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[2019] ZAGPPHC 161
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K.N v P.M (81094/18) [2019] ZAGPPHC 161 (22 May 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
CASE
NO: 81094/18
22/5/2019
In
the matter between:
K[….]
N[….]
APPLICANT
And
P[….]
M[….]
RESPONDENT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
This
is an opposed Rule 43 application. The parties as alleged in the
founding affidavit were married to each other traditionally
on 18
February 2012. The marriage still subsists and they were married in
community of property.
2.
Two
minor children were born into this marriage.
3.
The
issues to be determined can succinctly be tabulated as follows:
3.1
Whether
the applicant is entitled to a contribution towards her legal costs
as claimed by her in the amount of R 25 000.00.
3.2
Whether
the applicant is entitled to an order directing the respondent to
make payment of maintenance in respect of each minor child
in the
amount of R 9 222.00 per month.
3.3
Whether
the Respondent should be ordered to re-imburse the applicant for 50%
of the school fees and school related expenses paid
by her during
January 2019, in the amount of R 46 309.50.
4.
Rule
43 is a self-contained rule. It regulates the procedure to be
followed in applications for ancillary relief of an interim nature
in
matrimonial matters. The application is initiated by a notice to the
respondent which should accord with the prescribed form
of the Rules
of Court. This form must be accompanied by the applicant's affidavit
and only two sets of affidavits are allowed.
CONTRIBUTION
TO LEGAL COSTS
5.
In
as far as a contribution towards her legal costs is concerned the
applicant in this regard requests a contribution in the amount
of R
25 000.00 from the respondent. In her founding affidavit
[1]
she sets out that she will request this contribution towards her
legal costs and that this amount will be sufficient and considered
reasonable to cover her initial legal expenses. She furthermore
asserts that the respondent is financially in a much better position
than what she is and it therefore would be just and equitable if the
respondent is ordered to pay this amount as a contribution.
6.
The
respondent in opposition sets out that the applicant has refused to
engage with him meaningfully and instead has elected to
litigate on
an unwarranted and unnecessary scale and he should not be burdened
with her legal costs. In addition to this, the respondent
alleges
that the applicant earns more than him and has refused to engage his
attorneys in order to resolve the impasse.
[2]
7.
A
claim for a contribution towards costs is
sui
generis
and is based on a duty of
support spouses owe each other.
[3]
In order for the applicant to succeed she carries the duty to show
that she has insufficient means of her own.
[4]
In the absence of either a statement of account having been filed by
her such as in the present matter or a confirmatory affidavit
by her
attorney confirming the legal fees already spent by her, I am not
persuaded that the applicant has discharged her
onus
to be awarded a contribution towards
her legal costs to the extend which she now seeks.
8.
That
having been said, the sum to be contributed is determined by the
court's view of the amount necessary for the applicant to
put her
case adequately before the court.
[5]
9.
Furthermore,
it has been held that the court in exercising its discretion in
determining the amount as a contribution towards the
costs to be
awarded this court was bound by the provisions of section 9(1) of our
Constitution to guarantee both parties the rights
to equality before
the law and equal protection of the law.
[6]
10.
In
the absence of a statement of account or a confirmatory affidavit
filed by her attorney of record, I am inclined to award her
only a
contribution of R10 000.00 towards her legal costs.
MAINTENANCE
TOWARDS MINOR CHILDREN
11.
The
applicant and the respondent are the proud parents of two minor
children aged 12 and 7 years respectively. In paragraph 14 of
the
founding affidavit the applicant sets out in great details in a
tabulated format the monthly expenses incurred by her in respect
of
the minor children. As per this tabulation, she makes provision for
necessities such as accommodation and medical aid fund,
but also
claims luxuries which this court considers as unreasonable and
unnecessary. By way of example the applicant sets out an
amount of R
2500.00 per child for food, which is the same amount of food which
she allocates herself as an adult. She further allocates
a cost for a
hair salon expense of R300 per child per month, which equally is
considered to be unreasonable and excessive.
12.
In
addition to the above stated amounts the applicant has allocated R1
500 for outings and restaurants, R160 for pocket money and
R250 for
unforeseen expenses. None of these expenses, this court considers
reasonable more so that no proof of these expenses have
been annexed
to the founding affidavit.
13.
In
response, the responded in paragraph 44 replied, that he denied the
expenses so listed are true and correct and that he is of
the belief
that the applicant exaggerates her maintenance requirements. In
relation to her listed expenses he tenders maintenance
payment of R
3000 per child per month
pendente
lite.
He also tenders to retain the
children on his medical aid and to pay a 50% contribution of the
expenses which are not covered by
the medical aid scheme. He further
tenders that he will pay for Karate and Tennis lessons, but that he
will pay such service providers
directly. The same applies for the
school transport, which he likewise offers to pay directly.
14.
During
the hearing, counsel for the respondent increased the maintenance
offer to R5000 per child per month. This tender so made
is considered
substantially more than what this court would have awarded the
applicant under the circumstances and as such this
court will award
the amount so tendered.
CLAIM
RE-IMBURSEMENT FOR SCHOOL FEES
15.
In
her founding affidavit, more specifically paragraph 10 thereof, the
applicant sets out that during January 2019 she paid an amount
of R
92 619.00in respect of the children's school fees after having
enrolled them at Summerhill College private school in Midrand.
In
addition to this, she unilaterally paid an additional amount of R12
438.21 for stationary and other school necessities. In respect
of
these amounts so paid, she seeks a 50% re-imbursement from the
respondent.
16.
In
opposition the respondent in paragraph 39 sets out that the applicant
has provided this court with no proof of how the amount
of R12 438.21
was calculated. Furthermore, that she has failed to take this court
into her confidence by providing proof of her
income which she
alleges is approximately R 40 000.00 per month.
[7]
17.
In
addition to this, he sets out that on the 4 March 2019 he has paid an
amount of R 84 960.00 directly to the school, albeit it
that he was
not consulted on their enrolment.
18.
The
applicant who seeks a re-imbursement alleges the school fees per term
amount to R 23 480 in respect of Persia and R 19 000 in
respect of
Iman. Having regard to the listed amounts so stated, it is clear that
the joint school fees amount of R 42 480 per term
in respect of the
children and in respect of this expense parents are held jointly and
equally responsible. In the absence of both
parents being consulted
in the decision in respect of the choice of school being made
jointly, fairness dictates that any unilateral
decision made by one
parent cannot be foisted upon another. In the present instance this
is exactly what has transpired and clearly
given the respective
incomes of both parents the school fees are excessive and not
sustainable in future.
19.
Having
regard to the fact that the school year has already commenced and
progressed halfway through this year and considering the
payment of
R84 960 having been made by the respondent on 4 March 2019, this
court will merely order the respondent to pay the applicant
an amount
of R 21 240 at the beginning of each of the remaining two terms.
20.
In
the result it therefore follows that the applicant has failed to
proof her claim of being awarded a 50% re-imbursement in respect
of
the school fees which she has paid during the enrolment of the
children at the beginning of the school year.
ORDER
In
the result the following order is made:
1.
The
primary residence of the parties' minor children is awarded to the
applicant;
2.
The
Respondent is awarded specific parental right and responsibilities in
respect of maintaining contact with the minor children
to be
exercised in the following manner:
2.1
Rights
of removal for every alternate weekend from Friday after school until
Sunday at 17h00;
2.2
Rights
of removal for every alternate short school holiday and half of each
long school holiday. Christmas should rotate between
the parties;
2.3
Rights
of removal for half of the available time of each child's birthday;
2.4
Rights
of removal for every alternate Public Holiday, for Father's day and
the Respondents' birthday. The applicant shall be entitled
to keep
the children with her for Mother's day and her birthday;
2.5
The
right to contact the minor children telephonically at all reasonable
times.
3.
The
Respondent is ordered to pay half of the minor children's school fees
(private school fees) including half any registration
fees subject to
the parties agreeing on the choice of school.
4.
The
respondent is ordered to pay maintenance to the applicant in respect
of the minor children in the amount of R 5 000.00 per child
per
month, the first payment to be made on or before 1 June 2019 and
thereafter on or before the 7
th
of every month. The Respondent is ordered to enrol both children on
his medical aid.
5.
The
Respondent is further ordered to pay the applicant an amount of R 21
240 at the beginning of term 3 and 4 in respect of the
school fees
for the current academic school year 2019.
6.
The
Respondent is ordered to make a contribution towards the applicant's
legal costs in the amount of R 10 000-00 (Ten Thousand
Rand only)
payable within ten (10) court days of date of judgment.
7.
Costs
in the action.
COLLIS
J
JUDGE OF THE HIGH COURT
OF
SOUTH AFRICA
Appearances:
Counsel
the Applicant
: Adv. I. Vermaak-Hay
Attorney
for the Applicant
: Arthur Channon Attorneys
Counsel
for the Respondent
: Adv. R. Courtenay
Attorney
for the Respondent :
Riva Lange Attorneys
Dates
of Hearing
: 10 April2019
Date
of Judgment
: 22 May 2019
[1]
Founding Affidavit para 19 p 16
[2]
Answering Affidavit para 62 p 47
[3]
Van Rippen v Van Rippen
1949 (4) SA 634
(C) at 637
[4]
Griese! v Griese! 1981(4) SA 270 (O) at 277A
[5]
Nicholson v Nicholson
1998 (1) SA 48
(W) at SOD
[6]
Carey v Carey
1999 (3) SA 615
(C) at 621B -D.
[7]
Founding affidavit para 16