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2024
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[2024] ZAECQBHC 12
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N.G v O.L.G (1219/2023) [2024] ZAECQBHC 12 (20 February 2024)
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
DIVISION, GQEBERHA)
CASE NUMBER.:
1219/2023
In
the matter between:
N[…]
G[…]
Applicant
And
O[…]
L[…] G[…]
Respondent
JUDGMENT
Beshe
J
[1]
Rule 43 of the Uniform Rules of this court makes provision for
interim relief in matrimonial matters.
Subrule (1) states that:
’
43 Interim
relief in 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 matrimonial action, pending or about to be
instituted;
(c) Interim care of
any child;
(d) Interim contact with
any child.’
[2]
In this matter applicant seeks an order that
pendente lite, the respondent be ordered to (i) Pay R32
500.00 per
month as and for maintenance towards her. (ii) The respondent be
ordered to pay contribution towards applicant’s
legal costs in
the amount of R300 000.00.
[3]
In what appears to be a concession during
argument, it was submitted on behalf of the applicant that
a sum of
R9 000.00 towards her maintenance will be a reasonable sum.
[4]
It is common cause that there is a pending
divorce action between the parties.
[5]
Evidence reveals that both parties are
employed; applicant as an Events Assistant and takes home
approximately
R7 000.00. Respondent is a pilot and takes home
approximately R60 000.00 per month. Applicant lives in the party’s
marital
home in Theescombe. Respondent vacated same in December 2022
to Gauteng in order to be closer to work. He is renting a +++
apartment.
He is still paying for all the household expenses in
respect of their marital home which includes serving a bond. As a
result of
not being able to work for ± 2 years between 2020
and 2021 due to the Covid pandemic, he incurred a debt of R181 000.00
in respect of arrears towards the Nelson Mandela Bay Metropolitan
Municipality. He is repaying a bond of R200 000.00 towards SAA
for
compulsory training he was required to undergo. He no longer
undertakes international flights with the result that he does
not
receive any international allowances. The trips he undertook with the
applicant overseas were possible when he flew to overseas
countries
and such trips did not cost him anything. He did not have to pay for
the applicant out of his pocket.
[6]
Applicant is prepared to move to rented
suitable reasonable rented accommodation but is not possessed
of
means to foot the bill for such accommodation. This will make it
possible for their marital home to be placed on the market.
[7]
Both parties have provided an estimate of
what they expend on a monthly basis. I do not propose to
go into
detail and analyse each figure provided based on the parties’
submissions. I will have regard thereto. I will also
however keep the
basis principles governing subrule 1 (a) inter alia that maintenance
pendente lite cannot be determined with the
same degree of precision
as would be possible in a trial. That the applicant is entitled to
reasonable maintenance depending on
the parties’ mantal
standard of living applicant’s reasonable requirements and the
capacity of the respondent to meet
such requirements.
[8]
Even though respondent does not seem to be
in particularly good financial position, the tender he makes
for R4
500.00 towards applicant’s maintenance is totally unreasonable.
Whereas the rental for his Gauteng apartment is R5000
00.00,
electricity is R1 000.00 per month, R2 500.00 towards groceries
already this total to R8 500.00. This excludes payment towards
levies, fuel, car insurances, cell phones, entertainment etc. in
respect of his Gauteng residency.
[9]
Yet he expects applicant to be able to make
with R4 500.00. Even with her additional income of ±
R7
500.00, R4 500.00 is not a reasonable amount. It was argued that it
would be just in the circumstances to find that applicant’s
reasonable monthly expenses amount to ± R20 000.00.
[10]
In her list of monthly expenditure, applicant indicates
that her total monthly income is R10 191.67. This is confirmed
in the
salary slip she provided. Her nett pay is given as R9 743.11. She
estimates that she will require R9 000.00 towards the
rental of an
apartment, R3 500.00 for food, R1 500.00 for clothing and shoes, R2
500 towards the maintenance of her motor vehicle
excluding fuel, R2
000.00 for gifts amongst other items of expenditure. In my view,
these amounts are not reasonable. Even more
so, a prayer for R32
000.00 maintenance given the financial position of both parties. It
is my considered view that in the circumstances
that a sum of R8
500.00 towards applicant’s maintenance is reasonable and fair
to both parties.
[11]
Regarding the prayer for a contribution towards
applicant’s legal costs, it was argued that respondent does
not
have funds from which to make a contribution in this regard. Further
that applicant seems to be litigating on a level/scale
that is not
reasonable. That the estimate of costs appears to be inflated. It is
trite that there should be equality of arm between
the parties so
that both parties can adequately and fairly present their respective
cases. We unfortunately do not know how much
respondent is likely to
expend on legal costs or has already expended.
[12]
I have taken into account that what appears to be a
contention in the divorce action is whether applicant who
is the
defendant in the action is entitled to maintenance post-divorce. The
parties are married out of community of property with
the exclusion
of the accrual system.
[13]
There are no children born of the marriage.
[14]
In light of what is likely to be in issue during the
divorce action and the financial position of both parties,
I am of
the view that a contribution towards applicant’s legal costs in
the sum of R100 000.00 will be appropriate.
[15]
Accordingly, the following order will issue:
1. Pendente lite, the
respondent is ordered:
1.1 To pay R10
000.00 per month as and for maintenance to the applicant.
1.2 To make payment
of the amount in 1.1 above into the applicant’s nominated bank
account, the first payment to be
made on the first day of the month
following the granting of this order, and thereafter on the first day
of every following month.
2. The respondent is
ordered to pay a contribution towards applicant’s costs in the
sum of R100 000.00 in two instalments
of R50 000.00, the first
instalment to be paid within 30 days of this order. The second R50
000.00 to be paid on or before 30 April
2024. These amounts are to be
paid to applicant’s attorney’s Trust Account within the
following details:
White & Williams Inc
t/a Lexicon Attorneys
Bank: Standard Bank
Account no.: 0[…]
Branch Code: 050417
Ref: GRO81/0001
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Applicant
Adv:
Dyke
Instructed
by
LEXICON
ATTORNEYS
Corner
Westbourne & Clevedon Roads
Central
GQEBERHA
Ref:
M.N. Madikizela/GRO8/0001
Tel.:
041 – 373 7434
For
the Respondent
Adv:
Gagiano
Instructed
by
ANTHONY-GOODEN
INC
9
Bird Street
GQEBERHA
Ref.:
JAG/er/J010094
Tel.:
041 – 582 5150
Date
Heard
13
February 2024
Date
Reserved
13
February 2024
Date
Delivered
20
February 2024