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[2023] ZAECMKHC 14
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A.B v C.C.B (1931/2020) [2023] ZAECMKHC 14 (16 February 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
(EASTERN CAPE
DIVISION, MAKHANDA)
Case
No: 1931/2020
In
the matter between:
A[...]
B[...]
Applicant
And
C[...]
C[...]-B[...]
Respondent
JUDGMENT
BESHE
J:
[1]
The parties in this matter are
embroiled in a divorce action. Following a
Rule 43
application
by the respondent, the parties agreed to the issuing of an order on
the 17 November 2020, in the following terms:
“
1. The Minor
Children’s primary place of residence shall be with the
Applicant, the Applicant shall be the Minor Children’s
primary
caregiver, with the Respondent to have reasonable rights of access.
2. That the Respondent
shall make payment of maintenance to the Applicant in the sum of
R20 000.00 per month on the 1
st
day of each month,
such payment to begin on 1 December 2020.
3. That the Respondent
shall make payment of all minor children’s reasonable school
fees, school uniforms, school-related
extra-mural activities, costs
and uniforms and equipment required for school extra-mural
activities.
4. That the Respondent
shall attend to the payment of the monthly instalments, insurance and
maintenance of the Mercedes Benz GLA
200 CDI 2014 model.
5. That the Respondent
shall make payment of the sum of R7 500.00 for a contribution to
legal costs, such payment to be made
to the Applicant’s
attorneys of record by 10 December 2020.
6. That the Respondent
shall make payment of the monthly lease amount in the sum of
R7 750.00 for the residence in which the
Applicant and the minor
children reside.
7. That costs of the
application shall be costs in the cause.”
[2]
The then respondent who is the
defendant in the divorce action approaches this court as
an applicant
in terms of
Rule 43 (6)
, seeking the setting aside of the
abovementioned rule and replacing it with an order in the following
terms:
“
That
the respondent be ordered to pay maintenance
pendente lite
towards the minor daughter in the amount of R10 870.00 per month
on or before the first day of the month directly into the
applicant’s
nominated bank account.”
Reference
to respondent in this prayer appears to be an error as later in her
papers applicant prays that the “applicant”
be ordered to
make the abovementioned payment.
[3]
Rule 43 (6)
provides for
the varying of a court’s earlier decision in the event of a
material change occurring in the circumstances of
either party or a
child or the contribution towards costs proving inadequate.
[4]
It emerges that what the
applicant seeks is a variation of the order of the 19 November
2020
on the basis of changed circumstances. Those changes being:
(a)
The respondent has since secured a job and earns R14 000.00 per
month.
(b)
One of the party’s minor children has reached majority age, has
secured a job and is no longer being supported by
the respondent.
(c)
His business has come to a standstill with the result that his income
was in effect reduced to zero.
As
far their son
J[...]
is concerned, applicant makes the point
that the extant
Rule 43
order was made on the basis that
J[...]
was living with respondent. He further makes the point
that he has for an extended period funded his monthly shortfall from
his
inheritance from his mother and loans from his life partner.
[5]
He then goes on to tabulate his
monthly expenses and annex a FNB business account statement.
Applicant contends that respondent is not interested in having the
divorce action finalised, refuses to go for mediation, is content
in
dragging the divorce action whilst she enjoys maintenance
pendente
lite
.
[6]
The amount of R10 870.00 he
is tendering to pay is towards the maintenance of their
daughter.
[7]
The application is opposed by
the respondent on
inter alia
the following grounds: The
applicant has not made a full and frank disclosure of his
circumstances. That the attainment of majority
by their son does not
constitute a material change warranting the variation of the order
because he was in any event not staying
with the respondent on a full
time basis, only came home during school holidays. On the contrary,
that means less expenses towards
J[...]
from applicant’s
part. She explains why she has not availed herself for mediation. She
does not deny that there could be
a decline in a sale of exotic
plants to overseas markets but asserts that there was a significant
amount of local sales to keep
the business afloat. Assails the
applicant for not disclosing his alternative bank accounts held with
Standard and ABSA banks.
She demonstrates that applicant continues to
enjoy the same standard of living they enjoyed prior to their
separation if not higher.
Including the fact that he paid for their
son and a friend flight tickets to travel to Spain in 2022 and
maintained them for three
months whilst overseas. It was pointed out
on behalf of the respondent that in his tender, applicant ignores
respondent’s
need to be maintained
pendente lite
, is
only prepared to pay maintenance towards his daughter. Further that
all indications point away from him having a zero income.
This, it
was argued is apparent from the following: One of his listed expenses
is payment of R19 000.00 per month towards
his motor vehicle.
Yet, there is no indication of such payment on the disclosed bank
statement. Recently, he bought his daughter
an expensive iPhone. Also
from expenditure towards his son’s travel to Spain and France
and his stay there together with
his friend.
[8]
The monthly expenses tabulated
by the respondent are said to be reasonable. I am inclined
to agree
with this assertion.
[9]
Even though from what emerges
from both parties there has been changes in their circumstances
such
as the fact that their son has attained majority status, and the fact
that the respondent earns a salary, I am not persuaded
that such
warrant the variation of the
Rule 43
order issued on the 19
November 2020. The applicant has also not succeeded in showing that
he is not possessed of means to contribute
towards the respondent’s
maintenance
pendente lite
. The applicant has not made out a
case for the variation he seeks.
[10]
Accordingly, the application is dismissed with
costs.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant :
Adv: Badenhorst
Instructed
by
: ISABELLE
BUHR ATTORNEYS
C/o NOLTE SMIT INC.
51A Hill Street
MAKHANDA
Ref: T Kingwill/ISA6/0001
Tel.:
046 – 622 7209
For
the Respondent : Adv: Watt
Instructed
by
:
DEREK LIGHT ATTORNEYS
C/o
DOLD & STONE INC.
10 African Street
MAKHANDA
Ref:
Mrs Wolmarans
Tel.:
046 – 622 2348
Date
Heard
:
14 February 2023
Date
Reserved
:14 February 2023
Date
Delivered
:16
February 2023