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[2024] ZAFSHC 59
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E.J.L v H.J.C.L (4770/2023) [2024] ZAFSHC 59 (26 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,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
Number: 4770/2023
In
the matter between:
E[…]
J[…] L[…]
Applicant
and
H[…]
J[…] C[…] L[…]
Respondent
HEARD
ON:
12 OCTOBER
2023
CORAM:
JORDAAN, AJ
DELIVERED
ON:
26 FEBRUARY
2024
[1]
On the 09
th
of July 1999 the Parties entered into a
marriage out of community of property with inclusion of the accrual
system, which marriage
still subsists. Two sons were born from this
marriage who are both still minors.
[2]
Due to the irretrievable breakdown of the marriage, the Respondent
instituted divorce proceedings
on the 11
th
of July 2023 to
which the Applicant filed a Plea and a Counterclaim– this
divorce action is still pending in this Court.
[3]
The Applicant, subsequent to the divorce action being instituted,
filed this application in terms
of rule 43 of the Uniform Rules of
Court, for maintenance and ancillary relief
pendente lite
,
seeking an order in the following terms: -
“
15.1
That specific parental responsibilities and rights regarding the
minor
children’s
residence and daily care as contemplated in Section 18(2) of
the Children’s
Act, Act 38 of 2005, be awarded to the Applicant pendent
lite.
15.2
That specific parental responsibilities and rights regarding
reasonable
contact with the minor
child as contemplated in Section 18(2) of the
children’s Act,
Act 38 of 2005, to be awarded to the Respondent pendente
lite in the following
manner: -
15.2.1
public holidays to alternate between the parties.
15.2.2
short school holidays to alternate between the
parties and long
school holidays to be
shared equally.
15.2.3
reasonable telephonic contact be allowed.
15.2.4
reasonable contact be awarded at all reasonable times.
15.3
That specific parental responsibilities and rights regarding
guardianship of
the minor
children, as contemplated in Section 18(2)(c) and 18(3) of the
Children’s Act,
Act 38 of 2005 be awarded jointly to the Applicant and the
Respondent.
15.4
That the Respondent be ordered to pay maintenance pendente lite to
the
Applicant in the
amount of R7 000,00 per month, first payment at the end
of the month upon
which the order is granted, thereafter payable on/or
before the last day of
every subsequent month.
15.5
That the Respondent be ordered to pay maintenance pendente lite to
the
Applicant for the two
minor children,
H J C L
and
G S L
per month per
child, first payment
to be made at the end of the month of which this order
is granted, and
thereafter before the last day of each subsequent month.
15.6
That the Respondent be ordered to pay: -
15.6.1 the
monthly school- and hostel fees of
H J C L
pendente lite,
directly
to the Hoopstad High School in Hoopstad, and;
15.2 the
monthly tutoring fees for
G S L
pendente lite,
directly to Love
of Learning Tutoring
Centre, Christiana.
15.7
That the Respondent be ordered to pay the Applicant and the minor
children’s fair
and reasonable medical-, dental-, pharmacy-, hospital-
and related medical
expenses which are not covered by the Applicant’s
medical aid fund
pendente lite.
15.8
That the Respondent be ordered to make a contribution to the
applicants
legal costs in the
amount of
R10,000
.
15.9
That the cost of this application be cost in the divorce
action, under the
case number
3523/2023
.
15.10
That further and or alternative relief be granted to the Applicant.”
[4]
At the hearing, the Parties agreed to prayers 15.1, 15.2, 15.3, 15.5,
15.6.1 and 15.2(which should
read 15.6.2) and the Respondent offered
prayer 15.7 in respect of the minor children to the exclusion of the
Applicant. The Applicant
waived 15.4, thus no longer pursuing her
spousal maintenance claim and similarly waived prayer 15.8, thereby
no longer pursuing
a contribution to legal costs.
[5]
What remained in contention between the Parties was:
1. the inclusion of the
Applicant in prayer 15.7 pertaining to the payment of fair and
reasonable medical-, dental-, pharmacy-,
hospital- and related
medical expenses which are not covered by the Applicant’s
medical aid fund
pendente lite
; and
2. that costs of
this application be costs in the divorce action, under case
3523/2023.
[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.
[1]
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.
[2]
[8]
Turning to the facts of the case. Th Applicant is employed as an
administrative assistant at Christiana
Combined School in Christiana
earning a monthly salary of R11 519,20. In addition the
Applicant receives monthly monetary
payments from Contantia Trust in
the amount of approximately R38 302.16 derived from maize, rental
property and lease of land,
thus a combined income of R49 821.36.
This income from the Trust is disputed by the Respondent stating that
it is at least
R4 914,00 per month more thus giving the Applicant
a combined income of R56 988.00 per month.
[9]
In respect of the medical aid the Applicant contend that she was
forced to obtain a new medical
aid fund since the Respondent
instructed her to remove him(the Respondent) from the medical aid.
The Applicant was unable to effect
the Respondent’s removal and
then proceeded to remove herself and the two children from the
medical aid and took out a new
medical aid for her and the two
children.
[10]
The Respondent refutes this, stating that the Applicant without his
knowledge removed herself and the two
children from the medical aid
and he was surprised to see the reduced medical aid deduction in July
2023 and furthermore that the
medical aid and gap cover is in any
event paid from the monetary contribution that he makes every month.
[11]
Counsel for the Applicant submitted that the Applicant seeks that the
Respondent pay for her expenses not
covered by the medical aid.
Counsel for the Respondent countered that the gap cover in any event
covers the Applicant and the Applicant
has not made out a case in her
application that any additional medical cover is needed by her.
Respondent’s Counsel further
submitted that even in the
Applicant’s Plea and Counterclaim to the divorce action she did
not claim for maintenance for
herself, she also did not claim medical
aid cover or gap cover for herself.
[12]
As a matter of law, the Applicant should in her papers establish a
need for her claim from the Respondent
for medical-, dental-,
pharmacy, hospital- and related medical expenses which are not
covered by the Applicant’s medical
aid fund. In the application
the Applicant prays for an order for Respondent to pay for her
medical expenses not covered by the
medical aid without alleging the
basis therefor. The Applicant further failed to claim same in the
pending divorce action.
[13]
Having regard to the principle in Nilsson
[3]
that 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.
This Court finds that the principle finds application in the instant
case and accordingly find that the Applicant failed to establish
a
need for her claim that the Respondent be ordered to pay the fair and
reasonable medical-, dental-, pharmacy-, hospital- and
related
medical expenses of the Applicant which are not covered by the
medical aid.
[14]
The Applicant submitted that the Costs of this application be costs
in the divorce action, under case 3523/2023
as the application needed
to be brought because the Respondent offered maintenance of R6 000,00
per month per child after
the divorce not
pendent lite.
[15]
Counsel for the Respondent requested that costs be
awarded in their favour and in turn submitted that the
Applicant
should be ordered to pay the costs of the Rule 43 application as the
Respondent tendered the maintenance
pendente lite
and it was
therefore superfluous to bring the Rule 43 application.
[16]
The Court is in agreement with the sentiments submitted on behalf of
the Respondent which was buttressed
by the Applicant’s
withdrawal of her claims for maintenance at Court.
[17]
In the result the following order is made:
17.1. Specific
parental responsibilities and rights regarding the minor children’s
residence and daily care as contemplated
in Section18(2) of the
Children’s Act, Act38 of 2005 is awarded to the Applicant
pendente lite
;
17.2. Specific
parental responsibilities and rights regarding reasonable contact
with the minor child as contemplated in Section
18(2) of the
Children’s Act, Act 38 of 2005, are awarded to the Respondent
pendente lite
in the following manner:
17.2.1. public holidays
to alternate between the parties;
17.2.2 school holidays to
alternate between the parties and long on school holidays to be
shared equally;
17.2.3 reasonable
telephonic contact to be allowed;
17.2.4 reasonable contact
to be awarded at all reasonable times.
17.3.
Specific responsibilities and rights regarding guardianship of the
minor children, as contemplated in capital
Section 18(2)(c) and 18(3)
of the Children’s Act, Act 38 of 2005 are awarded jointly to
the Applicant and the Respondent
pendente lite
.
17.4.
Respondent shall pay maintenance
pendente lite
to the
Applicant for the two minor children,
H J C G
and
G S L
and in the amount of R6000,00 per month per child, first payment to
be made at the end of the month on which this Order is granted,
and
thereafter the last day of each subsequent month.
17.5. Respondent
shall pay:
17.5.1 the monthly
school- and hostel fees of
H J C L
pendente lite,
directly
to Hoopstad High School in Hoopstad, and;
17.5.2 the monthly
tutoring fees for
G S L
pendente lite,
directly to Love
of Learning Tutoring Centre, Christiana.
17.6. Respondent
shall pay the minor children’s fair and reasonable medical-,
dental-, pharmacy-, hospital- and related
medical expenses which are
not covered by the Applicant’s medical aid fund,
pendente
lite.
17.7. Applicant’s
claim that the Respondent be ordered to pay the Applicant’s
fair and reasonable medical-, dental-,
pharmacy-, hospital- and
related medical expenses which are not covered by the Applicant’s
medical aid fund
pendente lite,
is dismissed.
17.8. Applicant shall pay
the costs of this Rule 43 application to the Respondent.
M.T.
JORDAAN
Acting
Judge of the High Court, Free State Division
APPEARANCES:
Counsel
on behalf of the Applicant:
Adv
I. Macakati
Instructed
by:
Schoeman
Steyn Inc c/o Horn & Van Rensburg Attorneys
BLOEMFONTEIN
Email:
mjvr@hvrlaw.co.za
Counsel
on behalf of the Respondent:
Adv.
J.C. Coetzer
Instructed
by:
Christo
Faber Attorneys c/o Stander & Associates
BLOEMFONTEIN
Email:
admin@cfprok.co.za
[1]
Nilsson
v Nilsson 1984 (2) SA (C) 294
[2]
Zaphiriou v Zaphiriou 1967 (1) SA 342 (W)
[3]
Nilsson
v Nilsson
1984 (2) SA 294
(C)