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[2021] ZALMPPHC 11
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M.T.L v M.K.L (5181/2020) [2021] ZALMPPHC 11 (26 March 2021)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NUMBER:5181/2020
In
the matter between:
M[...]
T[...] L[...]
APPLICANT
And
M[...]
K[...] L[...]
RESPONDENT
JUDGEMENT
KGANYAGO J
[1]
The applicant and the respondent are married to each other by
customary union. The applicant
has issued divorce summons
simultaneously with an application for relief
pendente lite
in
terms of Rule 43 of the Uniform Rules of Court (the Rules). The Rule
43 application was brought on urgent basis and was struck
off the
roll due to lack of urgency.
[2]
The applicant in her
pendente lite
application seeks orders
that she be awarded primary care and residence of the five minor
children aged 15,13,11,9 and 5 years
respectively with the respondent
having right of reasonable contact at all reasonable times; that the
respondent add the applicant
and the five minor children as
dependants on his medical aid scheme and thereafter to retain them on
the medical aid scheme and
to pay all medical expenses which are not
covered by medical aid scheme
pendente lite
; that the
respondent pays all the minor children’s school fees
pendente
lite;
that the respondent contribute an amount of R8750-00
towards the university fees, residence fees and textbook fees of the
major
child
pendente lite
; that the respondent pays
maintenance in an amount of R51 530-00 per month for the applicant
and the minor children
pendente lite
; and that the respondent
makes an initial contribution towards the applicant’s legal
costs, in the pending matrimonial action
in the amount of R30 000-00.
[3]
The applicant avers that since 2019 the respondent has refused to
contribute financially
towards the maintenance of the children, and
she was solely responsible for maintaining them, and she is
struggling tremendously
to make ends meet. According to the
applicant, the respondent left their common home during February
2020. The applicant avers
that for the Rule 43 application to be
brought on urgent basis was triggered by the fact that on 12
th
August 2020 she learned that the last born minor child and her were
removed as dependants from the respondent’s medical aid
scheme,
and at this stage she cannot afford to pay any medical aid.
[4]
The applicant submits that she and the respondent are both employed.
Her net salary is R23
000-00 per month, whilst the respondent’s
gross monthly salary is R26 000-00. The applicant further
alleges that the
respondent receives an annual bonus of R26 000-00
and also overtime payment which takes his average monthly earning to
R40 000-00.
The applicant further alleges that the respondent is
a wealthy businessman who conduct taxi operating business which gives
him
an average gross monthly income of R127 500-00. The applicant
further alleges that before covid-19 lockdown, they had a contract
with Pick ‘n Pay to transport Pick ‘n Pay employees and
the monthly income for that contract was R27 000-00. The
money
for the Pick ‘n Pay contract was paid into a close corporation
account of which the applicant was the sole member.
The applicant
avers that since the cancellation of the Pick ‘n Pay contract,
there are no further monies that goes into the
close corporation
account.
[5]
The applicant alleges they used to enjoy a very luxurious lifestyle,
they drove expensive
cars, lived in a five-bedroom house on a big
erf, dined out a lot, bought expensive gifts for each other and also
went on luxurious
holidays. That their expenses were paid from the
income derived from the respondent’s taxi business and their
own salaries.
The applicant further submit that the respondent bought
a very expensive luxurious Mercedes V-Class motor vehicle without her
consent,
and the monthly instalments for that vehicle amounts to
R25 000-00. According to the applicant her total monthly
expenses
amounted to R83 280-00, and she is left with a
shortfall of R60 280-00. She is forced to take out loans in
order to make
up for this shortfall.
[6]
The respondent in his answering affidavit has denied that they were
living a luxurious life
style, but that their lifestyle was a modest
one. The respondent avers that he had left the family home at the end
of February
2020 when he realized that his life was in danger as the
applicant was plotting to kill him. The respondent submits that even
after
he had left the common home, he continued to make sure that his
family was well maintained. The respondent further submitted that
even up to date he had paid his children’s school fees the same
way he used to do over the past years, despite his failing
health and
struggling business due to covid-19. It is the respondent’s
contention that the applicant’s averments in
her founding
affidavit are a cocktail of half-truths, gross exaggerations, false
hoods and outright lies aimed at misleading the
court in order to
punish him unnecessarily just to vent her anger and hatred on him.
[7]
The respondent submit that the major child is capable of suing and
being sued in her personal
capacity unassisted. The respondent avers
that presently he is renting and paying R5000-00 per month. The
respondent submit that
the five minor children are still covered by
his medical aid scheme as his dependants, and that the applicant is
gainfully employed
and is in a position to secure a medical cover for
herself. The respondent further submits that the cover for the major
child can
be restored on her if she furnishes the medical scheme with
proper documentation.
[8]
The respondent submit that his salary fluctuates between R21 000-00
to R37 000-00
depending on whether he had worked overtime. It is
the respondent’s contention that in recent years he had been in
and out
of work due to ill health and has therefore been unable to
work overtime. The respondent submit that the total income generated
from running the taxi business is around R70 000-00 per month,
and still had to pay for drivers, insurance cover for the taxis
and
also pay monthly instalments for two of the taxis. It is the
respondent’s contention that as a result of covid-19, the
income from the taxis has tended to be negative as opposed to
positive fluctuation. The respondent had conceded that the Pick ‘n
Pay contract had terminated during April 2020 due to covid-19, but
submitted that despite the termination of the contract, he buys
groceries and other needs for the family. The respondent denies that
the applicant is not in a position to pay her legal fees.
[9]
In court, counsel for the applicant submitted that the applicant is
only claiming maintenance
for five minor children and for
contribution towards costs. The applicant is no longer claiming
spousal maintenance. The applicant’s
counsel submitted that the
respondent is paying school fees for the four minor children, and
that he had not paid for the fifth
minor child who is the last born
and that the fifth minor child was taken out of crèche during
August 2020 due to non-payment
of the school fees. Counsel for the
applicant further submitted that the respondent bought groceries for
the applicant and their
children on 12
th
February 2021
after failing to do so for over a period of a year. Counsel for the
applicant further submitted that the respondent
be ordered to pay
maintenance of R4000-00 per month per child for the five minor
children and also R8000-00 as contribution towards
costs.
[10]
Counsel for the respondent submitted that there was no minor child
who was removed from school due
to non-payment of school fees. It is
the respondent’s contention that the respondent has been
maintaining his family without
fail. Counsel for the respondent
submitted that the respondent has been delivering the monthly
groceries in the absentia of the
applicant, and that it was only on
12
th
February 2021 that he found the applicant at their
common home and the applicant chased him away. Counsel for the
respondent submitted
that the respondent had long been staying with
his children and he knows their monthly needs.
[11]
Rule 43 applications are designed to be inexpensive procedure which
entitles a party to procure temporary
relief in matrimonial actions.
Payment of maintenance for minor children is a priority and depend
upon the available resources
of the parties involved. It is therefore
important for both parties to be honest and frank about their
available resources to assist
the court to make an appropriate order
even though it will not be precise due to the unavailability of
detailed evidence. Where
both parents work, a Rule 43 in respect of
child support imposes financial obligations on each of the parents
according to their
financial resources.
[12]
In
TS v TS
[1]
Spilg
J said:
“
The
adjudication of maintenance for children pendent lite involves
establishing the actual expenditure requirements that have been
incurred historically, establishing whether there is any change, and
if so why. This may be particularly important in the case
of the
children’s costs of education, including extramural tuition
which has gained significance in developing the individual
child’s
talent or assisting a child in overcoming any learning difficulties.
Consideration such as the type of institution
a child has attended,
his or her educational needs and the level of education that both
parties had envisaged they would provide
for the child are relevant,
as is the current financial ability to maintain that level or provide
a suitable policy to cover future
costs of tertiary education, if
appropriate, having regard to the posted resources of the parties.”
[13]
The applicant in her founding affidavit has stated that since 2019,
the respondent has refused to contribute
financially towards the
maintenance of the children and that since then she was solely
responsible for maintaining the children
on all the necessities of
life. As a result of the respondent’s failure to contribute to
the upbringing of their children,
the applicant’s monthly
expenditure sky rocketed to R83 280-00. Her take home salary is
R23 000-00 and that leaves her
with a monthly shortfall R60
280-00 which she had to jiggle around every month to make up for the
shortfall.
[14]
The picture created of the respondent is that of a parent who had no
interest in the upbringing of
his children, and who had left the
applicant to take care of the children as if she was a single parent.
The applicant has further
stated that on 12
th
August 2020
she learned that the respondent had removed her and the last born
child as dependants from his medical aid scheme.
All this paints the
respondent as an irresponsible parent. However, it turned out that
all these allegations were not correct,
as the respondent had removed
the applicant only. All the minor children are still dependants on
the respondent’s medical
aid scheme. The respondent is paying
the school fees of the minor children even though the applicant
claims that the respondent
is not paying for the last born who was
taken out of school due to non-payment of his school fees during
August 2020. However,
when the applicant abandoned the claim for
school fees for the minor children, she had abandoned for all the
five minor children
which gives credence to the respondent’s
contention that he is paying school fees for all the five minor
children.
[15]
The applicant’s monthly expenses seem to have been exaggerated.
The monthly grocery of R20 000-00
which is almost equal to the
applicants nett salary in my view is not realistic. The applicant in
her monthly expenses had included
school fees for the minor children
which when the matter was argued before court has conceded that the
respondent is taking care
of them. It is clear that the applicant is
not frank and honest with her monthly expenses hence she now just
wants maintenance
for the five children at R4000-00 per month per
child. At R4000-00 per month per child it gives her a grand total of
R20 000-00
which is close to the lost income of R27 000-00
for the Pick ‘n Pay contract. What the applicant is now seeking
will
not cover her exaggerated monthly expenses, and she had not
stated how she is going to make out of that shortfall. This also
shows
that the applicant is not honest and frank with her monthly
expenses.
[16]
Both applicant and respondent are having a nett salary which is
almost equal to each other. However,
the advantage of the respondent
is that he is having a second source of income. Taking into
consideration that the respondent is
taking care of almost all the
needs of the minor children, in my view R4000-00 per month per child
is still unrealistic. What the
applicant want is a replacement of
R27000-00 income she had lost for the Pick ‘n Pay contract and
that has got nothing to
do with the minor children’s needs.
[17]
By staying with the minor children, the applicant will in some
instances be forced to incur unforeseen
expenses which can never be
budgeted for. There are some medical prescriptions which the medical
aid scheme will not cover. In
some instances, there will be school
project which need money here and then and not wait for month end. In
my view R1000-00 per
month per child will be sufficient to cater for
the emergencies which in my view will not occur every month for each
minor child.
[18]
With regard to contribution towards costs, in
AF
v MF
[2]
Davis
AJ said:
“
The
quantum of the contribution to costs which a spouse may be ordered to
pay lies within the discretion of the presiding Judge.
In Van Rippen
v Van Rippen Ogilvie Thompson J, as he then was, articulated the
guiding principle for the exercise of that discretion
in the
following frequently cited dictum.
‘
(T)he
court should, I think have the dominant object in view that, having
regard to the circumstances of the case, the financial
position of
the parties, and the particular issues involved in the pending
litigation, the wife must be enabled to present her
case adequately
before the court.”
[19]
Both applicant and respondent are in stable employment and their take
home salaries are almost equal
even though the respondent had an
added advantage of the second source of income. However, the
responded is taking care of almost
all the household expenses and
that will leave the applicant will sufficient balance to pay for her
legal fees. In my view, R6000-00
will be appropriate as initial
contribution towards the applicant’s legal costs in the pending
matrimonial action.
[20]
In the result I make the following order.
20.1
Pendente lite,
the primary care and residence
of the five minor children are awarded to the applicant, subject to
the respondent’s right
of reasonable contact as arranged by
agreement between the parties;
20.2
The respondent retains the five minor children as dependants of his
medical scheme
pendent
lite;
20.3
The respondent pays all five minor children’s school fees,
sport and extra–mural activities
pendente
lite;
20.4
The respondent pays maintenance in the amount of R1000-00 per child
per month for the five minor children
pendente
lite;
20.5
The respondent makes an initial contribution towards the applicant’s
legal costs, in the pending matrimonial action,
in the amount of
R6000-00.
20.6
Each party to pay his/her own costs.
MF.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION
POLOKWANE
APPEARANCE:
Counsel
for the Applicant
Adv
MC. De Klerk
Instructed
by
DDKK
Attorneys
Counsel
for the Respondent
Adv
R. Moshiana
Instructed
by
M.T
Ramabala Attorneys
Date
of hearing
03
March 2021
Date
of Judgment
26
th
March 2021
[1]
2018(3)
SA 572 (GJ) at 596 F-597B
[2]
2019
(6) SA 422
(WCC) at 428F-429A