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[2023] ZAFSHC 154
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L.F.J.S v D.P.S (3045/2022) [2023] ZAFSHC 154 (28 April 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
3045/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
L[....]
F[....] J[....]
S[....]1
Applicant
[ID: 6[....]]
And
D[....]
P[....]
S[....]2
Respondent
[ID: 5[....]]
CORAM
:
RAMDEYAL
AJ
HEARD
ON
:
20
April2023
DELIVERED
ON
:
28
April 2023
[1]
This is an application for payment of
maintenance
pendent lite
and
contribution towards costs in terms of Rule 43 of the Uniform Rules
of Court.
[2]
The respondent instituted divorce
proceedings against the applicant which action is still pending
before this court. The applicant
and respondent were both married on
17 April1993, out of community of property with the exclusion of the
accrual system. They have
two children that have reached the age of
majority.
[3]
The parties are separated and the applicant
currently lives in Jeffrey’s Bay in a property apparently owned
by the respondent.
[4]
The applicant avers that she has suffered
physical abuse during the course of the marriage at the hands of the
respondent. She raised
their children, maintained the common
household and supported and assisted the respondent in his business
and farming endeavors.
The parties enjoyed a lifestyle of luxury.
Whilst the respondent still maintains the applicant at the Jeffery’s
Bay property
the applicant is still in need of further maintenance.
[5]
The respondent pays the applicant an amount
of R17 000 over and above the payment of the expenses for the
Jeffrey’s Bay
property. This is not in dispute. He is willing
to retain the applicant on his medical aid, make available the
Mercedes Benz vehicle
to her and to pay R2500 towards legal costs.
[6]
He believes that the applicant is now in a
relationship and living with a certain Mr. Lotter, according to his
private investigation
and therefore the applicant seeks cash
maintenance in the exorbitant amount.
[7]
The applicant on the other hand is not
satisfied with the amount of R17 000 which the respondent is
currently paying as her
expenses exceed that amount. The applicant
according to her list of expenses submitted Annexure’’
FA2” page 27
the papers requires an amount of R33 180.00 per
month for her expenses which is almost twice the amount the
respondent is currently
paying.
ANNEXURE “FA2”
PERSOONLIKE
MAANDELIKSE UITGAWE
1.
KRUIDENIERS ENS
1.1
Kruideniers
3600.00
1.2
Melk en brood
200.00
1.3
Vleis
1300.00
1.4
Vrugte en groente
1200.00
1.5
Skoonmaakmiddels
600.00
2.
PERSOONLIKE SORG
2.1
Nag - en dagrome.
grimering
3000.00
2.2
Haarsny
1000.00
2.3
Naelversorging
350.00
2.4
Shampoo, conditioner
ens
250.00
2.5
Tandepaste, seep ens.
100.00
2.6
Vitamiene ens
600.00
3.
Internet (Wifi)
450.00
3.1
Addisionele data
100.00
4.1
Klerasie en skoene
2000.00
4.2
Sportdrag
500.00
5.
Brandstof
40000.00
6.
Lewensversekering
800.00
7.
Leesstof en musiek
350.00
8.
Bankkoste
380.00
9.
Gimnasium
250.00
10.
Ontspanning
2000.00
11.
Sakgeld
2500.00
12.
Geskenke
1000.00
13.
Onvoorseine uitgawes
2000.00
14.
Reiskoste om kinders
te besoek
1700.00
15.
Kroniese medikasie
1700.00
16.
Veearts ten opsigte
van honed
250.00
17.
Huishulp
1000.00
TOTAAL
R33 180.00
[8]
The
purpose of interim maintenance is to supplement expenses which the
applicant cannot meet but in terms of Rule 43 such maintenance
must
be reasonable in the circumstances, depending on the marital standard
of living of the parties, the applicant’s actual
and reasonable
requirements and the capacity of the respondent to meet the
requirements.
Botha
v Botha
[1]
[9]
It is so that the applicant lived a life of
comfort and luxury with the respondent. It is further so that the
applicant seems to
want to continue that lifestyle and believes she
is entitled to as the respondent is a man of considerable means
whereas the applicant
has no income or assets.
“…
A
claim supported by reasonable and moderate details carries more
weight than one which includes extravagant or extortionate
demands-similarly
more weight will be attached to the affidavit of a
respondent who evinces a willingness to implement his lawful
obligations than
to one who is obviously, albeit on paper, seeking to
evade them…”
Taute
v Taute
[2]
[10]
The list of expenses that the applicant
claims does include some excessive expenses. The respondent maintains
the property the applicant
currently resides at and pays all the
electricity, rates, security, cellular phone and medical expenses
including numerous other
expenses as per annexure A (page 54 of the
court bundle).
[11]
The respondent does not evade his lawful
duties and evinces a willingness to do so. The possibility of the
applicant living with
another man should in no way increase costs for
the respondent.
[12]
In my view the maintenance together with
all the other expenses the respondent currently pays is reasonable.
[13]
In respect of legal costs, the applicant
seeks a contribution in the amount of R30 672.00. It is obvious
that the applicant
does not have sufficient means to cover her legal
costs. The amount ordered to be paid by the respondent lies within
the discretion
of the presiding judge.
[14]
In
Van
Rippen v Rippen
[3]
the exercise of that discretion was discussed…
“…
the
Court should, I think, have the dominant object in view that, having
regard to the circumstances of the case, the financial
position of
the parties and the particular issues involved in the pending
litigation, the wife must be enabled to present her case
adequately
before the Court…”
[15]
The
applicant was totally dependent on the respondent during the marriage
and still dependent on him now for support. He has instituted
divorce
proceedings against her. She has a right to defend the action and her
right to dignity must be protected and would be infringed
should she
have to approach the respondent for legal fees of the pending divorce
action.
Cary
v Cary
[4]
[16]
The papers before me do indicate that the
respondent being a man of means can afford to contribute to the
applicant’s legal
fees and will not be prejudiced in the
conduct of his own case should he be ordered to do so.
[17]
In the circumstances of this matter and
having considered all the expenses and papers before me as well as
being tasked according
to counsel for both parties to make an order
only in respect of cash amounts (applicant’s accommodation and
expenses of the
property thereof being in place) I make the following
order:
1.
That the respondent pay maintenance to the
applicant in the amount of R17 000 per month; the first payment
is to be made on/or
before the first day of the month following this
order and thereafter on/or before the first day of each successive
month.
2.
That the respondent retains the applicant
as a beneficiary on his medical aid pendent lite and pay all other
additional reasonable
medical costs incurred that is not covered by
the medical aid;
3.
That the respondent makes available the
Mercedes Benz vehicle with registration number F[....] to the
applicant
pendent lite
and pay the monthly instalment if any; and that the respondent be
liable for all maintenance costs of the vehicle,
pendent
lite
;
4.
That the respondent makes a contribution to
the applicant’s legal costs in the amount of R20 000. 00.
RAMDEYAL
AJ
On
behalf of the Applicant: Adv.
Van Aswegen
Instructed
by: Hill,
Mchardy & Herbst Ing
Bloemfontein
On
behalf of the Respondent: Adv.
S Reinders
Instructed
by: Honey
Attorneys
Bloemfontein
[1]
2009
(3) SA 89
(WLD) at 106 C
[2]
1974
(2) SA at 675
[3]
1949
(4) SA 634
(C) at 37
[4]
1999
(3) SA 621
D –G