About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 58
|
|
C.B v P.J.B (4790/2023) [2024] ZAFSHC 58 (26 February 2024)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
NO
Of Interest to other
Judges: NO
Circulate
to Magistrates: NO
CASE NO: 4790/2023
In
the matter between:
C
B
Applicant
And
P
J B
Respondent
HEARD
ON:
09 NOVEMBER 2023
CORAM:
JORDAAN,
AJ
DELIVERED
ON:
26
FEBRUARY 2024
[1]
The Applicant and Respondent entered into a marriage on the 21
st
of March 2020, with the marital regime being out of community of
property including the accrual system. This marriage- from which
two
minor sons were born- still subsists.
[2]
The Respondent instituted divorce proceedings founding his action on
the irretrievable breakdown
of the marriage. The Applicant filed a
Plea and a Counterclaim to the divorce action which is still pending
in this Court.
[3]
The Applicant subsequently filed this application in terms of Rule 43
of the Uniform Rules of
Court
[1]
for maintenance and ancillary relief
pendente
lite
,
seeking an order in the following terms: -
3.1. That the
Respondent pays maintenance for the Applicant in the amount of
R20 000,00 per month
3.2. That the
Respondent be liable for payment of all medical, dental and
ophthalmic expenses in respect of the Applicant,
such to include all
costs of hospitalisation, surgical treatment, spectacles, contact
lenses, prescribed medication and allied
expenses as well as
contributions towards any medical aid.
3.3. That the
Applicant will retain the use of the Toyota Urban Cruiser
pendente
lite
and that the Respondent will be liable for all maintenance
and insurance of the said vehicle
3.4. That the
Applicant be allowed to see the minor children five days per week
from 8h00 to 13h00 at the residence
of the Respondent.
3.5. That the
Respondent contributes to the Applicant’s costs in the amount
of R15 000,00.
[4]
The Respondent opposed the application and counter applied in terms
of which he sought an order
to be awarded with the residency and
daily care of the minor children which the Applicant agreed to. The
Respondent tendered the
use and service of the motor vehicle in the
Applicants prayers and the provisioning of medical costs cover,
however it should be
reasonable.
[5]
The issues that remained in contention between the Parties were:
5.1 The quantum of the
maintenance for the Applicant;
5.2 The quantum of
contribution that Respondent must make to the Applicant’s legal
costs; and
[6]
Rule 43 provides:
“
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.”
[7]
Rule 43 was not created to give an interim meal ticket to an
applicant who quite clearly at the
trial will not be able to
establish a right to maintenance.
[2]
The purpose of Rule 43 is to provide a streamlined and inexpensive
procedure for procuring the same interim relief in matrimonial
actions as was previously available under common law in regard to
maintenance and costs.
[3]
[8]
Turning to the facts of the case. The Applicant is unemployed and has
since the birth of her first
child suffered post-partum depression
which caused her to be unable to cope with the minor children and
recently diagnosed with
bipolar 2 disorder.
[9]
The Applicant
grounded
her application on a tabulated list of monthly expenses
[4]
which
in total amounts to R20 900,00. This list includes provision for
pocket money, pet food and entertainment amongst other
expenses.
[10]
The Respondent submits that he is employed at Bakkes Boerdery for
which he receives a monthly nett salary
of R25 773,60 and a
monthly harvest bonus of R17 000,00, thus a total income of
R42 773,60 per month. Counsel for
the Respondent acknowledged
that the Applicant had no income, but contended that the Applicant’s
expenses are excessive and
unsupported. It was further submitted that
Respondent’s monthly expenses, incorporating the tendered
payment of R7 000,00
per month maintenance and the instalment of
R5 571,04 on the Toyota Urban Cruiser, amount to R48 855,73.
[11]
Having regard to what was submitted, it is common cause that the
Applicant has a need for maintenance and
though the Respondent is
insinuating that it was self-created in that the Applicant is a
qualified teacher and makes no effort
to gain employment and chose to
move to her parents, this Court finds that on the submitted facts it
was not self-created, the
Applicant moved to what she in her state of
ill-health perceive and experience as a supportive environment. The
Court also finds
that the list of expenses indeed contains luxuries
which in the circumstances the Respondent cannot meet and is not
allowed in
these proceedings. This Court finds that the Respondent
clearly had the financial means to offer and pay more than what he
tendered
in light of the submission that had the Applicant asked for
the R11 800,00 prior to approaching Court, they would likely not
have been at Court for this application. The Court nonetheless
deducted the luxuries like pocket money, entertainment, petfood,
domestic help and reduced the excessive amounts provided for in the
needs and established a need for R8 000,00 per month which
by
the Respondent’s submissions, are affordable.
[12]
The Applicant having established a need to maintenance and being
unemployed, has clearly shown her inability
to pay for costs of legal
representation. The Respondent in this regard made an offer which is
not keeping with the realistic rising
costs in having the necessary
egal representation and in the absence of same, the aim of Rule 43
would be eschewed.
[13] In
the circumstances the Court makes the following order:
13.1. That specific
responsibilities and rights regarding guardianship of the minor
children P J B and C B as contemplated
in Section 18(2)(c) and 18(3)
of the Children’s Act, Act38 of 2005 is awarded to both parties
pendente lite.
13.2.
The Respondent, P J B, is awarded with the residence and daily care
of the minor children as contemplated in Section18(2)
of the
Children’s Act, Act38 of 2005
pendente
lite.
13.3.
The Applicant, C B, is awarded with interim contact with the minor
children
pendente lite
in that the Applicant shall exercise contact with the minor children
five days per week from 08h00 to 13h00 at the residence of
the
Respondent.
13.4. That the Respondent
will be liable to pay for all reasonable medical, dental and
ophthalmic expenses in respect of the Applicant,
such to include all
costs of hospitalisation, surgical treatment, spectacles, contact
lenses, prescribed medication and allied
expenses as well as
contributions towards any medical aid
pendente lite
.
13.5.
That:
13.5.1.
the Respondent shall continue to pay the monthly instalment Toyota
Urban Cruiser
pendente lite;
13.5.2.
the Respondent shall be liable for payment of all reasonable
maintenance
and insurance of the
Toyota Urban Cruiser;
13.5.3
.
the Applicant shall retain the use of the same Toyota Urban
Cruiser
pendente lite.
13.6. The Respondent is
ordered to pay the amount of R8 000,00 per month maintenance
pendente lite
to the Applicant with effect from the 30
th
day of March 2024 and thereafter on or before the 30
th
day
of each succeeding month.
13.7.
The Respondent shall pay
R10 000,00
towards the Applicant’s legal fees within twenty-one (21) days
from the date of this order.
13.8. Costs
of this application shall be costs in the cause.
M.T. JORDAAN
Acting Judge of the High
Court, Free State Division
APPEARANCES:
Counsel
on behalf of the Applicant:
Adv
De La Rey
Instructed
by:
Hendre
Conradie Inc (Rossouws Attorneys)
BLOEMFONTEIN
Counsel
on behalf of the Respondent:
Adv.
Ferreira
Instructed
by:
Horn
& Van Rensburg
BLOEMFONTEIN
[1]
Rules
Regulating the Conduct of Proceedings of the Several Provincial and
Local Divisions of the High Court of South Africa.
[2]
Nilsson
v Nilsson 1984 (2) SA (C) 294.
[3]
Zaphiriou
v Zaphiriou 1967 (1) SA 342 (W).
[4]
Paginated
Bundle pages 13 to 16 Annexure “A”.