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[2019] ZAECPEHC 4
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M.P v C.P (151/2019) [2019] ZAECPEHC 4 (5 March 2019)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
NOT REPORTABLE
Case No.:
151/2019
Date
Heard: 26 February 2019
Date Delivered: 5 March 2019
In
the matter between:
M
P
Applicant
and
C
P
Respondent
JUDGMENT
GAJJAR
AJ:
Introduction
[1]
This
is an application brought in terms of Rule 43 wherein the applicant,
being the plaintiff in the divorce action, seeks the following
orders
pendente
lite
:
1.1
Regulating the respondent’s contact with the parties’ 8
year old
minor daughter, J;
1.2
a monthly contribution of R4 919,22 towards J’s
maintenance, plus
all her medical expenses and educational expenses
including school fees and additional tuition, transport, remedial
costs, school
outings, camps, extra-curricular activities, club fees,
sport tours as well as all school books, stationery, uniforms,
equipment
and attire;
1.3
a monthly contribution of R5 000,00 towards the applicant’s
maintenance
plus medical aid and the payment of all medical costs not
covered by such medical aid;
1.4
the return of certain movable items;
1.5
a contribution of R25 000,00 towards her legal costs; and
1.6
the costs of the application.
[2]
The
respondent opposes the application. In doing so, the respondent
contended that the application was premature as the parties
were
engaged in settlement discussions a few days before it was brought.
However, during argument,
Mr
Van Rooyen
,
who appeared on the respondent’s behalf, did not take that
issue further. Prior to the commencement of argument, the parties
reached agreement in respect of the respondent’s interim
contact with J. The remaining claims remain in dispute.
The
remaining claims
[3]
I
will address the claim for the return of certain movable items
first. During argument I enquired from the applicant’s
counsel, Ms Rossi, whether it was competent for a party in Rule 43
proceedings to seek return of movable items. I was referred
to
the judgment in
Van
der Spuy v Van der Spuy
[1]
,
the relevant passage, as translated into English, reads as follows:
“
In
principal I see no reason why a Court does not have the power to, for
example, order a father to make available an empty house
which
belongs to him for his spouse and children pendente lite. It
has always been accepted that even where the duty to maintain
a
spouse or children is in terms of an order for the monthly payment of
money, the order remains one ad factum praestandum and
not one ad
factum solvendam (see Slade v Slade 4 ECD 243). The duty is to
maintain. It need not be discharged by means
of payment of
money.”
[4]
Mr
van Rooyen
submitted that an order for the delivery of goods is only competent
in terms of Rule 43 proceedings if the goods claimed is
in
lieu
of a monetary claim for maintenance. The applicant’s
claim for the return of certain movable items is set out as follows:
“
Upon
vacating the property, the respondent took with him the following
items which I seek return of in this application, namely,
a black
glass dining room table and chairs – this was a gift to me from
the respondent approximately two years ago; two Coleman
tents;
a double bed belonging to N which was purchased by my parents;
a dressing table belonging to N and purchased
by my parents; an
X-Box. These items belong to my children and I require
forthwith return thereof.”
[5]
In
my view,
Mr
Van Rooyen
correctly
submitted that upon a proper reading of the basis upon which the
applicant claims return of the aforementioned items does
not show
that the movable items sought are required to maintain herself or J.
Accordingly, the claim for the return of the listed
movable items
cannot be sustained and falls to be dismissed.
Maintenance:
General Principles
In
Botha
v Botha
[2]
it was held that the purpose of interim maintenance is to supplement
expenses which the applicant cannot meet and not to establish
a
lifestyle which the applicant and the children may previously have
enjoyed. However, such maintenance must be reasonable in the
circumstances; depending upon the marital standard of living of the
parties, the applicant’s actual and reasonable requirements
and
the capacity of the respondent to meet the requirements. In
doing so, the court must establish whether the respondent
can further
supplement the applicant’s expenses which he/she apparently
cannot meet.
[6]
Maintenance
pendente
lite
is by its nature temporary and cannot be determined with the same
degree of precision as would be possible in a trial where evidence
is
adduced. It was held in
Levin
and Levin and Another
[3]
that “
[t]o
decide the issues I am compelled to draw inferences and to look to
the probabilities as they emerge from the papers.
Obviously my
findings are in no way binding on the trial Court and indeed after
hearing the evidence it may emerge that some or
all of the inferences
I have drawn are wrong.”
[7]
It
is trite that the financial ability of a party is not determinative
of a claim made for maintenance, whether interim, rehabilitative
or
permanent. A party making such a claim is required to firstly
establish a need.
The
facts and the respective claims for maintenance
[8]
The
parties are married in community of property. During their
three year marriage the respondent, who is self-employed, has
been
the primary breadwinner.
[9]
There
is a dispute as to the parties’ respective earnings. The
applicant, who completed a course in bookkeeping and
Pastel, is
employed as an administration manager. On her version, she
earns R6 000, 00 a month and has no other source
of income.
The respondent in his opposing affidavit states that the applicant
also assists in her father’s business,
on a part-time basis,
from which she earns approximately R3 000,00 a month. The
applicant contends that the respondent
has understated his monthly
earnings. From the papers, it appears that the respondent’s
monthly earnings fluctuate
given that he is self-employed. For
present purposes I will accept that the applicant earns R9 000.00
a month whilst
the respondent earns in the order of R27 000,00 a
month.
[10]
The
impression gained from the papers is that the parties lived a modest
lifestyle. Significantly, during the parties’
marriage
they were not able to realise their plan to purchase a house in a
more established neighbourhood than in the neighbourhood
where the
matrimonial home, described as “
a
RDP flat
”,
is situated. The applicant states this is due to the fact that
they were unable to secure financing as the respondent
did not
qualify for life insurance “
as
he is diabetic and has high cholesterol
”.
[11]
It
seems to me that the parties do not fully appreciate that the
consequence of them being married in community of property is that
there is one joint estate. In the parties erroneously make
reference to the property of the other as if there are separate
estates.
[12]
It
is in the nature of Rule 43 proceedings to adopt a robust approach to
claims made for maintenance
pendente
lite
.
I do not thus propose to undertake an analysis of the applicant’s
listed expenses, save to state that her largest
expense is in respect
of accommodation, totalling R3 000.00 a month, being R2 000.00
for herself and R1 000. 00
for J. She has also claimed R900.00
in respect of water and electricity, being R600.00 for herself and
R300.00 for J. The
applicant’s claim for accommodation is
made on the basis that she wishes to relocate to a suburb closer to
where she works
and where J schools. The respondent on the
other hand argues that the applicant and J and, for that matter both
N and the
applicant’s boyfriend, are residing at the erstwhile
matrimonial home at no cost to them. He contends that there is
no need for her to thus make provision for accommodation and water
and electricity. There is merit in this contention.
[13]
Insofar
as the other items which the applicant lists in her list of expenses
I am of the view that there are not necessarily unreasonable
or
exorbitant.
[4]
If the
amount of R2 000,00 is deducted from the applicant’s
listed expenses her total expenses will be reduced
to R7 161,41.
Against this I take into account what the respondent says regarding
the additional income which the applicant
earns from her part-time
employment at her father’s business, income which the applicant
did not disclose.
[5]
Accordingly, on my reading of the papers the applicant has not
established a need for interim maintenance.
[14]
Insofar
as the applicant has claimed that the respondent puts her on a
medical aid scheme I accept the respondent’s contention
that
during the course of the parties’ marriage the applicant never
enjoyed medical aid cover. That being said, it
is not
unreasonable to order the respondent to pay for such medical expenses
as the applicant may incur
pendente
lite
.
[15]
In
respect of J the applicant has stated that he makes a monthly
contribution of R3 000,00 towards her maintenance R2 800,00
towards her aftercare fees and he pays her school fees. There
is, in my view, no reason why the respondent should not also
pay for
such additional expenses as may be incurred
pendente
lite
in
respect of her schooling as well as such medical expenses as may be
incurred in respect of J.
Contribution
towards costs
[16]
The
applicant seeks payment of the sum of R25 000,00 as a
contribution towards her legal costs.
[17]
It
is trite that a claim for contribution towards costs in a matrimonial
suit is
sui
generis.
The
basis of such claim is the duty of support which the spouses owe to
each other. In assessing the quantum of the contribution
to
enable the party seeking the contribution to present his/her case
adequately before the court, the court would have regard to
the
circumstances of the case, the financial position of the parties and
the particular issues involved in the pending litigation.
[6]
In
Senior
v Senior
[7]
the essential principles in determining the contribution towards
costs was summarised in the following terms:
18.1
The test to be applied in considering the amount is that the
plaintiff should be placed in a position to
adequately to present
his/her case;
18.2
the fact that the respondent may be wealthy does not entitle the
claiming party to unlimited spending, there
being a difference
between what his/she wants and what she/he needs;
18.3
what is “
adequate
” would depend on the nature of
the litigation and the scale on which the party from whom a
contribution is claimed is litigating
with due regard being had to
the financial position of the party against whom the contribution is
sought;
18.4
the applicant is not entitled to all his/her costs of the trial but
merely a “
contribution towards
” his/her costs up
to the first day of trial;
18.5
there is no reason in logical equity that such a contribution should
be limited to disbursements only and
to exclude therefrom the
attorney’s reasonable fees.
[18]
During
argument Mr
van
Rooyen
submitted that there are only two issues in dispute between the
parties, namely the applicant’s claim for rehabilitative
maintenance and the primary care of J. In respect of the latter
issue, I have been advised that the Family Advocate had been
requested to undertake an enquiry and following which will make a
recommendation regarding J’s primary care and contact
arrangements. The Family Advocate’s recommendation may
very well lead to a resolution of J’s primary care and
the
contact arrangements. Thus, the only issue which may require
adjudication is the applicant’s claim for rehabilitative
maintenance. On the face of it, the issues in dispute are not
complex and, in my view, present themselves as issues that
can be
readily settled. This much is apparent from the attempts that
have been made thus far.
[19]
Turning
to the basis upon which the applicant has set out her claim for
contribution towards cost no detail has been provided as
to how she
arrives at the sum of R25 000,00.
[8]
All she has stated is that she paid a sum of R2 070,00 to her
attorneys and that she has been called upon to make a further
payment
of R5 000,00 “
as
an initial deposit for the preparation, issuing and service of the
summons
”.
On this basis the present balance is R2 930,00. All that
the applicant presently seeks is an entitlement
to a cost
contribution to cover her “
initial
expenses
”.
I am constrained to determine the amount of contribution towards the
applicant’s legal costs having due regard
to the manner in
which she has formulated her claim. That being said, I am of
the view that the amount of R7 500,00
would not be unreasonable
as a contribution towards her legal costs. It remains open to
the applicant to seek a further contribution
towards her legal costs
should the matter not settle.
Conclusion
[20]
In
the result, the following order shall issue
pendente
lite
:
28.1
In respect of J the respondent shall make a monthly contribution of
R3 000,00 towards her maintenance,
the first payment to be made
on or before 29 March 2019 and thereafter on or before the last
business of every successive month;
28.2
the respondent shall continue to pay the aftercare fees in respect of
J;
28.3
the respondent shall continue to pay J’s school fees, plus any
additional tuition fees, transport,
remedial costs, school outings
camps, the cost of school lunches, the cost of extra-curricular
school and sport activities including
the cost of club fees and
sports tours (including travel and accommodation expenses thereto),
as well as the cost of all school
books, stationery, school uniforms,
equipment and attire (including computers) relating to her education
and the sporting and/or
extra mural activities (including music fees
and equipment, tuition and exam fees);
28.4
the respondent shall bear the costs of all expenditure in respect of
J’s medical, dental, surgical
and hospital expenses, not
covered by such medical aid scheme of which the respondent may be the
principal member and J the dependant
member;
28.5
the respondent shall bear the costs of all expenditure in respect of
the applicant’s medical, dental,
surgical and hospital
expenses;
28.6
the respondent shall make a contribution of R7 500,00 as a
contribution towards the applicant’s legal
costs which amount
shall be paid in three equal instalments of R2 5000,00, the first
payment to be made on or before 29 March 2019,
the second on or
before 26 April 2019 and the third on and before 31May 2019;
28.7
the costs of the application shall be costs in the divorce action.
G
J GAJJAR
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
Adv Rossi instructed by Anthony-Gooden Inc, Port
Elizabeth
For
Respondent: Adv van Rooyen
instructed by Lessing Heyns Keyter & Van
der Bank Inc, Port Elizabeth
[1]
1981 (3) SA 639
(C) at 642E-G
[2]
2009 (3) SA 89
(WLD) at 106C
[3]
1962 (3) SA 330
(W) at 331D
[4]
See Taute v Taute
1974 (2) SA 675
(E) at 676H
[5]
See Du Preez v Du Preez
2009 (6) SA 28
(T) at para [15]
[6]
See Cary v Cary
1999 (3) SA 615
(C)
[7]
1999 (4) SA 955
(W) at 963H-964A
[8]
See Van Rippen v Van Rippen
1949 (4) SA 634
(C); Nicholson v
Nicholson
1998 (1) SA 48
(W)