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[2021] ZAGPJHC 861
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DN v NN (10192/2020) [2021] ZAGPJHC 861 (9 July 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 10192/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
09
JULY 2021
In
the matter between:
D[....]
N[....]
Applicant
And
N[....]
N[....]
Respondent
JUDGMENT
Delivered:
By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered. The date for hand-down
is deemed to be 09 July 2021
SENYATSI
J:
[1]
On 20 April 2021, I issued an
interim order dealing with the rights over the parties’
minor
children, an interim maintenance order and contribution for legal
costs by the respondent to the applicant in three equal
instalments.
The respondent has requested reasons for the order and the reasons
are as set out below. The order was issued in terms
of Rule 43 of the
Uniform Rules of Court pending the final determination of the divorce
proceedings between the parties.
[2]
There are two minor children born of the marriage. The minor children
have been in the primary
care of the applicant since November 2019.
The applicant resided with her sister and her family in Fourways,
Johannesburg, and
did not receive maintenance from the respondent.
The minor children exercised contact with the respondent regularly
since the separation.
The respondent transported them to and from
extra mural activities from time to time and every alternative
weekend and as well
as every alternative Wednesday which is Wednesday
prior to the weekend when they would be with the applicant.
[3]
When the national lockdown was announced, the minor children were in
the care of the
respondent for the latter’s short holiday
contact. This was before divorce summons was issued and consequently
no formal
court order was available regulating the minor children’s
contact rights between the parties.
[4]
During the hearing of this application, the Counsel for the parties
indicated that
the parties were in agreement on most of the issues on
the Rule 43 with the exception of what each considered pertinent to
their
case. The court asked their Counsel for short submissions, and
to provide it with their proposed draft orders to which they obliged.
[5]
Rule 43 on matrimonial matters provides as follows:
"(1) This rule
shall apply whenever a spouse seeks relief from the court in respect
of one or more of the following matters:
(a)
Maintenance pendete lite;
(b)
a contribution towards costs of a pending matrimonial action;
(c)
interim custody of any child
(d)
interim access to any child.”
[6]
The duty of parents to support their children is derived from section
15 of the Maintenance
Act 99 of 1998 (“the Act). Section 15 of
the Act provides that without derogating from the law relating to the
liability
of persons to support children who are unable to support
themselves, a maintenance order for the maintenance of a child is
directed
at the enforcement of the common law duty of the child’s
parents to support that child, as the duty in question exists at
the
time of the issue of the maintenance order and is expected to
continue.
[7]
The duty extends to such support as a child reasonably requires for
his or her proper
living and upbringing and includes the provision of
food, clothing, accommodation, medical care and education.
[1]
[8]
The purpose of Rule 43 application procedure is to bring an interim
relief to any
party pending the finalisation of the ongoing
matrimonial dispute between the parties.
[9]
The order made under this rule is not final in nature but provisional
in nature.
[10]
I have considered the evidence adduced by both parties on their
papers. I have also considered
the financial disclosure forms which
supported by the bank statements attached to the financial disclosure
from each of the parties.
What struck me was indeed confirmation,
when it comes to the respondent’s financial disclosure form,
his income earning capacity
as well as to his spending. I considered
critical information relating to his expenses on the Capitec bank
account. I was more
interested in his spend on gambling through World
Sports and noted that for instance between 29 to 31 January 2020, he
spent about
R 6 990 on gambling. This is quite a significant
amount for three days of gambling. I am therefore persuaded that he
can be
able to contribute to reasonable maintenance of the minor
children as well as contribution toward costs pending the
finalisation
of the acrimonious divorce.
[11]
With regards to the joint parenting of the minor children, I am of
the view that pending the
final outcome of the divorce, the joint
parenting and access to the children should be executed in accordance
with the order of
this court.
[12]
ORDER
The
following order is made:
(a)
The Respondent shall pay the costs of the
urgent application pertaining to Part A of this application, which
was heard on 20 April
2020;
(b)
The Respondent shall pay maintenance in the
amount of R 4500.00 (Thousand Five Hundred Rand) per child per month
into a bank account
elected by the Applicant, the first payment to be
made on the first day of the first month following this order and
thereafter
on or before every first day of every month until
finalisation of the divorce action between the Parties;
(c)
The Applicant shall retain the minor
children as beneficiaries on her medical aid fund and shall honour
the monthly payments to
the fund. The Respondent shall pay all
reasonable expenses in respect of medical, dental, surgical,
hospital, orthodontic and ophthalmological
treatment needed by the
minor children and not covered by the Medical Aid Fund;
(d)
The Respondent shall pay the school fees of
the minor children directly to the minor children’s school;
(e)
The Applicant shall have use of the Run X
vehicle registered in the Respondent’s name, and the Respondent
shall be responsible
for the insurance premiums relevant to this
vehicle;
(f)
The Respondent shall pay an amount of R
20 000.00 (Twenty Thousand Rand) to the Applicant in 3 (Three)
equal instalments as
an initial contribution towards her legal fees,
the first payment to be made on or before the first day of the first
month following
this order, and the remaining two payments on or
before the first days of the following two months;
(g)
The cost of this Part B of the application shall
be cost in the divorce action
SENYATSI
ML
Judge
of the High Court of South Africa
Gauteng
Local Division, Johannesburg
REPRESENTATION
Date
of hearing: 20 April 2021
Date
of Judgment: 09 July 2021
Plaintiff’s
Counsel:
Adv
B Bergenthuin
Instructed
by: Danelle Els Attorneys
Defendant’s
Counsel: Adv A Scott
Instructed
by: Gascoigne Randon & Associates
[1]
See Section 15(2) of the Act