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[2024] ZAFSHC 72
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M.S.S v L.A.S (5722/2023) [2024] ZAFSHC 72 (13 March 2024)
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
Reportable:
NO
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
CASE NO: 5722/2023
In
the matter between:
M[…]
S[…] S[…]
Applicant
and
LI[…]
A[…] S[…]
Respondent
HEARD
ON:
01 DECEMBER 2023
CORAM:
JORDAAN,
AJ
DELIVERED
ON:
13
MARCH 2024
[1]
This is an opposed application for maintenance
pendente lite
in
terms of Rule 43 of the Uniform Rules of Court. The Applicant and the
Respondent were married to each other on the 24
th
of
August 2017 in community of property, which marriage still subsists.
From the marital relationship between the Applicant and
Respondent
one minor son was born on the 1[…]
th
of A[…]
2010.
[2]
The application is consequent upon the Applicant having instituted an
action for divorce
with ancillary relief
against the respondent on the 30
th
of June 2023, founded upon the irretrievable breakdown of their
marriage. The action is pending before this Honourable Court.
[3]
The Applicant in this application in terms of rule 43 of the
Uniform Rules of Court, for maintenance and ancillary relief
pendente
lite
, seeks an order in the following terms: -
“
1.
That specific parental responsibilities and rights with regards to
the care of the minor child as contemplated in Section
18(2)(a) of
the Children’s Act,
Act
38 of 2005, be awarded to both parties;
2.
That the primary residency of the minor child be awarded to the
Applicant pendente lite;
3.
That specific parental
responsibilities and rights in respect of contact with the minor
child as contemplated in Section 18(2)(b)
of the Children’s
Act, Act 38 of 2005,
be
awarded to the Respondent in the following in the following manner: -
4
.
That specific parental responsibilities
and rights in respect of contact with the minor child as contemplated
in Section 18(2)(b)
of the Children’s Act, Act 38 of 2005,
be
awarded to the Respondent in the following in the following manner: -
4.1
Contact on alternative weekends from 17h00 on a Friday to 17h00 on a
Sunday.
4.2
Public Holidays to alternate between the parties.
4.3
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 child will
spend
an alternative holiday for Christmas with an alternative party.
4.4
At least three(3) hours of contact to be awarded to the Respondent on
the birthday of the minor child and that of the
Respondent.
4.5
Contact on Father’s Day from 9h00 to 17h00 if this day does not
coincide with a normal access weekend.
4.6
Reasonable telephonic contact.
5.
That the parental responsibilities and rights with regard
to the guardianship of the minor child as contemplated
in Section
18(2)(c) and 18(3)of the Children’s Act, Act 38 of 2005,
be
awarded to the parties jointly.
6.
That the Respondent will pay maintenance pendente lite
towards the Applicant in respect of the minor child at the
rate of
R7 500,00 per month.
7.
That the Respondent pay the amount of R4 345,00
directly to the Applicant for December 2023 whereafter the Respondent
will be liable for 50% of the minor child’s school payable
directly to
the
school.
8.
That the Respondent for 50% of the house bond with effect
from November 2023.
9.
Further and or alternative relief.”
[4]
At the hearing it was submitted on behalf of the Respondent that no
issue is raised in regard
to the guardianship, access, contact,
parental responsibilities and rights of the minor child and the
Respondent admitted the extra
school lessons and its costs. The
Respondent requested that the application be dismissed as the
Applicant is not open and truthful
with court in her application and
raised issue with the correctness of the Applicant’s list of
expenses, the fact his child
maintenance contributions is denied and
the fact that the Applicant is not giving the court a true reflection
of the bond payment
obligations.
[5]
Rule 43 provides:
“
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.”
[6]
Rule 43 was not created to give an interim meal ticket to an
applicant who quite clearly at the
trial will not be able to
establish a right to maintenance.
[1]
The purpose of Rule 43 is to provide a streamlined and inexpensive
procedure for procuring the same interim relief in matrimonial
actions as was previously available under common law in regard to
maintenance and costs.
[2]
[7]
Turning to the facts of the case. The Applicant is employed at the
Department of Health and earns
a nett monthly salary of
R28 637.86
[3]
, while the
Respondent is employed at Transnet earning an average nett salary of
R33 171,54 which was an average of the four
months’
payslips provided by the Respondent of which one payslip had a long
leave cash pay-out.
[8]
The Applicant in her application submitted that her monthly expenses
with that of their minor
child amounts to R46 064.21
[4]
and that she cannot maintain the house and their minor child without
assistance from the Respondent. The Respondent takes issue
with this,
submitting that he is paying monthly maintenance for his minor son in
the amount prayed for in the divorce summons of
R1 500,00 per
month with effect from October 2023.
[5]
Respondent also submitted that he pays for his child’s
stationary
[6]
and pocket
money
[7]
refered to as stipend.
[9]
The need for full and frank financial disclosure in Rule 43
applications cannot be over stated
and it is trite that an applicant
must approach the court with clean hands. It can however not be
stated that the Applicant was
not truthful in regard to the child’s
maintenance and needs. Respondent indeed maintains his child in the
amount of R1 500,00
per month, but that was only since October
2023, while the divorce summons was issued in June 2023 already. The
Respondent indeed
gave his son pocket money and it was indeed
substantial, but it was sporadic.
[10]
Both the Applicant and the Respondent are not earning incomes that
allow for unbudgeted luxuries and therefor
the Court recalculated the
basic needs of the child all-inclusive consisting of:
a.
School fees R43500,00
b.
School transport R1 000,00
c.
Extra Classes. R1 600,00
d.
School clothes R200
e.
Sports clothing R100
f.
Sports tours R125
g.
School activities R100
h.
Pocket money R150
i.
Hair R100
j.
Clothing R250
k.
Food R1000
TOTAL R8 975,00
[11]
The duty to maintain the child rests on both parents, therefore the
all-inclusive maintenance
pendente lite
payable by the
Respondent in respect of the child amounts to is R4 487,50. The
Respondent in his opposing affidavit state that he
paid the stokvel
money for his son school fees in January 2023 to the Applicant in the
amount of R 15 000,00 to R18 000,00.
This will account for
his contribution of the school fees of 2023.
[12]
The Applicant indeed did not make out a case that her bond payments
are R 8 300,00
[8]
as the
Respondent submitted proof that the bond payment has been reduced in
terms of a re-negotiation with ASA Bank Home Loans
to R4 188,90
[9]
.
This the Respondent submits that this indicates that the Applicant is
not
bona
fide
and her application should be dismissed. The Applicant deposed to her
affidavit in October 2023 while proof of a lesser bond payment
by the
Respondent shows November 2023, the Court cannot in the circumstances
in the absence of proof find that prior to deposing
to the affidavit
the Applicant was paying R 4 188,90.
[13]
The Respondent thus bears a responsibility to pay 50% of the bond
which amounts to R2 094.45 per month.
[14]
Notwithstanding that the Respondent has the responsibility to pay
maintenance and to make payment towards
to bond, the question remains
whether he indeed can afford to make such financial contributions. In
his opposing affidavit the
Respondent does not state that he is
making a bond payment or that he is paying rental, yet provision is
made in Annexure “AAA”
for R6 000,00 per month, that
makes the R6 000,00 unaccounted for and available. The
Respondent also shows in Annexure
“AAA” that he is paying
a Sanlam retirement annuity of R500,00 per month, a Capitec funeral
policy of R240,55 per month,
a B3 funeral policy of R233,50 per month
and a FinnChoice funeral policy of R3889,66 per month. A Respondent
cannot pay for funeral
and investment policies when maintenance
obligations for daily living has to be met, that would make a further
approximate R4 850,00
available. In the circumstances the Court
finds that the Respondent can afford and has the funds available to
pay the maintenance
and bond
contribution
pendent lite
.
[15] In
the result, the following order is made
pendente lite
:
ORDER
1.
Specific parental responsibilities and rights with
regards to the
care of the minor child as contemplated in Section 18(2)(a) of the
Children’s Act, Act 38 of 2005, are awarded
to both parties
pendente lite
;
2.
That the Applicant is awarded primary residency
of the minor child
pendente lite;
3.
That specific parental responsibilities and rights
in respect of
contact with the minor child as contemplated in Section 18(2)(b) of
the Children’s Act, Act 38 of 2005, are
awarded to the
Respondent in the following in the following manner: -
3.1
The Respondent shall have contact on alternative weekends from 17h00
on
a Friday to 17h00 on a Sunday.
3.2
Public Holidays shall 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 child will spend an alternative holiday for
Christmas with an alternative party.
3.4
At least three (3) hours of contact is awarded to the Respondent
on
the birthday of the minor child and on that of the Respondent.
3.5
The Respondent shall have contact on Father’s Day from 9h00
to
17h00 if this day does not coincide with a normal access weekend.
3.6
The Respondent
shall have reasonable telephonic contact.
4.
That the parental responsibilities and rights with regard to the
guardianship
of the minor child as contemplated in Section 18(2)(c)
and 18(3) of the Children’s Act, Act 38 of 2005, is awarded to
the
parties jointly.
5.
That the Respondent shall pay maintenance
pendente lite
in
respect of the minor child at the rate of R4 487,50per month to the
Applicant with effect from the 31
st
of March 2024,
thereafter on or before the last day of each succeeding month.
6.
That the Respondent shall pay 50% of the bond in the amount of
R2 094,55
per month to the Applicant with effect from the 31
st
of March 2024, thereafter on or before the last day of each
succeeding month.
7.
Costs of the application will be costs in the main action.
M.T. JORDAAN, AJ
APPEARANCES:
Counsel
on behalf of the Applicant:
Adv
Louw
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
Counsel
on behalf of the Respondent:
Mr.
Koenane
Instructed
by:
Koenane
Attorneys
BLOEMFONTEIN
[1]
Nilsson
v Nilsson 1984 (2) SA (C) 294
[2]
Zaphiriou v Zaphiriou 1967 (1) SA 342 (W)
[3]
Founding
Affidavit paragraph 6
[4]
Founding
Affidavit page6 paragraph 6.2
[5]
Opposing
Affidavit paragraph 7 and 22 and Annexure “AAA” page 13
[6]
Opposing
affidavit paragraph 22 and Annexure “AAA” pages 72,73
and 74
[7]
Opposing
Affidavit paragraph 22 and Annexure “AAA” pages 75, 76
and 77
[8]
Founding
Affidavit paragraph 6.2.1
[9]
Opposing
affidavit paragraphs 10 to 11 and Annexure “AAA” page 31