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[2024] ZAFSHC 112
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D.B v B.J.B (40/2024) [2024] ZAFSHC 112 (18 April 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 40/2024
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
In
the matter between:
D[...]
B[...]
APPLICANT
And
B[...]
J[...] B[...]
RESPONDENT
CORAM:
MGUDLWA,
AJ
HEARD
ON:
29 FEBRUARY 2024
DELIVERED
ON:
18 APRIL 2024
Introduction
[1]
This
is an application for relief
pendente
lite
in terms of Rule 43 of the
Uniform Rules. The applicant (“the wife) is the plaintiff and
the respondent (“husband”)
is the defendant in a pending
divorce action. Pleadings have not yet been closed in the main
action.
[2]
Both
parties were married out of community of property with exclusion of
the accrual system on the 28
th
October 2007 and there are no children born out of wedlock.
Factual
background
[3]
The
applicant seeks an order in terms of rule 43 of the Uniform Rule
pending finalization of the main action which include monthly
maintenance, an amount in respect of relocation costs, a contribution
towards her legal costs, an order against the
respondent
to continue with payment of FNB Bond over the communal property
situated in Hoopstad and an order for reinstatement
of her vehicle
and iPad on respondent short-term insurance.
[4]
In
pursuance to the application, the applicant listed her monthly
pendente lite
expenses with a total amount of R36 982.98.
Additionally, she mentioned that she is getting R3000.00 twice
annually from Sanlam
annuity, R350.00 per month from Johannesburg
stock exchange and annuity and R11 000.00 from her townhouse
rental in Laborie.
She mentions in her affidavits that she is a
pensioner and has no other source of income. Thus, her shortfall is
in the amount
of R25 682.98 in respect of her reasonable monthly
expenses.
[5]
The
respondent in his opposing affidavit is controverting that he can
afford to pay the amount claimed or any portion thereof. In
his
opposing affidavit the respondent denied that he gave the applicant
an amount of R10 000.00 per month to spend as she
saw fit
instead gave it to her as salary since she worked in the surgery as a
receptionist and administrator. According to him,
he is 70 years old
receives chemotherapy for colon cancer. This has weakened his legs to
such an extent that he will fall from
time to time. Due to his age
and state of health he has been running a tight ship and hardly able
to practice for a full day.
[6]
According
to the respondent, his practice normally generate medical fees of
approximately R90 000.00 per month. In his opposing
affidavit he
listed both his business and personal expenses. In addition,
mentioned that he has a maintenance order in the amount
of R10 000.00
per month in favour of his first wife and has to pay R5 173.00
for her medical aid.
APPLICATION
OF RULE 43
[7]
Rule
43 of the Uniform Rules of the High Court
.
It reads 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 pending matrimonial action;
(c)
interim
custody of any child; and
(d)
interim
access to any child.”
[8]
In
TAUTE
V TAUTE
[1]
it
was held that the interim maintenance will be determined according to
the “marital standard of living, her actual and reasonable
requirements and the capacity of her husband to meet such
requirements”
[9]
It
settled law that maintenance includes amongst others the provision
for accommodation, food, clothing, a car and medical expenses.
The
general approach is that the applicant is entitled to reasonable
maintenance pending the finalisation of divorce. However,
the person
claiming maintenance must establish a need to be supported. The
applicant’s entitlement to maintenance must be
assessed having
regard to the standard of living enjoyed by the parties during their
marriage. This should be a simple and straightforward
calculation of
“
needs and
means”
.
It is also important to mention that the aim is to avoid substantial
prejudice to either party pending divorce. It is not to provide
a
precise account of what is due to or from either party, according to
the parties or the court’s sense of morality, propriety,
the
blameworthy of the parties’ conduct during the marriage or
their habits of living after the separation. The case should
be cast
in practical rather than moralistic terms and the emotional heat of a
separation should be kept out of it.
ANALYSIS
Maintenace
[10]
I
now turn to consider the extent to which the applicant is entitled to
the relief sought. It is trite law that each case
under this
subrule should depend upon its own particular facts
[2]
.
It is also axiomatic from the papers that both parties in this matter
are relatively old. I also accept that the age and
health
condition of the respondent has an impact in his generation of
income. This brings me to a question of affordability of
the needs
and respondent’s capacity to meet such needs.
[11]
Regarding
the applicant’s prayer for an order for maintenance
pendente
lite
in the amount of R25 000.00.
In all the circumstance, I consider an amount of R 8 000.00 to
be the applicant’s
reasonable monthly needs for maintenance.
Relocation
costs
[12]
In
support of her prayer for relocation costs
pendente
lite
, the applicant provided a list
of her expenses to wit transporting her personal belongings,
furniture and utensils. Furthermore,
she listed the expenses incurred
to furnish the rental residence.
[13]
In
my view the amount of R83 744.00 the applicant is claiming is
exorbitant. She should also not lose sight of the fact
that the
relief sought in this application is
pendente lite
. I have
also taken into account that the applicant is not as desolate as she
makes out to be. She has monthly income of R11 300.00
and a
Corporate Cash Manager at Investec Bank valued at R191 917. 95.
[14]
Having
considered the conspectus of evidence regarding means of the
respondent and the case law
[3]
referred to by the applicant in pursuing her argument for relocation
costs
pendente
lite
.
In my view the circumstance of the parties
in
casu
are completely distinctive from both cases. Thus, I am not persuaded
that the applicant has made out a case for a separate order
for
relocation costs. I am not oblivious of the fact that she incurred
expenses.
Legal
costs
[15]
In
her founding affidavit the applicant is requesting an amount of R35
000.00 alternatively R45 000.00 as contribution towards
her
legal costs.
[16]
In
NICHOLSON
V NICHOLSON
[4]
the
following was said” the applicant is entitled, if the
respondent has the means and she does not have them, to be placed
in
the position adequately to present her case, relevant factors being
the scale on which the respondent is litigating and the
scale on
which the applicant intends litigating, with due regard being had to
the respondent’s financial position.
[17]
In
this regard, I have considered the financial position of the
respondent and the fact that the applicant has a sum of R 191 197.
95, which can be used to cover her legal costs. In my view an order
for contribution towards legal costs of the applicant would
not be
appropriate in the circumstances
[18]
I
consider it appropriate to grant the following order
pendente
lite
:
1.
The
Respondent to pay maintenance to the applicant in the amount of
R10 000. 00 per month on or before 30 April 2024 and thereafter
on the last day of each and every succeeding month.
2.
The
Respondent is ordered to continue with the payments in respect of FNB
Bond over the communal property situated in Hoopstad.
3.
The
Respondent is ordered to reinstate the Applicant’s vehicle and
iPad on his short-term insurance.
4.
Costs
of this application is costs in the main cause.
S.
T. MGUDLWA, AJ
For
the Applicant:
Adv. J Bornman
Instructed
by:
Hendre
Conradie Inc.
Bloemfontein
For
the Respondent:
Adv. G.
Steenkamp
Instructed
by:
Peyper Botha Attorneys
Bloemfontein
[1]
1974(2)
SA 675
[2]
See.
Taute v Taute 1974 (2) SA 675 (E).
[3]
M.W.U v
B.D.U , Case No: 4739/2016, Judgment by: C Reinders, J, delivered
on: 28 November 2016 and
Wood
v Wood [2014] JOL 32402 (GP)
[4]
1998(1)
SA 48.