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 17
|
|
N.P.B v L.L.B (2526/2016) [2017] ZAECPEHC 17 (1 March 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
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO.: 2526/2016
In
the matter between:
N.
P. B.
Applicant
And
L.
L. B.
Respondent
JUDGMENT:
RULE 43 APPLICATION
BESHE
J:
[1]
This is an application wherein an order for interim maintenance as
well as contribution to costs is sought in terms of
Rule
43 of the Uniform Rules
of
this court. Some of the issues in the divorce action between the
parties have been settled. Outstanding for determination later
is the
issue of the division of the parties’ joint estate. Applicant
who is the plaintiff in the divorce action seeks maintenance
for the
parties’ three children, contribution to her costs of
litigation as well as other ancillary orders pertaining to
maintenance. Both parties presented me with draft orders for the
respective orders they are contending for.
[2]
From the said orders it is clear that parties are miles apart as to
what will amount to reasonable requirements on the part
of the
applicant and the parties’ children.
[3]
Even though the capacity of the respondent to meet these requirements
is one of the factors to be taken into account, I did
not understand
respondent’s case to be based on an assertion that he is not
possessed of means to meet the applicant’s
requirements.
Respondents’ case was characterised by an attack on the
reasonableness / necessity of applicant’s requirements.
He also
asserts that he takes care of some of items required by applicant for
example, he gives the children pocket money, pays
for aftercare. This
is not common cause between the parties. Respondent also takes issue
with applicant’s claim for him to
contribute towards rent for
the house she and the children stay in, contending that they can move
into the parties’ townhouse
which like the matrimonial home is
situated in Summerstrand. It is common cause that at the time
applicant moved out of the parties’
matrimonial home the said
townhouse was not available for occupation by her as it was tenanted
at the time.
[4]
It transpires that applicant is locked in a lease agreement in
respect of the property she is renting. Indications are also
that
this townhouse is not nearly as spacious and anything close to the
family home respondent remained in. In my view it would
eliminate the
dispute of whether or who pays for which items – i.e.
aftercare, if same were to be included in the order for
maintenance
pendete lite
.
[5]
I am not persuaded that the attack on applicant’s requirements
for herself and the parties’ children is justified
or has
merit.
[6]
It is indeed so that papers filed in this application were prolific.
This offends against what is envisaged in
Rule
43
. Apart from the
brochure of 28 Melsetter Estate that was annexed by the respondent,
in my view it cannot be said that the allegations
/ averments
contained in the parties’ affidavits were irrelevant. Whilst
courts frown upon proliferation of papers in applications
of this
nature, I am of the view that it was in the nature of this particular
application that the information the parties placed
before me be so
placed and that it was relevant for proper adjudication of the
matter.
[7]
For the reasons stated above, it is my considered view that applicant
has made out a case for the order that she contends for.
Accordingly
there will be an order in terms of applicant’s draft marked ‘X’
dated 1 March 2017.
_______________
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant :
Adv:
S
Potgieter
Instructed
by
:
DEAN S
MURRAY ATTORNEYS
29 Bird
Street
Central
PORT
ELIZABETH
Tel.: 041 –
585 3270
Ref.: D
Murray
For
the Respondent :
Adv: KD Williams
Instructed
by
:
PAGDENS
ATTORNEYS
Pagdens Court
18 Castle
Hill
Central
PORT
ELIZABETH
Tel.: 041 –
502 7200
Ref.: P
Davis/M Staines/BON72/0001
Date
Heard
:
28 February
2017
Date
Reserved
:
28
February 2017
Date
Delivered
:
1 March
2017