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[2018] ZAECPEHC 31
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A.E v J.E (1921/2018) [2018] ZAECPEHC 31 (28 June 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 1921/2018
Date heard: 26 June 2018
Date
delivered: 28 June 2018
In
the matter between
A
E Applicant
And
J
E Respondent
JUDGMENT
GOOSEN,
J.
[1]
The
applicant, who is the defendant in a pending divorce action, seeks an
order for maintenance
pendente
lite
and a contribution to costs in terms of Rule 43. The parties were
married in community of property on 18 May 2013. There is one
minor
child born of the marriage, a son aged 3 years. The child is in the
primary care of the applicant, who lives in Port Elizabeth.
The
respondent resides in France where he presently pursues a career as a
professional rugby player.
[2]
The
respondent instituted divorce proceedings claiming an order that the
applicant forfeit the benefits of the marriage in community.
It is
not in dispute that primary care of the minor child be awarded to the
applicant and accordingly the respondent tenders maintenance
for the
minor child. The applicant has filed a counterclaim in which she
seeks division of the joint estate; rehabilitative maintenance
for
herself; maintenance for the minor child and certain ancillary
relief.
[3]
The
applicant is a qualified teacher. She is however presently employed
as an intern estate agent. It appears that the applicant
and
respondent agreed that she devote herself to the full-time care of
the minor child. It is for this reason that she gave up
her teaching
work. She has only recently commenced work as an intern estate agent.
The applicant resides in the parties’
matrimonial home with the
minor child.
[4]
The
respective earnings of the parties is not in dispute. The applicant’s
papers indicate that she presently earns commission
which, based on
average earnings since January 2017, amounts to R10 388.92 per month.
She owns a flat in Walmer in respect of which
she receives rental
income, after deductions of levies and rates and taxes, in an amount
of R2 279.00 per month. Her total average
earnings therefore is R12
667.92 per month.
[5]
The
respondent earns a gross amount of €7500 per month. This, based
on the current exchange rate (of approximately R15.00 to
€1.00)
converts to R112 500.00 per month. It appears that the respondent
also receives certain non-cash benefits, the value
of which is
unknown. I should say here that the respondent admits to receipt of
certain benefits, but does not quantify them.
[6]
Attached
to the applicant’s affidavit is a schedule of a monthly
expenses. The schedule reflects the total monthly requirements
for
both her maintenance and the maintenance of the minor child in an
amount of R31 297.27 per month. The respondent presently
makes
payment of certain of the expense items, namely the Absa bond
instalment; the DSTV subscription and the Atlas alarm. These
amount
to R3 254.27 per month. Based on this the applicant alleges that she
has a monthly shortfall, after her income is applied,
of an amount of
R15 375.08 per month.
[7]
Premised
on this, the applicant claims payment of monthly maintenance in
respect of both herself and the minor child in the amount
of R15
375.08. At the hearing of the matter the claim was adjusted to an
amount of R16 000.00. The applicant also claims a contribution
towards her legal costs, which I shall deal with separately
hereunder.
[8]
The
respondent, in dealing with the applicants claim for maintenance
pendente
lite
,
tenders payment of a cash amount of R5 000.00, together with
continued payment of certain items which he states he pays directly.
These, he says, amount to R9 075.00, so that his offer is in the
amount of R14 075.00.
[9]
At
face value it appears that the parties are not very far apart in
relation to the admitted need for maintenance. As will be seen
hereunder, this is not so, in as much, as the direct payment of
certain items do not match the cash requirements claimed by the
applicant to cover those same amounts and the respondent’s
failure to offer payment, or continued payment, of an outstanding
loan due to the applicant’s mother in respect of the purchase
of the matrimonial home.
[10]
Before
dealing with the applicant’s need for maintenance it is
appropriate to deal firstly with the respondent’s ability
to
meet these needs. As indicated the respondent earns an amount of
approximately R112 500.00 per month. He sets out a schedule
of his
current monthly expenses for living in France. His total monthly
expenses amount to R62 350.00 per month. This includes
an amount
which is referred to as “SA Commitments” in an amount of
R15 000.00. It is not clear what the expense comprises.
It appears,
however, that it includes some, if not all, of the direct payments
made by the respondent in respect of the maintenance
of the applicant
and the minor child.
[11]
The
schedule of expenses establishes that the respondent has a disposable
income after payment of all of his current living expenses
in an
amount of approximately R50 000.00 per month. Accordingly, on the
respondent’s own version, there is no question that
he is able
to afford the monthly maintenance payment which the applicant claims.
The only question, in relation to such claim,
is whether the amounts
claimed are reasonable and necessary.
[12]
In
this regard the respondent takes the stance that he is only obliged
to contribute half of the reasonable requirements for the
maintenance
of the minor child. In this the respondent is mistaken. The
obligation to maintain a minor child is generally to be
determined on
a proportional basis, having regard to the respective earnings of the
parties. In this instance the respondent’s
earnings are
significantly higher than that of the applicant. The respondent is
also possessed of considerable disposable monthly
income. There is
accordingly no basis to apportion the obligation in the manner in
which the respondent contends.
[13]
That
leaves the question as to the reasonableness of the applicant’s
monthly expenditure. It is apparent from consideration
of the
respondent’s answering affidavit that he does not in fact
dispute the reasonableness of most of the items set out
by the
applicant. The challenge is principally directed to the
apportionment.
[14]
There
are, in effect, only a few items in respect of which there is a
dispute. In regard to the Absa bond the respondent tenders
payment.
He however disputes an obligation to effect payment in respect of an
FNB flexi-bond in an amount of R3 800.00. This obligation
however,
arises from a loan made to the parties by the applicant’s
mother in an amount of R680 000.00 to facilitate the purchase
of the
common home. The loan was financed by an advance against the
applicant’s mother’s bond account. According to
the
applicant the respondent was paying this, but has since stopped doing
so. It is suggested, in the respondent’s papers,
that the
repayment of the loan is a matter to be addressed in the division of
the joint estate at divorce.
[15]
Mr
Williams
,
on behalf of the applicant, argued, correctly in my view, that the
obligation stands on the same footing as the loan by Absa bank.
Since
the obligation is a joint liability of the joint estate of the
parties it must be brought to account. Accordingly the bond/lodgings
obligation is to be calculated on the basis set out by the applicant.
Insofar as the applicant is required to honour the loan obligation
it
is to be treated as a necessary maintenance expense for her and the
minor child.
[16]
The
other item which the respondent challenges is excessive, is the
amount provided for rates, taxes, water and electricity. It
is
submitted that the claim amount should be reduced from R2 000 to R1
000. The respondent tenders direct payment of the latter.
There is
however no evidence to gainsay the applicant’s version as to
the average expense and, if it is to be treated as
part of the cash
requirements of the applicant, then the amount set out by the
applicant ought to be brought to account.
[17]
In
respect of certain expenditure items the respondent states that he
makes direct payment and that he will continue to do so, namely
the
ADSL, crèche fees and the like. These are included in the
schedule of direct payments. The applicant, however, claims
these as
part of the cash contribution required on the basis that she pays
them. The applicant also claims retention on the respondent’s
medical aid scheme. She states that she was removed from the scheme
by the respondent. She is now included in the medical cover
of her
partner. The respondent avers that the applicant requested that she
be removed from his medical aid scheme. In my view this
issue as well
as the applicant’s claim for payment of a cellphone expense,
part of which is tendered by the respondent, can
be resolved by the
adjusted cash contribution claimed by the applicant.
[18]
As
already indicated the dispute regarding the monthly requirements of
the applicant is confined to the apportionment of the expense.
The
evidence establishes the need for these payments in the amounts
claimed. I am satisfied that the expenditure claim as listed
by the
applicant is reasonable. I am also satisfied that the respondent is
able to afford such payments. The applicant, on the
other hand,
cannot meet these obligations from her monthly income.
[19]
In
the circumstances the applicant has established, in addition to the
direct payment of certain expenditure items, a need for a
cash
maintenance payment of R16 000.00 per month.
[20]
I
turn now to the claim for a contribution towards costs. The
applicant’s claim is for payment of an amount of R112 500.00.
This includes a provision in respect of fees already incurred which
are outstanding and a further amount for preparation of the
matter.
The latter amount is an estimate of the reasonable costs to be
incurred to bring the matter to trial.
[21]
The
respondent tendered payment of R20 000.00 in his papers. At the
hearing this was increased to an amount of R50 000.00. The applicant
is not possessed of any savings nor any disposable income from which
the she is able to fund her legal costs. The applicant’s
assets
are all the assets in the joint estate with the exception, it
appears, of an immovable property in the form of a flat from
which
earns a rental income. She is accordingly not able to liquidate
assets for the purposes of funding her litigation. The respondent,
on
the other hand, is possessed of certain savings and investments
which, although they may form part of the joint estate, are
capable
of ready liquidation in order to fund the litigation. The respondent
is accordingly able to make a substantial contribution
towards the
legal costs of the applicant. He is also, as already indicated,
possessed of disposable monthly income in a substantial
amount.
[22]
The
only question is what amount would be reasonable in the
circumstances. The applicant’s schedule of the estimated legal
costs to bring the matter to trial at the first day of trial, is not,
in itself challenged as being excessive or unreasonable.
That however
is not the end of the matter. The litigation, whilst of considerable
significance to the parties does not, in my view,
engage very
difficult or complex questions. The principal issue in the divorce
action is whether the applicant should be ordered
to forfeit the
benefits of the marriage in community of property. The marriage
itself was not one of a substantial duration. The
other issue to be
determined is that concerning rehabilitative maintenance payable to
the applicant and, in the event that such
order is made, the duration
of such payment. In my view, given the relevant facts known at this
stage of the proceedings, neither
is presents as unduly complex and
ought not to involve either lengthy or difficult litigation.
[23]
Whilst
the quantum of the estimate of fees for each particular item of
pre-trial preparation may, in itself, be reasonable, the
overall
effect is to posit a claim of a very substantial amount, having
regard to the nature of the litigation and the issues to
be
determined at trial. I am mindful also that the litigation has
reached the stage where pleadings are not yet closed. In my view,
an
amount of R50 000.00, as tendered by the respondent, at this stage of
the proceedings would place the applicant in a position
to prosecute
her claims and to undertake the necessary preparation. Should the
ambit of the disputes expand to require further
necessary preparation
then in that event, the applicant may be entitled to approach the
court for a further contribution towards
costs should same not be
provided by the respondent.
[24]
In
the result I make the following order:
1.
The
respondent is ordered to pay maintenance
pendente
lite
for the applicant and the minor child in an amount of R16 000.00 per
month commencing on the 1
st
day of July and on every successive first day of the month thereafter
;
2.
The
respondent is directed to continue to make direct payment of the
monthly Absa Bond installment on the marital home and the monthly
fees in respect of the DSTV subscription and Atlas Security payments;
3.
The
respondent is directed to retain the minor child as a dependent on
his medical aid scheme and further to pay all reasonable
medical and
hospital expenses not covered by the scheme;
4.
The
respondent is ordered to pay an amount of R50 000.00, payable in five
equal monthly installments, as a contribution to the applicant’s
legal costs.
5.
The
respondent is ordered to pay the costs of the application.
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Applicant
Adv. K.
Williams
Instructed
by Lizelle Pretorius Inc.
For the
Respondent
Adv. H.
Bakker
Instructed
by Brown Braude & Vlok Inc.