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[2023] ZAGPPHC 121
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M.P v K.P.P [2023] ZAGPPHC 121; 48853/2021 (24 February 2023)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: 48853/2021
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED: NO
DATE: 24 February 2023
E van der Schyff
In
the matter between:
M[...]
P[...]
APPLICANT
and
K[...]
P[...]
P[...]
RESPONDENT
JUDGMENT
Van
der Schyff J
[1]
The parties are involved in an acrimonious
divorce. An order was granted in terms of Rule 43 of the Uniform
Rules of Court on 6
January 2022. The applicant now approaches the
court in terms of Rule 43(6) for a variation of the order.
[2]
Rule 43(6) provides that a court may vary
its decision in the event of a material change occurring in the
circumstances of either
party or a child, or if the contribution
towards costs is proving to be inadequate.
[3]
The parties opposed divorce is set down for
trial on 8 May 2023. The two primary questions that need to be
answered are (i) was
there a material change in circumstances since
the order was granted in January 2022 (the January-order) that
necessitates a variation
of the existing order; (ii) is it in the
children’s best interests to change the
status
quo
less than two months before the
matter will finally be determined in opposed divorce proceedings.
[4]
The contentious provision in the
January-order is the respondent’s contact with the children
which entails that he has the
right to remove the children every
alternative weekend from a Thursday afternoon after school until
Monday morning when he returns
the children to school.
[5]
The applicant contends that since the
January-order was granted the Office of the Family Advocate concluded
an investigation regarding
the residency and contact arrangement that
is in the best interests of the children, and made recommendations
regarding the primary
care of the children which indicate that the
current contact arrangements are not in the children’s bests
interest. It has
also since been established that the parties’
eldest son has learning problems for which he needs extra classes and
that
he needs therapy for emotional problems. The applicant thus
claims an increase in the maintenance contribution made by the
respondent.
In the event that the respondent’s contact is
curtailed, she claims a further increase.
[6]
The Family Advocate opines that the
children, and in particular the eldest child, need structure,
stability, and routine in their
lives. The Family Advocate’s
report is directed at the final residency regime that should be
incorporated.
[7]
After considering the affidavits filed, I
am not of the view that there is any material change in the
circumstances that necessitates
an immediate intervention. The court
seized with the divorce will have regard to the factors highlighted
in the Family Advocate’s
report
as
supported
by
other
expert
opinions,
and
determine
the residency and contact regime that is in
the children’s best interest. I am not of the view that it is
in the children’s
best interests in the factual context of
their situation to vary the existing arrangement which has been in
place since January
2022, when the trial is set for 8 May 2023.
[8]
As for the maintenance contribution, the
court dealing with the Rule 43 application considered the parties’
respective financial
positions and the children’s financial
needs. The applicant submits that she asked for a contribution of R12
000 per child
per month but that the court ordered that the
respondent contribute R5 500.00 per month. She states ‘The fact
that the court
did not make the award did not make the expenses
disappear. To cover these expenses and to make sure the children’s
needs
are catered for, I have been forced deeper into debt. At this
stage I am overburdened with debt’.
[9]
Although I empathise with both parties, I
am of the view that no material change in circumstances has occurred
since the granting
of the January-order that necessitates this court
to step in to amend the interim arrangement. The current order
provides for the
additional costs that are necessitated by the
eldest’ child’s learning and emotional problems. Although
the applicant
also seeks that the current order be amended to provide
that the respondent pay the contributions he is responsible for
within
7 days of being provided with the invoices, no case was made
that the respondent is tardy in this regard or fails to pay such
contributions
timeously. It will be practical if such a provision is
included in the final order, but this aspect does not justify a Rule
43(6)
application.
[10]
This application stands to be dismissed.
Due to the nature of the proceedings costs are to be costs in the
cause.
[11]
The parties are encouraged to engage in
constructive discussions prior to the divorce proceedings.
ORDER
In
the result, the following order is granted:
1.
The application is dismissed.
2.
Costs are costs in the cause.
E van der Schyff Judge of
the High Court
Delivered: This judgement
is handed down electronically by uploading it to the electronic file
of this matter on CaseLines. As a
courtesy gesture, it will be sent
to the parties/their legal representatives by email.
For
the applicant:
Adv. C Barreiro
Instructed
by:
JP Venter Attorneys
For
the respondent:
Adv. E Haarhoff
Instructed
by:
CR Law Inc.
Date
of the hearing:
21 February 2023
Date
of judgment:
24 February 2024