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
>>
2018
>>
[2018] ZAGPPHC 350
|
|
J.M.B v D.C.J.B (98328/2015) [2018] ZAGPPHC 350 (23 March 2018)
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
GAUTENG
DIVSION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
CASE
NO.: 98328/2015
23/3/2018
In
the matter between:
J
M B
Applicant
and
D
C J B
Respondent
Date
heard: 9 March 2018
Date
delivered: 23 March 2018
JUDGMENT
STRIJDOM
AJ:
[1]
This is an application in terms of rule 43 of the Uniform Rules of
Court. The applicant and respondent
were married to each other on 31
December 1988, out of community of property with inclusion of the
accrual system and they are
still married to each other. Two major
children (daughters), J C B (22) and H H B (19) were born of the
marriage. Although the
two children (daughters) have both obtained
the age of majority, they are both currently studying and are as such
still financially
dependent on their parents.
[2]
The applicant issued summons for divorce against the respondent. The
marriage relationship between
the parties has broken down
irretrievably and there is no reasonable prospect of the restoration
thereof. The trial in the divorce
action is pending.
[3]
In
this application the applicant seeks monthly maintenance for herself
and the two major daughters from the respondent in the aggregate
amount of R2l 500 as well as a contribution to her legal costs in the
divorce in the amount of R20 000. The applicant alleges that
her net
salary as a teacher is R14 872.52 per month
[1]
and her expenditure amounts to R36 365 inclusive of the amounts she
has claimed for the mayor children. The applicants expenses
are set
out in a table and includes expenses that she incur on behalf of
their daughters on a monthly basis, either for their use
whilst in
Potchefstroom where they study or whilst at home during weekends and
holidays.
[2]
[4]
The
respondent opposes the application, contending that the applicant
claims unnecessary luxuries and he cannot afford to maintain
the
daughters any longer as he do not have the financial needs to do
so.
[3]
He is also disputing any
entitlement on the part of the applicant to claim maintenance for the
major children.
[5]
According
to the respondent his average gross income is R38 000 per month and
his monthly expenses amount to R33 348.55 inclusive
of expenses
relating to the major daughters.
[4]
However the bank statements submitted by the respondent clearly
indicated that his average monthly income is approximately R47
000
per month. The applicant is a teacher and the respondent is self
employed. He make and sells polystyrene cornices and recently
stated
sales in LED lights which is imported from China.
[6]
The first issue to be considered is the entitlement of the applicant
to claim monthly maintenance
pendente lite in respect of expenditure
pertaining to the major daughters.
[7]
There is no suggestion on the papers that the major daughters have
any income or that they are
not entirely dependent upon their parents
for support.
[8]
It
was held by the Supreme Court of appeal
[5]
that the duty of support does not terminate automatically when a
child reaches majority and hence that a consent order granted
as
between the parents on divorce and in respect of a then minor child,
could still be enforced by one parent against the other
post the
attaining of majority by the child.
[9]
The
entitlement of one parent to claim maintenance pendente lite on
behalf of an adult (but dependent) child in rule 43 proceedings
has
however recently been considered.
[6]
The court held that in the absence of an enabling statutory provision
in the Divorce Act or in the
Childrens Act 38 of 2005
a parent of
adult children lacks the necessary locus standi in divorce
proceedings to claim an order on behalf of such adult children,
that
the other party pay certain allowances directly to the children or
pay certain expenses on their behalf. Only the children
themselves
have the standing to
pursue
such claims.
[10]
In
JG v CG
[7]
it was held that
where an adult child living with both his parents in a communal
household and currently being educated by the
parents it seems to be
counterproductive and unnecessary to insist that the dependent child
in those circumstances bring separate
proceedings to have his
maintenance rights against one or other parent determined when it is
clear that the expenses attributable
to him are required to be borne
by the parents pending the divorce hearing, and they can be robustly
regulated inter se in
rule 43
proceedings.
[11]
I am of the view taking in consideration the circumstances of this
matter the facts justify an
order directing payment to be made
directly from one spouse to another pendente lite in respect of
expenses incurred in regard
to the major dependent children.
Quantum
of maintenance
[12]
The respondent vacated the former common home during July 2017 where
the applicant is still residing.
The former common home where the
applicant still reside is registered in the name of a close
corporation, Cathedral Rock investments
159 CC. The respondent and
his brother were both members of the close corporation. During May
2017 the applicant was informed that
the respondent alienated his
members interest in the close corporation to his brother for an
amount of R600 000. Applicant was
also informed by the brother of the
respondent that she must vacate the property. The respondent's
workshop is situated on the
plot where the former common home is and
where his brother also resides.
[13]
The applicant purchase groceries on behalf of their daughters for
their use whilst in Potchefstroom
where they reside during the week.
The daughters are also on her medical aid fund.
[14]
The respondent submitted that he contribute to the needs of their
daughters whilst they are in
Potchefstroom. However he informed them
that as from 2018 he will no longer be able to assist them as he does
not have the financial
means to do so. He has applied for a loan of
R67 000 to settle their existing University Fees that are in arrears.
[15]
Having considered the expenditures of the applicant and her personal
circumstances, I am of the
view that the applicant has not inflated
her expenditures.
[16]
In my view the respondent should be contributing to the expenses
being born by the applicant
for herself and in regard to the
maintenance of the dependent children pendente lite. The respondent
earns more than the applicant
and has more disposable income. The
applicant is not in a financial position to pay her legal fees and it
would be reasonable under
the circumstances to order the respondent
to contribute towards legal fees.
[17]
In the result the draft order marked annexure "X"
is made
an order of this court.
J.J.
STRIJDOM
ACTING
OF THE GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
For
the plaintiff:
Adv. R Ferreira
Instructed
by:
Du Randt & Lauw Inc
For
the defendant:
Adv. M Fabricius
Instructed
by:
Van Zyls Ingelyf
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 98328/2015
In
the matter between:
JUDITH
MARGARETHA
BLOEM
Applicant
and
DIRK
CORNELIUS
BLOEM
Respondent
DRAFT
ORDER
An
order is made,
pendente lite,
as follows:
1. The
Respondent is ordered to contribute an amount of
R
21 500.00
,
towards the maintenance of the Applicant and the dependent children
on a monthly basis, the first payment to be made on the first
of the
month following the date of the order and thereafter on or before the
seventh day of every month.
2. The
Applicant shall be entitled to remain resident at the property
situated
at Plot [….], Pretoria Gauteng Province pending the
finalisation of the divorce action.
3. The
Respondent is ordered to continue paying all the expenses that he
currently
pays in respect of the property where the Applicant resides
and in respect of the dependent daughters, included but not limited
to:
3.1
the
bond, alternatively rent in respect of the property where the
Applicant currently resides.
3.2
the
water and electricity in respect of the property where the Applicant
currently resides and all expenses in relation to the maintenance
of
the property;
3.3
the security system in respect of the
property where the Applicant currently resides.
4. The
Respondent is ordered to contribute an amount of
R
20,000.00
towards the legal costs of
the Applicant, payable in four monthly instalments of
R5,000.00
each, the first instalment to be paid on the first of the month
following the date of the order and thereafter on or before the
seventh day of every month until the
R20,000.00
has been paid in full.
5. Costs
of the application to be costs in the divorce action.
6. The
Respondent shall be responsible for the University fees and books of
the parties’ dependent children.
BY
ORDER
THE
REGISTRAR
[1]
See annexure "A" p20
[2]
See p11-15 applicants sworn statement
[3]
Para 27.1p41 respondents opposing affidavit
[4]
See annexure "DBS" p55-56 and annexure "DB6" p67
opposing affidavit
[5]
Bursey V Bursey and Another 1999(3) SA 33 (SCA)
[6]
Butcher v Butcher 2009(2) SA 421 (CC)
[7]
2012(3) SA 103 (GSJ)