About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 139
|
|
G.H.G v A.C.G (1143/2023) [2023] ZAFSHC 139 (4 May 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: 1143/2023
In
the matter between
:
C[...]
H[...] G[...]
Applicant
and
A[...] C[...]
G[...]
Respondent
HEARD
ON
:
28 April 2023
CORAM
:
RAMDEYAL, AJ
DELIVERED ON
:
The judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release to
SAFLII
on
4 May 2023
. The date and time for hand-down is deemed to be
4 May 2023
at
15: 00
.
[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]
Both parties were married to
each other on 27 May 2006 out of community of property and
with the
exclusion of the accrual system.
[3]
The applicant seeks maintenance in the amount of R5 200.00 per
month as well
as R10 000.00 towards costs. She further requires
medical aid and the continued use of the Corsa utility vehicle in her
possession.
[4]
The respondent has no objection
to the applicant’s continued use of the vehicle and
submits
that she can keep same as her sole and exclusive property. He is
willing to contribute towards the legal fees of the applicant
in the
amount required, being R10 000.00 He is further willing to pay
her medical aid contribution as required. He is not
in a position to
pay the monthly maintenance amount of R5200.00 as he is unable to do
so as he no longer has the means to pay.
[5]
Both parties have been separated
for 2 years and their divorce action in most respects
appears
amicable. The respondent did pay maintenance to the applicant in the
amount of R5000 per month and stopped paying this
amount in February
2023 as his means changed.
[6]
The applicant’s expenses
are set out in paragraphs 7.1 and 7.2 of her founding affidavit.
Her
nett salary together with the rental she receives for a townhouse is
a total of R15 460.38. Her deficit is approximately
R8289.62;
hence she seeks maintenance in the amount of R5200.00 and medical aid
payment in the amount of R2 990.00 to cover
the deficit.
[7]
Counsel for the respondent has
submitted that the applicant could live in her townhouse
to lower her
expenses by R2500.00 Counsel for the applicant has submitted that
applicant’s expenses are reasonable and not
exorbitant.
[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 both
the parties, the applicant’s actual and reasonable requirements
and the capacity of the respondent to meet the requirements.
[1]
[9]
The respondent paid maintenance in the amount of R5000.00 during
their separation
for about 2 years, he stopped paying that amount
only about 2 months ago as he cannot afford to and his income and
expenses show
a huge deficit of about R33 000. He is,
however, willing to pay legal costs for the applicant and her medical
aid.
[10]
Counsel for the applicant submitted that if the
respondent is willing to pay medical aid and legal costs
of
R10 000.00 then he does have money and can pay maintenance as
well, as the respondent has not submitted actual proof of
his
inability to pay.
[11]
In this particular matter that comes before me
there are no bank statements or documentation as such except
for the
list of income and expenses provided in the affidavits of both the
parties.
[12]
What is before me on paper is a shortfall in
respect of both parties in respect of their income and expenses.
It
does appear probable that the respondent is unable to pay the amount
of R5200.00 as he did pay an amount of R5000.00 for some
time and it
is apparent that it was on his own will. However, the respondent is
willing to pay the medical aid fee as well as provide
the applicant
with full use of the vehicle in question and contribute to her legal
costs.
[13]
The only way to decide these issues is based on
the papers before me which may be to draw inferences and
to look to
the probabilities as they emerge from the papers.
[2]
[14]
The claim supported by the applicant is reasonable and
moderate and does carry more weight than one which includes
extravagant and extortionate demands-similarly more weight will be
attached to the affidavit of the respondent who evinces a willingness
to implement his lawful obligations and not seeking to evade them.
[3]
[15]
The applicant displays reasonable and moderate
claims and so too the respondent evinces a willingness to
implement
his lawful obligation by agreeing to make certain contributions. It
appears improbable that in light of these factors
that the respondent
would have stopped paying maintenance unless he actually could not
afford to do so.
[16]
It would have been preferable had the respondent
produced a full financial disclosure explaining why he
is unable to
pay the required amount rather than showing a huge deficit on paper
without any proof of same. The court too would
have been in a better
position to assess the respondent’s financial position and to
make an order based on an informed decision
if there was
transparency
[4]
The same applies
to the applicant, documentation and bank statements from her would
have enabled transparency. Her pay slip, Annexure
‘A” of
the court papers, however, is noted.
[16]
The applicant is employed and does receive further income from a
rented property. In my view
with some assistance from the respondent
she will be able to find relief in the interim. Both parties have
some expenses that they
can reduce.
[17]
I therefore make the following order:
1. That
the respondent pay maintenance
pendent lite
to the applicant
in the amount of Two Thousand Rand (R2000.00) per month;
2. The
applicant
pendent lite
is to retain the use of the Corsa
utility bakkie currently in her possession
3. The
respondent is to pay the monthly premium of the applicant’s
medical aid fee in the amount of R2990.00
pendent lite;
4. The
respondent is to make a contribution to the applicant’s costs
in the amount of Ten Thousand Rand
(R10 000.00) payable in
instalments of Two Thousand Rand (R2000.00) per month.
5. The
costs of this application are costs in the cause.
_______________
RAMDEYAL
AJ
On
behalf of the Applicant:
Advocate
M.Louw
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Advocate
I.Sanders
Instructed
by:
Peyper
Attorneys
BLOEMFONTEIN
[1]
Botha
v Botha
2009 93) SA 89
(WLD) at 106 C.
[2]
Levin
v Levin and Another 1962(3) SA 330 W at page 331 D.
[3]
Taute
v Taute
1974 (2) SA 675
at 676 H.
[4]
Ts
v Ts [2018] ZAGPJHC 29 at paragraph 22; and see also E v E
2019 (5)
SA 566(GJ)
paragraphs 56 to57.