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[2018] ZAFSHC 162
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B v B (2941/2018) [2018] ZAFSHC 162 (23 August 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
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
2941/2018
In
the matter between:
M
B
Applicant
and
W
B
Respondent
HEARD
ON:
10
AUGUST 2018
JUDGMENT
BY:
MOLITSOANE,
J
DELIVERED
ON:
23
AUGUST 2018
[1]
This is an application in terms of Uniform Rule 43(1) of this court
for maintenance of the applicant and the children of the
parties
pending an action in which the applicant is suing the respondent for
a divorce. Applicant also applies for certain parental
rights and
residency. The application is opposed.
[2]
The parties are married to each other out of community of property
with the inclusion of the accrual system. As indicated above
they are
in a process of a divorce. There are four children born between the
parties, three of which are still minors. The Applicant
stays with
two of the minor children while the respondent stays with another
minor child. The elder child is in the employment
of the respondent.
[3]
The evidence of the respondent is that she is employed as a
locum
by a practise of Physiotherapists. She earns 50% commission on the
consultations relating to patients she consults with. Her average
nett income in the practise of her profession as a physiotherapy is R
5 107 .87.She also gives Pilates classes and her average
income
was R 2 028.00 per month.
[4]
It is her evidence that she sold her property in June 2017 for a
total amount of R 1 348 645.00.This money she says that, on
instructions of the respondent she,
inter alia
, paid to
various family trusts and also made a payment in a mortgage account.
She avers that she has no amount of money left from
these sales.
Applicant further avers that she sold a land for R 257 458.00 and
paid the proceeds on instructions of the respondent
to various
trusts. According to her also in respect of this sale, no funds are
left. She further receives rental income in the
amount of R 12 600.00
in respect of her other two properties.
[5]
Applicant acknowledges that the respondent currently pays her short
term insurance. Her expenses relating to the service, maintenance
and
repairs to her vehicle and her medical aid in the amount of R8 133.
He also makes certain payments to the expenses of the children.
[6]
Applicant contends that her monthly expenses and those of the two
minor children with whom she stays amount to R 54 078.00.
She argues
that having regard to her income of R 19 735.87, her shortfall is R
34 342. 37.
[7]
The Applicant submits that the respondent is in a position to make a
contribution towards the maintenance as sought as he is
in a position
to do so. According to her the respondent is the trustee of six
trusts. These trusts according to her own 18 properties
worth
approximately R 30 000 000.00. She submits that the trusts
rent out property for a total gross amount of R 219
000.00 per month.
She contends that the respondent is the
alter
ego
, so
to speak, of the said trusts as he is in full control of the said
trusts and utilises the money of the said trusts for himself
as and
when he chooses.
[8]
On the other hand respondent contends that he is a salaried employee
whose primary source of income is from property rent. Of
the 23
properties he manages, eight are his own while the rest belong to
various trusts. The rental income of the properties are
paid, except
some of his own, into the account of a certain entity known as
Accommodation Solutions CC. Respondent avers that his
total income
per month is R35 740.00 and his personal expenses were R36 745. 33
and the expenses for the trusts were R26 554.33.
He further
indicates that his total shortfall was R42 234.46.
[9]
According to the respondent the rental income of some of his
properties was paid into a bank account to which applicant has
unlimited access and transactional powers. The respondent contends
that the applicant has not made a full and frank disclosure
of her
financial position. He further avers that if same was done, it will
reveal that there was no shortfall. Respondent also
submits that he
simply cannot afford to meet the maintenance that the applicant
claims.
[10]
The applicant bears the onus to satisfy the Court that:
1.
There is an
obligation to maintain her and the minor children;
2.
That the
respondent has failed to maintain her;
3.
That
because of the failure of the respondent to maintain her, she is in
need of being maintained by the respondent;
4.
Lastly,
that the respondent has the financial means to maintain her.
[11]
At the onset it has to be indicated that the applicant acknowledges
that the respondent is already paying an amount of R12
621.28 of some
of her expenses and those of the children in her care. Over and above
these expenses the respondent pays for the
expenses relating to the
service of her vehicle and repairs.
[12]
This application is brought on the basis that the respondent should
continue to effect the expenses as more fully set out in
paragraph 18
of the applicant’s founding affidavit. [See paragraph 18.2 of
the founding affidavit.]It is clear that the applicant
has concerns
that the respondent will continue to make the said payments. In
The South African Law of Husband and wife, 5
th
Edition, by
H.R Hahlo at page 432 the learned author says:
“
As long as the
husband maintains his wife and children
adequately
,
the mere apprehension that he might no longer do so in the future is
not sufficient ground for granting an order of maintenance.”(My
emphasis)
[13]
Because of the nature of this application, the parties are obliged to
play open cards with the court about their financial
position. This
will enable the court to make an assessment of the situation of the
parties and to determine if there is a need
for payment of
maintenance, and if so how much maintenance and indeed any
contribution towards legal costs which must be made.
[14]
On the version of applicant, it is clear that the respondent is
contributing some maintenance towards the expenses of the applicant
and the two minor children of the parties who stay with the
applicant. Applicant on the other hand makes no allegation that she
also contributes any amount to the parties’ children in the
care of the applicant.
[15]
One of the requirements to be satisfied as indicated above is that
the applicant must
satisfy the court that as a result of the failure by the respondent
to maintain her, she is in need of being
maintained. Both
parties in this case have been less than candid with the court about
their financial positions.
[16]
The applicant conveniently failed to indicate in her founding
affidavit that she had a combined balance of R 59 419.21 in her
accounts. There is nothing wrong in having such an amount standing to
one’s credit as the money might be earmarked for certain
projects. What, however, is the cause for concern is the reason why
it was not disclosed in the founding affidavit.
[17]
Upon perusal of the bank statements of the applicant, Annexure WJB4,
the following become clear: On the 8
th
March 2018 there was transfer to the tune of R 70 000.00. On the
26
th
March 2018 there was a payment into the account of the applicant in
the amount of R 20 000.00. On the 27 March 2018 there
was a
further transfer to an account labelled ‘Vakansies’. This
amount was transferred back and paid over to an account
labelled
‘Egskeiding’.It is unnecessary at this stage to analyse
smaller amounts in the account of the applicant. A
clear indication
is that there has been huge amounts being transferred in and out of
the accounts of the applicant. The applicant
failed to deal with
these amounts in her founding affidavit. There is an
explanatory note in the form of Annexure WJB5 attached
to the
opposing affidavit of the respondent. The source of this document is
unknown and I will make no reference to it. Applicant
failed to deal
with these amounts in her founding statement. It is unknown what
their source is. It is unknown why they were transferred
to those
accounts.
[18]
As alluded above applicant bears the onus to satisfy the Court that
she is in need of maintenance. Due to the fact that she
has been less
than candid with the Court about her finances I am unable to make any
that applicant is need of maintenance and as
such her claim for
maintenance
pendent
lite
must fail. Specifically I am unable to find that the contribution the
applicant is already making is inadequate for herself.
[19]
With regard to the parenting rights there seems to be no dispute. I
do not believe that in circumstances where the parties
at peace with
the arrangements they already made and which arrangements have been
working, the Courts should intervene.
[20]
An amount of R 80 000.00 was transferred to an account known as
‘Egskeiding’. In the absence of an explanation
as to this
money was intended for I am tempted to suspect that it was meant for
a divorce action. I can find no reason to order
the respondent to
make any contribution towards the legal costs of the applicant.
[21]
In view of the fact that the applicant failed to show that she is in
need of maintenance, I find it unnecessary to traverse
further issues
herein including in what respect the respondent was also less frank
and candid with the Court.
[22]
With regard to the children, on the other hand, both parents have a
legal duty to maintain them in accordance with their respective
means.
I
accordingly make the following order.
ORDER
1.
The full
parental responsibilities and rights in respect of the minor
children, A, P and T as contemplated in section 18(2) of the
Children’s Act 28 of 2005, is awarded to both the applicant and
respondent.
2.
That it be
ordered that P and will primarily reside with the applicant
whilst T will primarily reside with the respondent.
3.
That the
specific parental responsibilities and rights in respect of contact
by the respondent with A and P, and the applicant with
T, be awarded
in the following manner:
3.1
the applicant and the respondent will have the right to take the
respective minor children with them on alternate weekends form
14h00
on Friday until 17h00 on the preceding Sunday;
3.2
the
applicant and the respondent will have the right to take the
respective minor children with them for alternate school holidays,
provided that the long school holiday be divided equally on the basis
that the Chirstmas school holiday shall rotate annually between
the
parties;
3.3
the
applicant and the respondent will have contact with the respective
minor children on the minor children’s birthday, the
birth of
the applicant or the respondent, Father’s Day or Mother’s
Day for at least 3 hours if the aforesaid periods
fall outside the
normal contact periods of the applicant and the respondent;
3.4
reasonable
telephonic contact.
4.
The contact
rights as referred to in paragraph 3 above shall be exercised by the
applicant and the respondent in such a manner that
al the minor
children simultaneously have contact with each of the respective
parties during the aforesaid contact periods.
5.
The
respondent is ordered to pay maintenance to the applicant in respect
of A in the amount of R6000.00 per month.
6.
The
respondent is ordered to pay maintenance to the applicant in respect
of P in the amount of R6000.00 per month.
_____________________
P.E.
MOLITSOANE,J
On
behalf of applicant: Adv WJ Groenewald
Instructed
by:
Symington
and De Kok
Bloemfontein
On
behalf of 1
st
respondent: Adv Van Aswegen
Instructed
by:
Phatsoane
Henney
Bloemfontein