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[2022] ZAFSHC 333
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R.M.P.S v F.A.S (5462/2022) [2022] ZAFSHC 333 (2 December 2022)
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
Case
no: 5462/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
R[....]
M[....] P[....] S[....]
Applicant
and
F[....]
A[....]
S[....]
Respondent
CORAM:
OPPERMAN,
J
HEARD
ON:
1
December 2022
DELIVERED
ON:
The judgment was
handed down electronically by circulation to the parties’ legal
representatives by email and
release to SAFLII on 2 December 2022.
The date and time for hand-down is deemed to be 2 December 2022 at
15h00
JUDGMENT
BY:
OPPERMAN, J
SUMMARY:
Rule
43 – spousal maintenance
JUDGMENT
[1]
The parties were married to each other out of
community of property with the exclusion of the accrual system on 18
April 2014. Divorce
proceedings were instituted simultaneously with
this application.
[2]
The Respondent directed the Court to an
antenuptial agreement between the parties wherein,
inter
alia,
the parties waived the right
to claim any post - divorce maintenance and that the Respondent will
pay R250 000.00 to the Applicant
and provide her with a vehicle to
the value of R125 000.00 or cash to the amount of R125 000.00.
[3]
Both parties have adult children from previous
relationships.
[4]
Both parties resided in Welkom prior to their
marriage and they relocated to Bloemfontein where they maintained an
above average
and luxurious lifestyle. This is proven beyond any
doubt by the evidence of the Respondent. They reside in Woodland
Hills Wildlife
Estate in what is presumed to be a house of some
luxury and size.
[5]
The Applicant resigned her employment with an
income of about R16 000.00 per month when they married and relocated
to Bloemfontein.
The reason for her unemployment for the duration of
their marriage is in dispute.
[6]
The Respondent contributed to the financial
maintenance of the Applicant in full for the whole of the duration of
the marriage.
He paid her a household allowance of R23 000.00 per
month to pay their domestic worker, gardener, water and electricity,
groceries,
her clothing accounts and other communal expenditures.
[7]
He now offers to pay her the said R23 000.00
per month, maintain her on his medical aid, make a vehicle available
for her use, pay
her cell phone contract for about 24 months until
the contract expires and R5000.00 for legal costs.
[8]
A previous divorce action in 2016 was abandoned
when the parties reconciled. Any comparison with the circumstances of
the Rule 43
application and order in the 2016 - matter with the
matter at hand, will be irresponsible; much time has lapsed and
circumstances
have changed.
[9]
The Applicant suffers from some psychological
disorders due to alleged abuse by the Respondent.
[10]
Both parties are adamant that she must leave
the communal home.
[11]
The Respondent works abroad in Mauritania,
North - West Africa. He also has other businesses and a property that
contributes to
his income. He resides in a house in Mauritania for a
period of six weeks and then two weeks in Woodland Hills in
Bloemfontein.
A suggestion by the Court to let the Applicant remain
in the house and for the Respondent to seek alternative accommodation
when
he is in South Africa for two weeks, pending the divorce, was
rejected by both parties. This decision will have financial
consequences
for both parties.
[12]
The
general approach in Rule 43 - applications is this:
[1]
The
applicant (who is normally the wife) is entitled to reasonable
maintenance pending the finalisation of the divorce. This, in
turn,
is dependent upon the marital standard of living of the parties, her
actual and reasonable requirements, and the capacity
of her husband
to meet her requirements. They are normally to be met from income,
although in some circumstances inroads on capital
may be justified.
In this regard the factors set out in the Divorce Act relating to the
award of maintenance provide a useful checklist.
The quantum of
maintenance payable must in the final result depend upon a reasonable
interpretation of the summarised facts contained
in the founding and
answering affidavits. However, the person claiming maintenance must
establish a need to be supported.
A
claim supported by reasonable and moderate details carries more
weight than one that includes extravagant or extortionate demands.
Similarly, more weight will be attached to the affidavit of a
respondent who evinces a willingness to implement his lawful
obligations
than to one who is obviously, albeit on paper, seeking to
evade them. The rule does not permit the award of a lump sum, but
only
of periodic payments.
[13]
It is common cause that the Applicant has no
income or assets and the Respondent is a man of substantial earnings
and resources.
[14]
The Applicant claims maintenance in cash to the
amount of R43 000.00, use of the Mercedes vehicle, her cell phone to
be paid for
by the Respondent, to be retained on the Respondent’s
medical aid and R10 000.00 for legal costs. The list of expenditures
that causes the claim of R43 000.00 shows that some expenses claimed
are excessive. Important is the fact that the Applicant did
not claim
any amount to relocate. She must acquire furniture and household
appliances and commodities that result from setting
up a home from
scratch; she claimed nothing for this. Given the evidence I will
grant maintenance in the amounts and for the expenses
specified
hereunder and as follows:
1.
Rental of a two-bedroom townhouse:
R13
000.00
2.
Water and electricity:
R2000.00
3.
Security:
R300.00
4.
Short term insurance:
R300.00
5.
Groceries:
R5500.00
6.
Clothing and clothing accounts:
R2000.00
7.
Haircare:
R800.00
8.
Skincare:
R800.00
9.
Pharmacy expenses and toiletries will be
included in the expenditures in 5. above and the R700.00 claim is
thus not allowed.
10.
Nailcare:
R600.00
11.
Medication not covered by medical aid
will not be allowed and included in an order that the Respondent
retain the Applicant on his
medical aid and he will be liable for any
reasonable medical expenditures not covered by the medical aid.
12.
Fuel expenses:
R1500.00
13.
Wi-fi & DSTV:
R1600.00
14.
Domestic Worker:
R3400.00
15.
The claim for payment of a gardener will
not be allowed since the expenditure was not proven sufficiently in
light of the fact that
the Applicant will rent a townhouse.
16.
Petfood:
R500.00
17.
Reading material and relaxation will be
included at “holidays and entertainment”.
18.
Policies and life insurance:
R1600.00
19.
Holidays and entertainment:
R1200.00
20.
Church contributions, unforeseen
expenses and pocket money are not granted in light of the vagueness
of the claim therefor.
[15]
The Respondent shall retain the Applicant as a
beneficiary on his medical aid and he will be liable for the
instalment payable in
respect thereof as well as the reasonable and
necessary costs not covered by the medical aid. He shall pay the cell
phone expenditures
of the Applicant. The Respondent will make the
Mercedes Benz vehicle available for use by the Applicant
pendente
lite
and pay the short-term
insurance in respect of said vehicle. The Respondent shall ensure
that the instalment of this vehicle is
paid. The Respondent shall
make a contribution towards the Applicant’s legal costs in the
amount of R10 000.00.
[16]
The costs for this application shall be costs
in the main action.
[17]
ORDER
IT
IS ORDERED
PENDENTE LITE
THAT:
1.
The Respondent shall pay spousal maintenance to the Applicant in the
amount of
R35 100.00 (Thirty-five thousand one hundred rand) per
month. The first payment to be made on or before the 7th of December
2022
and thereafter on or before the 7th day of each succeeding
month.
2.
The Respondent shall retain the Applicant as a beneficiary on his
medical aid
and he will be liable for the instalment payable in
respect thereof as well as the reasonable and necessary costs not
covered by
the medical aid.
3.
The Respondent shall pay
the cell phone expenditures of the Applicant.
4.
The Respondent will make the Mercedes Benz vehicle available for use
by the Applicant
pendente lite
and pay the short-term
insurance in respect of said vehicle. The Respondent shall ensure
that the instalment of this vehicle is
paid.
5.
The Respondent shall make a contribution towards the Applicant’s
legal
costs in the amount of R10 000.00.
6.
Costs of this application shall be costs in the main action.
M
OPPERMAN, J
APPEARANCES
For
the Applicant: ADVOCATE
R VAN DER MERWE
Chambers,
Bloemfontein
Instructed
by:
CH
du Plessis
Honey
Attorneys, Bloemfontein
For
the Respondent: ADVOCATE
HJ VAN DER MERWE
Chambers,
Bloemfontein
Instructed
by:
NC
Oosthuizen
EG
Cooper Majiedt Inc., Bloemfontein
riana@egc.co.za/karla@egc.co.za
051
447 3374
Ref:
NO/RN/ks/SA1832
[1]
Harms, D with
reference to case law, Civil Procedure
,
Civil Procedure in the Superior Courts
,
Part B High Court, Last Updated: October 2022 - SI 75 at 43.3.