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[2024] ZAFSHC 52
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A.J.K v J.J.L.K (3831/2023) [2024] ZAFSHC 52 (19 February 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case Number: 3831/2023
In
the matter between:
A[…]
J[…] K[…]
Applicant
and
J[…]
J[…] L[…] K[…]
Respondent
HEARD
ON:
19 OCTOBER
2023
CORAM:
JORDAAN, AJ
DELIVERED
ON:
19 FEBRUARY
2024
[1]
This is an opposed Rule 43 application. The parties were married to
each other on the 02
nd
of July 1993, in community of
property, which marriage still subsists. One child was born into this
marital relationship who has
since attained majority.
[2]
The Parties purchased a company, KM Engine Remanufacturers (Pty) Ltd,
in which the Applicant was employed
and she received a net salary of
R20,000.00 per month from KM Part Services.
[3]
As a result of the irretrievable breakdown of the marital
relationship, the Applicant moved out of the
communal home and
instituted an action for divorce with ancillary relief which is
pending before this Court.
[4]
The Applicant instituted this application for maintenance
pendete
lite
as she no longer received a salary from KM Part Services.
[5]
The succinct issues for the determination by this Court are: -
5.1.
Whether or not the Applicant is entitled to maintenance
pendete
lite
;
5.2.
Whether the Respondent
pendete lite
should be ordered to pay
the applicant maintenance in the sum of R27,000.00 per month;
5.3.
Whether or not the Respondent should retain the Applicant as a
beneficiary on his medical aid
and be liable for all medical, dental,
pharmaceutical and ophthalmic costs of the Applicant;
5.4.
Whether or not the Respondent should be ordered to make a
contribution to the Applicant’s
legal fees in the amount
R10,000.00 payable within seven (7) days from the date of the order.
[6]
Rule 43 is a self-contained rule which regulates the procedure to be
followed in applications
for ancillary relief of an interim nature in
matrimonial matters.
[7]
The purpose of Rule 43 was elucidated by Trollip J in Zaphiriou v
Zaphiriou
[1]
wherein he stated:
-
“
It is designed
merely to provide a streamlined and inexpensive procedure for
procuring the same interim relief in matrimonial actions
as was
previously available under common law in regards to maintenance and
costs.”
[8]
Theron J I Colman v Colman
[2]
concisely captured the procedure of the Rule 43 application as: -
“
The whole spirit
of Rule 43 seems to me to demand that there should be only a very
brief statement by the applicant of the reasons
why he or she is
asking for relief claimed and equally succinct as to what order
should be made pendente lite.”
[9]
In Nilsson v Nilsson
[3]
in
regard to Rule 43 it was stated: -
“
It
was not created to give an interim meal ticket to a woman who quite
clearly at the trial will not be able to establish a right
to
maintenance."
[10]
It is the Applicant’s case that on the 08
th
of May
2023 the Respondent sent a letter to all their suppliers and clients
that she is no longer the contact person at KM Engine
Remanufacturers
(Pty) Ltd, a company which she views as being a co-owner of. The
Applicant then later moved out of the communal
home on approximately
the 19
th
of May 2023, the Respondent stopped paying her
salary from May 2023 and also refused to pay for her medication.
[11]
The Applicant grounded her application on a tabulated list of monthly
expenses.
[4]
It is common cause
that the Applicant is a diabetic and on medication for same.
[12]
The Respondent refuted these contentions by stating that the
Applicant was simply a co-signatory to the purchase
of the company by
virtue of their marital regime and was not a director. The Respondent
further contended the Applicant received
a salary for “
merely
assisting with businesses admin,… Applicant did not come in
every day and work at the business premises, she had her
own business
ventures,..that kept her busy as well”
[5]
and the Applicant was absent from work for a prolonged period after
she underwent an operation in Bloemfontein thus the no work
no pay
principle was applied as would be applied to any other employee.
[13]
The Respondent further contended that once the Applicant returned to
Louis Trichardt he indeed paid for her medication.
He further
contented that the Applicant is not destitute she had a driving
school business and upholstering business in Louis Trichardt,
she
created her situation by moving to Bloemfontein.
[14]
Notwithstanding the contentions of the Respondent, it is clear that
the Applicant was not like any other employee
of the company, having
regard to Respondent’s own papers. According to the Respondent,
the Applicant did not come into the
business premises every day, she
carried on other business ventures that kept her busy and she
merely
assisted
with the business admin for which she received the
established
“salary”.
[15]
If one has regard to the letter
[6]
,
it identified the persons who will deal with those queries, they are
the directors of the companies and a consultant, all existing
in-house staff already serving within the business or on the board of
directors of the business.
[16]
No ordinary employee will not come in to the business premises every
day as other business ventures keep her busy
and yet receive an
established monthly salary for merely assisting with administration.
This indicates that her established salary
was not based on any set
hours of merely assisting with business admin.
[17]
It was the Respondents case that he earns a salary of R25 000.00
per month from KM Engine Remanufacturers
Pty Ltd and could not afford
to pay maintenance
pendente lite
in terms of the application
but tendered six thousand rand per month towards the Applicant’s
rental and that he would retain
the Applicant on his medical aid, but
that she should pay 50% towards any additional medical costs not
covered by the medical aid.
The Respondent further contended that the
Applicant have income streams from her various business ventures.
[18]
Both Applicant and the Respondent’s bank accounts indicate
additional deposits into their accounts from their
children and other
sources. The Applicant explains that it is her daughter and family
members and friends who assist her and whom
she repays, while the
Respondent explains that his children reimburse him for the car
payments he makes on their behalf and he
moves money into and out of
his credit card in order to have funds available in his account when
the need arises.
[19] Parties
are in agreement that the Applicant is on chronic medication, that
Applicant had a medical procedure in
Bloemfontein according to the
Respondent it was an operation, that their marriage has irretrievably
broken down, that their daughter
lives in Bloemfontein and that the
Respondent had a letter sent to clients that Applicant
is
no longer the contact person at
KM Engine Remanufacturers
(Pty) Ltd.
[20]
The Court finds that the Applicant indeed receive financial and moral
care from her daughter and other family members
and friends as well
as business venture income for different services, however they are
inconsistent and not sufficiently substantial
to enable maintaining
the basic indispensable needs of the Applicant. There was further no
evidence that the Applicant is indeed
currently in receipt of an
established
income in the form of a salary from an employer,
or derived from her giving driving lessons or doing upholstering or
refurbishing.
[21]
In the circumstances, this Court finds that the Applicant has made
out a clear case that there is a need for maintenance
and ancillary
relief, that such need was in the circumstances not self-created, but
due to the irretrievable breakdown of the marriage
and health issues
coupled with her losing her salary. The Respondent submitted that he
receives a salary of R25 000.00 (Twenty
Five Thousand Rand)
salary per month per month, however this Court finds that the
Respondent in addition to his R25 000.00
(Twenty Five Thousand
Rand) salary per month is receiving an additional payment of R
8 500.00 (Eight Thousand Five Hundred
Rand) as salary from KM
Engine Salary, with a further additional R3 900.00 (three
thousand Nine Hundred Rand) salary on the
14
th
of March 2023.
[7]
The
Court thus finds that the Respondent has the ability to receive and
indeed does receive additional salary payments from
the company and
can on the basis of his income maintain the Applicant
pendente
lite
.
[22]
Having established the need of the Applicant to maintenance, does not
denote that all the tabulated expenses of
the Applicant are accepted
as basic needs or that they have to be fulfilled to the extent that
the Applicant requires. The list
of expenses contains certain
luxuries and excessive expenses which are not sustainable having
regard to the authorities mentioned
herein.
[23]
The Court found that the unforeseen expenses, reading and relaxation,
Wi-Fi, DSTV, skin and hair care are luxuries
and, in the
circumstances, not granted by this court. Having regard to the areal
outlay of Bloemfontein traveling in Bloemfontein
does not require
petrol at R2 000,00 per month, the Court thus halved the amount.
The estimated water and electricity costs
projected for one person
was also halved by Court. On the basis of the evidence submitted by
the Respondent, the rental needed
was reduced to an amount of R6
000,00. The meat fish and chicken for one person was read into the
R3 500,00 grocery per month
for one person, fruit and vegetables
of R800,00 per month, bread and milk and daily purchases of R1000,00
and cleaning materials
of R500,00 per month. The Respondent offered
medical aid to the Applicant, that leaves the Applicant’s
accepted basic needs
per month at R17 450,00 (Seventeen Thousand
Four Hundred and Fifty Rands).
[24]
The Court has regard to the fact that the Respondent projected to
Court that his income is R25 000,00 (Twenty-Five
Thousand Rand)
salary per month, his expenses is R11 317.34 (Eleven Thousand
Three Hundred and Seventeen Rand and Thirty-Four
Cents) per month and
he offered to pay the Applicant R6 000,00(Six Thousand Rand) per
month towards her rental. Thus it was
the Respondent’s
intention to have approximately R7 000,00 available after his
projected expenses.
[25]
The Court finds that Respondent’s actual income from the
company indicates an established income of R33 500,00
(Thirty-Three Thousand Five Hundred Rands) per month with one
additional occasional salary payment of R3 900, 00 which amounts
to R325,00 (Three Hundred and Twenty-Five Rands) per month. The total
monthly salary of the Respondent thus amounts to R33 825,00
(Thirty-Three Thousand Eight Hundred and Twenty-Five Rands) deducting
his listed expenses leaves a surplus of R22 508,00 (Twenty-Two
Thousand Five Hundred and Eight Rands) per month. Should the
Respondent be ordered to pay the Applicant R17 450,00 (Seventeen
Thousand Four Hundred and Fifty Rands) per month it would leave the
Respondent with a surplus of R5 058,00 (Five Thousand and Fifty-Eight
Rands) per month.
[26]
The Respondent indicated that the company pays for the medical aid
that he belongs to in addition he has
gap cover on the medical aid
and he offered to retain the Applicant on the medical aid, but that
she must pay 50% of the additional
expenses not covered. This, the
Respondent contend, in circumstances where he always nonetheless paid
all the medication the Applicant
needed and medical/dental procedures
the Applicant had while earning a salary and after not earning a
salary he refused to pay
for it in Bloemfontein, but he paid for the
same medication and more when she returned to Louis Trichardt. This
indicates to Court,
that the Respondent does not have a lack of means
to provide in the Applicant’s medical needs, but that it is
about control.
This in circumstances where the Applicant was already
rendered financially vulnerable when her salary was stopped.
[27]
The Applicant being unemployed means she is not in a financial
position to pay her legal fees and thus claimed
Respondent to make
payment in the amount of R10 000,00. The Respondent on the other
hand has an income and in the manner indicated
has means to a further
additional income that he received once off on the bank statements
submitted from the same company the Applicant
submitted belong to
both of them. In the circumstances an order for the payment of the
Applicant’s legal fees in the amount
claimed is not unfounded.
[28]
Having regard to the papers and bolstered by the authorities
mentioned herein the Court finds that the Respondent
has the means to
pay the maintenance and ancillary orders
pendente lite
and
accordingly makes the following order:
28.1. The
Respondent shall pay maintenance
pendente lite
to the
Applicant in the amount of R17 450,00 per month with effect from
the 29
th
of February 2024 and monthly thereafter on or
before the 30
th
day of each succeeding month;
28.2. The
Respondent shall retain the Applicant as a beneficiary on his medical
aid and is liable to pay for all medical-,
dental-, pharmaceutical-
and ophthalmic costs of the Applicant;
28.3. The
Respondent shall pay R10 000,00 towards the Applicant’s
legal fees within seven (7) days from the
date of this order;
28.4. The
Costs of the application shall be costs in the main action.
M.T.
JORDAAN, AJ
APPEARANCES:
Counsel
on behalf of the Applicant:
Adv
M.C. Louw
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
Counsel
on behalf of the Respondent:
Adv.
S.S. Green
Instructed
by:
Venter
Attorneys
C/O
Handre Conradie
BLOEMFONTEIN
[1]
1967
(1) SA 342 (W).
[2]
1967
(1) SA 291 (C).
[3]
1984
(2) SA 294 (C).
[4]
Paginated Bundle pages 8 to 9 paragraph 6.2.
[5]
Respondent’s Opposing Statement page 21 paragraph 9.4.
[6]
Paginated Bundle: Founding Affidavit page 28 Annexure “C”.
[7]
Paginated Bundle pages 88, 89, 93, 94, 95, 98, 99, 101, 102, 104,
105, 106, 107.