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[2020] ZAECPEHC 13
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DDW V DAW (3278/2019) [2020] ZAECPEHC 13 (9 June 2020)
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: 3278/2019
In
the matter between:
D[…]
D[…] W[…]
Applicant
And
D[…]
A[…] W[…]
Respondent
JUDGMENT
BESHE J:
[1]
This is an application in terms of
Rule 43 of the Uniform Rules
of
this court. The provisions of this rule are as follows:
43 Matrimonial
matters
(1) This rule shall
apply whenever a spouse seeks relief from the court in respect of one
or more of the following matters:
(a) Maintenance
pendente lite
;
(b) a contribution
towards the costs of a pending matrimonial action;
(c) interim custody of
any child;
(d) interim access to
any child.
[2]
The parties in this matter are married to each other out of community
of property with inclusion of
the accrual system since 15 June 2001.
They are parents to a daughter who is ten (10) years old
[3]
The applicant (wife) seeks relief in the
following terms:
[1]
“
21.1.
That the minor child shall reside primarily with the applicant, who
shall be her primary caregiver pendente lite;
21.2. That the
respondent shall pay maintenance for the applicant and the minor
child pendente lite as follows:
21.2.1. An amount of
R20 000 per month, the first payment to be made within ten days
of this order and thereafter on or before
the 1
st
day of
each subsequent month;
21.2.2. A relocation
amount of R20 000, payable in two instalments of R10 000
each. The first payment to be made within
ten days of this order and
the second one month later.
21.3. That the
respondent be ordered to make a contribution towards the applicant’s
legal costs in the amount of R103 000.00,
payable directly to
the applicant’s attorney, ANNALI ERASMUS INC with banking
account at NEDBANK, Newton Park (Branch number
198765), account
number 103[….] using reference number: MAT12226 in instalments
of R 15 000,00 per month until the
full amount has been paid.
The first payment to be made within 10 days of this order;
21.4. I have no
objection if my undertaking to continue to pay the respondent’s
medical aid until the finalization of our
divorce is noted;
21.5. That the
respondent pays the costs of this application.”
[4]
It is common cause that applicant has instituted divorce proceedings
against the respondent. That respondent
has filed a notice to defend
the action. At the time of launching of this application the parties
were residing at their matrimonial
home. It is common cause that
arrangements were underway for the applicant to move out of the house
together with the parties’
minor child.
[5]
Even though the respondent is opposing the application and contending
for the dismissal thereof, I
did not understand him to be opposed to
the minor child residing primarily with the applicant
pendente
lite
.
[6]
As regards the other prayers sought by the applicant, as is usually
the case in applications of this
nature, the disagreement is about
the reasonableness or otherwise of the amounts sought by the
applicant. This also has to do with
the question whether respondent
will afford the amounts claimed.
[7]
According to the applicant, her Nett salary is R17 667 per
month. She lists what is said to be
essential expenses to be
totalling R40 055.00. She contends that some of this can be
divided by half resulting in the minimum
amount required for
essential expenses being R35 305. She further lists what is
termed expenses that are not essential but
which are in the minor’s
best interest which amount to R2 286.00. Those, even though they
could be seen as luxury, but
have been enjoyed by the applicant and
the minor child amounting to R5 590.00. The difference between
applicant’s salary
and what is said to be her reduced essential
expenses is said to be R16 138.00. She accordingly asks for an
order for an amount
of R20 000.00 per month for her maintenance
and that of the minor child. Plus a relocation amount of R20 000.00
as indicated
earlier. The latter prayer was later abandoned.
[8]
The respondent does not deny that he earns a nett salary of ±
R27 000.00 per month and
receives bonuses which are dependent on
the financial situation of the company for which he works. He lists
his monthly expenses
and points out that he has a monthly shortfall
of ± R9 510.00. Included in his listed expenses is
maintenance and upkeep
for the applicant and their minor child. In
her submission that respondent is in a position to pay maintenance
pendente lite
and make a contribution towards her legal
expense, applicant makes the point that in addition to his monthly
salary respondent
has two bond free houses one of which is rented out
for approximately R6 000.00 per month. He has an investment
account with
Standard Bank which, some time ago, had a balance of
over R1 million. This is not denied by the respondent.
[9]
According to the respondent, there is no need for the applicant to
relocate as they have been sleeping
in separate bedrooms for the past
three years.
[10] Listed
amongst the applicant’s expenses are items in respect of
repayment of loans. Respondent denies that
these loans were obtained
to keep the household afloat as applicant asserts. He attributes the
loans to the applicant’s unhealthy
gambling habit. He also
denies that the amounts claimed by the applicant are reasonable. This
also applies to the contribution
towards the applicant’s legal
costs of R103 000.00 which he says is unreasonable and
excessive. He also complains that
the applicant has not provided a
pro-forma
bill of costs. That the pleadings have just closed
and no trial date has yet been allocated.
[11] The
bulk of respondent’s attack on the figures provided by the
applicant is that she does not spend on those
items because they stay
in the same house and he picks up the bill for those expenses. For
example, she does not pay any rent because
she stays at their
matrimonial home. He pays for electricity and water. But the reality
is that applicant has since moved out of
the common home. Even from
his say so, applicant was in the process of moving or preparing to do
so at the time of the launching
of the application.
[12]
Applicant lists her monthly expenses, projected or actual as
inter
alia
:
R7 000.00 for
rent and water.
She spends ±
R10 000.00 on groceries. I take it that would have been for the
whole family at the matrimonial home.
Half of the minor
child’s school fees and aftercare fees: R1 300.00.
Electricity: R500.00.
Domestic helper: R2
460.00.
Medical aid:
R7 598.00, which she tenders to continue paying until the
divorce is finalised.
A ballpark figure of
these amounts as the expenses that should be paid by the applicant or
as her share of the expenses already
amounts to approximately
R17 500.00. This excludes applicant’s motor vehicle
expenses, the minor child’s extra-mural
activities, the minor’s
hair care, clothing, pet food, minor child’s birthday parties,
repayments of debts, cell phone,
DSTV etc. I am of the view that the
R20 000.00 sought by the applicant for maintenance in respect of
her and the minor child
is reasonable in the circumstances.
[13] I
am also of the view that the respondent is possessed of means to be
able to afford this amount. As indicated
earlier, he does not deny
that he has a substantial amount in an investment account held with
Standard Bank.
[14]
Respondent does not deny that the applicant is entitled to a
contribution towards her legal costs which she
cannot afford. It
appears to be common cause or at least not denied that there is an
amount of some R22 000.00 owing to her
attorneys relating to the
divorce action between the parties. She estimates that her attorneys’
professional fees and disbursements
up to the and including the first
day of trial will amount to approximately R50 000.00 and
counsel’s fee up to and including
the first day of trial to be
± R30 000.00. Unfortunately these are mere estimates
without any
pro
forma
of the projected fees. In my view, a contribution of R70 000.00
towards applicant’s legal fees will be appropriate.
It is my
considered view that granting the applicant the relief she seeks will
contribute to ensuring that the best interests of
the parties’
minor child are catered for.
[2]
Not only that, contributing to applicant’s legal costs will
ensure her of the right to equality as provide for by
Section
9 of the Constitution
in particular
Subsection
(1)
which provides that “
Everyone
is equal before the law and has the right to equal protection and
benefit of the law”
.
[15]
Accordingly, the following order will issue:
1. That the minor
child shall reside primarily with the applicant, who shall be her
primary caregiver
pendente lite
;
2. That the respondent
shall pay maintenance for the applicant and the minor child
pendente
lite
in the amount of R20 000 per month, the first payment
to be made within ten days of this order and thereafter on or before
the 1
st
day of each subsequent month;
3. That the respondent
be ordered to make a contribution towards the applicant’s legal
costs in the amount of R70 000.00,
payable directly to the
applicant’s attorney, ANNALI ERASMUS INC with banking account
at NEDBANK, Newton Park (Branch number
198765), account number
103[...] using reference number: MAT12226 in two equal payments. The
first payment to be made within 10
days of this order and the second
payment to be made on or before the 30 July 2020;
4. The applicant’s
undertaking to continue to pay the respondent’s medical aid
until the finalisation of the divorce
action, is noted;
5.
That the respondent pays the costs of this application.
____________
NG
BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For the Applicant
: Adv: Crouse
Instructed
by :
ANNALI ERASMUS INC
11 Bird Street
PORT
ELIZABETH
Ref.:
A Erasmus/DIV/MAT12226
Tel.:
041 – 820 0455
For the Respondent
: Adv:
Rossi
Instructed
by
:
GREYVENSTEINS INC.
St
George’s House
104 Park Drive
PORT
ELIZABETH
Ref: T
Labuschagne/sb/MAT106818
Tel.:
041 – 501 5500
Date
Heard
:
2 June
2020
Date Reserved
:
2 June
2020
Date
Delivered
:
9 June
2020
[1]
Paragraph
21 of the founding affidavit, page 10 of the indexed papers.
[2]
See
Section 28 (2) of the Constitution.