About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2020
>>
[2020] ZAGPPHC 780
|
|
K.C.M v K.M.F (55203/2020) [2020] ZAGPPHC 780 (1 January 2020)
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
DIVISION, PRETORIA
Case number:
55203/2020
In the matter between:
K[…] C[…]
M[…]
APPLICANT
(I.D NO: 87[…])
versus
K[…] M[…] F[…]
RESPONDENT
(ID NO: 84[…])
JUDGMENT
MAKHOBA
J
The
matter was brought to me by the applicant in terms of Rule 43(1)
(a)-(d) of the Uniform Rules. The matter was opposed. After
hearing
both counsels I requested them to file their heads of arguments.
The Applicant is K[…] C[…]
M[…] and Respondent is K[…] M[…] F[…].
There are two minor
children born of the marriage between the
applicant and the respondent and are currently residing with the
applicant.
The applicant commenced divorce
proceedings against the respondent in this court on 31
st
August 2020 under case number 42619/20. On the 21
st
October 2020 the applicant instituted Rule 43 proceedings against
the respondent.
The respondent opposed the
application and disputes the existence of the customary marriage
between the applicant and himself.
Furthermore, the respondent
submits to this court that he is no longer employed and thus has no
financial means to pay maintenance.
On
behalf of the respondent counsel submitted that this court cannot
hear the application since the marriage is in dispute. However,
Counsel for the applicant referred the court to various decided
cases and submitted that the court can entertain the application
even where marriage is in dispute.
In
Zaphiriou v Zaphiriou
1967 (1) SA 342
(W)
Trollip
J said at page 345 E-H: “
There
is, therefore, a good authority that in common law, even though the
validity of the marriage was being disputed, nevertheless
the court
had jurisdiction in preliminary application proceedings to award
maintenance and a contribution towards costs pending
an action to
determine that fundamental dispute. And I have no doubt that that
applies equally, if not a fortiori where, although
the validity of
the marriage is admitted, its continued subsistence is disputed, as
in the present case. Rule 43 was merely designed
to provide a
streamlined and inexpensive procedure for procuring the same interim
relief in matrimonial actions as was previously
available under the
common law in regard to maintenance and costs, and I think,
therefore, that Rule 43 must be construed accordingly;
in other
words, that ‘spouse’ in sub-rule (1) must be interpreted
as including not only a person admitted to be a
spouse but also one
who alleges that he or she is a spouse, and that that allegation is
denied. In other words, the Rule also
applies where the validity of
the marriage or its subsistence is disputed. The application under
Rule 43 in the present case
can, therefore, be entertained by this
Court
.” This
decision is quoted with approval in
MRL
V KMG Case number 15078/12 dated 08/04/2013
.
I
am therefore in agreement with Counsel for the applicant that this
court can hear and decide the matter in terms of Rule 43.
The Respondent pleads poverty and
unemployment as a reason why he will be unable to pay any amount
towards the maintenance of
his children and the applicant. The
applicant is unemployed and she has no source of income.
It
is common cause that the respondent has a business called Chillas
Ice Cube. The respondent submits that this business does
not
generate a lot of money.
On
behalf of the applicant, it is submitted to this court that the
respondent possesses the following motor vehicles:
(i) Polo
(ii) Toyota Hilux
(iii) Mercedez Benz
(iv) It is alleged the respondent has
an investment of R600 000.
The Court is of the view that
currently the respondent is in a position to maintain his children
although it is uncertain whether
he will still be able to do that in
future as he is unemployed.
I
therefore make the following order:
12.1 An order that both
parties retain their full parental responsibilities and rights
with regard to the
care of the minor children born of the marriage between the parties
as contemplated in Section 18 (2)(a) of the
Children’s Act
No.38 of 2005;
12.2 An order that
the primary residence of the minor children born of the
Marriage between
the parties be awarded to Applicant;
12.3 An order that
specific parental responsibilities and rights with regard to
contact to the minor children born of
the marriage between the parties as
contemplated in
Section 18(2)(b) of the Children’s Act No.38 of 2005 be awarded
to the Respondent in the following manner:
12.3.1 The
Respondent shall be entitled to remove the minor children for
alternate weekends;
12.3.2 The
Respondent shall be entitled to remove the minor children for
alternate short school holidays on the
basis that the minor children
shall spend alternate MARCH / APRIL short holidays with the
Applicant. For purposes hereof, short
school holidays refer to the
school holidays which take place during MARCH / APRIL and SEPTEMBER /
OCTOBER each year;
12.3.3 The
Respondent shall be entitled to remove the minor children for one
half of all long holidays on the
basis that the minor children shall
spend alternate Christmas portions of the DECEMBER / JANUARY long
school holidays with me.
For purposes hereof, long school holidays
refer to school holidays which take place during JUNE / JULY and
DECEMBER / JANUARY each
year;
12.3.4 The
Respondent shall be entitled to remove the minor children for
alternate long weekends and public holidays
which do not form part of
a school holiday;
12.3.5 The
Respondent shall be entitled to remove the minor children for every
Father’s Day on the basis
that the minor child shall spend
every Mother’s Day with Me;
12.3.6 The Applicant
shall be entitled to remove the minor children for every birthday of
the Applicant;
12.3.7 The
Respondent shall be entitled to contact the minor children both
telephonically and electronically at
all reasonable times;
13
.
Pendente lite
the
Respondent to pay maintenance
in
an amount of R2000.00 per
month
in respect each child subject to 10% percent annual increase.
The first payment must be made on the next pay date of the Respondent
from date of this order directly to the Applicant and the
further
payments to be made on or before the 3
rd
day of each month.
14.
Pendente
lite
the
Respondant pays School, buys uniform and stationary and to
pay school
transport in respect of both minor children, with the understanding
that the school fees must be paid directly to the
school and the
transport must be paid directly to the transport provider.
15.
Pendente lite
the Respondent to pay maintenance for the Applicant in the amount of
R3 000 per month directly to the Applicant’s Bank account.
The
first payment must be made on the next pay date of the Respondent
from date of this order and the further payments to be made
on or
before the 3
rd
day of each month.
16.
Pendente lite
the Respondent to keep Applicant and the minor children as
members on his Medical Aid Scheme;
17.An
order that the Respondent pays for Applicant’s legal costs in
amount of R10 000.00 in respect of Applicant’s legal
costs for
this application and the main divorce action
respectively.
_________________________________
D MAKHOBA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA,
GAUTENG DIVISION
Plaintiff’s attorneys:Dikolobe
Attorneys Inc
Plaintiff’s Counsel: Adv.
TC Maluleke Cell: 082
533 5900
Email address:
advocatemaluleketc@gmail.com
Defendant’s Counsel: Mr LE
Thobejane
Email address:
leruma@bothamassyn.co.za