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[2023] ZAFSHC 140
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J.M.S v P.G.S (5150/2022) [2023] ZAFSHC 140 (28 April 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No. 5150/2022
In
the matter between:
J[…]
M
S[…]
APPLICANT
[1]
And
P[…]
G
S[…]
RESPONDENT
[2]
CORAM
:
GUSHA, AJ
HEARD
ON:
20 APRIL 2023
DELIVERED
ON
:
This judgment was delivered electronically by circulation to the
parties’ representatives by way of email. The date and time
for
delivery is deemed to be at 12h00 on 28 April 2023.
JUDGMENT
[1]
This is an opposed application in terms of
Rule 43 of the Uniform Rules of Court for relief
pendente
lite.
[2]
The parties were married to each other in
community of property on the 20
th
February 1999 which marriage still subsists. The couple share a 9
year old a boy. The respondent instituted divorce proceedings
against
the applicant. That action under case number 3678/2022 is still
pending before this court.
[3]
In her founding affidavit the applicant
sought financial relief
pendente
lite
in
respect of herself and the minor child as well as an order
pendente
lite
relating to the parental rights in
respect of the minor child. She seeks maintenance in the amount of
R18 600.00 per month in respect
of herself and R8000.00 per month in
respect of the minor child. Further that the respondent retains her
and the minor child as
defendants on his medical aid scheme and that
he be liable for all medical, dental, ophthalmic and pharmaceutical
costs not covered
by the medical aid. She also seeks a contribution
in respect of her legal costs in the amount of R15 000.00.
[4]
It is manifest from the record that this
matter has some history. It was originally set down for hearing on
the 9
th
February 2023 and on the 23
rd
February 2023. On both dates Tsangarakis AJ postponed the matter and
ordered the respondent to file his supplementary affidavit,
this
order however, to date remains unsatisfied.
[5]
On the 20
th
April 2023 it was allocated to me for hearing on the opposed roll. By
agreement between the parties, the hearing proceeded on the
financial
relief sought
pendente
lite
and
the parental rights stood over for later adjudication.
[6]
It is common cause that the applicant is self –employed as a
businesswoman and
earns R10 000.00 per month. Due to the breakdown of
the marriage she vacated the matrimonial home and secured a rental
property.
Her monthly living expenses inclusive of the minor child’s
amount to R26 000.00 leaving her with a monthly shortfall of R16
000.00.
[7]
The employed and earns a monthly salary of approximately R30 000.00
excluding production
bonuses. He listed a monthly expenditure of R53
990.00 which leaves him with a monthly shortfall of R24 990.00. His
listed income
and expenditure, when objectively viewed against his
bank statements paint a picture of someone who inflated his expenses
and understated
his income.
[8]
Rule 43 of the Uniform Rules of Court provides as follows:
(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
[9]
An application in terms of Rule 43 is interlocutory in nature and the
purpose thereof
is to provide relief in the interim pending the main
action. It is common cause that the rule emanated from the position
that a
claimant, usually a woman, found themselves destitute when
litigating against their spouse, who were often in a stronger,
financial
position than themselves in divorce proceedings
[3]
.
[10]
In
Taute
v Taute
[4]
the court held that there is no general principle upon which an
application under Rule 43 can or must be based. Each case must
depend
on its own particular facts. The court further held that a claimant
for maintenance
pendente
lite
was not entitled as of right, and without more, to maintenance
sufficient to keep him or her in the same lifestyle as that enjoyed
during the marriage. The applicant spouse, normally the wife, is
entitled to reasonable maintenance
pendente
lite
dependent
upon the marital standard of living of the parties, her actual and
reasonable requirements and the capacity of her husband
to meet such
requirements which are normally met from income although in some
circumstances inroads on capital may be justified.
[11]
The respondent is clearly in a far better financial position than the
applicant and must make
a financial contribution pendente lite
towards her upkeep as well as that of their minor son. I am however
not persuaded that that
financial assistance, in respect of the
applicant, amounts to R18 000.00 per month. I hold the view that that
amount, objectively
viewed against the backdrop that she also wants
the respondent to keep her on his medical aid, is exorbitant.
[12]
With regards to the minor child, I broached with counsel the subject
of making an order for a
globular amount seeing as the parties are
embroiled in an acrimonious divorce. I held the considered view that
this would mitigate
the acrimony and friction between the parties, if
only in respect of the wellbeing of the minor child. Both counsel
were amenable
to that and I am indebted to them.
[13]
In conclusion, the respondent is clearly in a far better financial
position than the applicant
and must make a financial contribution
pendente lite towards her upkeep as well as that of their minor son.
[14]
I am satisfied that the amount sought as a contribution is not only
reasonable but would also
go a long way to ensure that the applicant,
in the main action, litigates on a similar footing with respondent.
In
Cary
v Cary
[5]
The court held:
“…
applicant
will not enjoy equal protection unless she is equally empowered with
'the sinews of war'. The question of protecting applicant's
right to
and respect for and protection of her dignity also arises in the
present situation, where a wife has to approach her husband
for the
means to divorce him.”
[15]
In the circumstances I make the following order:
IT
IS ORDERED
PENDENTE LITE
THAT:
1.
The respondent
shall
pay spousal maintenance to the applicant in the amount of
R3
500.00 per month with effect from 7
th
May 2023.
2.
The Respondent shall pay maintenance in
respect of the minor child in the sum of R8 000.00 per month with
effect from the 7
th
May 2023.
3.
The respondent shall retain the minor child
as a defendant on his medical aid and shall pay for all reasonable
and necessary medical,
ophthalmic and pharmaceutical costs not
covered by the medical aid.
4.
The respondent shall
make a contribution towards the applicant’s legal costs in the
amount of R10 000.00.
5.
Costs of this
application shall be costs in the main action.
_______________
NG
GUSHA, AJ
On
behalf of the applicant
Adv.
GJ VAN RENSBURG
Instructed
by:
Anton
Kruger Attorneys
VIRGINIA
On
behalf of the respondent:
Adv.
MC PIETERSE
Instructed
by:
KRUGER
VENTER ATTORNEYS
BLOEMFONTEIN
[1]
Defendant
in the main action.
[2]
Plaintiff
in the main action.
[3]
B.R
v D.R (14189/22)
[2023] ZAWCHC 59
(17 March 2023).
[4]
1974
(2) SA 675 (E).
[5]
1999
(3) SA 615
(C); [1999]2 All SA 71 (C).