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[2021] ZAGPPHC 320
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D[....] v D[....] (22683/2012) [2021] ZAGPPHC 320 (15 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
IN THE HIGH COURTOF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 22683/2012
D[….]
PLAINTIFF
And
D[….]
DEFENDANT
DATE
OF HEARING: 22 AND 23 FEBRUARY 2021.
DATE
OF JUDGMENT
: This judgment was handed down electronically by
circulation to the parties' representatives by email. The date and
time of hand-down
is deemed to be
15
MARCH
2021.
JUDGMENT
KHUMALO
J
Introduction
[1]
This is a divorce action instituted by the Plaintiff, Ms Natalie De
Vries on 20 August 2012
against her husband Colin Michael De Vries,
the Defendant. They got married at Krugersdorp on 28 July 2004 and
two children were
born of the marriage, a girl now aged 16 years and
a boy aged 13 years old.
[2]
According to the Plaintiffs particulars of claim, the parties
were married to each other out of community of property. On 21 July
2004 at Johannesburg, the parties, both represented by Mr Mkhombo,
entered into an Ante-nuptial Contract (ANC).
[3]
In terms of the ANC there was no community of property, or
profit and loss applicable to the marriage. The accrual system as
provided
in Chapter 1 of the
Matrimonial Property Act 1984
would also
not be applicable to their marriage. If the marriage was to be
dissolved by divorce after the expiry of a period of
4 years of the
marriage, the Defendant donated an amount of R400 000 to the
Plaintiff. The marriage certificate and the ANC, form
part of the
pleadings.
[4]
The Plaintiff seeks the decree of divorce in the following
terms:
[4.1] Payment of the donation amount.
[4.2]
Both parents to retain full parental rights and
responsibilities of the minor children,
[4.3]
The primary residence of the minor children shall be with the
Plaintiff, in whose primary care they shall remain. The Defendant
shall be entitled to reasonable contact at all reasonable times.
[4.4]
The Defendant be ordered to pay maintenance of the minor
children in the amount of R10 000 per month per child.
[4.5]
In addition the Defendant was to make payment of the costs
relating to primary and secondary education of the minor children,
the
costs of uniform, reading material and stationery as required by
the school, costs of extra lessons that might be recommended by
the
teachers and any extra mural activities undertaken by the child.
[4.6]
The Defendant to retain the minor children on his medical aid
scheme and to pay for any medical expenses incurred in connection
with the minor children that is not covered by a medical scheme.
[4.7]
The Defendant to contribute to the maintenance of the
Plaintiff by making payment of a sum of R30 000 per month.
[4.8]
The Defendant to retain the Plaintiff in his medical aid
scheme and to pay for any medical costs in connection with the
Plaintiff
that are not covered by the medical aid scheme.
[5]
The Plaintiff furthermore alleges that:
[5.1] the
Defendant had subjected her to different forms of domestic abuse,
physical, verbal, emotional and financial abuse including aggressive
behaviour and assaults on some occasions throughout the marriage,
which sometimes caused injury physically and to her dignity.
[5.2]
the Defendant abuses alcohol and has made false allegations that she
abuses alcohol and drugs.
[5.3]
The Defendant spends much time away from the matrimonial home
unreasonably
without proper explanation, he likes socialising with
friends at places where patrons use a lot of alcohol.
[6]
The Defendant opposed the Divorce and filed a Plea and
Counterclaim. In his Plea he admitted that the marriage has
irretrievably
broken down and there were no prospects of restoration
of a normal marriage. He however denied all the wrongdoings the
Plaintiff
was accusing him of. He also opposed the minor children's
residence and primary care to be vested as prayed for by the
Plaintiff,
but with him with reasonable contact to be exercised by
the Plaintiff on the basis that:
[6.1] she abuses and
continues to abuse alcohol and prescription medication and
other
substances.
[6.2]
she will more often leave the minor children with the domestic worker
or Defendant without furnishing
a plausible explanation of her
whereabouts.
[6.3]
she is irrational and verbally and emotionally abused and abuses the
Defendant and the minor children.
[7]
He agreed to the payment of the costs of the minor children's
school fees and retaining them and the Plaintiff as his beneficiaries
in his medical aid scheme, and to pay excess costs that are not
covered by the medical aid on condition the Plaintiff pays
maintenance
to the Defendant for minor children in the amount of
R2000-00 per month per child.
Factual
background
[8]
After the institution of the Divorce proceedings the Plaintiff
vacated the matrimonial home with the minor children which is
confirmed
by the Defendant in his plea that as a result they do not
share the common bed or interests anymore. Subsequently, on 29
October
2012, an interim order in terms of
Rule 43
was made pending
litigation that the Plaintiff will have primary residence and care of
the minor children. The Defendant was ordered
to pay to the Plaintiff
an amount of R28 500.00 for maintenance of the Plaintiff and the
minor children, a further amount of R16
800.00 for accommodation, R4
000.00 for fuel, R2000.00 for the cellphone and pay for the
Plaintiff's DSTV subscription plus was
to continue to be responsible
for all school and educational expenses as outlined in the prayers
sought by the Plaintiff. The Defendant
was also to keep the Plaintiff
and the minor children on his medical aid and pay for any access
payments not covered by the medical
aid. He was also to make a
contribution towards Plaintiff's legal costs of an amount of R7 500
and thereafter a monthly amount
of RI 500 until finalisation of the
divorce.
[9]
The interim order was effective until 21 June 2014 when it was
amended by an order of the Maintenance Court whereupon the total
amount payable for maintenance for both the Plaintiff and the minor
children was reduced to R32 000.00 The amount was made up of
R14
000.00 for both Plaintiff and the children's accommodation, R16
000.00 for general maintenance needs of the Plaintiff and the
children and R2 000 for repayment of the loan that was taken by the
Plaintiff. At the time the Plaintiff was still staying alone
with the
children. On 18 August 2017 the Plaintiff and the minor children
moved back with the Defendant at the matrimonial home
at Hoogenhout
Road, in Lonehill, the order remained effective. After a year, that
is from 1 November 2018, the Plaintiff started
staying alone and the
children continued staying with the Defendant till to date.
[10]
Due to allegations made by the parties against each other,
specifically by the Defendant that the Plaintiff is an alcoholic and
a substance and prescription medicine abuser and by the Plaintiff
that the Defendant is also an alcoholic, the parties were subjected
to tests by social services and the matter referred to the Family
Advocate for an enquiry and report on the primary care and residence
of the minor children with regard to what would be in the best
interest of the minor children. The parties also engaged their own
experts to assess the situations of the parties and report on their
respective perspective with regard to substance abuse and
employability of the Plaintiff.
[11]
The parties failed to hold a meaningful pre-trial conference
going to trial. The Plaintiff failed to attend a pre-trial conference
on 6 April 2015. Same was arranged with her prior knowledge. The
Defendant failed to attend a pre-trial conference set down for
14
November 2018 by the Plaintiff. On the same date the Plaintiff filed
a Notice to amend her particulars of claim. No application
was ever
set down, even though there was a notice to oppose that was filed.
The trial set down on 20 November 2018 was postponed
sine die.
[12]
Leading to the trial, both parties were agreed on the Divorce
and the only issues remaining to be decided upon being that of the
minor children's primary care and residence and maintenance for both
the Plaintiff and the minor children to be paid to the Plaintiff.
The
matter was as a result set down for trial on 4 September 2020.
[13]
On 4 September 2020, same as it was previously, the Plaintiff
was not ready to proceed. A new legal representative, Mr Marx,
appeared
on her behalf and indicated the Plaintiff's intention to
proceed with the disputation of the matrimonial property regime
applicable
to their marriage. He indicated that the Plaintiff would
like to proceed with an Application to nullify the matrimonial regime
as referred to in her particulars of claim, where after she will
proceed with the Application to amend. Mr Marx therefore applied
for
a postponement from the bar. Ms Bedekeron behalf of the Defendant
opposed the Application for postponement of the whole matter
and
counter applied in terms of
Rule 33
(4) for an order for separation
of the issues of the matrimonial property regime and the concomitant
pronouncement on the parties'
estate plus maintenance of the
Plaintiff from that of Dissolution of their marriage, primary care
and residence and maintenance
of the minor children. Having taken
into account, inter alia, that the issue of nullifying the marital
regime involves other third
parties and the duration it might take to
be resolved, the delay in the finalisation of the matter and the
effect thereof on the
parties and the minor children, an order for
separation was granted. The issue of the marital regime and
Plaintiff's maintenance
were postponed sine die. The trial on the
issue of Divorce, the minor children's primary residence and care and
maintenance was
postponed to 23 November 2020.
[14]
On the 23 November 2020, prior to commencement with the trial,
the Plaintiff applied for consolidation of the separated issues
alleging
to have placed the Application for the invalidation of the
ANC on the roll on the date of the trial appropriately. The
Application
was for various reasons found not to be properly before
the court. The Plaintiff applied for a postponement again and leave
to
appoint a Curator Ad Litem so that the wishes and voices of the
minor children on the issue of their primary residence and care
can
be heard without the interference of the parents. Mr Marx also
indicated that the Plaintiff has doubt about the report that
was
filed by the Family Advocate on Plaintiff's request and order of the
court. The Application was granted. Various name choices
were
subsequently submitted by the parties to the court which endorsed and
ordered the appointment of Advocate Eichner- Visser.
The Family
Advocate was also directed by this court to update its report which
was compiled more than a year ago. The Family Advocate
and the
Curator Ad litem were directed to both file their reports on or
before the 22 January 2021. The trial date was set down
on 22 and 23
February 2021. Both the family Advocate and the Curator Ad Litem's
reports were filed on time.
[15]
During the trial the Defendant continued to be represented by
Ms Bedeker and Mr Marx on behalf of the Plaintiff. Both the family
Advocate and the Curator Ad Litem attended the trial to present their
reports. A further attempt to apply for the consolidation
and the
hearing of the Plaintiff's Application that was still not properly
before court was refused.
[16]
At the beginning of the trial it was common cause that the
parties' marriage had irretrievably broken down and consequently the
dissolution of the marriage inevitable. The liability of the
Defendant for the minor children's maintenance and upkeep was also
not put in dispute. The only contested issue to be determined was
whose primary care and residence would be in the best interest
of the
minor children. Who between the parties was the fit and proper parent
to be the primary care giver.
Evidence
led
[17]
In her evidence in chief, the Plaintiff testified that she indeed
instituted the proceedings
in 2012, although she had already taken a
decision to divorce the Defendant a year before, but decided to give
it a try. Still
things did not work out and stayed the same. They
were not compatible. The Defendant was very abusive mostly verbally,
mentally
and financially. The verbal abuse was most often not
pleasant. He drank a lot. He will drink himself to a stupor at night
and the
next day would not remember what happened. She also drank at
the time but stopped when she left the Defendant. The children were
also growing up. In 2018 the abuse became physical and he would push
her around, as a result there was an incident of domestic
violence.
The Defendant one day came home late. She, their son C and a friend
were in the kitchen. She couldn't get the Defendant
off her so she
scratched him on the nose. The Defendant ended up in hospital. The
police came and told her to go and open a case
and C was going to be
a witness. She never did.
[18]
When she moved out of the matrimonial home in 2012 she stayed
at Redberry Hill, in Douglasdale. She thereafter rented and occupied
another place at the Williams Complex, in Dainfern. She stayed there
for three years. It was a bigger and a secured place. After
her lease
expired in August 2017 she moved back to the matrimonial home for 2
years. After she moved out of the matrimonial home
in 2012 she was
receiving maintenance, but everything was stopped and later dealt
with at
Rule 43.
Under the
Rule 43
order, which was effective since
2013, everything was stipulated, moreover that she was to look after
the children. The Defendant
was ordered to pay +-R95 000, which
included school fees. He paid for the lease and paid her maintenance.
The Defendant later applied
for reduction of the amount at the
maintenance court. The amount was reduced to a cash mount of R32 000.
R16 000 of that was stipulated
to be for her maintenance, R14 000 was
for her accommodation and R2000 was payment towards her loan debt.
The Defendant was not
paying her the full amount because he thought
he was not supposed to be paying that amount. For the past two years
the Defendant
has been paying her R15 000 and then paying the other
amount for rent. The cash amount of RIS 000 he is paying her is not
the amount
ordered by the court. Therefore, he is supposed to pay her
the full R32 000.
[19]
She indicated that where she is staying presently the place is
too small and the lease expired on 15 March 2020. In terms of the
Rule 43
Order they were supposed to stay at the matrimonial home. The
Defendant sold the house at end of 2018 and she was evicted. However,
the Defendant denies having evicted her and alleges that the new
owners wanted to take possession. The new owners took the mattress
she was sleeping on and threw her out. On that night they evicted her
they changed the locks and she slept at Douglasdale Police
Station.
The Defendant took the children to Forest Drive in Lonehill and his
staff was kept in storage. The Defendant told her
to stay in that
room at the Guest House in Forest Drive, Lonehill. The Defendant
started staying with the children alone since
1 November 2018 after
he kicked her out and left the matrimonial home to stay at Forest
Drive. The children have not been in her
care since then. She
afterwards found a room near the Defendant's place in Forest Drive
and she asked to stay there. So after November
2018 she stayed in
close proximity to the Defendant's place until 2019. Defendant paid
for the room. Whilst they were staying there
she passed by the
Defendant's place every day, to make food for the children and make
sure that they are dressed for school. She
also cooked at Defendant's
place every evening. The Defendant still went out and will stay out
for some time. They had a good relationship
until 2019 when the
Defendant moved with the children. Since then she has not had the
children for approximately a year.
[20]
According to the Plaintiff her children love her dearly as she
is the one who kept the balance. The problem started when her
authority
was taken away during the period they were again staying
together at the matrimonial home. After the Defendant and the
children
moved away the children now started lying to her about
having to do their homework, making up excuses if they have to see
her and
complaining about seeing each other at the Malls. She
therefore needs a place where there can be some dignity. When she
instituted
the divorce the children were in Grade 3 and 6. She had
primary residence and the children saw Defendant every 2
nd
week.
She helped J with projects and schoolwork in general and exam. The
Defendant did assist as well giving some of his input.
When she left
the matrimonial home in 2019, they had a meeting with the children's
teacher. She was asked to help since they were
in the same complex.
Now she is getting more complains after the Defendant and the
children have moved out of Forest Drive. She
got tutors for the
children and they passed. During the period of lock-down they were at
the Vaal doing lessons through e-learning.
When the teachers
complained about C, tutors got in to help again. She has no idea as
to who is helping them with homework now.
However, there was an
incident with J, one day she phoned her crying saying she was not
coping. She phoned the Defendant and he
was at a pub. J wanted more
time with the exams. She afterwards realised that there are more
underlying things than they thought
the problem was. J gets anxiety
attacks and she is trying to help but she does not see the children
more often. They are still
waiting for J's report. They do speak on
Whatsapp. J will send her something and she will translate. That does
not happen with
C for whom she has got tutors to help. She presently
does not get to see the children that often as there is no place to
see them.
C does not like shopping centres. They complain about not
having time for homework.
[21]
She confirmed regarding her accommodation that the rental at
the guest house where she presently stays is paid by the Defendant,
and is approximately R6 500 although he was ordered to pay R14 000
for accommodation. It is however according to her not a good
place to
stay. She said the room is at a guest house. She was asked that if
she did receive R32 000 from the Defendant was she
going to be able
to give primary residence to the children as it was supposed to be
initially. Also asked why the Defendant had
chosen to put her at a
lesser and cheaper accommodation and was receiving no maintenance.
She said even if the Defendant pays her
the R14 000, he is still
required to sign the lease. The Defendant and his attorneys have been
trying to force her to sign a settlement
agreement. They told her to
sign before she can get her furniture or stuff back, she is therefore
without her belongings. When
she asked them to take out the amount in
the agreement they refused. Her attorney advised her not to sign the
settlement. The maintenance
matter is still outstanding. She said if
awarded primary residence, she will look for a studio apartment. She
does not mind to
be told where to live and what to eat, but at the
guest house there is no place to put chairs and therefore no place
for the kids
to sit.
[22]
She indicated that she had issue with the interview that was
conducted by the Family Advocate with her and Defendant together,
since
if she spoke the Defendant would have gotten angry with her.
They were interviewed by Ms Langeveldt and Hatting. She was not asked
anything about the children. Ms Langeveldt basically told her that
she does not have a house and an income. The children chose
the
Defendant because it is about her not having a roof over her head.
The Family Advocate asked her what she did for the past
two years,
that is 2019 and 2020. They were horrible to her and did not treat
her well. She disputed that J would have chosen the
Defendant over
her. It is also hard for her to understand why the children were
cross with her because they are teenagers. Langeveldt
and Hatting
told her that even if she had a house it was not going to happen,
they had already made a decision. They asked her
a few questions.
They did not ask anything about the alcohol. They asked her about her
parents and asked the Defendant why the
children were lying or
disrespectful to her. She was made to feel like she has never done
anything in her life. She did not have
a car.
[23]
Under cross examination she confirmed that there was no
domestic violence case opened. She was a housewife when she
instituted the
action in 2012 and since then until 2020 she has
remained unemployed. She explained that according to how she
understood the
Rule 43
, she was supposed to be looking after the
children and the Defendant to provide for all of their needs. She did
however, at some
stage from 2015 to 2017 own a butcher which was
bought over by somebody. She then was involved in the remodelling of
the Randburg
Children's Court. The Defendant was in terms of the
Rule
43
ordered to look after the finances and pay even her loan. She
confirmed that presently even when the Defendant is living with and
looking after the children, he is still paying her maintenance, and
for all school related costs for the children, their everyday
upkeep,
expenses relating to medical, clothing and food. She said it is in
terms of the court order. It was pointed to her that
as a result the
Defendant is seeking primary residence and care to be vested with
him. She replied that the Defendant has been
looking after the
children because in October 2018 he sold the matrimonial home they
were staying in. She however agreed
that the Defendant at the time
did offer her to look for a 3-bedroom apartment so that she can move
in with the children prior
to the Defendant moving with the children
from the marital home but was not made aware of the offer at the
time, because of her
attorney's failure to show her the letter in
time. The tender to that effect was made for an amount of R14 000
which could pay
for accommodation similar to that at Williams, where
the children could have had their own bedrooms. It was also put to
her that
subsequent to the letter in December 2018 she is the one who
approached Defendant for signing of the lease at Forest Drive where
she has moved in now, in the one room. She confirmed that she phoned
the Defendant when he was on holiday with the children in
December
2018 and asked him the Defendant if she can stay there. She elected
to move into the guest house instead. It was because
she could then
come and go at the children and Defendant's place. She said she
prepared food at their place everyday. It was put
to her that
Defendant left because she was constantly interfering. She said she
did, because she still had her right of primary
residence with the
children and was complying with that.
[24]
Furthermore, Plaintiff indicated that she refused to re-sign
that lease as they had decided that she needed a bigger place because
that was a small duplex. There was no plan with her that the children
will see the Defendant. She said she had concluded a lease
for three
years at Williams and it expired on 20 August 2017. Before expiry of
the lease at Williams, she and the children moved
in at the marital
home with the Defendant as there was a fire that occurred due to a
faulty plug in the kitchen. As a result, the
owners did not want to
renew the lease. The landlord was paid from the insurance. They were
anyway offered to stay in the matrimonial
home by the order of the
court. She said the domestic violence incident happened when she was
staying at the matrimonial home as
ordered by the children's court
that she should stay there. There was also at the time when she was
at the matrimonial house an
incident about the cellphone. The
Defendant asked her where C's phone was. She said she just pushed him
and she then phoned 911.
The children did not confirm that she pushed
him but confirmed that the Defendant pushed her. So there was no
court order issued
and they did not pursue the matter.
[25]
When she was confronted with the blood tests that were taken
which proved that she was using drugs she disputed that. She also
said
she stopped using alcohol after she left the matrimonial home
and she did not have any problem of another substance abuse. She was
referred to a report discovered in the papers of a test done by
social services in 2018 whereupon traces of drug abuse were found.
She disputed the results or that the test was done through the Family
Advocate's Office. She said on the same date she went to
her Doctor
and the test was negative. It was put to her that even the children's
court one of their concerns was that she was using
drugs. She said
she actually does not have a problem with the Family Advocate's
report but with that of the Curator Ad Litem, as
the latter did not
have any extended powers. She as a result is never ever going to have
a house. In relation to the appointment
of the Curator Ad Litem she
confirmed that she wanted a voice to be given to the children. It was
put to her that the children
in all the reports have indicated that
they want to stay with the Defendant, who has accepted the reports.
She disputed that. She
was asked that with the contribution of R30
000 that is paid to her by the Defendant why couldn't she get her own
decent accommodation.
She said she can't get a house as she cannot
live in it without her furniture.
[26]
Plaintiff closed its case.
[27]
The Defendant called the Curator Ad Litem to present her
report. Mr Marx requested that it be recorded that the Plaintiff
objected
to her appointment and therefore would seek to cross exam
her. Ms Eichner-Visser confirmed that she followed the specific
mandate
she was given by the court. She had appointments with the two
minor children and never met with the adults. She only made sure that
she only speaks to the children. It was deliberate and she would do
it again. She wanted to be able to only focus on the children
and not
the whole matter which was not before her. They did not talk about
the workings in the house. Even if the Plaintiff asked
again. Her
mandate was very narrow. Also the issue of the father being an
alcoholic or the mother on narcotics was not raised by
them. However,
their silence of not talking about any of what was going on between
their parents was telling. She therefore was
not going to do it in
any other way. In relation to her report and her indication that
overall, the children would like to stay
with the Defendant, she was
asked if the situation would be different if they were staying with
the Plaintiff. She said J 's initial
response was that she would have
liked to also stay with her mother, preferably a shared residence.
Obviously mothers are also
very important to boys but they would
rather like time to spend time with their fathers therefore C is
Dad's little boy and which
is a normal thing. She emphasised that she
did not make the statement that the relationship is riddled with
conflict as she is
not a Psychologist. The children want to live with
their father and love their father. According to Mr Marx, it seems
money was
an issue or played a role. He therefore asked her what she
would have thought if the Plaintiff had more money and a house and
the
Defendant had neither of the two. She pointed out that she was
there for the voice of the children to be heard. The children are
tired of the situation and also of being over assessed. They would
like to live a normal life. In her report she also noted that
J said
the acrimonious relationship has a negative effect on her school
work. J was also worried that her voice has been ignored.
She would
like shared residence that not being practical she would like to stay
with her father and be able to see her mother.
Recommendation in her
report restated that a structured contact with the Plaintiff be
agreed upon or formulated in accordance with
Mr Hatting's report
which requires a Parent co-ordinator to have an input in the contact.
[28]
On Mr Marx's unprecedented approach to demand to cross examine
the Family Advocate regarding her report, Counsel's attention was
brought to the provision of
s 4
(1) of the Mediation in Certain
Divorce Matters Act 24 of 1987 that the Family Advocate is an officer
of the court. She/He gathers
information to assist the court and not
partisan, therefore is not appointed the representative of any party
to the dispute. The
court agreed, taking note that the Family
Advocate got involved at the request of the Plaintiff. However, she
is expected to stay
neutral in approach. The Defendant accepted the
Family Advocate's report. As a result Mr Hatting, the Family
Counsellor that assisted
Ms Langeveldt, the Family Advocate, in
compiling the report testified.
[29]
Mr Hatting's testimony under cross examination by Mr Marx was
briefly that their investigation started with an enquiry. The
Plaintiff
did indeed try to give them information after the interview
and it was refused. The information was nevertheless irrelevant. Also
the position of the other party in respect of information given
without his or her knowledge should be obtained. It was put to
Hatting that the Family Advocate was not nice to the Plaintiff during
the interview. She felt that she was not treated fairly.
Hatting
confirmed that it is not uncommon for the parties to feel that way
especially if they are asked uncomfortable questions.
He said he
believed that both parties were afforded the same time to respond or
reflect on the question/s that were posed to them.
Also they were
guided to stay within the confines of the dispute. It was put to him
that Plaintiff was asked as to what she was
going to do now, not what
is she going to do about her position. Hatting could not remember and
couldn't find his notes and said
he therefore did not know what the
Plaintiff was referring to. It was put to him that Plaintiff was
prejudiced as she was unemployed
and does not have proper housing.
Hatting said they had to look at Plaintiff's position currently. The
Plaintiff had received R30
000 per month maintenance from the
Defendant whilst he was looking after the children and what she was
doing with it not explained.
Hatting indicated that as the report was
already done, to compile an updated report they were focussing on the
relevant facts and
therefore on the current situation, which has not
changed much from the previous situation. Mr Marx complained to
Hatting that
the Plaintiff's role of assisting the children with
their school work was not put in the report.
[30]
With regard to the Defendant's drinking Hatting confirmed that
they had a discussion about the Defendant's drinking. The Defendant
told them that he drinks only two glasses a day. One child told them
that the Defendant will drink more after fighting with the
Plaintiff.
Hatting said they had focused on what would be in the best interest
of the children and not saying that was not a concern,
but the
children assured him that their safety and life is not placed in
jeopardy by their father's use of alcohol. He said the
children seem
to have a better relationship with the father than the mother and
with their circumstances being taken into consideration
their
preference had to be considered. It was put to him that they were
told by the Plaintiff that the Defendant is abusing her
financially
and it impacts on her ability to look after the children. He said in
their investigation they always look at the status
quo for the last
year because they also don't want to disrupt the children's status as
currently C likes being with the Defendant
and going with him to
their home at the dam. The Plaintiff does not have proper facilities
for her to be with the children. It
is also concerning to them what
the Plaintiff has done so far for herself up to this point and of the
future as well. They have
taken into consideration that she ran a
butcher at some point and the issue of a vehicle. However, with a
supplementary report
they had to look at what she was going to do
about her life. The fact that she says she helps with homework is not
the only factor
that they are looking at when they make a
recommendation. Ideally parents should help and continue doing so. C
voiced a wish to
see his mother on ad hoc basis. J wanted personal
assistance with her homework. She had no difficulty with the
compilation. The
recommendations were discussed. The recommendations
made for the minor children to the Plaintiff on alternative weekends
mother
and alternative Wednesday.
[31]
The Defendant's testimony was that indeed they separated in
2012 and their two children are currently residing with him. How it
came about that the children end up living with him was because the
Plaintiff and the children came back to the matrimonial home
in
August 2017 when her lease at Williams expired. He was forced to
repair the house the Plaintiff vacated at Williams because
there was
a fire at the house. The children moved back first and the Plaintiff
followed later. The Plaintiff stayed on the ground
floor at the
matrimonial home continuously until end of October 2018 when he had
to sell the house. After he sold the marital home
as he could not
afford to pay the bond, he asked the Plaintiff to get a three-
bedroom apartment or town house where she can move
in with the
children and she did not do it or confirm in time. He therefore had
to find a place to move in with the children, which
was at 18
Forrestown, Pineslope. Then the Plaintiff later moved in the same
complex. He was on holiday with the children in December
when the
Plaintiff phoned him to tell him that she has secured a place in the
complex and he must pay for the place, which he did.
They had a 1-
year lease so they resided in that place for a year until October
2019. The children were not happy there because
the place is small
and he had to find a bigger place for him and the children. The
Plaintiff was also interfering at his place
searching his property
and taking his papers. She would keep him at the restaurant and go
through his emails.
[32]
When they were staying at the Plantation in Broadacres, he
used to take the children to school everyday. C would have his
breakfast
first and J does not eat in the morning. He will then do
the dishes as well. He confirmed that he is seeking primary residence
of the children. In so far as children's contact with the Plaintiff
is concerned, the Plaintiff normally phones the children and
during
the week she takes them to the mall for 1-2hrs and she tries to see
them on Saturday or Sunday mainly at the Fourways Mall.
Regarding the
recommendation in relation to the structured contact as made by
Hoffman he is satisfied as sometimes it puts pressure
on the
children. He confirmed that he will continue with their schooling
expenses and taking care of all the maintenance requirements
as far
as the children are concerned.
[33]
He indicated during cross examination that he was previously
involved in the mining company and is now making money only through
consulting work. He confirmed that he is paying for the accommodation
at the Plantation Estate and also has a property at the Vaal
dam. The
Vaal property is under Airbnb and the children enjoy going there. J
does not like going there too often. C and him go
more often. Every
time they go there they don't utilise the house as it is under the
Airbnb rental. They use the garage that they
have converted into a
living area. When they were at 18 Forrest Drive, J used to sometimes
stay behind with her mother. The part
of the income he gets from the
Airbnb goes to a trust. The children and the Plaintiff are
beneficiaries of the trust. He intended
removing the Plaintiff as
soon as possible. For the last couple of months, he has been paying
the Plaintiff more money. The Plaintiff
must blame herself, she is
the reason why she does not have proper accommodation. She has been
receiving the R30 000 even when
she was living with him in the
marital home, but refused to share in the groceries or rent or any
responsibilities.
[34]
On his drinking he said he only realised what he has said
about drinking 2 glasses of wine everyday, but what he meant was when
he goes out. He would be usually at home by 18h00 in the evening.
When he is with the children he does not drink. He also cooks
dinner
for the children nearly everyday, it would be chicken and sometimes
roast beef. They eat proper meals during the week and
sometimes
proper meals even during the weekend. On J suffering anxiety panics
when he was not at home He said he was visiting a
friend and did not
even touch his dinner because he was called back home. He is with the
children every time and for once, he was
visiting a friend and
usually would have cooked them dinner early. He was asked why besides
offering the 3 -bedroom apartment he
has not helped the Plaintiff. He
pointed out that she was being paid an amount of nearly R30 000 and
she had stored her goods in
the storage or garage and does not need
to get any new furniture. In his opinion Plaintiff could afford with
the R30 0000 she is
getting. For the past three years that is what
she has been getting even without any responsibility towards the
children. He confirmed
that he has been paying her an amount of R30
000 less the amount of rent that he is paying for her leased
property. He also since
three years ago has been trying to settle as
he has been struggling in trying to keep up to date with the payments
and it has been
hard. They are also aware of the lump sum that is to
be paid to the Plaintiff but it has been very difficult for him. [35]
On this
evidence the court had to determine with which of the spouses
would it be to the best interest of the children to bestow primary
residence and care of the children.
Legal
framework
[36]
The
Children's Act 38 of 2005
governs the laws relating to the care,
contact and the protection of children. It defines the parental
responsibilities and rights.
The Act also defines the standard of the
best interest of the child that is applicable in every matter that
involves the child's
care, contact and protection. Section 7 of the
Act provides what is referred to as the 'best interest checklist';
see FS v JJ and
Another
2011 (3) SA 126
(SCA) which every Judge is
implored to consider when the Constitutional imperative "best
interest of the child' standard is
applied in any matter governed by
the Act. They are:
"(a)
the nature of the
personal relationship between
-
The
child and the parents, or any specific parent; and
(ii)
(b)
the attitude of the
parents
, or any
specific parent towards —
(i) the child; and
(iii)
the
exercise of parental responsibilities and rights in respect of the
child;
(c)
the capacity of the
parents, or any specific parent or of any other caregiver or person,
to provide for the needs of the child,
including emotional and
intellectual needs;
(d)
the likely effect in
the child of any change in the child's circumstances, including the
likely effect on the child of any separation
from —
(I)
both or
either of the parents; or
any brother or sister or other child, or any other care-giver or
person, with
whom the child has been living;
(e)
the practical
difficulty and expense of a child having contact with the parents, or
any specific parent, and whether that difficulty
or expense will
substantially affect the child's right to maintain personal relations
and direct contact with the parents, or any
specific parent,
on
a regular basis;
(f)
the need for the
child-
(i) to remain in the care of his
or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended
family, culture or tradition;
(g)
the child's
(i)
age, maturity
and stage of development;
(ii)
gender;
(iii) background;
and
(iv)
any other relevant characteristics of the child;
(h)
the child's physical and emotional security and his or her
intellectual, emotional
, social and cultural development;
(i)
any disability that a child may have;
(j) any chronic
illness from which a child might suffer;
(k)
a need for a child to be brought up within
a stable family
environment and; where this is not possible, i
n an environment
that resembling
as closely as possible a caring family
environment;
(l)
the need to protect the child
from any physical or psychological harm that may be caused by-
(i)
subjecting the child to maltreatment, abuse, neglect,
exploitation or degradation or exposing the child to violence or
exploitation
or other
harmful behavior
; or
(ii)
exposing the child to maltreatment, abuse, degradation, ill
treatment, violence or harmful behavior towards another person;
(m)
any family violence involving the child or a family member of
the child; and
(n)
which action or decision would avoid or minimize further legal
or administrative proceedings in relation to the child".
[37]
Chapter 10 of the Act provides that where a child is of 'such an age,
maturity
and stage of development as to be able to participate 'in
any matter concerning him or her, that child has a right to do so
'in
an appropriate way.
' The child's expressed views must be given
"
due consideration."
The section is said to reflect
the test set out in King J in McCall v McCall
1994 (3) SA 201
(C)
that:
"If the court is satisfied that the child has the necessary
intellectual and emotional maturity to give in his expression
of a
preference a genuine and accurate reflection of his feelings towards
and relationship with each of his parents, in other words
to make an
informed and intelligent judgment,
weight should be given to this
expressed preference
." (my emphasis)
[38]
The manner/method in which a child is to be heard and regarded as
appropriate is to be determined in consideration of the proceedings.
The fundamental question being whether the appropriate way
chosen
would be in the child's best interest, that being of paramount
importance in every matter concerning the child. The methods
used in
general and regarded as appropriate would be through the Office of
the Family Advocate or appointment of a Curator Ad Litem
or by
allowing the appearance of the child in the proceedings. A divorce is
naturally traumatic to a child and the courts would
not like to
exacerbate the trauma by subjecting the child to a stressful process
by insisting that the child appear. In the main,
courts will only
allow a child's appearance as the last option if special
circumstances exists and it being in the best interest
of the child
that the child appears, especially in divorce circumstances where the
proceedings have been prolonged and acrimonious.
[39]
Section 28 (1) (h) of the Constitution, 1996 entitles a child to
legal representation at State expense in 'civil proceedings affecting
the child's interest. This is viewed as different from "the
appropriate way" that is suggested by the provisions of s 10, in
that the child becomes part of the proceedings, whilst participation
in an appropriate way is said to suggest the possibility of various
means of allowing the child to be heard, bar being part of
the
litigation. A typical example is the appointment of a legal
practitioner as a Curator Ad Litem where the child's interests
are at
issue. In Legal Aid Board v R
2009 (2) SA 262
(D), Willis AJ
suggested that the legal representation would inevitably be required
in disputes between the parents in which a
child's "voice"
has been "drowned out." Also where substantial injustice
would result if a separate legal representative
is not appointed for
the child. In Soller NO v G
2003 (5) SA 430
(W), Satchwell J
concluded that neither parent of a fifteen-year-old, nor the Family
Advocate, were able to represent his interests
adequately, in
consequence an attorney was appointed. The differences in the
respective roles of the Family Advocate and the child's
representative was explained by Satchwell J in the following terms:
" the family Advocates provides a professional and neutral
channel of communication between the conflicting parents (and perhaps
the child) and the judicial officer). The legal practitioner stands
squarely in the corner of the child and has the task of presenting
and arguing the wishes and desires of the child.
2008 (6) SA 50
T
[40]
In casu the main focus being the primary care of minor children of
parents who have been involved
in a long and acrimonious divorce, and
had levelled serious allegation against each other, it became
imperative that the children
be heard through the legal
representation by a Curator- Ad- litem. I find the parallel
appointment of the Curator Ad Litem, Advocate
Eichner-Visser to have
been the catalyst for the realization of the fundamental
constitutional imperative that the issue be decided
in the best
interest of the child. The mandate was to focus on the children's
wishes and how they perceive their situation, which
she did very well
and clearly to the best of her ability, even though she was subjected
to cross examination by Mr Marx, the Plaintiff's
Counsel (which is
unprecedented). She remained determined and focused not only
presenting the minor children with a voice on the
issue but also
providing her insight into the wishes and desires confided to her, as
well as apply legal knowledge and expertise
to the children's
perspective; see Soller NO v G
2003 (5) SA 430
(W) ta 438.
[41]
In determining the issue I had to look at the individual
situation of the parties each in relation to the minor children's
emotional
and physical needs. Their willingness and capacity to
provide an environment where both needs can be satisfied, taking into
account
the factors to be considered to reach the best interest of
both children.
[42]
It is the testimony of the Plaintiff that although she is
willing, she is hamstrung due to her situation, being unable to
provide
a stable accommodation where she can stay with the children
and be able to provide the emotional care that they require. She
exonerates
herself from any responsibility to provide for any of the
children's needs except for emotional support and assistance with
their
school work. She backs her stance by insisting that, that is in
accordance with the order of the maintenance court. She alleges
that
according to the said order she was instructed to stay in the
matrimonial home and the Defendant ordered to look after her
and the
children by paying her the amounts indicated in the order.
[43]
The interim maintenance order referred to above, nowhere does
it stipulate that the Plaintiff be accommodated at the matrimonial
house and the Defendant provide everything else. Instead it is an
interim order and the amount of R32 000 that the Defendant was
ordered to pay to the Plaintiff, R14 000 was for accommodation for
her and the children and R16 000 was maintenance for her and
the
children. The extra R2 000 was payment towards the Plaintiff's loan
debt which has been paid in full. It is obvious that the
Plaintiff
was coping and seem to have understood the application of the Order
all along, until she vacated the Williams accommodation
and moved
back to the matrimonial home whereupon this convoluted way of
understanding the Order had its roots. She did not need
to pay rent,
or use the money she got for the maintenance of the children, they
were being taken care off. Notwithstanding, the
Plaintiff has not
given an explanation on how she used the money during the period
September 2017 to November 2018 when she did
not need to pay rental.
The Defendant explains that even though there was no accommodation
paid for at the time, since they were
staying together at the
matrimonial home from August 2017, the Plaintiff insisted on keeping
the R30 000 to herself and refused
to assist in providing for their
households requirements or their children's needs. The situation made
it difficult for him to
be able to sustain all those responsibilities
alone whilst paying the Plaintiff the R30 000.00. It seems neither of
them understood
that the payment in lieu of accommodation cannot be
enforceable where the Defendant is providing accommodation for her
and the
children and that maintenance for the children was payable to
her also for the purpose of providing for the upkeep of the children.
At that stage she was providing none of those.
[44]
In in addition it became apparent from the testimony of the
Plaintiff that she was expecting the order to be applicable forever
with nothing changing, including post- divorce. This explains her
reluctance to get employment or to improve her employability status
by obtaining further qualifications even though it was suggested by
the experts and a full payment of the fees offered by the Defendant.
She also blames her inability to provide for the children or to
afford a decent place where the children can visit her, solely
on the
Defendant. The Defendant has indicated in terms of correspondence
that the Plaintiff's not being able to provide for the
children was
of her own doing. Defendant made an offer to pay and urged her to
find a three-bedroom apartment where she could be
accommodated with
the children which offer she failed to take up. The Plaintiff was
furthermore not honest during her evidence
in chief in explaining how
she got to stay in that small room. Her narrative and that of Mr Marx
was to blame the Defendant for
it. She later confirmed that staying
at the small place or in the one room apartment was of her own
choice. She must have known
that it was not going to be possible to
accommodate the children in that small place, when she asked the
Defendant to commit to
the lease and pay for the room instead of a
three-bedroom apartment. It had resulted in the Defendant having had
to continue to
provide primary care to the children. She had insisted
on the payment of the same amount post her being divested of the
primary
residence and care of the children. She also clearly and
deliberately misrepresented the application of the maintenance court
order
that clearly stipulated the purpose of the amounts that are
payable to her. She nevertheless failed to improve or to indicate how
she planned to improve her circumstances not only for her children
but for herself. When she was asked why she could not use the
R30 000
to rent, an apartment. She asked where was she going to get furniture
indicating reluctance rather than commitment towards
making it
possible to stay with the children. The Defendant has indicated that
the furniture that she used at Willows was at storage.
[45]
However all being said the indication is that she loves her
children and would certainly want to be there in their lives. She
certainly
enjoys being able mainly to help J with whatever emotions
she might be going through due to their family situation and through
her teenage years. Although she also has a motherly relationship with
C, he seems to be ok all round with his father but would not
mind
spending some time with his mother, albeit occasionally. The
Plaintiff has also raised more concern about J and what she might
be
going through. Even though she has failed to be able to convince the
court that she is the best parent to be vested with the
primary care
of the minor children, it would be to the best interest of the
children that she certainly keeps a closer relationship
with the
children especially J however it should not be detrimental to their
school work and to the enjoyment of the safe and stable
family
environment offered by the Defendant.
[46]
The Defendant on the other hand has indicated that he has
assimilated to the role of being the primary care giver seamlessly,
since
the Plaintiff moved back to the marital home. He continued with
his responsibility to also provide for their scholastic requirements.
He confirmed that he has maintained the role of taking and fetching
the children to school, extramural activities and providing
a
well-balanced family environment for the children. He would also take
them on holiday and spend quality time with them on their
weekends
away. He continued even after the Plaintiff was no longer residing
with them or close to their residence. He confirmed
that since they
left the place in Forrestown, he stays home with the children,
occasionally would go out but he would have made
sure that he has
cooked, the children are well fed in time before he does that. He
also provides them with well-balanced cooked
meals that he prepares
himself. He, prior to that, was prepared to let the Plaintiff find a
place suitable for her and the children.
On her failure to do so he
then continued to play a major role in the primary care of the
children, providing a stable and a protected
environment for them
which they seem to enjoy and appreciate and got accustomed to, hence
would want to maintain. The Defendant
in the meantime has not
complained about any hardships he has encountered since staying with
the children. Instead he has shown
a high degree of commitment
towards the children. The children have indicated that they don't
want to lose that even if they also
want to spend some quality time
with the Plaintiff.
[47]
The Defendant fulfills the need for a child to be brought up
within a stable family environment or an environment that resembles
as closely as possible a caring family environment; In addition, the
Defendant has committed to continue being responsible for
all the
minor children's schooling and educational expenses including for
extra lessons that might be recommended by the teachers
and any extra
mural activities undertaken by the child plus all their maintenance
requirements.
[48]
The main issue of concern with regard to Defendant is the proven
allegations of drinking. He
had told the Family Advocate that he
drinks two glasses of wine per day. He however does not drink when he
is with the children.
In his testimony he corrected that to say that
what he meant is that when he goes out he usually would drink not
more than two
glasses of wine. He only realized the impact of his
statement now on trial. It therefore raises a question as to whether
the children
are exposed to any physical or psychological harm as a
result of the Defendant's drinking. The children have however
informed the
Family Advocate that they have never felt to be in any
imminent danger. The Defendant also used to drink a lot after
arguments
with the Plaintiff. The recent results of blood tests done
not less than 9 months ago confirm that the Defendant is clear from
the abuse of alcohol. No evidence has been led of the Defendant ever
been abusive to the children or them being scared to be around
the
Defendant because of his drinking. In addition, there are no
allegation that he has ever put their safety at risk. He however
requires constant checkups to make sure that he remains negative to
alcohol abuse.
[49]
The Office of the Family Advocate has echoed the same
sentiments having taken into account the situation of the parties at
the present
moment, the history of their relationship with the
children, the needs of the children, the ability of the parties to
provide for
the children and the capacity to understand what is
expected of them as parents. Mr Hatting was of the view that the
children seem
to have a better relationship with the Defendant, than
the Plaintiff and with their circumstances being taken into
consideration,
their preference had to be considered. In their
investigation they always look at the status quo for the last year
because they
also don't want to disrupt the children's status.
Currently C likes being with the Defendant and going with him to
their home at
the dam. J has indicated also wantitng to be included
in the visits to the Vaal but sometimes spent her time with her
mother. The
Plaintiff's alleged inability to provide was assessed
against her access to the amount of R30 000 for the period she was
staying
in the marital home till to date and her lack of enthusiasm
to look for work or give a reasonable explanation.
[50]
Furthermore, the Curator Ad Litem indicated that the minor
children are tired of the awkward situation that the long and
acrimonious
divorce has put them. They now yearn for stability. As a
result, she supports the recommendation made by the Office of the
Family
Advocate with regard to the primary residence vesting in the
Defendant with reasonable access to be exercised by the Plaintiff,
and that a structured contact be agreed upon or formulated in
accordance with the Family Advocate's report. The process of divorce
started when they were 5 and 8 years old. They are now 16 and 13
years of age. I am satisfied that the children as per report of
the
Curator Ad Litem have the necessary intellectual and emotional
maturity to express their preference, thereby were able to give
a
genuine and accurate reflection of their feelings towards and
relationship with each of their parents, in other words to make
an
informed and intelligent judgment. As a result, weight should be
given to the expressed preference they have made to the Curator
Ad
Litem, to stay with the Defendant but also their desire to continue
seeing the Plaintiff albeit not under stressful circumstances.
Such
access to be structured.
[51]
I am satisfied that a case has been made that it would be in
the best interest of the minor children for their primary residence
and care to be vested with the Defendant with reasonable access to be
exercised by the Plaintiff.
Maintenance
to Plaintiff
[52]
As only the issue of decree of divorce has been finalised and
the issue of the marital regime in relation to the pronouncement on
the parties' estate and maintenance of the Plaintiff is still to be
finalised, the Plaintiff is entitled to interim maintenance
pending
finalisation of the two issues; see Carstens v Carsten (2267/2012)
[2012] ZAECPEHC 100 (20 December 2012); KO v MO 2017
JDR 1839 (WCC)
at 1851. This flows from the fact that a married couple have
generally the obligation/responsibility to take care
of each other.
In terms of the law it does not matter that the marriage ends up in
divorce, the obligation to take care of each
other does not seize to
exist where the need remains, sometimes until divorce or other times
until at a certain time postdivorce.
All this being determined by a
need and the concomitant affordability; see EH v SH
2012 (4) SA 164
(SCA) at [13].
[53]
Section 7
of the
Divorce Act 7 of 1979
with regards to spousal
maintenance provides that Divorce does not mean termination of
financial dependence of one spouse on the
other if circumstances do
not permit. In this matter the divorce action has not yet been
exhausted since the propriety rights of
the divorced couple and
maintenance of the Plaintiff are yet to be finalised, following the
separation of issues and a need for
interim maintenance also
identified. In KO v MO supra, Loots AJ held that: -
"[60] It cannot be the
correct position that, in a pending divorce action, following the
granting of a decree of divorce, the
fact that the parties are no
longer married would disentitle a person who, until the decree of
divorce (which is but one part of
the divorce action), was entitled
to the relief set out in
Rule 43
, pendente lite, would no longer be
entitled thereto due to an unnecessarily strict interpretation of the
word "spouse",
for the purposes of the Rule." [61]
Accordingly, I find that, pending the finalisation of the divorce
action, an extant order
in terms of
Rule 43
survives a decree of
divorce to the extent that the issues regulated thereby remain
unresolved. [62] The finding that an existing
order in terms of
Uniform
Rule 43
does not lapse with the granting of a decree of
divorce in circumstances where the remaining issues in the divorce
action remain
pending in terms of Uniform
Rule 33(4)
, follows
ineluctably."
[54]
In the matter of
NK
v
KM
2019 (3) 571 (GJ) the Court
refused to grant a separation in terms of
Rule 33
(4) of issues to be
decided by the court on the basis that there cannot be an application
for
Rule 43
interim maintenance after the decree of divorce. The
court held that there would be no basis in law for KM to institute a
Rule 43
application once a decree of divorce is granted, following
the separation of the divorce from the other issues. It found in the
premises, that the Applicant's application for a
Rule 33
(4)
separation stands to fail because it would not be convenient for the
respondent if the issue of divorce was to be separated
from the other
issues, since
Rule 43
does not survive a divorce action.
[55]
The matters followed were those of
Beckley v Beckley
GJ01098/2015 - at the time there was no pending divorce action
between the parties as provided for in
Rule 43.
It was held that
there was no matrimonial action pending between the parties or about
to be instituted and that being so, there
was no existence or a
contemplated lis such as is referred to in
Rule 43.
Once a decree of
divorce is granted, the provisions of
Rule 43
would find no place.
Hence the applicant was said to lack the right to claim interim
maintenance where there was no matrimonial
action or where none was
pending or was about to be instituted; see Gunston v Gunston
1976 (3)
SA 179).
[56]
The conclusion that a
Rule 43
does not survive a divorce
action is correct. The event however that needed to be addressed in
NK v KM is; where certain issues
in the divorce action were to be
decided separately from the issue of dissolution of the marriage, the
granting of the latter,
prior to finalization of the separated issues
in the action cannot render the divorce action finalized. Joubert v
Joubert Unreported.
Case number 67591/2013, Gauteng Division,
Pretoria Opperman J stated as follows in paragraph 21:
"The applicant's claim for
spousal maintenance can be nothing else but a dispute arising from a
matrimonial action and/or proceedings
incidental to such action."
.2. She continues at paragraph 26 and states further that:
"Where the issue of spousal
maintenance is expressly kept alive (like the present case), the lis
contemplated in
Rule 43
has not come to an end. Such lis is clearly a
matrimonial one in respect of the proceedings incidental to an action
for divorce.
However, I need not go that far in this matter as in
this case the respondent expressly invited the court to separate out
the issue
of spousal maintenance and undertook to be governed by the
rule 43
relief which had already, by the time the undertaking was
made, been granted."
[56]
In casu, the spousal maintenance and patrimonial consequences of the
dissolution of the marriage
as part of the divorce action remain in
dispute. The Defendant, by extending a 'with prejudice offer' on the
interim maintenance
to the Plaintiff, the Defendant indicated his
concession that the Plaintiff is entitled to interim payment of
maintenance until
finalization of the issues in the action that have
been separated. The separation was also granted at the behest of the
Defendant.
[57]
It is common cause that the interim maintenance order of 20 June
2014
that the Plaintiff has used as a benchmark of what is to be paid to
her, was issued by the maintenance court order in substitution
of the
High Court Order, when the Plaintiff had primary residence and care
of the children, to whom she was required to provide
accommodation
and was responsible for their upkeep and day to day maintenance. The
Plaintiff no longer had that responsibility
since August 2017 and
therefore there was no justification for her to continue receiving
the total amount of R32 000.00 post that
date. In scrutinizing the
amount payable, I have also taken into account the Plaintiff's
potential earning capacity that was identified,
to find employment by
the latest 2020. In addition, had regard to the existing means of
each of the parties, their financial needs
and obligations.
[58]
As a result the amounts of R14 000.00 and R16 000.00 that the
defendant
was ordered to pay for the Plaintiff and minor children's
accommodation and maintenance, respectively, were reassessed and
considered
to be fair and just that the amounts be split into equal
halves between the two children and the Plaintiff. The Plaintiff
would
therefore be entitled to R7 000.00 contribution for her
accommodation and R8 000 for her upkeep. The payment of an amount of
R15
000.00 for her interim maintenance would under the circumstances
be fair and reasonable. An extra R2000.00 is to be payable to her
for
in the instance when she exercises her visitation rights. The amount
is payable pending finalisation of the disputes in the
divorce action
that have been postponed sine die.
[59]
I therefore make the following order:
1.
The marriage between the plaintiff and defendant is dissolved;
2.
Both parents to retain full parental rights and
responsibilities of the minor children; as envisaged by
Section 18
of
the
Children's Act, Act
38 of 2005 (as amended) including, but not
limited to the responsibility and right to care for the minor
children; maintain contact
with the minor children; act as
co-guardians of the minor children; and contribute towards the
maintenance of the minor children;
3.
The primary residence of
the minor children shall be vested with the
Defendant, in whose primary care they shall remain.
4.
The Plaintiff shall be entitled
to reasonable contact rights at all
reasonable times to be exercised as follows:
4.1.
Contact with removal rights for a full day visit on
a Saturday and
Sunday from 08h00 to 17h00, every alternative weekend;
4.2.
Telephonic contact on a Tuesday and a Thursday, between
18h30 and
19h00;
4.3.
Telephonic contact on the Sundays that do not fall on
the contact
weekend referred to in clause 4.1 above, between 18h30 and 19h00;
4.4.
Contact with removal rights on Mothers' Day;
4.5.
Contact with removal rights on the Plaintiff's birthday;
4.6.
Contact on every alternative birthday of the minor children,
alternatively a part of every birthday of the minor children;
4.7.
Contact during holidays to be extended with a right
of removal
exercised also from Friday 10h00 on every alternative weekend that
the Plaintiff has a right of visitation.
4.7.
The contact referred to in clauses 4.1 to 4.7 shall be exercised
subject to the minor children's
educational, religious, social,
recreational, extra-mural and sporting activities and further taking
into account the minor children's
daily routine.
5.
The Defendant shall
pay maintenance for the minor children as
follows:
5.1.
The Defendant shall bear the cost of the minor children's
day-to-day
living;
5.2.
In addition the Defendant was to make payment of the
costs relating
to primary and secondary education of the minor children, the costs
of uniform, reading material and stationery
as required by the
school, costs of extra lessons that might be recommended by the
teachers and any extra mural activities undertaken
by the child.
5.3.
The Defendant to retain the minor children on his medical
aid scheme
and to pay for any medical expenses incurred in connection with the
minor children that is not covered by a medical
scheme.
[6]
The Defendant shall in the interim pending finalisation of the
issue of the marital regime and of Maintenance to the Plaintiff:
[6.1]
pay to the Plaintiff an amount of RI7 000, as Maintenance from
7 April 2021 and thereafter on the 7
th
of each month until
the date an order in respect of such maintenance is made after which
the Plaintiff will have no further maintenance
claims in respect of
this order.
[6.2]
retain the Plaintiff on his medical aid scheme and shall make
payment of the monthly subscriptions in respect thereof, for a period
of twelve months from the date of the granting of this order.
[7]
Both parties to continue to be tested for alcohol and
substance or drug abuse every 4 months for the next 12 months from
the date
of the granting of this order.
[8]
This order shall supersede any and all previous orders that
have been granted in respect of maintenance for the Plaintiff and/or
the minor children, by any Court.
[9]
Costs are reserved to be decided on finalisation of the
pending issues.
Electronically signed
N V KHUMALO J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
On
behalf of Plaintiff: L
Marx
Instructing
Attorneys:
T86/2020/9/2/NDV
Tel: 012 424-0200
Email:lionellaw@advocatelgmarx.xyz
info@advocatelgmarx.xyz
On
behalf of Defendant: L Bedeker
B Malan Attorneys Inc
Ref: B Malan/ D0001
Email: barbara@bmalanattorneys.co.za