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[2021] ZAGPJHC 508
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NH v RH (2964 / 2021) [2021] ZAGPJHC 508 (6 October 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 COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
6 October 2021
Case No: 2964 / 2021
In
the matter between:
NH
Applicant
and
RH
Respondent
JUDGMENT
WILSON
AJ
:
1
The applicant (“Mrs. H”)
approaches the court under Rule 43 seeking an order regulating
contact with, and the residence
of, the parties’ minor
children; directing the respondent (“Mr. H”) to make
payment of maintenance
pendente lite
;
and ordering Mr. H to make a contribution to her costs in a pending
divorce action.
2
By the time the matter was argued
before me, the parties had reached agreement on contact with and the
residence of, their children,
and on the arrangements to be made to
facilitate a reasonable contribution to Mrs. H’s legal costs.
Mr. H also accepted responsibility
for the payment of Mrs. H’s
medical aid premiums, those of the parties’ children, as well
as any reasonable additional
costs not covered by medical aid. He
also agreed to make payment of the parties’ children’s
school fees, the bond instalments
on the matrimonial home, and
various other expenses associated with the upkeep of that residence.
3
The only issue placed before me for
decision was the cash payment due to Mrs. H to maintain her, and the
parties’ children,
who will primarily reside with her. Here,
the parties are very far apart indeed. Mr. H ultimately tendered a
payment of R8000 per
month. Mrs. H stated that she requires R31 405
per month.
4
It is trite that Mrs. H’s
entitlement to maintenance must be assessed having regard Mr. H’s
means and to the standard
of living enjoyed by the parties when they
lived together. In the course of that assessment, Mrs. H’s
reasonable and moderate
claims carry more weight than any extravagant
or unmotivated demands. Mr. H’s version is entitled to the
requisite degree
of credit if it evinces a willingness to implement
rather than evade his lawful obligations (see
Taute
v Taute
1974 (2) SA 675
(E), 676D-H).
5
The problem in this case is that Mr.
H has not placed before me the information I require to assess his
true means. Mr. H is employed
as a Senior Manager responsible for
Information Technology with a well-known statutory body. His post-tax
salary is just over R88 000
per month. Ms. Putzier, who appeared
from Mr. H, sought to persuade me that his true net monthly income
from this employment is
much lower – somewhere in the region of
R56 000 per month. When questioned on the basis of this
submission, Ms. Putzier
referred to one set of Mr. H’s bank
statements, which, it was submitted, show deposits from Mr. H’s
employer of no
more than that amount. However, Ms. Putzier was unable
to explain how this could be squared with Mr. H’s financial
disclosure
form, which declared an annual income net income of
R1056058.62 from Mr. H’s employment, or with Mr. H’s own
expectation,
also stated in the disclosure, that he will earn the
same amount during the next financial year.
6
That, together with the fact that
Mr. H clearly has more than one bank account, convinces me that Mr.
H’s true net income
from his employment is just over R88 000
per month.
7
However, the real difficulty in this
case is the contradictory versions advanced on the papers about the
true value of Mr. H’s
business interests, beyond his
employment. Mr. H controls at least two enterprises, which yield an
income separate and distinct
from the income he derives from his
employment. It is impossible to discern, on the papers, what Mr. H’s
true income from
these business enterprises is. Ms. Putzier
submitted, on the strength of Mr. H’s financial disclosures,
that there was little-to-no
income being derived from these
enterprises, whose fortunes are said to have precipitously declined
at almost exactly the same
time as Mr. H left the marital home.
8
Mr. H’s answering affidavit
tells a different story. Paragraph 25 of that affidavit states –
almost as an aside –
that one of those enterprises has
generated an income of “approximately R200 000 per month
(averaged out over the last
8 months)”.
9
Difficult though it is to discern
Mr. H’s true position from the documents submitted, I am
satisfied that the cash contribution
sought by Mrs. H is well within
his means. I would probably have reached this conclusion if I had no
regard at all to his business
interests, and based my judgment simply
on his salaried income. However, it seems to me that Mr. H derives
significant additional
income from his outside enterprises. Any doubt
I have about his true means is the result of his failure to make
adequate disclosure
of that income. It is only fair that he rather
than Mrs. H bear the consequences of that failure.
10
As consequences go, though, Mrs. H’s
maintenance requirements are not very great. They consist, in the
main, of fairly banal
household expenses for her and her children. I
find nothing unreasonable in them. I am satisfied that they are
within Mr. H’s
reasonable means.
11
Accordingly, I make the following
order
pendente lite
–
1.
The applicant and respondent shall retain
parental responsibilities and rights in respect of the two minor
children born of the
marriage between the parties as provided for in
terms of Sections 18, 19 and 20 of the Children’s Act, Act 38
of 2005 (“the
Act”).
2.
Care and primary residence of the two minor
children born of the marriage between the parties is awarded to the
applicant.
3.
The respondent is awarded specific parental
responsibilities and rights with regard to contact with the two minor
children born
of the marriage between the parties as contemplated in
Section 18(2)(b) of the Act, which shall include contact on alternate
weekends
from 19h00 on a Friday until 17h00 on a Sunday; alternate
short school holidays and mid-term breaks, with the two minor
children
to spend alternate Easter holidays with the respondent; one
half of all long school holidays on the basis that the two minor
children
shall spend alternate Christmas portions of the
December/January long school holiday with the respondent; alternate
long weekends
and public holidays which do not form part of a school
holiday or a mid-term break; every Father’s Day on the basis
that
the two minor children shall spend every Mother’s Day with
the applicant; the two minor children’s respective birthdays
for a period of three hours.
4.
The respondent is ordered to pay
maintenance to the applicant in the amount of R31 405 per month,
commencing on 11 October
2021, and thereafter on or before the first
day of each month, without deduction or set-off, by electronic funds
transfer into
such account as the Applicant may from time to time
nominate in writing.
5.
The respondent is to retain the applicant,
the major child and two minor children as dependant members on the
Respondent’s
medical aid scheme.
6.
The respondent shall make payment of all
reasonable additional medical expenses not covered by the medical aid
scheme, including
all medical, dental, pharmaceutical, surgical,
hospital, orthodontic and ophthalmic, psychotherapeutic, occupational
therapeutic
and chiropractic expenses, as mutually agreed to by the
parties, to the relevant service provider within 5 (five) days of
receipt
of invoice.
7.
The respondent is to pay the costs of the
major child’s tertiary education including all books and
equipment in respect thereof.
8.
The respondent is to make payment of the
two minor children’s educational expenses, including private
school fees and related
educational expenses inclusive of books and
stationery, school uniforms (including two summer and two winter
uniforms per child
per annum), extra-mural activities and lessons,
equipment and attire relating to their sporting and/or extra-mural
activities,
and school tours and outings. The respondent shall make
payment directly to the service providers, within 5 (five) days of
receipt
of the relevant invoice.
9.
The parties are to sell the BMW M3 bearing
registration “Riyah GP” (“the BMW”) and, from
the proceeds of
the sale, are to purchase another vehicle (“the
replacement vehicle”) to the maximum value of R 300 000.00
(three hundred
thousand rand). The respondent is to pay the license
fees, maintenance costs and vehicle insurance in respect of the
vehicle so
purchased. The applicant shall be entitled to the use and
possession of the vehicle so purchased
pendente
lite
.
10.
The respondent is to pay the following
directly to the relevant service provider:
10.1
the bond instalments and insurance in
respect of the immovable property situated at [....] G[....] Place,
Midstream Estate, Halfway
House (“the home”);
10.2
the homeowners’ levies payable in
respect of the home;
10.3
the municipal accounts levied against the
home;
10.4
the householders’ insurance in
respect of the home;
10.5
the homeowners insurance in respect of the
home;
10.6
the costs of the home’s telephone and
internet connection;
10.7
the cellphone accounts of the applicant and
the parties’ three children;
10.8
the minor children’s school fees and
related expenses;
10.9
the vehicle loan instalments, license fees
and vehicle insurance in respect of the motor vehicle purchased in
accordance with paragraph
9;
10.10
the medical aid premiums and reasonable
additional medical expenses not covered by the medical aid scheme, in
respect of the applicant,
major child and two minor children; and
10.11
the major child’s tertiary fees and
related costs.
11.
The difference between the amount for which
the BMW is sold and the amount the replacement vehicle costs will be
deposited into
the applicant’s attorney’s trust account
to fund the applicant’s costs in the divorce action.
12.
The costs of this application are costs in
the divorce action.
S
D J WILSON
Acting
Judge of the High Court
This
judgment was prepared and authored by Acting Judge Wilson. It is
handed down electronically by circulation to the parties or
their
legal representatives by email and by uploading it to the electronic
file of this matter on Caselines. The date for hand-down
is deemed to
be 6 October 2021.
HEARD
ON:
16 September 2021
DECIDED
ON: 6 October
2021
For
the Applicant:
Z Marx du Plessis
Instructed by Shapiro and
Ledwaba Inc
For
the Respondent:
R Putzier
Instructed by Nance
Kivell Attorneys