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[2022] ZAFSHC 51
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Standard Bank of South Africa Ltd v Du Toit N.O and Others (575/2022) [2022] ZAFSHC 51 (14 March 2022)

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IN THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case
no: 575/2022
In
the matter between:
T[….]
S[….]
Applicant
and
M[….]
A[….] S[….]
Respondent
CORAM:
RAMOS, AJ
HEARD ON:
03 MARCH 2022
DELIVERED ON:
14 MARCH 2022
JUDGMENT BY:
RAMOS, AJ
INTRODUCTION
[1]
This is an application brought in terms of Rule 43 on behalf of the
applicant. Advocate
Johnson represents the applicant and Advocate van
der Merwe represents the respondent.
[2]
The parties have come to an agreement concerning the terms of
parental responsibilities and rights
of the two minor children aged
14 and 4 years old. The applicant has agreed to relief sought by the
respondent. The agreed terms
will form part of the courts final order
[3]
What remains in dispute are the applicant’s claims for:
i) maintenance pendente lite in
respect of the two minor children
ii) spousal maintenance for
Applicant
iii) contribution to the
Applicants legal fees.
[4]
The Respondent opposes the application and avers that he does not
have the financial
means to comply with the extent of the relief
sought by the Applicant.
BACKGROUND
[5]
The parties were married in community of property on 28 March 2009
and the marriage
still subsist. During February 2020, the applicant
has instituted divorce proceedings in this court, which remains
pending. The parties
have been living apart since June 2020.
They have not been able to settle the terms of the divorce
settlememt.
[6]
The Applicant and the two minor children are currently living in the
communal home and
the Applicant had agreed to continue with the bond
repayments, as she is desirous of retaining the house and paying the
respondent’s
half share in the property.
[7]
Since the separation the respondent had agreed to pay R2500 in
respect of maintenance for the two
minors girls. In addition, he paid
the school fees and retained the girls on his medical aid which on
covers hospitalisation.
[8]
The applicant managed to maintain the household until her unfortunate
dismissal in February
2021 from ABSA bank where she worked as the
bank manager. She received UIF payments from August 2021 until
January 2022. She has
since not secured permanent employment and have
been living off loans made by her family in order to meet her monthly
financial obligations.
[9]
The applicant confirms that the respondent continued to make
maintenance payments but
refused to make additional contributions to
the household after she became unemployed.
[10]     The
applicant avers that she has no income at this stage. She denies
having a business as alleged by
the respondent in his replying
affidavit. She avers that her monthly expenses
[1]
amounts to R 37 500 and the children’s expenses amount to
R14 000 which amounts to a total of R 51 500. The combined
shortfall after the R2500 maintenance payment amounts to
R
49 000.
[11]     The
applicant claims that the respondent is ordered to pay:
(a)
R37 500, 00 in respect of maintenance for the applicant
(b)
R14 000, 00 maintenance to be paid in respect of the two
minor
Children
(c)
the children to be retained on the respondent’s medical aid
(d)
the respondent to pay for the reasonable and necessary medical,
dental, optometric and hospital
cost not covered by medical aid
(e)
R7500 in contribution to the applicant’s legal costs.
[12]
The respondent is presently employed at Vodacom and earns a net
income of
R 21 644.79
[2]
.
The respondent’s monthly expenses inclusive of his
maintenance obligation amounts to
R 27 063.00.
[13]
The respondents avers that as part of the divorce settlement the
applicant will
receive R650 000.00 of his
pension interest.
[14]
The respondent is further of the view that the applicant is
unemployed
due to circumstances of her own
doing. He further contends that she has no basis for a claim for
maintenance for herself as this was
never claimed for in her divorce
particulars of claims.
[15]
The Respondent further disputes the Applicants claim for a
contribution to her
legal cost as he avers that the
application is unnecessary and that it could have been settled rather
than pursuing further litigation
in this regard.
[16]
Advocate Van der Merwe on behalf of the respondent argues that the
applicants claim far exceeds the respondent’s
means. In an attempt
to show good faith, the respondent has offered an additional R 500
added to the order he seeks in his papers.
In essence, the respondent
offers to pay maintenance for the children in the amount of
R
8692
,
00
which includes his medical aid contribution for
both children. His contribution will thus be as follows:
(a)  School fees :  R
4692
(b)  Medical aid :
R1350
(c)  Maintenance : R 2500
(d)  Additional offer
:
500
Total
R9192
ARGUMENTS
[17]
Advocate Johnson on behalf of the Applicants concedes that the
applicant claims far exceeds the respondent
income. He argues that
the applicant was unsure of the Respondent’s monthly income and
merely stated her claims based on her and
the children’s needs.
Having now had in sight into his income and expenses her argues that
she will not be unreasonable with her
relief sought.
[18]     He
raised the concern that the school fees are in arrears and as such
proposes that the applicant rather
ensure that the fees are paid to
avoid further arrears. He request that the amount payable towards
school fees be include the maintenance
amount payable to her.
[19]     The
Applicant maintains her claim that the Respondent retains the
children on his medical aid and pays
all the incidental medical
expenses not covered by the medical aid hospital plan.
[20]
Advocate Johnson argues that the Respondent is willing to reduce her
claim for maintenance for herself
to the amount of R 2500, 00. She
request R7500, 00 contribution to her legal cost.
[21]
Advocate Johnson further address the issue surrounding the applicants
alleged business venture and vehicles
in her possession as a possible
means of income. He submits that his client denies the existence of a
business venture which was
alluded to by the respondent in his
replying affidavit. She concedes to possession of a BMW, which the
respondent made reference
to, but avers that it is not possible to
sell and argues that the respondent has three vehicles in his
possession, so why should
she be compelled to sell her vehicles if
retains ownership of the three vehicles in his possession presently.
[22]
Advocate Van der Merwe further argues that the applicants is not
forthcoming
with the extent of her income and
expenditure. He argues that either her expenses are inflated or she
must have found an alternative
source of income to fund her expenses
since she became unemployed. The court raised the fact that she avers
that family members loaned
her money to pay her bond and vehicles. He
retorted that it still does not explain how she funds the balance of
her commitments.
[23]     He argues
that the respondent is in fact offering nearly 50% of his net income
to cover his maintenance obligation
to his children. He argues that
the applicant is not entitled to maintenance as it firstly was never
claimed in her particulars of
claim and secondly that in essence she
was never reliant on the respondent to maintain her. Throughout the
years of the marriage,
she maintained herself and was gainfully
employed. He argues that in the absence of a claim in the main action
the court is not entitled
to make an interim order.
[24]     He
further argues that the applicant has provided basis for her claim
for a contribution to her legal
cost.
THE
LAW
[25]
Rule 43. Interim relief in matrimonial matters
(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 matrimonial action, pending or
about to
be instituted;
(c) Interim care of any child;
(d) Interim contact with any
child.
[26]     It
is trite law that from its beginning until its termination, marriage
imposes a reciprocal duty of
support upon spouses, provided that the
spouse who claims maintenance is in need of maintenance and the
spouse from whom it is claimed
is able to provide it.
[3]
The extent of the duty of support is determined by the social status
of the parties, their means or income, and the costs of living.
[4]
The applicant’s entitlement to maintenance
pendente
lite
depends on the
marital standard of living of the parties.
[5]
The court will have regard to the reasonable and actual expenses of
the applicant and the respondent’s capacity to meet such
requirements
from respondent’s income.
[27]     In
an application of this nature, the applicant must show that she has
insufficient means and that the
respondent can afford to meet the
amount she seeks. The applicant is not entitled to everything she
wants but to what she needs.
[6]
The fundamental principle applicable in cases of maintenance is that
the applicant must prove the need of maintenance and an ability
to
pay on the part of the spouse from whom maintenance is sought.
[7]
In other words, the court will have regard to the reasonable and
actual expenses of the applicant and the respondent’s capacity
to
meet such requirements from respondent’s income.
[28]     ‘The
claim for a contribution towards costs in a matrimonial suit is
sui
generis
. An
application for a contribution towards costs must show that, if she
is the plaintiff in the main action, that she has a prima
facie case;
if she is the defendant that she is defending in good faith. The
applicant must further show that she has insufficient
means of her
own to pay legal fees and that the amount sought is reasonably
necessary to enable her to pursue her defence.
[8]
The contribution is towards the costs of the action and the costs of
interim applications are excluded. The sum to be contributed
is
determined by the court’s view of the amount necessary for the
applicant adequately to put her case before the court. The applicant
is not entitled to all the anticipated costs, even though the
respondent can well afford to pay them. An applicant is not entitled
to have her attorney and client costs covered or substantially
covered. The contribution to the applicant’s costs may include the
applicant’s attorneys’ fees.
[29]     ‘In
determining the
quantum
of the contribution, the court will
have regard to the circumstances of the case, the financial position
of the parties and the issues
involved in the pending litigation. The
question of essential disbursements is a material factor to be
considered, as well as the
scale on which the party from whom the
contribution is required was litigating.
EVALUATION
OF THE EVIDENCE
[30]     The
applicant initially claims payment of R 51 500, 00 in respect of
maintenance of herself and
the two minor children. Her expenses are
contained in her founding affidavit.  The applicant avers that
she has a shortfall
of R 49 000, 00 per month in order for her
to maintain the standard of living she and the minor child have been
accustomed to.
THE
MINOR CHILDREN
[31]     I
will first deal with the maintenance in respect of the two minor
children. It is common cause that
the minor child currently resides
with the applicant. It is further common cause that the respondent
has been making payment in the
amount of R2500, 00 for both children
since December 2020 and a further payment of R4692, 00 towards school
fees and payment of R1350
for medical aid for the two children. These
payments amounts to R 8542 In respect of his contributions to the two
children.
[32]     Both
parents have the primary obligation to maintain minor children.
Children have a right to proper
parental care. The Bill of Rights in
the South African Constitution is celebrated for its extensive
commitment to the protection
of the rights of children in section
28(2) which emphasise that the best interest of all minor children is
of paramount importance.
[33]     It
is prescribed by the common law that the child’s best interest must
determine the outcome when a
court has to make an order regarding a
child. In other words, in all matters concerning the care,
protection, maintenance and
well-being of a child
the stand
that the child’s best interest is of paramount importance, must be
applied.
Section 6(2)(a)
of the
Children’s Act 38 of 2005
provides
that all proceedings, actions or decisions in a matter concerning a
child must respect, protect, promote, and fulfil the
child’s rights
set out in the Bill of Rights and must respect the child’s inherent
dignity.
[34]     The
two minor children’s expenses according to the applicant amounts to
R 14 282, 00. The applicant’s
expenditure list, sets out their
necessary and reasonable expenses as well as some luxury items which
the children might have been
accustomed to whilst both parents shared
the expenses of the joint household. The children unfortunately often
become the collateral
damage in divorce proceedings and in most cases
the parties are not able to maintain standard of living prior to
break up. This is
clearly the case here. The parties have to manage
their expectations of what is necessary and what is not. As was
illustrated in
the respondent’s list of income and expenditure it
is impossible for him to cover the applicant’s list of expenses for
the children
and her. The law is trite that there will be instances
where the parties would have to make a standard of living adjustment
if their
previous standard of living cannot be maintained.
[35]     The
Respondent has demonstrated his willingness to maintain his children
and have made payment as listed
above. In addition to the existing
payments he has offered and additional R500, 00. The court is mindful
that the applicant is unemployed
presently but she cannot expect the
Respondent to carry the full burden of the maintenance of the
children without having the financial
means to do so.
After careful consideration, the
court finds that the respondent pay and amount of R9200, 00 towards
the maintenance of the two minor
children will be just and
reasonable.
MEDICAL
CONTRIBUTIONS TOWARDS THE CHILDREN
[36]     The
applicant has failed to provide any details with regards to how the
amount of R1100.00 is derived
at, for the additional medical cost of
the two minor children. It is common cause that the respondent is
paying R1350, 00 for the
two children in respect of a hospital plan.
This hospital plan does not cover the day to day medical expenses
related to doctors
and dentist visits or any medication related
thereto.  In light hereof, it would be fair for this court to
grant an order directing
that both parties are equally responsible
for any medical care related to the children, not covered by the
hospital plan.
MAINTENANCE
TOWARDS APPLICANT
[37]     The
divorce court may, in the absence of an order in terms of a written
agreement between the parties,
take certain factors into
consideration in making a maintenance order. In terms of
Section
7(2)
, the court is to take the following factors into account ,
namely,  the existing or prospective means of the spouses; the
respective
earning capacities of the spouses; the financial needs and
obligations of the spouses; the ages of the spouses; the duration of
the
marriage; the standard of living of the spouses during the
marriage; each spouse’s conduct in so far as it may be relevant to
the
breakdown of the marriage; any redistribution order in terms of
section 7(3) of the Divorce Act and any other factor which, in the
court’s opinion, should be taken into account.
[9]
[38]     If
the court decides to award maintenance to a spouse, it is also these
factors that will determine the
amount of maintenance. The amount
cannot therefore be treated as a separate question.
[10]
It is important for the court to decide what is just in all the
circumstances of the case.
[39]     It
is trite that when the court considers applications for interim
maintenance that regard is to be had
to the reasonable and actual
expenses of the applicant, coupled with the respondent’s capacity
to meet such requirements.
[11]
[40]    It is
common cause that the applicant has been unemployed since February
2021. The reasons for her dismissal
were not provided. She avers that
she managed to meet her monthly financial obligations by making loans
from family members to the
extent of R 97 000, 00 (house,
vehicle and legal fees).  She confirms that there is a pension
pay out due to her in the
amount of R 175 000.00. She will use
these funds repay the loans to her family members. In addition, as
part of the divorce
settlement she is entitled to a pay out in the
amount of R 650 000, 00 from the Respondents pension fund.
[41]
Prior to her dismissal the applicant was able to maintain the
lifestyle she and the children were accustomed
to. Since the
inception of their marriage the applicant was employed and made her
contributions to the parties’ joint estate. She
is an educated,
skilled woman with many years of experience in the financial sector.
Whilst she is still embroiled in litigation
with regards to her
dismissal she has not managed to secure permanent employment.
However, given her age, experience and skill there
should be no
reason why she cannot become gainfully employed again.
[42]     In
making the determination for the fair and reasonable amount for
maintenance the court has to weight
the financial means of the
parties. The unfortunate consequence of divorce is that the parties
are faced with maintaining two separate
households as it were. They
lose the benefits which came with maintaining a joint household from
a joint income.
[43]     It
is common cause that the Applicants claim far exceeds the
Respondent’s net income let alone his
disposal income after he has
paid his necessary expenses. The respondents list of expenses can
hardly be described as lavish or exorbitant.
Whilst the Applicants
list
[12]
is quite extensive and some expenses are extravagant given their
current financial situation The Applicant concedes that in light
thereof she has to amend her expectation of what can be claimed from
him. The ideal situation would have been for the parties to
discuss
their individual needs and expectations without having to resort to
costly litigation.
[44]     The
Respondent makes a bold allegation that the applicant has an income
derived from a business whereof
she tenders for Government contracts.
The Applicant denies this averment and feels no need to make a
disclosure if in fact she was
engaged in a business enterprise. The
court is thus not able to take this alleged income into account as
the applicant is not forthcoming.
[45]
Advocate Van der Merwe on behalf of the respondent goes so far as to
argue that she must be engaged in
a business in order to maintain the
list of expenses and lifestyle she sets out in her application.
[46]     From
the information gleaned in the divorce action it appears that not
much is in dispute. The Applicant
wants to keep the common home but
the respondent rightly points out that if they cannot afford to
maintain the bond the only solutions
is to sell the property. The
parties strangely own six vehicles between the two of them. The
Applicant makes no mention of a BMW
380i which she has in her
possession in the list of movable assets
[13]
.
[47]     In
addition to the BMW she also has a Nissan Qashqai and a Toyota legend
45. The Respondents has in his
possession a Volkswagen Golf 5 ,
Volkswagen Polo Playa and a Toyota Hilux bakkie which is still
subject to an instalment sale agreement
for which he pays R 6 791.00
per month. Neither of parties provide reasons as to why they would
need six cars between themselves,
especially given that these
vehicles require maintenance and added insurance expenses. In my view
these additional vehicles are excessive
and an unnecessary expense
for both parties who are arguing that they cannot meet the financial
demands of maintaining their two
minor children.
[48]     The
Applicant will have to reassess her expenses and the joint assets to
make provision for her personal
needs. As part of the divorce
settlement she will be receiving a substantial amount of the
respondent’s pension funds in addition
to her own pension pay out.
She therefore will have means available to support herself until such
time as she secures employment.
I am further unconvinced that she has
no additional income derived from a business venture.
[49]
Having carefully considered the applicants claim which she
subsequently reduced to R2500, 00, I cannot
find there to be
reasonable and just duty on the part of the respondent in respect of
spousal maintenance for the applicant. It is
further clear from his
income and expenditure that he is not able to maintain the Applicant.
CONTRIBUTION
TO COSTS
[50]     In
order to succeed with a claim for contribution towards costs, the
applicant must establish that she
has insufficient means of her own
to pay legal fees and that the amount sought is reasonably necessary
to enable her to pursue her
defence. In
Nicholson
v Nicholson
[14]
Wunsh J
stated as
follows:
‘
The question
to be considered is what the Applicant needs for reasonable
proceedings. The cases were reviewed in Dodo v Dodo
1990 (2) SA 77
(W), 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 (I would have qualified this by reference to what is
reasonable having regard to what is involved in the case),
with due
regard being had to the Respondent’s financial position.’
[15]
[51]    In this
application, the Applicant prays for a contribution of R7500 towards
her legal cost. As mentioned previously
there does not appear to be
much in dispute in the main action.  The respondent had made
reasonable offers with regards to the
Rule 43 application in contrast
to the applicant’s almost ridiculous claims. With regards to the
relief in respect of costs, the
court finds that the respondent has
defended this matter in good faith. The applicant has failed to prove
that the amount she seeks
is a reasonable amount towards the costs
for litigation.
ORDERS
[52]     The
court has considered all the evidential material as well as the
arguments of both legal representatives
and hereby grants the
following orders:
a)
CARE AND CONTACT
(i) An order directing that the
parties shall act as co-guardians of the minor children born of their
marriage as provided for in
Sections 18 (2)(c), 18(3), 28(4) and
18(5) of the Children’s Act 38 of 2005;
(ii) An order directing that the
parties shall be co-holders of parental responsibility and rights in
respect of the two minor children
as referred to in Sections 18(2)(a)
and 18(2)(b) of the Children’s’ Act 38 of 2005;
(iii) An order directing that the
two children shall primarily reside with the Applicant who shall be
their primary carer.
(iv) The Respondent is awarded
reasonable rights of care and contact of the
minor children which shall
be exercised as follows:
a)    The children
will sleep over at the Respondents home one weekend per month from
Friday 18:00 to 16:00 Sunday.
b)    The children
will visit with the respondent every alternative weekend from 08:00
to 17:00 on Saturday and Sunday.
c)    The children
will visit with the respondent on alternative public holidays from
08:00 to 17:00
d)    Contact on
Father’s day and birthdays for two hours
e)    Reasonable
telephonic or electronic contact with the children at reasonable
times
b)
MAINTENANCE FOR THE CHILDREN
The Respondent is ordered to pay
maintenance pendente lite for the two minor children as follows:
(a)
School fees including arear amounts paid directly to the schools
(b)
Medical aid in respect of the two children
(c)
Maintenance : R 3000 paid directly to the Applicant per month with
effect from the 01st of
April 2022, and thereafter on or before the
last day of every succeeding month into an account nominated by the
Applicant in writing,
pending the finalisation of the divorce action
between the parties. This amount shall be paid free from deduction or
set-off of whatsoever
nature.
c)
An
order that Applicant and Respondent are equally liable for the costs
of the minor Children’s reasonable medical, dental, surgical,
hospital, orthodontic, pharmaceutical expenses.
d)
An
order that Defendant is to retain the two minor children registered
as dependants on his medical aid scheme as beneficiaries.
e)
Prayer 5 of the applicants prayers are dismissed
f)
Prayer 8 of the applicants prayers are dismissed
COSTS
[53]
The costs of this application shall be costs in the cause.
A RAMOS, AJ
APPEARANCES
On behalf of the Applicant

ADVOCATE JOHNSON
LHW CATO
McINTYRE VAN DER POST
12BARNES STREET
BLOEMFONTEIN
On behalf of the
Respondent

ADVOCATE VAN DER MERWE
MAREE
& PARTNERS
JJ
MAREE
74 PRESIDENT REITZ AVENUE
BLOEMFONTEIN
[1]
Page
20 Annexure “A”
[2]
Respondents
replying affidavit page 33 para 11
[3]
See
Oberholzer v
Oberholzer
1947 (3)
SA 294 (O).
[4]
See Cronje, ‘
South
African Family Law’
(2004) at 52.
[5]
Taute v Taute
1974 (2) SA at 676 D-F.
[6]
Van Vuuren v Van
Vuuren
[2009] JOL
23751
(GNP) at Para 13.
[7]
Qozo v Qozo
1989 (3) SA 838
(Ck).
[8]
See
Nicholson v
Nicholson
1998 (1) SA
48
at 50 C – E, where the court stated: “The question to be
considered is what the Applicant needs for reasonable proceedings.
The cases were reviewed in
Dodo
v Dodo
1990 (2) SA 77
(W), 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 (I would have qualified this by reference to what
is reasonable having regard to what is involved in the case),
with
due regard being had to the Respondent’s financial position.”
[9]
Ibid pages at 147-148; See also
Swart
v Swart
1980 (4) SA
(O).
[10]
Van Zyl ‘
Handbook of
the South African Law of Maintenance
’
Second Edition, Lexis Nexis at page 26.
See
also Section 7(2) and (3) of the Divorce Act.
[11]
See
W (born G) v W
(469/10) [2010]
ZAECELLC 1 (7 September 2010); see also
Botha
v Botha
2009 (3) SA
89
at 105C-106J
[12]
Applicants
affidavit Page 20 “A”
[13]
Applicants
affidavit Page 11 of the bundle
[14]
1998 (1) SA 48.
[15]
At 50 C-E.