About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 38
|
|
S.J.P v P.P.P (5478/2018) [2019] ZALMPPHC 38 (14 August 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 5478/2018
In
the matter between:
S
J P[….]
APPLICANT
And
P
P P[….]
RESPONDENT
JUDGMENT
SEMENYA
J:
[1]
The parties in this matter are in the process of divorce after being
married to each other for approximately nine years. Two
minor
children aged 6 and 3 years were born out of the marriage. The
applicant and the two children moved out of the common home
during
July 2018. She and the children initially stayed with her brother but
are currently staying at her parents’ farm in
the outskirts of
Thabazimbi.
[2]
This is a Rule 43 application in which the applicant seeks
maintenance for herself and the minor children in the amount of
R30 000.00 per month. She also seek an order in terms of which
the respondent is ordered to contribute an amount of R20 000
towards her legal costs of divorce proceedings. It is common cause
that the respondent is currently contributing an amount of R4500
00
per month towards the maintenance of the two children which he offers
to increase too R6000.00. Furthermore, the respondent
has retained
the applicant and the children on what he refers to as the medical
aid. The applicant on the other hand refers to
it as a hospital plan.
It is further common cause that the motor vehicle that the respondent
has given to the applicant has since
broken down. Lastly, the parties
agree that the respondent was the breadwinner during the subsistence
of their marriage. The issue
of primary residence and care of the
minor children has been resolved.
[3]
The issues left for this Court’s determination are whether the
relief sought by the applicant is reasonable, whether the
applicant
is entitled to maintenance from the respondent and contribution for
legal costs from the respondent and whether the respondent
has the
ability to contribute the amount sought. Although the respondent
admits that he is liable to contribute towards the maintenance
of his
children, he differs with the applicant with regard to the amount
that he is supposed to contribute. It is trite that the
maintenance
of children is the responsibility of both parents, according to their
means and ability.
[4]
With regard to accommodation of the children and herself, the
applicant stated that she will have to find a place where she
can
stay with the children. That place will have to be somewhere nearer
their child’s school as she does not have a vehicle
that she
can use to transport her. She will have to pay rental of R6 600.0
per month. The respondent argued that the applicant
can still move
back to the common home in order to reduce costs. I find this
argument to be unreasonable in that there must be
a good reason,
which is not relevant at this stage, which may have forced the
applicant to leave the common home with a three year
old child. An
amount of R6 600 per month for accommodation is in the
circumstances not unreasonable. A motor vehicle is a
necessity for a
mother of two young children. In this case I agree that the
respondent should return the bakkie that he took from
the applicant
rather than to sell it. Toiletry of R600 and groceries of R5 500
per month for the applicant and the two children
is more than
reasonable where the cost of living is escalating at an alarming
rate. However, the applicant should device ways and
means of reducing
water and electricity costs. The applicant claims an amount of
R500.00 for the children’s entertainment
and R1000 for eating
out. I am of the view that R1000 would be reasonable for the two
items. I am further of the view that an amount
of R3000 per month for
petrol is too exorbitant. The applicant will have to use the vehicle
mainly for transporting the children
to and fro school and to attend
to school activities.
[5]
I agree with the respondent that it would not be necessary for the
applicant to look for accommodation which will make it necessary
for
her to have a gardener. This expense is an unnecessary luxury. It is
further not necessary for the applicant and the children
to buy
clothes on a regular basis. The respondent’s argument that his
children do not have to buy presents for their friends.
This argument
is without merits. The applicant’s explanation that the
children gets invited to their friends’ birthday
and are
expected to bring presents is accepted. The amount of R150 is not
unreasonable for this item.
[6]
With regard to the contribution that the applicant is expected to
make towards the maintenance of the children, the applicant
stated
that she does not have a tertiary education and would always find it
difficult to secure meaningful employment. She stated
that after she
left the common home she secured employment with an estate agent. She
however had to leave after the respondent
had dispossessed her of the
bakkie which she was using to take her clients to view the farms. On
this point, the respondent contended
that the applicant stopped
selling farms not because the bakkie was repossessed the but that it
was simply because she was not
trained for that job. Either way, what
remains is that the applicant had to try something else to earn a
living.
[7]
The applicant stated that she intended to operate a horse riding
training for school children which she will do on three days
per week
in the afternoon. According to her she will be able to generate
income of approximately R2000 00 to R6000 00 per
month. The
applicant stated that the respondent should be ordered to contribute
an amount of R1 760 00 towards horse
feed in order to
successfully run this business. It is however common cause that
the respondent is against the idea
of putting their three year
old into a pre-school. According to him, this child should stay at
home under the care of the applicant.
It is for this reason that he
argued that it will not be necessary for the applicant to hire a
helper and that she should continue
to do the house chores as she
used to do when they were still staying together.
[8]
The respondent argued that there is no duty upon him to maintain the
applicant. The argument raised by the applicant is that
it is
impossible for her to earn a living and to stay at home in order to
look after their child at the same time. The respondent
stated that
he is willing to provide the biltong making equipment which the
applicant will use to produce biltong and to sell it.
The applicant
contended that she cannot be expected to take care of the children
and to make biltong at the same time. According
to the applicant the
money generated will in any event not be sufficient to cater for her
needs and those of the children.
[9]
I am satisfied that the applicant has discharged her duty to prove on
a balance of probabilities that she need assistance in
the form of
maintenance for herself and the two minor children. What remains to
be determined is whether the respondent has the
ability to maintain
them and to what extent. The applicant alleges that when she was
still staying in the common home, the applicant
was is in
construction and used to generate profit of approximately R180 000
building a house. She alleges that the money
was paid to him in cash.
The applicant avers that the respondent buys assets in the names of
other persons or entities and not
in his own names. She however
alleges that the sports activities and hobbies that the respondent is
engaging in, namely Brizely
shooting and fishing, which involves a
lot of travelling and requires a lot of money, provides an indication
of his financial position.
The applicant stated that the respondent
owns guns and barrels which cost between R60 000 to R100 000
and has to buy
ammunition as well.
[10]
On his ability to contribute, the respondent has attached to his
affidavit bank statements of PSP Konstruksie CC
(PSP),
his personal bank account and his credit card statement which
according to him show that his financial position is dire.
The
balance in all accounts is in the negative. The respondent further
averred that the construction sector has collapsed nationally
and
that his income has dried up. He is now working for his father who
pays him R8000.00 per month. The respondent admits that
he was
previously involved in sports and hobbies referred to by the
applicant. He however denies that he used his own money to
finance
these activities. He alleges that the activities were sponsored. The
respondent further alleges that he is a surety and
co-principal
debtor of the PSP which cannot service its debt.
[11]
Counsel for the applicant argued, with reference to unreported case
of Sc,
R v Sc, L Case NO:20976/2017
Gauteng Local division,
Johannesburg that the court should order the respondent to make a
full disclosure of all material information
his financial
information. It was argued that in so doing the court will have more
evidence on which it will determine whether
the respondent is indeed
unable to contribute the amount claim as maintenance and legal costs.
I am of the view that the submission
made by the respondent will not
take the matter further in that it is the applicant’s version
that the respondent conducted
his business in such a way that he
received payment for the work done in cash. This in essence means
that most of the transactions
will not reflect in the CC’s bank
accounts and SARS documents. In
E v E; R v R M v M
Case NO:
12583/17; 20739/18 and 5954/18 at [40]
the court stated that
where a party is self-employed the only way to prove his/her income
and of making a full and frank disclosure
of his/her financial
position is by attaching bank statements. In this case, the applicant
is unemployed and has no income. The
respondent was self-employed
when the applicant left the common home. He alleges that he is now
employed by his father and has
attached the agreement he has with his
father to his affidavit. The applicant is unable to gainsay this
allegation.
[12]
In the circumstances of this case, I am of the view that the
applicant has a choice of either continuing to stay with her parents
or to return back to the common home with the children. In any event
the respondent is willing to vacate the home so as to give
way to the
applicant and the children. The applicant will nonetheless have to
have a vehicle which she and the children will use.
In this regard
the respondent will have to abandon his plans of returning it to the
dealer. The applicant was dependant on the
respondent before she left
the common home with the money he generated from PSP despite the
difficulties he was encountering in
the construction industry. I fail
to find any reason why he should refuse to do so now that they are
going through a divorce. I
am however of the view that the applicant
failed to show that the amount claim is reasonable in relation to the
financial position
of the respondent.
[13]
With regard to legal costs, the applicant submitted that it will be
apposite that she and the respondent are afforded the opportunity
to
litigate on equal grounds. I was initially of the view that she
should approach the Legal Aid South Africa with instructions
to
represent her. However, despite the fact that the respondent is
pleading poverty, he is still able to afford private legal
representative. It will only be fair that he should assist the
applicant in this regard.
[14]
In the circumstances I make the following order:
1.
The primary
residence of the minor children remains with the applicant;
2.
Specific
parental responsibilities in respect of maintaining contact with the
minor children is awarded to the respondent, to be
exercised in the
following manner:
2.1
Rights of
removal of the minor children on every alternative weekend from
Friday after school until Sunday at 17:00;
2.2
Rights of
removal on every alternate school holiday for periods to be agreed
upon between the parties, with Christmas to rotate
between the
parties;
2.3
The right
to remove the minor children on father’s Day. Similarly the
applicant shall have the right to keep the children
with her on
Mother’s Day;
2.4
The right
to remove the children for half of the available time on their
respective birthdays;
2.5
The right
to remove the children for every alternate public holiday;
2.6
The right
to contact the minor children telephonically at all reasonable times.
3.
The
respondent is ordered to pay maintenance to the applicant in respect
of her and the minor children in the amount R10 000.00
per month ‘
the first payment to be made on or before the first day of the
month following the order, and thereafter
on or before the 1
st
day of every consecutive month;
4.
The
respondent is ordered to hand over to the applicant for her use his
motor vehicle , alternatively provide the applicant with
an
alternative vehicle to use, which vehicle should be reliable and on
the same standard as the double cab ba kkie that the applicant
handed
over to the respondent upon demand;
5.
The
respondent is ordered to pay the following expenses in respect of the
applicant and the minor children:
5.1
To retain
them on the medical aid fund of which they are currently members, and
to pay the monthly premium;
5.2
To pay the
short term insurance of the motor vehicle that he will hand over to
the applicant for her use;
5.3
To pay the
reasonable maintenance costs, repairs and servicing costs of the
motor vehicle that he will hand over to the applicant
for her use;
5.4
To pay for
the school clothes of the elder minor child as well as the stationary
needed for her schooling;
6.
The
respondent is ordered to make contribution towards the applicant’s
legal costs in the amount of R20 000.00 payable
within ten (10)
days of this order;
7.
No order as
to costs is made.
M.V SEMENYA
JUDGE OF THE HIGH
COURT; LIMPOPO DIVISION.
APPEARANCES
ATTORNEYS FOR THE
PLAINTIFF : VAN HEERDEN &
KRUGER ATT.
COUNSEL FOR THE
PLAINTIFF
: ADV.
ATTORNEY FOR THE
DEFENDENT : JW BOTES INC.
COUNSEL FOR THE
DEFEDENT : ADV.
`
RESERVED
ON
: 25 JUNE 2019
JUDGMENT
DELIEVERED ON
: 14 AUGUST 2019