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[2023] ZAFSHC 161
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T.V.W v C.J.V.W (1337/2023) [2023] ZAFSHC 161 (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
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 1337/2023
In
the matter between:
T[...]
V[...] W[...]
APPLICANT
and
C[...]
J[...] V[...] W[...]
RESPONDENT
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 and by release to SAFLII.
The date and time for delivery is deemed to be at 12h00 on 28 April
2023.
JUDGMENT
[1]
The parties were married to each other on
the 22 September 2007 out of community of property and with the
application of the accrual
system, which marriage still subsists. Two
minor boys, aged 11 and 8 years were born of the marriage. Their
life-boat however,
is on the verge of sinking and they are now headed
for divorce. That action is pending before this court.
[2]
As a sequel thereto, the applicant
approached this court seeking relief under Rule 43 for maintenance
pendente lite
in
respect of herself and the 2 minor children.
[3]
There
is
no
dispute,
pendente
lite,
between
the
parties
regarding
the
minor
children's primary care and contact.
[4]
In the notice of motion the relief sought
is set out as follows;
1.
That the parental responsibilities
and rights with regards to the care of the minor children as
contemplated in
Section 18(2)(a)
of the
Children's Act, 38 of 2005
,
be awarded to both parties;
2.
That the primary residency of the
minor children be awarded to the applicant
pendente
lite;
3.
That the specific parental
responsibilities and rights in respect of contact with the minor
children as contemplated in
Section 18(2)
(b) of the
Children's Act,
Act
38 of 2005, be awarded to the Respondent in the following manner:
3.1.
Contact on alternative weekends from
17h00 on a Friday to 17h00 on a Sunday;
3.2.
Public holidays to alternate between
the parties;
3.3.
Short school holidays to alternate
between the parties and all long school holidays to be divided
equally between the parties on
the basis that the minor children will
spend an alternative December holiday for Christmas with the
alternate party;
3.4.
At least three (3) hours of contact
to be awarded to the Respondent on the birthday of a minor child and
that of the Respondent.
3.5.
Contact
on
Father's
Day from
09h00 to 17h00
if
this day does not coincide with a normal access weekend;
3.6.
Reasonable telephonic contact.
4.
That the parental responsibilities
and rights with regards to the guardianship of the minor children as
contemplated in
Section 18(2)
(c) and
18
(3) of the
Children's Act 38 of 2005
, be awarded to the parties jointly.
5.
That the Respondent will pay
maintenance pendente lite towards the Applicant in respect of the
minor child at the rate of R7 000.00
per month per child.
6.
That the Respondent be liable for
all medical, dental, ophthalmic and pharmaceutical costs of the minor
children not covered by
the medical aid.
7.
That the Respondent pays maintenance
to the Applicant in the amount of R18 000.00 per month.
8.
That the Applicant retains assets as
set out in Annexure "B" as her sole property,
alternatively, that the Respondent
pays R150 000.00 towards the
Applicant's furniture and household purchases within 7 days of this
order:
9.
Cost of this application to be cost
in the main action.
10.
Further and/or alternative relief.
[5]
In addition she also seeks a contribution
towards her legal costs in the divorce action in the amount of R10
000.000.
[6]
It is common cause that the applicant is
employed and earns a monthly salary of R17 208.86. She submits that
she has no other income
or savings to utilize in order to cater for
her and her minor children's needs. Further that it is not in the
interests
of the minor children or
herself to continue residing with the respondent in the communal
home, as such she has to vacate the communal
home.
[7]
In
her
founding
affidavit
she
stated
the
following
expenses
to
be
her
and
the
children's monthly expenses
pendente
lite;
8.1.1.
Lodging
R12000.00
8.1.2.
Water &Electricity
R15000.00
8.1.3.
Security
R456.77
8.1.4.
Short-term insurance
R600.00
8.1.5.
Groceries
R2000.00
8.1.6.
Meat, fish and chicken
R1200.00
8.1.7.
Fruit and vegetables
R1000.00
8.1.8.
Bread, milk and daily purchases
R1000.00
8.1.9.
Cleaning materials
R600.00
8.1.10.
Clothing -
myself
R1000.00
8.1.11.
Clothing -
children
R1200.00
8.1.12.
Hair care -
me
R430.00
8.1.13.
Hair care -minor
children
R200.00
8.1.14.
Skincare myself and the children
R400.00
8.1.15.
Pharmacy and toiletries
R1200.00
8.1.16.
Nails
R930.00
8.1.17.
Vehicle installment
R6750.24
8.1.18.
Fuel
8.1.19.
Vehicle insurance
8.1.20.
Cellphone
5.1.21.
School activities
R1000.00 R664.00
R530.00
R1550.00
5.1.22.
Books and stationery
R300.00
5.1.23.
Domestic worker
R4500.00
5.1.24.
DSTV
R900.00
5.1.25.
Annuities
R665.50
5.1.26.
Life insurance
R448.76
5.1.27.
Personal loan
R1325.07
5.1.28.
Credit card
R1500.00
5.1.29.
Pinn-African
motor
R253.91
5.1.30.
Dinnguard
motor
R121.00
5.1.31.
Banking costs
R303.00
5.1.32.
Au pair
R3000.00
TOTAL
R49 528.25
[8]
She submitted that the aforesaid expenses
were her and the children's normal expenses and that none were
exorbitant. In the founding
affidavit she sketched a picture of a
comfortable lifestyle enjoyed by the parties, as evinced, amongst
others, by the use of an
au pair and the applicant's regular grooming
and or beauty treatments.
[9]
She further submitted that if regard is had
to her income and the aforesaid monthly expenses, her monthly
short-fall amounts to
R32 328.25. Further that the respondent is a
man of means and could afford the financial relief she seeks
pendente
lite.
[10]
The respondent opposes this application in
so far as it relates to the financial relief sought
pendente
lite.
[11]
He submitted that he has always maintained
his family, even after the main action was instituted and continues
to pay for the monthly
expenses. He placed the following financial
position before the court; he is gainfully employed and earns R43
848.70 per month.
Additionally he owns an accounting business which
generates an approximate monthly turn-over of R20 850.00. He also
conducts a
farming enterprise with his brother, which business is
operating at a loss. He furthermore, in the interests of the minor
children,
offered to vacate the communal home and seek alternative
accommodation.
[12]
He made the following tender
pendente
lite,
(a).
R7500.00 per month in respect of
maintenance for the applicant.
(b).
R3500.00 per month per minor child
(c).
continue to pay the monthly bond for
the communal home in the sum of R19 632.20 per month, as well as pay
for the rates and taxes.
(d).
continue to pay the insurance
(e).
payment of school uniforms, school
books, extramural activities in respect of the children, if
applicable.
(f).
payment of the applicant's monthly
medical aid premium as well as all reasonable and necessary medical,
ophthalmic and
pharmaceutical costs not
covered by the applicant's medical aid.
(g).
a contribution of R5000.00 towards
the applicant's legal costs in the main action, to be paid in 5 equal
monthly instalments.
[13]
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
[14]
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
[1]
.
[15]
In
Taute
v Taute
[2]
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.
[16]
In casu,
the
respondent is not shirking away from his responsibilities, right off
the bat he offered to continue carrying some of the communal
expenses, vacate the communal home and even carry some of the
applicant's own expenses. In fact the respondent went further than
that and offered to pay maintenance
pendente
lite
to the applicant when she by her
own admission is gainfully employed. When regard is had to everything
that the respondent has tendered,
a picture that emerges is that the
applicant would be left with minimal, if any, monthly shortfall.
[17]
Having
said that, I am alive to the fact that the respondent has more
financial resources than the applicant, I am not persuaded
that the
tender made of R5000.00 would ensure that parity of arms in the
divorce action would obtain, to that end 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
[3]
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."
[18]
Having had regard to the applicant's stated
monthly income and expenditure, the respondent's earning capacity and
the tender he
made, I hold the considered view that the tender made
by the respondent reasonable in the circumstances.
[19]
In the circumstances
I make the following order:
IT IS
ORDERED
PENDENTE
LITE
THAT:
19
.1.
The
respondent shall monthly pay spousal maintenance to the applicant in
the amount of R7500.00 with effect from 7th May 2023.
19.2.
The Respondent shall pay maintenance
in respect of the 2 minor children in the sum of R3500.00 per month
per minor child with effect
from the 7th May 2023.
19.3.
The respondent shall continue to pay
the monthly bond for the communal home in the sum of R19 632.20 per
month, as well as pay for
the rates and taxes.
19.4.
The respondent shall continue to pay
the monthly premiums for the short term and vehicle insurance in
the sum of R600 and R664
respectively.
19.5.
The respondent shall pay for the
school uniforms, school books, and extramural activities in respect
of the children, if applicable.
19.6.
The respondent shall pay the
applicant's monthly medical aid premium as well as pay for all
reasonable and necessary medical, ophthalmic
and pharmaceutical costs
not covered by the applicant's medical aid.
19.7.
The Respondent shall make a
contribution towards the
Applicant's legal
costs in the amount of R10 000.00.
19.8.
Costs of this application shall be
costs in the main action.
NG GUSHA, AJ
On
behalf of the applicant
Adv.
J.C. Kotze
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv.
J. Els
Instructed
by:
EG
Cooper Majiedt Inc
BLOEMFONTEIN
[1]
B.R
v D.R (14189/22)[2023] ZAWCHC 59 (17 March
2023).
[2]
1974
(2) SA 675 (E).
[3]
1999
(3)
SA
615
(C);
[1999]2 All SA 71
(C).