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[2017] ZAECPEHC 6
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T.M v K.M (4171/2016) [2017] ZAECPEHC 6 (2 February 2017)
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
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 4171/2016
Date
heard: 24
th
January 2017
Date
delivered: 2
nd
February
2017
In
the matter between:
T
M
Applicant
vs
K
M Respondent
JUDGMENT
TSHIKI
J:
[1]
In this matter, the applicant filed an application to the above
Honourable Court for an order in terms of the provisions of
Rule 43
for an order
pendente lite
in the following terms:
“
1. That the
application be heard as a semi-urgent application in terms of Rule
6(12) of the rules of this Court and that condonation
be granted to
dispense with the forms and service provided for in Uniform Rules of
this Court at the hearing of the application,
for an order in the
following terms:
2. An order directing the
respondent to make payment towards the applicant’s reasonable
maintenance requirements,
pendente lite
, by payment of the sum
of R12 000.00 per month, without set-off or deduction, the first
such payment to commence on the first
day of the first month
following the granting of an interim order herein and thereafter on
or the first day of each succeeding
month, into such banking account
to be nominated by the applicant in writing from time to time;
3. An order directing
that the respondent shall retain the applicant as a dependant member
on his medical aid scheme, alternatively
cover the cost of retaining
the applicant as a member of a medical aid scheme offering similar
benefits as the respondent’s
current medical aid as well as by
bearing all reasonable and necessary medical not covered by the
medical aid scheme, including,
inter alia,
but not limited to
all surgical specialist, hospital, physiotherapy, orthopaedic,
radiological, inoculation, ophthalmic, including
spectacles and
lenses (pathological, dental (including orthodontics) anaesthetic
services, pharmaceutical services, psychological
and psychiatric
services,
pendente lite
.
4. An order directing
respondent to continue to make payment of the following monthly
expenses:
4.1
The monthly instalment in settlement of Sanlam loan, BHU5[…]K;
4.2
The Telkom landline account and the Nelson Mandela Bay Municipality
account, including water, rates and taxes and the electricity
account
in respect of the property situate at […] P. Avenue,
Morningside, Port Elizabeth.
5. An order that the
respondent pays an initial contribution of R25 000.00 towards
the applicant’s legal costs.
6. An order that the
respondents pays the costs of this application.
7. That this Honourable
Court grants such further and/or alternative relief as may be
appropriate.”
[2]
According to the applicant, the respondent and applicant were married
to each other out of community of property with the application
of
the accrual system at Port Elizabeth on the 3
rd
January
2004 and the marriage still subsists. There are no minor
children born of the marriage. It also follows that
the
marriage relationship between the couple has irretrievably broken
down such that there is no reasonable prospect of the restoration
of
a normal marriage relationship between them.
[3]
In these proceedings the applicant seeks in the main a decree of
divorce, maintenance of R12 000.00 and an order that the
respondent retain her on his medical aid scheme or a similar aid
scheme offering similar benefits until her death or re-marriage
including medical expenses not covered by such a medical aid scheme.
She has also request this Court to direct the respondent
to transfer
ownership of the Mazda 2 motor vehicle in her habitual use into her
name. She also request the Court to order
half of the
difference of their respective estates and settlement of a Sanlam
loan in the total balance of R13 384.94 as well
as costs.
[4]
The respondent has opposed or defended the action and requires to
file his plea and counterclaim during the course of January
2017.
[5]
According to the respondent who is her husband, he is an independent
contractor for Discovery and runs his business practice
under the
name and style of Baysure Insurance Brokers CC from their property.
[6]
She left the Department of Justice in February 2008 where she was
working and has been employed as her husband personal assistant
and
office manager for the past six years since 2006 earning a gross
salary of R12 000.00 per month.
[7]
She has been booked off from work and have been on sick leave for the
period 31
st
October 2016 to 31
st
December 2016
in accordance with the medical certificate annexed herein as “TM1”
She suffers from bipolar disorder
and after a recent bont of major
depression and had attempted to commit suicide. According to
her the major part of her depression
was as a result of the marital
problems she experienced in her marriage and her inability to
emotionally and psychologically deal
with the stress resultant from
the stress. She has now decided to end her marriage and never
returned home upon her discharge
from the clinic. She is now
temporarily staying at the home of her daughter of a previous
marriage.
[8]
From what I have gleaned from the applicant’s Rule 43 request,
she needs maintenance from her husband. The applicant
has
listed her monthly needs for her to be able to survive by way of
annexure “TM10” in the sum of R11 185.00.
[9]
The respondent has opposed the application and has also filed his
opposing affidavit.
[10]
I do not agree with the respondent that the applicant has not
complied with Rule 43(2) of the Rules of this Court which reads
as
follows:
“
The applicant shall deliver a
sworn statement in the nature of a declaration, setting out the
relief claimed and the grounds thereof,
together
with
a notice to the respondent as near as may be in accordance
with form 17 of the First Schedule. The statement and notice
shall be signed by the applicant or his attorney and shall give
an
address for service with eight kilometres of the office of the
registrar and shall be served by the Sheriff.”
[11]
In my view, these proceedings are regulated by Rule 43 in that Rule
43 regulates the procedure to be followed in applications
for
ancillary relief of an interim nature in matrimonial matters.
The object of the rule is that applications of this kind
contemplated
therein should be dealt with as inexpensively and as expeditiously as
possible. Prolixity in averments and the
unnecessary
proliferation of papers and affidavits should be avoided. The
rule applied to a pending divorce action between
spouses.
[12]
In my view, I do not see the reason why the order sought by the
applicant should not be granted, even if it is not styled as
the
rules request should that be the case.
[13]
In the result, I make the following order:
[13.1] That the
respondent is ordered as follows:
[13.1.1]
Pending the finalization of the divorce between the spouses the
respondent is ordered to
pay to the applicant
pendente
lite
as
follows:
[13.1.1.1] payment to the
applicant the sum of R12 000.00 per month without set-off or
deduction payable from the 1
st
December 2016 and thereafter on the 1
st
of each month;
[13.1.1.2] retaining the
applicant as a member of his medical aid scheme, alternatively by
payment of a medical aid scheme offering
similar benefits and payment
of all medical expenses not covered by the medical aid;
[13.1.1.3] payment of the
applicant’s Discovery short term insurance policy;
[13.1.1.4] that the
respondent is prohibited from setting off any expenses from the
salary of the applicant which is dealt with
here below;
[13.1.1.5] that the
applicant may use the Mazda 2 motor vehicle that was in her
possession and habitual use.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the applicant
: Adv
Veldsman
Instructed
by
:
Greyvensteins Inc
PORT ELIZABETH
Ref: Moya
Rossouw/Lauren/MAT78603
For
the respondent
: Adv
Jooste
Instructed
by
: McLeod
Tate & Delport Attorneys
PORT ELIZABETH
Ref: S
McLeod-Tate/aj