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South Africa: Eastern Cape High Court, Port Elizabeth
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[2016] ZAECPEHC 6
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K.A.T v J.D.T (2665/2015) [2016] ZAECPEHC 6 (3 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE
NO: 2665/2015
Date
heard: 1 March 2016
Date
delivered: 3 March 2016
In the
matter between
K. A.
T.
Applicant
And
J. D.
T.
Respondent
JUDGMENT
GOOSEN,
J.
1.
The applicant and respondent are married out of
community of property. Their marriage is subject to the accrual
regime.
There are three minor children born of the marriage, a
son aged 8 years and twin daughters aged 4 ½ years. The
respondent
has instituted divorce proceedings against the applicant.
The respondent seeks an order that the primary care of the children
be awarded to the applicant. In this respect he tenders payment
of maintenance in an amount of R5000-00 per child per month.
In
respect of the proprietary aspects respondent tenders payment of 50 %
of the accrual which he alleges has taken place in the
value of his
estate.
2.
The applicant, is a counter claim, seeks in
addition to that which is tendered payment of a larger amount in
respect of the accrual
and R10 000-00 per month in respect of
rehabilitative maintenance payable to the applicant. The
question of the care
and residence of the minor children is not in
dispute.
3.
The applicant resides in Port Elizabeth.
The respondent is employed by a company based in Ireland. The
parties both
lived in Ireland for 11 years prior to the institution
of divorce proceedings.
4.
According to the applicant the parties reached an
agreement in relation to the maintenance payable by the respondent.
It was
agreed that the respondent would deposit an amount of
R20 000-00 into the applicant’s South African banking
account
to cater for applicant and minor children’s needs.
This was based on an agreed budget. After the respondent
vacated
the common home it was agreed that he would continue to
provide for the applicant’s and the children’s monthly
maintenance
by paying an amount of R5000-00 per month for each of
them (i.e. R20 000-00 per month) and in addition he would pay
the rental
on a townhouse (R11 660-00 per month) as well as
monthly water usage and car insurance. The respondent continued
to
make payments in accordance with this agreement from September
2014 to 2 December 2015. All of this is admitted.
5.
In November 2015 the respondent ceased to make
payments in accordance with this agreement claiming that the
applicant has entered
into a co-habitative relationship with another
man and that he is therefore no longer obliged to maintain the
applicant.
Since then he has continued to pay only the
R15 000-00 cash in respect of the maintenance of the children.
He has also
continued to pay for the children’s schooling,
extra-mural activities, medical aid and motor vehicle insurance.
In
these proceedings the respondent has also tendered to pay the
increased rental in respect of the property but only in respect of
the children i.e. an amount of R7 500-00 per month.
6.
It is appropriate to mention here that it is
common cause that the parties enjoyed a high standard of living
whilst they were living
in the United Kingdom. It is also
common cause that the respondent earns a very substantial monthly
income. He states
in his affidavit that he is “certainly
able to pay whatever this High Court finds is my obligation”.
7.
What is in dispute is the extent of that
obligation. The starting point in Rule 43 proceedings is what
amount of maintenance,
if any, a party reasonably requires
pendente
lite.
The determination is not a final
one. That is for the trial court to decide once it is apprised
of all relevant facts.
At the stage of a Rule 43 application
the court is concerned with a determination based on fairness and
often upon a robust appraisal
of matters still to be decided at
trial. That determination takes cognizance of what is in
issue; how the parties have
conducted their affairs prior to
the separation and what is required in order to keep them – as
far as is reasonably possible
– in the same position until the
matter may be finally adjudicated.
8.
A central issue to be decided at the trial is
whether the applicant is entitled to rehabilitative maintenance i.e.
maintenance payable
for a period of time until the applicant is able
to maintain herself. This court will therefore be astute to
avoid in any
manner prejudicing that enquiry and determination.
9.
The respondent has admitted the existence of a
detailed agreement to pay maintenance not only for the children but
also in respect
of the applicant. That agreement was based upon
an agreed budget to cover the necessary expenses of the applicant and
the
children. The respondent has admitted also that he has
unilaterally withdrawn from the agreement based – as his
answering
affidavit makes clear – upon the contention that he
is no longer obliged to support applicant because she has entered
into
a co-habitative relationship. The suggestion is that the
person she is now in a relationship with must shoulder the obligation
to support applicant’s maintenance needs/rehabilitative
maintenance. In answer to the claim based on the requirement
of
R5 000-00 per month he now alleges (a) that her expenses are
excessive and/or (b) that she can afford to pay for herself from
her
earnings.
10.
The stance adopted by the respondent is
untenable. It is without legal foundation. His ongoing
maintenance obligation
is still to be determined. Respondent’s
termination of the agreement to pay maintenance is furthermore
opportunistic
inasmuch as it is founded on the existence of a
relationship between applicant and another man.
11.
Firstly the applicant denies that they are
co-habitating. The only evidence that respondent can offer is
that her partner
has frequently 'slept-over' or that he is 'often
around'. There is no basis to find that the
relationship is
one of cohabiting. Even if that is accepted
there is no basis to find that he is not contributing, for that
matter, or that
he is benefiting from the applicant's maintenance.
Why the applicant's monthly expenses should
reduce
by reason of her entering into a relationship with someone else is
beyond me.
12.
When regard is had to the applicant's monthly
expenses they are not unreasonable taking into account the lifestyle
that the parties
enjoyed prior to the separation. Much of the
respondent's complaint relates to the incurring of expenses relating
to efforts
made by applicant to qualify herself for future employment
- a matter that is at issue at trial.
13.
The applicant is presently earning a fixed income
of R6 000-00 and a further R4 000-00 as commission for
ad
hoc
coaching and tutoring of maths after
hours. She says this is not permanent and that it is sporadic.
Her need for maintenance
must, in my view, be assessed on the basis
of her fixed and permanent income namely R6 000-00 plus R15 000-00
cash by way of maintenance
for the children. Against this must
be weighed her expenditure. According to applicant this amounts
to R36 290-00 per
month. If the rental amount is excluded (an
amount which respondent tenders to pay) then the total expenditure is
R24 630-00.
This leaves a deficit of R3 630-00 without any
provision being made for any general or out of pocket incidental
expenses.
14.
Seen in the light of this the applicant's claim
for payment of R5 000-00 per month is reasonable. As already
indicated the
respondent can afford this obligation.
15.
Taking into account the above and the tenders
made by the respondent, I make the following order:
1. The Respondent is
ordered to pay R5 000 per month maintenance in respect of the
applicant
from 1 February 2016 thereafter on first day of each month;
2. The Respondent is
ordered to pay maintenance for the 3 minor children at a rate of R5
000.00
per month per child from the 1st of February 2016 thereafter
on the first day of each month;
3. The Respondent
shall be liable for payment of the monthly rental for the rental
property
to a maximum amount of R12 300.00;
4. The Respondent
shall be liable for payment of the water usage at the rental
property;
5. The Respondent
shall be liable for the payments of monthly insurance premium on the
applicant’s
motor vehicle;
6. The Respondent
shall be liable for the payment of the minor children's school fees
and all
related scholastic expenses.
7. The Respondent
shall retain the applicant and the minor children as dependants on
his medical
aid.
8. The costs of the
application shall be costs in the divorce action.
______________________
G.
GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
Adv. Zietsman
For Applicant
Instructed by Greyvensteins
Adv. Ronaasen
For Respondent
Instructed by Spilkins Attorneys