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[2018] ZAFSHC 24
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Mkhehlane v Mkhehlane (6108/2017) [2018] ZAFSHC 24 (22 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates:
NO
Case number:
6108/2017
In
the matter between:
MARY
MOASHENE MKHEHLANE
APPLICANT
and
BENNET
MOLAPO MKHEHLANE
RESPONDENT
JUDGMENT
BY:
MOLITSOANE
AJ
HEARD
ON
:
15 FERUARY 2018
DELIVERED
ON:
22 FEBRUARY
2018
[1]
This
is an application in terms of Uniform rule 43 in which the applicant
seeks maintenance
against the respondent pending their divorce
action.
[2] The
applicant seeks, inter alia, the following relief,
pendete lite:
1.
That the respondent pay maintenance for herself in the amount of
R3000 on a monthly
basis in addition to the child maintenance
pendent
lite
;
2.
That the respondent be ordered to pay a contribution towards
applicant’s legal
costs in the amount of R10 000;
3.
That the respondent be ordered to provide a suitable and reliable
vehicle to the applicant.
[3]
At the onset it needs to mentioned that in the peculiar nature of
this application,
the court does not deal in its judgment with every
allegation or submission by the parties.
[4]
The parties were married in community of property on the 6
th
January 2009 and the marriage still subsists. One child, currently 12
years old was born between the parties and it appears that
the said
child stays with the mother within the jurisdiction of this court.
[5]
The Applicant has set out in detail her monthly expenses which in
total amount to
R17 669.00.According to her, she thus has a deficit
of R3 669 which she seeks the respondent to make good. It needs to be
mentioned
that in her original calculation she had indicated her
expenses to amount to R17 219.00 which clearly was an error in
calculation.
The applicant is employed as a secretary and she earns
an amount of R14 000 per month. With regard to the provision for a
motor
vehicle she avers that she currently uses a motor vehicle with
a rough market value of R35 000 and which frequently breaks down.
[6] On
the other hand the respondent submits that it was feasible for the
applicant to
reduce her expenses and if that were to eventuate, she
would have a surplus in the amount of R979.37.
[7] The
respondent is a businessman. According to him his average income per
month amounts
to R50 642.79. He also compiled a list of expenses
which amount to R98 095.62. In the calculation of his personal
expenses he included
his business expenses as he avers that he had no
other income other than the income generated from his business. The
business does
not pay him any salary. It appears that he makes
drawings anytime he wants.
[8] During
argument, Counsel for the respondent referred me to the case of
Rabie
v Rabie
1992 (2) SA (W) 306
where it was held that the court had
no jurisdiction to make an order for maintenance for children in an
application under rule
43 where an order for maintenance of the
children made by the maintenance court was already in existence. It
is not in dispute
that there is already a maintenance order for R2000
in favour of the minor child. Applicant does not request the said
maintenance
order of the child to be varied. What she seeks is that
over and above that child maintenance order, respondent must pay a
further
R3000 to her. That order in respect of the child made by the
maintenance court remains valid until it set aside. I can find no
reason why I should make that same order in addition to any order I
may make in favour of the Applicant.
[9] The
respondent does not dispute that most of the expenses are reasonable.
He, however,
avers that he simply cannot afford to pay any interim
maintenance to the Applicant.
[10]
It is true that in an enquiry of this sort, one does not look at the
needs of the Applicant only
but one also has to enquire whether the
Respondent will be in the position to afford it.
[11]
The main gripe of the respondent is that an amount of R1000 for
clothing is way too excessive
for the Applicant and respondent avers
that an amount of R200 would be reasonable in the circumstances. I
fail to understand this
reasoning in view of the fact that on his own
list of expenses he avers that he spends R1500 on a twelve year
child’s clothing
on a monthly basis. I am of the view that the
amount incurred for clothing for both the mother and the child on a
monthly basis
is, however, excessive.
[12] The
child is 12 years old and he stays alone in the afternoon when the
mother is at school. There
is no nanny to look after him after
school. Payment of the dstv will be a necessity to keep the child in
doors and in my view it
is a necessary expense.
[13]
The next question for consideration is whether the respondent cannot
afford to pay interim maintenance.
Annexure MK1 of the respondent
sets out in detail his monthly expenses. Applicant avers that she
spends R2500 on groceries for
herself and the child. Respondent,
however, spends R4000 on groceries and what he terms food
supplements. This is R1500 more than
what applicant and the child
spends on food combined. No explanation was furnished as to why
respondent spends R1000 on food supplements.
He also spends R500 on
gym fees. The respondent further avers that he spends R7 000 on
maintenance of two vehicles per month. This
translates to R84 000 per
annum on vehicle maintenance alone. This cannot be true. He avers he
buys the child PlayStation games
amounting to R1000 and spends
another R1000 on the entertainment of the child. In view of the fact
that the respondent says he
cannot afford to pay interim maintenance
he could greatly cut down on these unnecessary expenses. In that way
he will be in apposition
to pay the maintenance to the Applicant.
[14]
I am of the considered view that the respondent is in a position to
pay maintenance. Fact that
he is in arrears in respect of his credit
instalments does not necessarily imply that he cannot pay interim
maintenance. He only
needs to learn to priorities his obligations.
[15]
With regard to a motor vehicle his assertion that one of the motor
vehicles has broken down remains
undisputed. A motor vehicle is a
necessity in his kind of work and I am of the view that I cannot
order that he furnish one to
the Applicant
pendent lite
as
this would leave him without transport.
[16]
The applicant further claims a contribution towards her legal costs
in the amount of R10 000.
Having regard to the facts and
circumstances of this case I am unable to award a higher amount than
the usual amount of R5000.
[17]
I accordingly make the following order
pendent lite
:
ORDER
1.
That the respondent pay maintenance to the Applicant in monthly
instalments of R3000 with the first instalment
be due on or before
the 7
th
day of March 2018 and the subsequent amounts be
due and payable on or before the 7
th
day of each
successive month;
2.
That the respondent shall make a contribution towards applicant’s
costs in the amount of R5000 and which
costs shall be due and payable
on or before the 31
st
March 2018;
3.
That costs shall be costs in the course.
P.E MOLITSOANE,
AJ
On
behalf of the Applicant:
Adv Naidoo
Instructed
by:
Matsepes Inc
26/27 Aliwal Street
Bloemfontein
On
behalf of the Respondent: Adv
Berry
Instructed
by:
Steenkamp & Jansen Attorneys
63 Krause Street
Bloemfontein