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
>>
2019
>>
[2019] ZAECPEHC 6
|
|
M Pretorius v C Pretorius (151/2019) [2019] ZAECPEHC 6 (5 March 2019)
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:
MICHELLE
PRETORIUS
Applicant
and
CHRISTO PRETORIUS
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)