About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2017
>>
[2017] ZAECPEHC 3
|
|
A.L.S v C.A.S (3908/2016) [2017] ZAECPEHC 3 (17 January 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, PORT ELIZABETH)
Case
no: 3908/2016
Date
heard: 15
th
December 2016
Date
delivered: 17
th
January 2017
In
the matter between
A.
L. S.
Applicant
vs
C.
A. S.
Respondent
JUDGMENT
TSHIKI
J:
[1]
The applicant (wife) herein is an adult female person employed as the
Human Resources manager at S.’s M. G. at no [...]
U. R., S.,
Port Elizabeth. She is presently residing at no [...] K. K. R.,
L., Port Elizabeth and is currently married to
the respondent, both
are to be referred to as the parties whenever it is convenient.
In these proceedings, the plaintiff
will be referred to as the
respondent and the defendant as the applicant.
[2]
The respondent (husband) is an adult male business person with
various business interests presently residing at no [...] O.,
[...]
L. R., L., Port Elizabeth.
[3]
The parties are married out of community of property by virtue of a
duly registered Antenuptial Contract in terms of the accrual
system,
as envisaged Chapter 1 of the
Matrimonial Property Act 88 of 1984
.
There are two children born of the marriage between the parties,
whose names are
D.
A. D. D. S.
(“
D.
”)
a major male born on [….] 1997, and a student at NMMU and not
yet self-supporting. The second child is
J.
A. C. S.
(“
J.
”)
a minor male, born on […] 2006. Whenever it is
convenient the children will be referred to as the children.
The children referred to above reside with the applicant at no [...]
K. K. R., L., Port Elizabeth. According to the applicant,
the
children and the applicant require maintenance and support.
[4]
The erstwhile common home belongs to the respondent’s parents,
who in turn reside in a property that belongs to the respondent
and
the respondent vacated the erstwhile common home on or about the 1
st
September 2015. On the 17
th
February 2016, the respondent instituted an action for divorce
against the applicant and in that case the pleadings are already
closed and the trial date has been allocated for the 29
th
March 2017.
[5]
In the respondent’s second amended particulars of claim in the
divorce action, the respondent has claimed the following:
“
[5.1]
a decree of divorce;
[5.2]
orders with regard to guardian, care and contact;
[5.3]
rectification of the antenuptial contract;
[5.4]
an order that for the applicant to furnish to the Court a statement
with supporting documents including
particulars of estate to enable a
proper calculation of the accrual and debatement of the order;
[5.5]
payment to the respondent of any amount he may be entitled to in
terms of the accrual, and debatement of
the order;
[5.6]
payment to the respondent of any amount he may be entitled to in
terms of the accrual;
[5.7]
an order that he pays the sum of R5 000.00 per month per child
as maintenance, as well as all educational
and medical expenses in
respect of the children as well as the costs”.
[6]
In the counter-claim the applicant seeks orders for,
inter alia
:
“
[6.1]
a decree of divorce orders, for guardianship, care and contact;
[6.2]
maintenance for herself in the amount of R60 000.00 per month;
[6.3]
maintenance for D. and J. of R15 000.00 per child;
[6.4]
children’s medical and school expenses in so far as those had
not been claimed from the respondent
including those referred to in
paragraphs 13.5 -13.7 listed in paragraph 13”.
[7]
The applicant has also listed the respondent’s various business
interests which include:
[7.1]
48% members interest in
Seamond
Investments CC
trading as
S.
,
a
Renault, Kia and Chery Motor
franchise with a branch in Sydenham, Port Elizabeth. The
respondent is also said to have owned various business interests
listed in paragraphs 31-37 listed on pages 10-12. The applicant
has also listed her own interests which are listed in paragraphs
38.1-39. Her liabilities have been disclosed in paragraph 40
and 41 of the papers.
[8]
The applicant has also requested the Court to order the respondent to
contribute to the payment of the costs for D.’s
driving lessons
and testing together with the payment by the respondent of the sum of
R265 000.00 as an interim contribution
towards his legal costs.
RESPONDENT’S
OPPOSING AFFIDAVIT
[9]
In his opposing affidavit, the plaintiff states that he is the
plaintiff in the divorce proceedings and is residing at no [...]
O.,
[...] L. R., L., Port Elizabeth. He denies the contents of
paragraphs 2 and 3 of the applicant’s affidavit including
the
contents of the allegations made by the applicant in those
paragraphs. In his view, the expenses set out by the applicant
in that annexure are reasonable, and that the expenses set out by the
applicant in that annexure are her current expenses.
He also
denies that the contents of paragraph 7 of the applicant requires
maintenance and support and that the rest of the contents
of the
contents therein are admitted. In his view, the expenses set
out by the applicant in her affidavit are reasonable
and that the
expenses set out by the applicant in that annexure are her own
current expenses. Such expenses would be usually
between
R18 000.00 and R22 000.00 per month with odd exceptions.
In the view of the respondent his expenses would
not exceed the
figure of R22 000.00. This Court is aware that the
maintenance
pendente
lite
is
intended to be interim and temporary and cannot be determined with
the same degree of precision as would be possible in a trial
where
detailed evidence is adduced (
Taute
v Taute
1974
(2) SA 675
(E)).
[10]
In this case the representatives of both parties have submitted to me
the two draft orders which indicate similarities in that.
[10.1]
Both parties have agreed that the respondent should be ordered to pay
R10 000.00 per month per child as maintenance
to the applicant
for the two children born from the marriage between the parties with
effect from the 15
th
September 2016, payable on the 15
th
of each month, the first payment to be made on the 15
th
December 2016.
[10.2]
That the applicant has accepted the offer as set out in [10.1] above
without prejudice to her claim for permanent maintenance
and her
rights in that regard are fully reserved.
[10.3]
That the respondent is ordered to continue with the payment of the
expenses listed in paragraphs 45.2-45.6 of the applicant’s
founding affidavit dated the 2
nd
November 2016.
[10.4]
The respondent is ordered to contribute R50 000.00 to the
applicant’s legal expenses, payable to the applicant’s
attorney in two instalments of R25 000.00 each, the first
payment to be made on the 15
th
January 2017, the second
payment to be made on the 15
th
February 2017.
[10.5]
Costs of the main proceedings are to be determined at the trial.
[11]
The same or similar draft order as in paragraph 9.1-9.4 was also
submitted to the Court by the respondent’s counsel.
[12]
The above draft orders were submitted to the Court with a view to
assist the Court about the intentions of the parties regarding
the
order that the Court should consider in this matter. I have no
reason to believe that the parties have not at some stage
of the
proceedings by way of a consideration of the conclusion of the matter
in the form as stated in the manner stated in the
draft order
referred to above.
[13]
Having said the above, I am mindful of the general approach in
similar cases that the applicant, who is normally the wife is
entitled to reasonable maintenance ending the finalisation of the
divorce. This, in turn, is dependent upon the marital standard
of living of the parties, her actual and reasonable requirements, and
the capacity of her husband to meet her requirements.
According
to
Erasmus
on Superior Court Practice Volume 2
,
D-579. The Court will weigh all the circumstances of the
particular case. The quantum of maintenance payable must
in the
final result depend upon a reasonable interpretation of the
particular case as stated by the person claiming maintenance,
who
must establish a need to be supported by the respondent.
[14]
I must say though that a claim supported by reasonable and moderate
details carries some weight than one that includes extravagant
demands (see
Erasmus
on Superior Court Practice supra
).
[15]
I must comment on the amount of R265 000.00 which has been
claimed by the applicant for contribution for costs.
The
initially suggested amount was set at about R50 000.00 for the
same legal expenses which was to be paid in two instalments
of
R25 000.00.
[16]
In a previous affidavit in support of her claim, the applicant sought
an amount of R265 000.00 for a contribution for
legal expenses
which were to be paid in three instalments of R100 000.00 each,
the first payment to be made on the 15
th
January 2017, the
second on the 15
th
February 2017 and the third instalment
of R65 000.00 to be made on the 15
th
March 2017.
[17]
The respondent has filed an affidavit in which he states that he
denies that his total monthly maintenance amounts to R100 615.00
per month for himself and children. Instead he contends that he
can only afford a sum of R52 215.09 per month.
Every month
he has to pay his monthly expenses amounting to R52 215.09 which
is an amount he can afford
pendente
lite.
The
respondent has also admitted that his gross income is R41 500.00
per month. He concedes that some of his monthly
expenses are
paid for by
Seamond
Investments CC
and receives cash from the close corporation for business related
entertainment expenses. He has also tendered the amount
of
R5 000.00 per child to the applicant at the present time.
[18]
The respondent contents that the applicant has more than sufficient
funds to maintain herself and the children
pendente
lite.
[19]
Respondent has also informed the Court that the applicant will in the
near future receive approximately R2 200 000.00
from the
sale of land to the developer, which will be paid to her at the rate
of R30 000.00 per unit and there is to be a
total of seventeen
units which will be sold in which project the applicant is likely to
receive slightly just about R2 490 000.00
and the project
will start of pay the applicant a sum of R30 000.00 per
townhouse sold from approximately in the middle of
2017.
[20]
From what has been explained by the respondent he does have some
properties as stated in paragraph 26 of his affidavit.
The
respondent has also tendered a sum of R25 000.00 as contribution
towards the applicant’s legal costs in the amount
of R25 000.00
and that the costs be costs in the divorce action.
[21]
In matters of the same nature as the one in issue, each case has to
be decided on its own particular facts (
Taute
v Taute
supra
).
It has also to be noted that maintenance
pedente
lite
is
intended to be interim and temporary and cannot be determined with
the same degree of precision as would be possible in a trial
where
detailed evidence is adduced. What is important though is that
the applicant is entitled to reasonable maintenance
pendente
lite.
This
always depend upon the marital standard of living of the parties.
The same will have to apply in the case under discussion.
[22]
Having dealt with the issues in this case, I am of the view that the
respondent has to be ordered to pay maintenance to the
applicant
pendente lite
as follows:
[22.1]
The respondent is ordered to pay R10 000.00 per month per child
as maintenance to the applicant for the two children
born from the
marriage between the parties with effect from the 15
th
December 2016.
[22.2]
The respondent is ordered to continue with the payment of the
expenses listed in paragraphs 45.2, 45.3, 45.4 and 45.5
of the
applicant’s founding affidavit dated the 2
nd
November 2016.
[22.3]
The respondent is ordered to pay the costs of D.’s driving
lessons and testing if and when it is payable either
to D. or to the
facility offering the driving lessons.
[22.4]
The respondent is also ordered to pay R265 000.00 to the
applicant’s legal expenses payable to the applicant’s
attorney in five (5) instalments each, the first payment to be made
on the 15
th
January 2017 for five consecutive months.
[22.5]
The respondent is ordered to pay the costs of the divorce action to
the plaintiff’s attorneys.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the applicant
: Adv Williams
Instructed
by
: Lizelle Pretorius Inc
PORT
ELIZABETH
Ref:
L Pretorius/RL/cdr)
Te:
041 – 585 4369
For
the respondent
: Adv Veldsman
Instructed
by
: Anthony-Gooden Incorporated
PORT
ELIZABETH
Ref:
J Anthony / CVR
Tel:
041 – 582 5150