About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 165
|
|
L.V v G.J.V (661/2020) [2022] ZAFSHC 165 (1 July 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
Case
no
.
661/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
L[....]
V[....]
Plaintiff
and
G[....]
J[....] V[....]
Defendant
CORAM:
DE
KOCK, AJ
HEARD
ON
: 8
JUNE 2022
JUDGMENT
BY:
DE
KOCK, AJ
DELIVERED:
This
Judgment was handed down electronically by circulation to the
parties’ representatives by e-mail and released to SAFLII.
The date and time for handing down is deemed to be 13h00 on 1 July
2022.
INTRODUCTION:
[1]
The Plaintiff and the Defendant reached an agreement regarding the
minor children’s
primary place of residence, contact with the
minor children, guardianship of the minor children, the calculation
of the accrual
and lastly the division of assets. The latter
was encapsulated in a Draft Order which was made an Order of Court at
the conclusion
of the trial, whilst the Court granted a Decree of
Divorce.
[2]
The only outstanding issues that stands to be adjudicated are the
Plaintiff’s
claim for personal maintenance, the Plaintiff’s
claim for maintenance in respect of the minor children and lastly,
the costs
of the action which includes the cost occasioned because of
the postponement of the action on the 23
rd
November 2021.
[3]
The parties’ Counsels filed Heads of Argument in respect of the
outstanding
issues that stands to be adjudicated.
THE
PLAINTIFF’S CLAIM FOR PERSONAL MAINTENANCE:
[4]
In the Plaintiff’s particulars of claim the Plaintiff claimed
payment of maintenance
in the amount of R30 000.00 (thirty
thousand rand) per month until death, remarriage, or co-habitation
with another man.
Further the Plaintiff also claimed that the
Defendant be held liable for reasonable medical expenses until her
death, remarriage,
or co-habitation with another man. In terms
of the Court Order dated 19 March 2022 made in terms of the Rule 43
application
brought by the Plaintiff, the Defendant was ordered to
pendente lite
pay the Plaintiff’s short-term insurance,
cellphone contract and medical aid. The latter was not varied
by the Court
Order dated the 3
rd of
March 2022, which was
made in terms of a Rule 43(6) application brought by the Defendant.
[5]
In the Heads of Argument filed on behalf of the Plaintiff, the
Plaintiff claims payment
of maintenance in the amount of R2 500.00
per month until the Plaintiff’s death, remarriage or
co-habitation with another
man whichever event may occur first,
alternatively, rehabilitative maintenance in an amount and for a
period which this Court may
deem reasonable. The Defendant disputes
the Plaintiff’s entitlement to personal maintenance.
APPLICABLE
LEGAL PRINCIPLES:
[6]
In the matter of
Ocean Accident and Guarantee Corporation Ltd v
Koch
1963 (4) SA 147
(A)
, it was held that the Plaintiff bears
the onus to prove her claims against the Defendant on a balance of
probabilities.
[7]
Section 7(1) of the Divorce Act 70 of 1979 (“the Act”)
determines as follows:
“
[1]
A Court granting a Decree of Divorce may in accordance with a written
agreement between the parties make an order with
regard to the
division of assets of the parties or
the payment of
maintenance by the one party to the other
.
” (own
emphasis)
[8]
Section 7(2) of the Act determines as follows:
“
[2]
In the absence of an order made in terms of subsection (1) with
regard to the payment of maintenance by the one party
to the other,
the Court may having regard to (a) the existing or prospective means
of each of the parties; (b) their respective
earning capacities; (c)
financial needs and obligations; (d) the age of each of the parties;
(e) the duration of the marriage;
(f) the standard of living of the
parties prior to the divorce; (g) the conduct insofar as it may be
relevant to the breakdown
of the marriage, an order in terms of
subsection (3) and (h) and any other factor which in the opinion of
the Court should be taken
into account, make an order which the Court
finds just in respect of the payment of maintenance by the one party
to the other party
for any period until the death or remarriage of
the party in whose favour the order is given, whichever event
may first occur.
”
[9]
In the matter of
Grasso v Grasso
1987 (1) SA 48
(C)
the Court
held that no one factor is more important than the others, as
follows:
“
In
setting forth, in
Section 7(2)
of the
Divorce Act, 1979
, the various
factors to which the Court is to have regard when considering the
payment of maintenance upon divorce, no particular
stress was laid on
anyone or more of these factors, and they are not listed in any
particular order of importance or of greater
or lesser relevance.
The proper approach, it seems to me, is to consider each case on its
own merits in light of the facts
and circumstances peculiar to it and
with regard to those factors set out in the particular section of the
Divorce Act – which
list of factors is clearly not exhaustive
of what the Court is to have regard to in deciding what maintenance
(if any) is to be
paid upon divorce by the one spouse to the other,
for the Court is free to have regard to any other factor which, in
its opinion
ought to be taken into account in coming to a fair and
just decision.
”
[10]
In
Rousalis v Rousalis
1980 (3) SA 447
(C)
it was held that
the wife of longstanding, who has assisted her husband materially in
building up his separate estate, would be
entitled to far more by way
of a maintenance order than one who has merely shared her husband’s
bed and attended to normal
household chores for a few years.
[11]
Satchwell, J stated in
Botha v Botha 2009 (3) SA
,
Section 7(2)
of the
Divorce Act confers
discretion upon the Court to make a
maintenance order in favour of one of the spouses against the other.
[12]
In
Kroon v Kroon
1986 (4) SA 616
(E)
it was held that no
maintenance will be awarded to a woman who can support herself, that
the prospects of employment for an unqualified
woman in her middle
40’s are depressing, and that rehabilitative maintenance may be
awarded to middle-aged women who have
for years devoted themselves
full-time to the management of the household and the care of the
minor children.
[13]
In
Kooverjee v Kooverjee
2006 (6) SA 127
(C)
, it was
held that it was in the best interest of the children as well as
entirely reasonable that the Defendant should continue
to fulfil her
role of primary caregiver of the children and that she therefore
works only part-time. The Defendant would
not, as long as she
was the primary caregiver be able to expand her business and
consequently to increase her income. As
such she required
financial assistance in order to enable her, in the long run, to
devote more time to her business, especially
after the children
became self-supporting. The ultimate goal of rehabilitative
maintenance was the financial self-sufficiency
of the Claimant’s
spouse. In the present matter the self-sufficiency of the
Defendant would be achieved by awarding
maintenance to her in an
amount which reduced over time until it disappeared completely when
the children became self-supporting,
and she was able to work
full-time. Of necessity the award would have to be for a period
longer than the customary eighteen
(18) months. That in the
exercise of its discretion to take into account any other factor
which it considered relevant, the
Court would take into account the
respective dishonesty and honesty of the Plaintiff and Defendant with
the Court.
[14]
Upon perusal of the provisions of
Section 7(2)
of the
Divorce Act,
this
Court finds it inevitable to consider the jurisdictional factors
set out thereat.
THE
EXISTING OR PROSPECTIVE MEANS OF EACH OF THE PARTIES:
[15]
The parties were married on 9 October 2004 and there are four (4)
children born from the marriage,
ages 16, 16, 13 and 11 respectively.
The parties had lived in various towns in the past. The
parties had lived in K[....]
from 2006 to 2016 where they at first
jointly conducted the Bernina branch in K[....] for approximately six
(6) months before the
Defendant found alternative employment and the
Plaintiff conducted the business on her own. She eventually
moved the business
to the parties’ home. The parties
moved to M[....] in 2016, so that the Defendant could pursue a career
opportunity
with Barloworld. The Defendant was working for
Barloworld in M[....]2. The Plaintiff’s business suffered
because
of the move, and she took time before re-establishing her
business in M[....]. Whilst the Defendant was working in
M[....]2,
he would be away from home for three (3) months at a time,
with two (2) weeks in between when he was home.
[16]
Following an attempted suicide the Plaintiff moved to B[....]to be
closer to her support structure.
The Plaintiff’s average
monthly income in B[....]with her embroidery business amounts to
R7 759.30 (seven thousand seven
hundred and thirty-nine rand
thirty cents).
[17]
The Plaintiff does not have any sustainable investments and assets
which she can liquidate to
become self-supporting. By agreement
between the parties the Plaintiff will receive an amount of R2333
330.00. She testified
that it is her intention to purchase a new
sewing machine to the value of approximately R50 000.00 (fifty
thousand rand) and
to invest the remaining balance. It is
submitted on behalf of the Plaintiff that the Plaintiff can invest
the amount of R150 000.00
(one hundred and fifty thousand rand)
at an interest rate of 5% then she will receive an additional income
in the amount of R625.00
(six hundred and twenty-five rand) per
month.
[18]
The Plaintiff is 40-years old while she has completed a secretarial
course as well as one-year
diploma in human recourse management, she
still requires three more years studies to qualify herself in this
regard. The
Plaintiff’s employment experience is limited
because she was a secretary for a brief period prior to her marriage
and thereafter
she engaged in a Bernina business until she started
rendering embroidery services. The Plaintiff attended interviews but
did not
obtain employment.
[19]
In this matter it cannot be said that the Plaintiff as a wife of
longstanding had merely shared
the Defendant’s bed and kept
house. The Plaintiff invested a huge amount of time in
supporting the Defendant to relocate
from town to town to enable the
Defendant to advance his career path. The Plaintiff during the
subsistence of the marriage
cared for the minor children which was
also to the benefit of the Defendant, who did not have to pay for
caretaking services and
who had the benefit of his children being
properly cared for. The Defendant’s business interest was
effectively limited
during the subsistence of the marriage. The
Plaintiff has primarily taken care of the minor children’s
daily needs
and continues to do so. The Plaintiff and the
Defendant has four (4) children who according to the Plaintiff
suffers from
dyslexia. The Defendant disputed this allegation.
It is however not disputed that the children are enrolled in M[....]
School which according to the Plaintiff’s uncontested evidence
caters for children diagnosed with dyslexia. Logically
if the
children were not handicapped there would be no need to enrol them in
this particular school and as such there is no objective
evidence to
reject the Plaintiff’s evidence in this regard.
[20]
The Plaintiff testified that she must collect the minor children and
assist them with their homework
because they require assistance.
The Plaintiff testified that she works in the mornings, collects the
minor children in the
afternoon whereafter she assists them with
their homework and feeds them. Whether the children suffer from
dyslexia or not,
they still require assistance as was the position
during the subsistence of the marriage. If someone else is
appointed to
look after the children, the costs according to the
Plaintiff would amount to R6 000.00 (six thousand rand) per
month.
If it is accepted that the Plaintiff can earn a salary
of R10 000.00 (ten thousand rand) as a junior secretary, then
she will
only have R4 000.00 (four thousand rand) available to
maintain herself. The Plaintiff’s mother cannot assist in
caring for her children because she also has her own business.
[21]
The Court finds that the Plaintiff’s decision to divide her
time between her business and
the children is reasonable and in the
best interest of the minor children. The Court is evenly of the
view that the Plaintiff’s
decision to not be formally employed
but to render embroidery services is reasonable, this was the
position during the existence
of the marriage and more importantly it
is ultimately in the best interest of the minor children.
[22]
As the Plaintiff has in the past and at the present been the primary
caregiver it is not in the
best interest of the children to alter the
status
quo
.
[23]
By the time the children are self-supporting the Plaintiff would be
in her late 40’s early
50’s and it is unlikely that she
will then find any meaningful employment to become self-sustainable.
The Court is
therefore of the view that she has no other viable
option than to remain in the embroidery industry. The Plaintiff
conceded that
the business was still young and that it is still
expanding and testified that she intends to buy a new sewing machine.
There is
thus potential that with time the Plaintiff’s business
will expand.
[24]
The Defendant’s existing and expected means and earning
capacity is substantially better
than that of the Plaintiff.
The Defendant has years of experience in his field of work and in the
past managed to find lucrative
employment opportunities.
According to the Defendant’s evidence he will inherit a farm
and he intends to become a farmer,
while his current income amounts
to R56 947.14 (fifty-six thousand nine hundred and forty-seven
rand fourteen cents) per month.
The latter amount comprises of the
Defendant’s salary in the amount of R44 500.00 (forty-four
thousand five hundred
rand) and rental income from his property in
the amount of R12 447.14 (twelve thousand four hundred and
forty-seven rand fourteen
cents). The Defendant also has a
property in M[....]. According to the latest bank statements
the Defendant’s
income will be slightly higher because during
March 2022 and April 2022 the Defendant has not received a salary in
the amount of
R44 500.00 (forty-four thousand five hundred rand)
but rather the amounts of R50 356.15 (fifty thousand three
hundred
and fifty-six rand fifteen cents) and R52 004.84
(fifty-two thousand and four rand eighty-four cents) respectively.
THE
PARTIES’ RESPECTIVE FINANCIAL NEEDS AND OBLIGATIONS:
[25]
The Plaintiff testified that her and the minor children’s
monthly expenses consists of
the following:
25.1
Rent in the amount of
R7 700.00
25.2
Water and electricity –
R1 600.00
25.3
Groceries –
R4 000.00
25.4
Meat, fish, and chicken –
R1 500.00
25.5
Fruit and vegetables –
R 800.00
25.6
Bread and milk and daily purchases –
R1 000.00
25.7
Cleaning materials –
R 350.00
25.8
Clothing for the Plaintiff –
R 650.00
25.9
Clothing for the minor children –
R 750.00
25.10
Pharmacy and toiletries for the Plaintiff and
the minor children –
R1 000.00
25.11
Medical aid for the Plaintiff –
R1 274.00
25.12
Fuel –
R3 500.00
25.13
Motor vehicle maintenance –
R 400.00
25.14
Cell phone –
R
600.00
25.15
Wi-Fi –
R
650.00
25.16
School clothing for the four (4) minor children –
R2 000.00
25.17
School expenses and stationery –
R
450.00
25.18
School outings –
R 400.00
TOTAL
R28 624.00
[26]
According to the Defendant’s evidence the Defendant considers
the following expenses as
unreasonable and set the following amounts
forth as reasonable amounts:
26.1
School clothing
R 800.00
26.2
School stationery
R 100.00
26.3
Groceries R
2 500.00
26.4
Clothing for the Plaintiff
R 200.00
26.5
Toiletries
R
500.00
TOTAL
R
4100.00
[27]
As the proposed deductions are taken into consideration the Plaintiff
and the minor children’s
expenses amounts to an amount of
R24 524. If the Plaintiff’s monthly income of
R7 759.30 is taken into consideration
the Plaintiff and the
minor children’s shortfall amounts to R16 764.70. Even
if interest received on the part
of the money that the Plaintiff
intends to invest is considered the Plaintiff and the minor children
will still have a shortfall.
[28]
According to the Defendant he has a monthly shortfall of R14 223.30
(fourteen thousand two
hundred and twenty-three rand thirty cents).
[29]
The Defendant’s monthly expenses according to the Defendant are
the following:
29.1
Bank charges
R 316.00
29.2
Cartrack
R 133.05
29.3
Insurance –
Santam
R 3 174.18
29.4
Insurance –
Hollard R
1 560.47
29.5
Home loan
R
9 177.16
29.6
Cellular phone
R 188.99
29.7
Data and
airtime R
1 082.00
29.8
Wesbank – motor
vehicle R
7 806.87
29.9
Property tax
R
2 555.26
29.10
Rental R
5 000.00
29.11
FNB R
600.00
29.12
Credit card – ABSA
Bank R
2 250.00
29.13
School fees –
children R
4 488.00
29.14
Medical aid – Bonitas
R
6 352.00
29.15
Pharmacy expenses not paid by medical aid R
1 500.00
29.16
Petrol to get to
work
R11 094.25
29.17
Groceries
R 1 500.00
29.18
Maintenance for the minor
children
R12 000.00
TOTAL
R 71 170.17
[30]
The shortfall has however been calculated on the Defendant’s
salary as being R44 500.00
(forty-four thousand five hundred
rand). As already stated in this Judgment during the last two
months the Defendant received
higher salaries. During the
Defendant’s evidence it became apparent that some of the
expenses has fallen away for instance
the credit card debt in the
amount of R2250.00 while the costs in respect of FNB in the amount of
R600.00 (six hundred rand) can
also be terminated by closing the
account. The Court is of the view that it is more important for
the Defendant to comply
with his maintenance obligations than to at
this stage pay the insurance premiums of R3 174.18 (three
thousand one hundred
and seventy-four rand eighteen cents) and
R1 560.47 (one thousand five hundred and sixty rand forty-seven
cents).
[31]
Furthermore the amount of R11 094.25 for petrol (eleven thousand
ninety-four rand twenty-five
cents) can be minimized. The
Defendant’s inconvenience in having to wait for a lift after
work certainly cannot get
preference above his maintenance
obligations. Furthermore, the Defendant has a property in
M[....] which can be sold in order
to comply with his maintenance
obligations.
THE
AGE OF THE PARTIES:
[32]
The Plaintiff is 40-years old whilst the Defendant is 41-years old.
DURATION
OF THE MARRIAGE:
[33]
On 9 October 2022 the parties would have been married for a period of
eighteen (18) years.
For the greatest part of the marriage the
Plaintiff placed her embroidery business on the back foot to support
the Defendant in
his career and to care for the children.
THE
STANDARD OF LIVING PRIOR TO THE BREAK-UP:
[34]
Whilst the Defendant was in M[....]2, he earned a higher salary than
he is currently earning.
Therefore, the standard of living of
the parties during his contract in M[....]2 cannot be the point of
departure upon which the
post-divorce standard of living is to be
determined. The parties’ standard of living has been
regulated by the terms
of the
Rule 43(6)
Order. In terms of the
Rule 43(6)
Order, the Defendant was obliged to contributed
maintenance to the Plaintiff in the form of payment of medical aid,
her short-term
insurance, and her cell phone contract.
CONDUCT
OF THE PARTIES:
[35]
In the Court’s view it would be entirely wrong to lay any
particular emphasis on the conduct
of either of the parties as the
primary and main reason for the breakdown of the marriage. They
were both parties to what
caused the breakdown of the marriage and in
the Court’s view the considerations of justice which must
prevail in the determination
of maintenance should not be affected
either way in this regard. Both were to blame for the
breakdown, for different reasons
and the Court will err if the Court
were to find that one or the other solely caused the breakdown of the
marriage.
OTHER
FACTORS:
[36]
The
Rule 43(6)
application was based on the allegation that the
Defendant could no longer afford to comply with the
Rule 43
Order.
On 11 February 2022 and prior to the hearing of the
Rule 43(6)
application the Defendant received payment of the amount of
R630 105.53 from his pension.
[40]
Accordingly the entire basis for the
Rule 43(6)
application fell away
because the Defendant received the necessary money to comply with the
Rule 43
Order. Yet the Defendant failed to inform the Court.
In this Court’s view this constitutes a material non-disclosure
of the Defendant’s financial position. The material
non-disclosure was never properly explained during the trial and
the
fact that the payment was only made after having signed the affidavit
is with respect of no consequence because this material
fact should
have been disclosed. During the evidence of the Defendant in
reply the Court was not satisfied with the explanation
that the
Defendant was informed that no further affidavits may be filed.
Even if it is accepted that this is indeed the true
reason the
Defendant should surely have placed the evidence before Court during
evidence in chief or during cross-examination and
not at the latest
opportunity during reply. Evidence of this importance should
have been placed before Court by way of a
supplementary affidavit
orally or at the very least in the form of a letter. Further
affidavits may be filed with the leave
of the Court if the interest
of justice demands same.
[41]
The Defendant paid R23 000.00 (twenty-three thousand rand) of
his pension monies received
from his employment in M[....]2 towards
maintenance and the remainder of the amount of R397 047.85
(three hundred and ninety-seven
thousand forty-seven rand eighty-five
cents) was paid towards a solar power system on his father’s
farm. The Defendant
ostensibly considered this as an investment
in his future because he will one day inherit the farm. The
Court takes a dim
view of the Defendant’s decision in this
regard. The Defendant should firstly have provided maintenance
for his minor
children and for his wife with whom he was married for
a long period of time. Furthermore, the Defendant made payment
in
respect of legal costs in the amount of R50 356.50 (fifty
thousand three hundred and fifty-six rand fifty cents) and R70 000.00
(seventy thousand rand). These monies could also have been
adequately used to maintain the minor children and the Plaintiff.
[42]
Furthermore the explanation that the Defendant was liable to pay his
debt and liabilities does
not survive legal scrutiny because he has a
legal duty to maintain his children and to comply with Court orders.
[43]
The Defendant further ostensibly has the necessary financial means to
purchase an aeroplane ticket
for him and his new girlfriend, but he
then wants to advance to this Court that he cannot maintain his wife
and children.
[44]
The only inference that can be drawn is that the Defendant was not
frank about his financial
position with the
Rule 43(6)
application
and as such doubt is cast on the truthfulness of the Defendant’s
evidence in this Court. As to the consequences
of not being
frank about one’s financial position as was the Defendant, this
is certainly relevant to the overall decision
in favour of the
Plaintiff.
[45]
The Plaintiff made the necessary concessions and she agreed for
instance that the average monthly
income disclosed in the
Rule 43(6)
opposing affidavit in the amount of R7 364.38 (seven thousand
three hundred and sixty four rand thirty eight cents) was calculated
by her attorney of record who relied upon her bank statements and
that the aforementioned amount of money did not include cash
payments
and that lastly in determining the aforementioned average she used
the full month of January 2022 although January 2022
has not yet
ended when the calculation was done, resulting in the scenario where
the average income would slightly be higher.
The Plaintiff
furthermore mentioned that prior to the trial she has perused her
invoices and compared those amounts with the amounts
recorded in the
Rule 43(6)
opposing affidavit and she disclosed the correct amounts
which included all transactions.
[46]
If these amounts are added and divided by the number of months it
becomes apparent that the Plaintiff’s
average is an amount of
R7 759.30 (seven thousand seven hundred and fifty-nine rand
thirty cents) as opposed to R7 364.38
(seven thousand three
hundred and sixty-four rand thirty-eight cents). The small
difference of R394.92 (three hundred and
ninety-four rand ninety-two
cents) can surely not be described as a material discrepancy and be
seen as conduct that is indicative
of the Plaintiff of not being
frank about her financial position.
CONCLUSION:
[47]
In the Court’s view taking all the factors into account and to
effect fairness and justice
between the parties there can be no
question that the Plaintiff has established an entitlement to
rehabilitative maintenance.
The Court finds that an award of
R2 000.00 (two thousand rand) per month for the period of
eighteen (18) months will be just
in the prevailing circumstances.
MAINTENANCE
OF THE MINOR CHILDREN:
[48]
Insofar as the maintenance of the minor children is concerned the
Plaintiff claims an amount
of R5 000.00 (five thousand rand) per
month, per child as well as payment of the minor children’s
school fees and school
expenses, medical aid and excess medical
payments. In the Plaintiff’s Heads of Argument the
Plaintiff requests the
Court to make an order in terms of which the
Defendant is ordered to pay maintenance towards the Plaintiff in
respect of the minor
children in the amount of R3 000.00 (three
thousand rand) per month, that the Defendant is ordered to retain the
minor children
as beneficiaries on his medical aid and to pay the
monthly premiums as well as all reasonable and necessary medical
expenses of
the minor children that are not covered by the
medical aid. Further the Plaintiff requests an order that the
Defendant
is ordered to pay the school fees of the minor children.
In terms of the orders made in regard to the
Rule 43
application read
together with the order made in terms of the
Rule 43(6)
application
the Defendant was to date liable for payment of R12 000.00
(twelve thousand rand) maintenance towards the minor
children, the
children’s school fees, monthly premiums in regard to the
medical aid as well as reasonable medical expenses
not catered for by
the medical aid.
[49]
In the Defendant’s Heads of Argument the following maintenance
towards the minor children
are tendered. A cash amount of
R2 500.00 (two thousand five hundred rand) per child, per month,
retaining the children
on his medical aid, payment of the school fees
of the minor children and payment of 50% of the medical expenses of
the minor children
not covered by the medical aid.
[50]
No substantial reasons have been advanced to order a lesser amount of
maintenance than the amount
that was ordered in the
Rule 43(6)
application.
[51]
The fact of the matter is that the minor children are indeed in need
of maintenance in the amount
of R3 000 per month, per child and
the Defendant can afford to pay same as demonstrated in this
judgement.
[52]
In regard to the medical expenses the Court finds that it will not be
a just order to order the
Plaintiff to pay 50% of the medical
expenses not paid by the medical aid. It is abundantly clear
that the Plaintiff is not
able to pay 50% of the medical expenses.
Furthermore, no evidence has been placed before this Court to unable
the Court to
ascertain whether any of the medical expenses were
indeed unreasonable. The Court is further of the view that if
an order
is made that the Defendant is liable for reasonable medical
expenses not catered for by the medical aid, that the Plaintiff will
not have a carte blanche to incur unnecessary medical expenses.
COSTS:
[53]
As to costs there can be no doubt that the Defendant put the
Plaintiff in the position where
she had to proceed with a trial in
order to succeed with her maintenance claims in regard to both
herself and the minor children.
At the end of the day the Court
considered the Plaintiff to have been substantially successful in all
her claims pertaining to
maintenance which was a substantial matter
hard fought by experienced Counsel.
[54]
In regard to the costs of the postponement of the action on the 23
rd
it is submitted on behalf of the Defendant that the Plaintiff alleged
that she intended to conduct an investigation into
the termination of
the Defendant’s employment in M[....]2 and that she advanced
inadmissible hearsay evidence as to whether
the Defendant’s
former colleagues were still employed in M[....]2 to support that
application stating that she needed the
opportunity to gather
evidence and present it to the Trial Court in due course.
[55]
It is further submitted on behalf of the Defendant that the
investigation was either not done
or was fruitless in that no
evidence was presented at trial which was not available by the
Plaintiff prior to the date of postponement.
It is submitted on
behalf of the Plaintiff that one of the reasons for the postponement
was to investigate the termination of the
Defendant’s
employment contract which according to the Defendant’s attorney
as set forth in a letter by the Defendant’s
attorney brought
about by the fact that the employer withdrew from M[....]2. It
is further submitted that it however now
appears that there was merit
in the Plaintiff’s desire to investigate the same because the
employer has not withdrawn, the
employer is still in M[....]2, people
are still employed in M[....]2 and the Defendant has neglected to
call any witnesses to explain
and correct the discrepancies between
the letter written by his attorney of record and his own evidence.
Taking all into consideration
the Court is of the view that the just
order would be to order the parties to pay their own costs in regard
to the postponement.
[56]
Accordingly the following orders are granted:
1.
The Defendant is ordered and directed to
pay rehabilitative maintenance towards the Plaintiff in the amount of
R2 000.00 (two
thousand rand) per month for a period of eighteen
(18) months.
2.
The Defendant is ordered to pay
maintenance towards the Plaintiff in respect of the minor children in
the amount of R3 000.00
(three thousand rand) per month, per
child.
3.
The Defendant is ordered to retain the
minor children as beneficiaries on his medical aid and to pay the
monthly premiums thereof.
4.
The Defendant is ordered to pay all
reasonable and necessary medical expenses of the minor children that
are not covered by the
Defendant’s medical aid.
5.
The Defendant is ordered to timeously
pay the school fees of the minor children.
6.
The Defendant is ordered to pay the
costs of the action on a party and party scale.
7.
Each party is ordered to pay their own
costs in respect of the postponement on the 23
rd
of
November 2021.
DE
KOCK, A.J.
Appearances
on behalf of the Plaintiff:
Counsel
-
Advocate JC Coetzer
Attorney
- RJ Britz,
Honey
Attorneys, Honey Chambers, Northridge Mall,
Kenneth Kaunda
Drive, Bloemfontein.
Appearance
on behalf of Defendant
:
Counsel
-
Advocate Coertze
Attorneys Marius
Coertze Attorneys, Soutpansberg Road, 237,
Rietondale,
Pretoria.