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[2021] ZAMPMBHC 11
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N.V v R.V (185/2021) [2021] ZAMPMBHC 11 (10 May 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
RBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
10/05/2021
CASE
NO: 185/2021
In the matter
between:
N[....]
V[....]
Applicant
and
R[....]
V[....]
Respondent
JUDGMENT
SHABANGU-MNDAWE
AJ
INTRODUCTION
[1]
This is an application for relief
pendente lite
in
terms of Rule 43 of the Uniform Rules of Court. The application is
opposed. The Applicant seeks an order authorising maintenance
for her
and her two minor children and contributions towards costs.
[2]
Apart from the interim contact arrangements, Applicant
sets out the relief she requires in the following terms:
a)
Maintenance for herself and the minor children in
the amount of
R15 000.00
per month.
b)
All educational expenses
for the minor children which shall include school fees and
registration fees including aftercare, schoolbooks
and/or textbook,
stationary, sporting and extra mural activities and equipment
thereof.
c)
All costs of extra lessons and
remedial lessons as required, together with all costs associated with
therapy at Miss Christy Malan
and also her outstanding statement of
R3 900
.
00
d)
All costs for the purchase of
school clothing for the minor children as required as well as the
costs for school tours, and the
costs of competitions and sporting
events when applicable.
e)
R18,796.00
for the costs to repair and maintain
the Volkswagen motor vehicle in the possession of the Applicant and
to replace tires from time
to time when necessary.
f)
The Respondent to retain the
Applicant and the minor children on his medical aid funds as
dependents and to pay all expenses not
covered by his medical aid
fund.
g)
Contribution towards the
Applicant's legal costs of
R40,000.00
to be paid in monthly installments of
R5000.00.
h)
Payment of the costs of this
application.
[3] The
Applicant has annexed a schedule of expenses wherein she sets out her
and the children's monthly expenses with
the total amount of
R31,407
70
. She indicated that every month she has a shortfall of
R15,134.26
.
[4] The
Respondent is a businessman and a director of the company known as
Leading Edge Helicopters, Hanger H1, Mbombela
Airfield. The
Respondent is receiving a net income of
R50,824.53
per month.
The Applicant is employed as a general administrator and a bookkeeper
at Leading Edge Helicopters Pty Ltd. She is receiving
a net income of
R16,273.44
per month.
[5] The
Respondent in his papers accuses the Applicant for not only having
inflated her expenses but also for being
dishonest about her true
expenses. He further indicated that he already pays an amount of
R18,148.36
plus
R6 780.31
totaling to an amount of
R24 928.67
towards home loan, electricity and levies,
groceries, school fees, after care and medical aid for the children
and the Applicant.
[6] It
is common cause that the application in terms of Rule 43 must be shot
and to the point. The purpose of the rule
is to deal with
applications of this nature as inexpensively and expeditiously as
possible. However, in this application there
are a number of disputes
in the party’s submissions which resulted in reserving judgment
so as not to rush into making an
order which might turn out to be
inappropriate and cause harm to the parties and the minor children.
In whatever conclusion that
the court might come to, the interest of
the children must be taken into utmost consideration.
BACKROUND
[7]
Applicant and the Respondent are married to each other out of
community of property including the accrual system.
The parties were
married on the 1st of September 2007. From the marriage relationship
two minor children were born, a girl age
11 years old and a boy age
nine years old.
[8] On
21 January 2021 the Applicant issued summons for divorce.
Subsequently on 27 January 2021 the Respondent moved
out of the
matrimonial home leaving the Applicant and the minor children. The
Applicant in her papers submits that the Respondent
since moving out
of the matrimonial home refused to contribute towards the reasonable
monthly expenses of herself and the minor
children.
[9] The
Respondent disputes the Applicant’s contention, arguing that he
continued
contributing towards
the maintenance of the minor children. The Respondent’s
contention is that he is contributing towards
the maintenance of the
minor children in the amount totaling to
R24 928.67
per
month. He further argued that the Applicant has no shortfall and that
in fact she has money left at the end of each month.
[10]
During the hearing Advocate Vermaak handed me a draft order as per
the notice of motion. I am told that the dispute
before me is
maintenance for the Applicant and the minor children. Contribution
towards legal fees in the amount of
R40 000.00
, repair
and maintenance costs of the Applicant’s motor vehicle as per
the quotation totaling to
R18 796.00
. I now turn to deal
with issues mentioned herein.
MAINTANANCE
FOR THE APPLICANT AND THE TWO MINOR CHILDREN
[11] The Applicant
is employed as a general administrator and a bookkeeper at Leading
Edge Helicopters Pty Ltd. She is receiving
a net income of
R16,273.44
per month. The Applicant states in her papers that the monthly
reasonable expenses for her and the two minor children is in the
amount of
R31 407.70
leaving her with a short fall of
R15 134.26
.
[12] Keightley
J stated as follows in GB v DS
1
.
“ …
this
claim [for interim maintenance] must be evaluated against the
purpose of
Rule 43. The purpose has been stated as follows:
“
Primarily
Rule 43 was envisaged to provide temporary assistance for women,
who had
given up their careers or potential career for the sake of matrimony
with or
without maternity, until such time as at a trial and after hearing
evidence
maintenance claims ... could be properly determined. It was not
created to
give an interim meal ticket to women who clearly at trial would not
be able to
establish a right to maintenance. The grey area between the two
extremes
causes problems”.
and further that:
“…
the
Rule is designed to provide interim cover to the spouse who has been
financially
dependent on the other spouse, because of their particular marital
circumstances,
and who thus has a genuine need for such support to continue
until the
matter is finally dealt with on divorce….”
[13] The
Applicant in her divorce summons claim maintenance for herself in an
amount of
R10 000.00
per month and
R3 500.00
for the minor children. The amount, according to the letter from her
legal representative was to cover the shortfall between her
salary
and her reasonable monthly expenses when she relocates and obtains
alternative accommodation. In her Rule 43 application
she claims a
maintenance in the amount of
R15 000.00
in respect of
herself and the minor children. When reading the papers and also
considering the submissions made by Advocate Vermaak
on behalf of the
Applicant I find no explanation as to why the interim relief is more
than the maintenance claimed in the divorce
proceedings whereas is
clear from the papers that the Respondent is paying for other
expenses.
[14]
Advocate Willemse argued, which point is not disputed, that the
Applicant is occupying
the matrimonial home and the Respondent is continuing paying the
bond, taxes and rates as well as electricity. The Respondent
continues paying school expenses for the minor children.
[15] The
Applicant annexed a schedule of monthly expenses for her and that of
the minor children totaling to
R31,407 70
. During oral
arguments it transpired that the Applicant also listed expenses that
the Respondent is already paying for. Advocate
Vermaak argued that
the amount of
R800.00
per month per child and
R1000.00
for the Applicant for clothing is not unreasonable. I do not agree
with that notion and I find it to be unreasonable and untrue
that the
Applicant is spending
R2600.00
per month on clothing.
[16] The
Applicant’s contention is that the shortfall started when the
Respondent left the matrimonial home. It
is on papers that the
Respondent left the matrimonial home
on 27 January 2021
and all expenses were paid for including groceries. However, the
Applicant alleges that in that January her mother
loaned her
R1000.00
, there is no proof as to what was that
R1000.00
used for.
[17] The
Applicant further argued that the Respondent in addition to the
salary that he receive in the amount of
R50,824.53
monthly
there are other payments made into his Standard bank account and
described as salary. It is clear from reading the papers
that the
amounts differ from month to month and not clear as to the source of
that payments. There are other months wherein the
amounts or payments
are not reflecting. I am inclined to use the amount of
R50 824.53
as the basis for what is reasonable and within his means.
[18] In
concluding the point on maintenance required for the children and the
Applicant, there is evidence that the
Respondent already pays a
substantial amount towards the family expenses. The Applicant is
employed and receiving a monthly income
of which it is not evident
from the papers as to her contributions towards the family. When
reading the papers, the Respondent
does not strike me like a rich man
who created a certain standard of living for his family. The evidence
is that the family has
been living a normal standard of living. I am
convinced that the Applicant has enough income for herself and
therefore does not
need a spousal maintenance.
CONTRIBUTION
TOWARDS LEGAL COSTS
[19] The
Applicant request contribution towards legal costs in the amount of
R40 000.00
. In support of her request, she attached an
invoice from her legal representative totaling to
R21 313.70
.
Advocate Vermaak submitted that the amount of
R21,213.70
does
not provide for the legal fees that the Applicant will have to incur
to prosecute the matter to trial. She further submitted
that if one
has regard to the financial position of the Applicant, it is clear
that the Applicant does not have the financial means
to pay her legal
costs.
[20]
Advocate Willemse on the other hand argued that the Applicant does
not explain how the amount of
R40,000.00
is arrived at and
does not provide a projected amount up to and including the first day
of trial.
[21] It
is trite that the quantum which an Applicant for a contribution
towards cost should be given is something which
has to be determined
in the discretion of the court. The court should have regard to the
circumstances of the case, the financial
position of the parties and
the particular issues involved in the pending litigation.
[22]
Makgoka J in in MCE v JE
2
said:
“
the
applicant has not informed the court the basis of the R10,000 she
claims,
e.g. how it is are arrived at; what unpaid costs have already been
incurred,
the projected amount up to and including the first day of trial, etc.
There can
be no better manner of placing such information before court
than
a draft bill of cost, or at the very least, a summary of fees
schedule.
This is how
courts considering applications for contribution towards costs
have, over
the years, approached the matter”.
[23] In
considering what is in issue in the pending litigation, the Applicant
in her affidavit indicated that the only
dispute is the quantum of
maintenance for herself and the minor children. Also the
determination of the values of the estate and
calculation of the
accrual. It is on this basis that I come to the conclusion that the
pending litigation is relatively a simple
case. It is trite that what
is adequate depends on the nature of the litigation.
[24]
The Applicant also wants the Respondent to pay
R18,796.00
for the costs to repair and maintain the Volkswagen motor vehicle in
the possession of the Applicant and to replace tires from
time to
time when necessary. In support of this request the Applicant
attached a quotation from Triple A 1Stop Centre. The Respondent
in
his opposing affidavit alluded that he serviced and maintained the
vehicle himself and did not take to a third party for service.
If
that worked why change now, I agree with the Respondent that the
status quo
should remain.
CONCLUSION
[25] In
all the circumstances, and in light of the reasons aforesaid, I
consider it appropriate to make an order in
the following terms:
1.
The Respondent is ordered to pay maintenance for
the minor children in the amount of
R3500.00
per month,
pendente
lite
, by way of
direct payment into Applicant’s chosen bank account. The first
payment to be made within seven days after the
granting of this order
and thereafter on or before the first day of every month and every
consecutive month thereafter.
2.
Respondent is ordered to
continue paying the bond repayments, electricity and levies of the
communal home where the Applicant and
minor children are currently
staying.
3.
The Respondent is further
ordered to continue paying educational expenses for the minor
children which shall include school fees
and registration fees
including aftercare, schoolbooks and/or textbook and stationary.
4.
The Respondent is ordered to
contribute 50% towards extramural activities of the minor children
together with the purchase of equipment
thereof and school clothes.
5.
The Respondent shall retain
the applicant and the minor children on his medical aid funds as
dependents and be responsible for the
monthly installment thereto.
In addition, it is
further ordered that:
6.
The Applicant and Respondent
shall have full parental rights and responsibilities as envisaged by
section 18(2)
of the
Children's Act 38 of 2005
with the primary
residence of the minor children to be with the Applicant. The
Respondent is awarded the following right of contact
with the minor
children:
a)
The right to remove the minor
children every alternate week from a Friday at 17h00 until the Sunday
at 17h00. The Respondent will
collect the minor children at the
residence of the Applicant and return them to her residence.
b)
The right to remove the minor
children every alternative South African public holiday, long weekend
and Easter from a time as arranged
between the parties at least three
days preceding the public holiday or long weekend until 17h00 on the
public holiday or the last
day of the long weekend.
c)
Telephonic contact at all
reasonable times subject to the minor children's routine, educational
and extracurricular schedules.
d)
The right to remove the minor
children during every alternative short school holiday (March/April
and September/October are considered
short holidays). The Respondent
will receive removal contact rights during March/ April 2021 and the
minor children will be with
the Applicant during September/October
2021.
e)
One half of each June/July
school holiday, with each half alternating between the parties with
the minor children to be with the
Applicant for the first half of the
June/July school holiday in 2021.
f)
And one half of each
December/January
school holiday. The first half thereof shall commence on the day
after the school closes and end on 27 December.
The second half shell
commence on 27 December and end at 17h00 on the day before the school
commences before the following academic
year. Each half of the
December/January school holiday shall alternate between the parties,
to ensure that the minor children will
be with the parties every
second Christmas portion of the holiday with the children to be with
the Applicant during the first half
of the school holiday in 2021.
7.
The cost of this application
will stand over for determination in the final divorce action.
SHABANGU-MNDAWE
AJ
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 10 May 2021 at 10:00.
Heard
on 22 APRIL 2021
Delivered
on 10 MAY 2021
APPEARANCES
FOR
THE APPLICANT : Adv. I VERMAAK-HAY
INSTRUCTED
BY :
SWANEPOEL AND PARTNERS
Email:
melissa@swanvenn.co.za
Tel: (013)
753 2401
FOR
THE RESPONDENT: Adv. J WILLEMSE
INSTRUCTED
BY
: DU TOIT – SMUTS
PARTNERS
Email:
tboshoff@dtsmp.co.za
(013) 745
3200
1.
Gauteng Division, case number 16158/16
(unreported)
2.
(13495/2011) [2011] ZAGPPHC 193 (13
September 2011) para. 12