J.V.C v L.C (4969/14) [2022] ZAGPPHC 71 (7 February 2022)

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[2022] ZAGPPHC 71
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J.V.C v L.C (4969/14) [2022] ZAGPPHC 71 (7 February 2022)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
Date:
7 February 2022
CASE NO: 4969/14
In
the matter between:
J V
C[....]
APPLICANT
and
L
C[....]
RESPONDENT
JUDGMENT
Van der Schyff J
Introduction
[1]
I heard this application in August 2021. A
judgment was handed down dealing with the court’s jurisdiction to
hear the application.
The parties were ordered to file financial
disclosure forms and their tax returns before the matter could be
disposed of. It only
came to my attention during January 2022 that
the parties filed the financial disclosure forms as early as
September 2021. The applicant
also filed his IRP 5 and other
documents requested. On 2 February 2022, the respondent provided an
affidavit explaining that she
is categorized as a ‘zero return’
taxpayer. I apologise for the delay insofar as it can be attributed
to my office. I subsequently
provided the parties with the
opportunity to supplement their papers and heads of argument. Both
parties’ counsel indicated that
the matter could be finalised on
the papers as it stands.
[2]
The need for this order stems from the parties’
inability to sit down and discuss their children’s maintenance
needs and their
respective financial abilities to provide for their
children. The applicant takes issue with the fact that he must pay
the costs
attributed to the children’s tertiary studies and their
monthly maintenance. He argues that the respondent’s financial
burden
to provide for the children is reduced because the children
study away from home. His main concern seems to be that the
children’s
monthly maintenance is to be paid to the respondent. In
a letter sent to the respondent, dated 26 May 2020, his attorney
wrote –
‘it is our client’s intention to ‘channel’ [J]’s
maintenance towards his tertiary educational costs and daily living
expenses
at Elsenburg College and still give the balance to J to
spend as he pleases –
not to reduce the
maintenance;
our client will go even further
and still pay the full maintenance to your client during holidays
when J visits his mother’.
[3]
The applicant currently pays R18 189.13 to the
respondent towards monthly maintenance for his children, excluding
the amounts he pays
towards their tertiary education. In terms of the
existing court order, he also provides for the costs associated with
their tertiary
studies. The son seems to have completed his studies.
With reference to the parties’ daughter’s proposed foreseen
tertiary expenses,
the applicant stated in his founding affidavit
that the estimated costs amounted to:
i.
Registration fees: R7 500,00
ii.
Study fees: R 44 375,00
iii.
Books: R 10 000,00
iv.
Accommodation: R25 000,00
In the financial
disclosure form completed in September 2021, the applicant reflects
the following expenses regarding the said child’s
tertiary
expenses:
i.
[R] Akademia: R 48 900,00
ii.
Accommodation: R 3 750,00
I accept that the
amount reflected for ‘Akademia’ is a once-off amount for tertiary
studies annually. The costs for accommodation
are a monthly expense.
[4]
The applicant is wrong when he avers that ‘it
is ludicrous that the respondent receives maintenance for the
children while they
are not a maintenance burden on her’. The
applicant loses sight thereof that the respondent is still to provide
a home for the
children to return to during their holidays. She is to
provide their daily living expenses not catered for by the applicant.
He takes
issue with the fact that the monthly maintenance is paid to
the respondent and not the children. Although the children attained
majority,
they are still financially dependent on their parents. The
responsibility to provide a family home and to ensure that the
children’s
daily needs, inclusive of financial and emotional needs,
are met falls on the respondent. This is a consequence of the divorce
and
the fact that the respondent is the children’s primary
caregiver.
[5]
The applicant submitted that sufficient grounds
exist for the existing court order relating to the children’s
maintenance to be
amended. However, he does not make out a case that
he cannot provide in the children’s maintenance needs, that their
maintenance
needs are excessive, or that the respondent is in a
position to contribute more than she currently is. Parents generally
have to
stretch their budgets and incur additional debts to provide
for their children’s tertiary education. The fact that the
respondent
did not earn an income when the maintenance order was
agreed to while she is currently earning an income does not per se
mean that
the existing order needs to be amended. The financial
disclosure forms filed indicate that the respondent also contributes
to the
children’s maintenance. She earns what can be described as
‘meager’ an income by baking and selling rusks, doing the Golf
Club’s
laundry, doing embroidery and needlework, and selling wood
while working as an administrative clerk for a salary of less than
R5000.00
per month. SARS categorises her as a ‘zero return’
taxpayer. The applicant’s gross annual employment income (taxable),
on the
other hand, is reflected on his latest IRP5 as R 1 764 692.
Total Tax, SDL, and UIF contribution deductions are reflected as R
524
570,95.
[6]
In the specific circumstances of this case, I am
of the view that it is just for each party to pay its own costs. The
applicant did
not succeed in the relief sought, but he was left with
no alternative than to approach the High Court.
ORDER
In the result, the
following order is made:
1.
The application for the amendment of the existing
maintenance order is dismissed;
2.
Each party is to pay its own costs.
E van der Schyff
Judge of the High
Court
Delivered:  This judgement
is handed down electronically by uploading it to the electronic file
of this matter on CaseLines.
It will be sent to the parties/their
legal representatives by email as a courtesy gesture. The date for
hand-down is deemed to be
7 February 2022.
Counsel
for the applicant:
Adv. B Bergenthuin
Instructed
by:
Cilliers & Reynders Attorneys
Counsel
for the respondent:
Adv. S Strauss
Instructed
by:
J Brewis Attorneys
Date
of the hearing:
25 August 2021
Date
of first judgment:
30 August 2021
Filing
of financial disclosure forms:
20 September 2021
Respondent’s
affidavit
re
tax
returns received:
2 February 2022
Date
of judgment:
4 February 2022