502.00 referred to in
paragraph 9 supra, leaving a total of R24 852.00 rounded off
to R25
000.00.
19.4
It was argued that an allowance has to be made for the school
holidays when the income from private dancing lessons is not
forthcoming. It seems fair to reduce the applicant's income three
months in the year (i.e. R6 000). This adjustment reduces her
income
from dancing from R24 000 per annum to R18 000 or Rl 500 per month.
Her adjusted salary is accordingly R11 203.25 per month.
20.
The result of the above exercise is that the monthly maintenance and
support must be shared proportionately by the parties.
This works out
as follows:
Applicant's
pro-rata contribution R11 000
Respondent's
pro-rata contribution R14 000
21.
With regard to the issue of the replacement of household furniture
and appliances the court was informed during argument that
the
respondent had undertaken to attend to this issue. My understanding
was that the respondent had undertaken to attend this issue
out of
court. Nothing more therefore, needs to be said about this.
22.
With regard to the contribution towards costs the practice in this
division has been to award R2 500 at this stage of the proceedings.
I
was not persuaded to depart from such practice.
23.
The court was further advised that the parties had reached agreement
on the important issue of primary residence of the children,
joint
parental responsibilities and the respondent's reasonable rights of
contact with the children. I see no need for an order
in this regard.
24.
The following order is accordingly granted: It is hereby ordered
that:
1.
the respondent pay interim maintenance for the applicant and the
three minor children of the marriage, viz., E P, V P and W P,
in the
sum of R14 000 per month;
2.
the respondent pay all reasonable medical expenses, including but not
limited to dental, ophthalmic, orthodontic and prescribed
medical
expenses of the applicant and the minor children;
3.
the respondent deliver alternatively replace the "necessary
household furniture and appliances" viz., washing machine,
tumble drier, microwave oven, toaster, kettle, iron, iron board,
vacuum cleaner, 2 x beds and 2 x mattresses, 4 x bed linen and
curtains;
4.
the respondent pay the school fees, costs for extra-mural activities
as well as sport equipment of the said minor children and
after-care
costs for the said minor children;
5.
the respondent pay R2 500 as a contribution to the applicant's legal
costs in monthly instalments of R800;
6.
all monthly payments will commence on or before 30 September, 2011
and subsequent instalments on or before the last day of each
and
every succeeding month.
G.
WEBSTER
JUDGE IN THE HIGH COURT