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[2018] ZANCHC 45
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M.E.V.S v I.J.V.S (1982/2017) [2018] ZANCHC 45 (12 June 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case No:
1982/2017
Heard:
08/06/2018
issued:
12/06/2018
In
the matter between:
M.
E. V. S.
Applicant
/
D
efendant
and
I.
J. V. S.
Respondent/
Plaintiff
JUDGMENT
MAMOSEBO
J
[1]
This is an application in terms of Rule 43(6)
[1]
of the Uniform
Rules of Court for an
order
pendente lite
from
01 July 2018 in the following terms:
1.1
That the respondent pay the applicant R17 000.00 per
month, on or before the first day of the month
following the granting
of an order herein, and thereafter, on or before the first day of
each succeeding month into an account
nominated by applicant, without
deduction or set off;
1.2
That the respondent retain the applicant as a dependant on the
medical aid on which she is currently a dependant
(Discovery Coastal
Saver) or reinstating her as a dependant in the event that respondent
has removed her from the medical aid,
or by placing her on a scheme
with analogous benefits to his scheme and by paying the premiums as
well as any escalations thereon
in respect of her cover. Should the
applicant’s medical expenses exceed the medical aid cover or
should her medical expenses
not be covered by the medical aid plan,
respondent shall bear the cost of all expenditure in respect of her
medical, dental, surgical,
hospital, orthodontic and ophthalmological
treatment including but not limited to any sums payable to a
physiotherapist,
psychiatrist, psychologist and pharmaceutical
expenses incurred on prescription and the provision where necessary
of spectacles
and/or contact lenses.
1.3
That the respondent shall pay a further contribution to applicant’s
costs in the amount of R250 000.
00, such sum to be paid
directly to applicant’s attorney of record within 10 days of an
order herein;
1.4
That the respondent pays the costs of this application.
[2]
It is apposite that I redirect this process before dealing with the
application before me. Only two affidavits are required
to argue a
Rule 43 application in court. The applicant must, in terms of Rule
43(2) deliver a sworn statement in a form of a declaration
setting
out the relief sought and his or her grounds therefor, together with
a notice to the respondent as near as may be in accordance
with Form
17 of the First Schedule. The respondent will then, within ten days
of receipt, deliver a sworn reply in the nature of
a plea.
The
applicant has in this case filed a supplementary affidavit.
Interestingly, while the supplementary affidavit was meant to reply
to the respondent’s contentions, it has failed to do so. It is
trite that rules are there for the parties to
comply
with them and not to be ignored.
[3]
The applicant is a 56 year old woman married to the respondent on 04
October 2015 out of community of property and the marriage
still
subsists. On 20 October 2017 Phatshoane J granted the
applicant an order
pendente
lite
for
the maintenance in the sum of R17 000.00 per month for 8 months,
that the respondent retain her as a dependant in his medical
aid
(Discovery Coastal Saver), that he allow her the use of his
Toyota Legend Hilux bakkie during the subsistence of the
marriage and
for him to pay a contribution towards the applicant’s legal
costs in the amount of R45 000.00 directly
into her attorney’s
bank account within 30 days of that order. No order was made in
respect of the costs in that application.
[4]
At the time of Phatshoane J’s order the applicant was
unemployed. She now says her circumstances have changed hence this
application before me.
Maintenance
[5]
The respondent was ordered to pay maintenance in the amount of
R17 000 to the applicant when she was unemployed. She is
asking
that he should continue to pay the same amount for the next 4 months
until 09 October 2018 when the divorce action will
be heard. The
respondent has, in his reply to her founding papers, placed in
dispute her averment that she earns R4000 .00
and invited her to
furnish her payslip. She has failed to do so. The reason for this
failure has not been explained. She now has
the benefit of a salary,
free accommodation, a weekly meat supply from her employer and free
water and electricity usage. The respondent
has contended that she
has use of the Isuzu bakkie that belongs to her employer which is
also filled with fuel by her employer.
The applicant has, however,
remained adamant that she does not use the bakkie for her private
purposes.
[6]
The applicant has, in my view, not been open and frank with the court
in respect of her earnings. I have to, unfortunately,
agree with the
respondent that a payslip would have been conclusive proof of her
earnings. The fact that she earns R4000.00, which
is disputed, and
receives other benefits which make her living better necessitates a
review in the maintenance amount
pendente
lite.
I
agree with the views expressed by Hart AJ in
Taute
v Taute
[2]
which said:
“
A
claim supported by reasonable and moderate details carries
more weight than one which includes extravagant or
extortionable demands – similarly more weight will be attached
to the affidavit of a respondent who evinces a willingness
to
implement his lawful obligations than to one who is obviously, albeit
on paper, seeking to evade them.”
[7]
The applicant gives the following particulars of her monthly
requirements made up of the R17 000 from the respondent and
R4 000 of her monthly wage to the total of R21 000:
Attorney’s
monthly fee
R5 000.00
Father’s
repayment
R2 000.00
Saamstaan
Cooperation for groceries
R3 000.00
________
Total
R10 000.00
The
remaining R11 000 is utilised as follows:
7.1
Groceries and cleaning material
R3 500.00
7.2
Electricity and gas
R 1000.00
7.3
Petrol/Diesel
R1 500.00
7.4
Clothing and grooming
R 1 000.00
7.5
Cellphone
R550.00
7.6
DSTV
R 825.00
7.7
Entertainment
R500.00
7.8
Pet food
R700.00
7.9
Plants, fertiliser
R300.00
7.10
Toiletries
R250.00
7.11
Church contributions
R50.00
7.12
Gifts
R100.00
7.13
Reading material
R 100.00
7.14
Bank charges
R 200.00
7.15
Non-prescription medicine
R300.00
________
R10 775.00
[8]
In his replying affidavit, the respondent accepted to continue with
the maintenance
pendente
lite
but contended that the reason for the 8 month period by Phatshoane J
was for the maintenance to subsist until the finalisation
of the
divorce action but, according to him, the applicant is
delaying the proceedings which resulted in failure to secure
an
earlier trial date. He disputes that the applicant is receiving a
meagre R4000.00 because she is a supervisor and her employer
is
regarded as a “Mega Farmer” who remunerates his employees
above average salaries, a submission which was not disputed
by the
applicant. She has only disclosed free accommodation and a salary of
R4000 but failed to disclose that she is enjoying a
weekly supply of
meat and the use of the Isuzu bakkie which the employer fills with
diesel.
[9]
The respondent has agreed with the suggested amounts in the following
items: 7.5 cellphone; 7.6 DSTV; 7.7 Entertainment; 7.10
toiletries;
7.11 church contributions; 7.12 gifts and 7.13 reading
material. Counsel for the respondent argued, however,
that the
following items be reduced as indicated: item 7.1 to R3000; 7.2 there
should be no contribution towards electricity and
gas as she is
receiving them for free from her employer; 7.3 towards petrol/diesel
R500; 7.4 clothing and grooming R500; 7.8 pet
food R350; 7.9 there is
no need to budget for plants and fertiliser as she is residing in the
landlord’s premises and cannot
be planting her own plants; 7.14
on bank charges to be halved to R100 and 7.15 to be reduced to R100
which brings the total
need to R6925 per month. Counsel argued
that since there is no proof from the founding papers that the
applicant is contributing
the R5 000 towards her attorneys,
R2000 towards her father as a loan repayment and R3000 towards
Saamstaan, the Court should
disregard those amounts. If the
Court is with the respondent on that submission, it would then mean
that from the revised
R6925 if the Court considers that she earns
R4000 then she will only have a shortfall of R2925 which can be
rounded off to R3000.
The respondent therefore submits that he is
willing to contribute R3000 towards the maintenance
pendente lite
until the first day of trial (09 October 2018).
Medical
Aid contribution
[10]
In as far as her retention on the medical aid is concerned, the
respondent contended that he is willing to retain her as beneficiary
on his medical aid but be liable only for reasonable medical expenses
which are not covered by the medical aid until 10 October
2018 when
the divorce is finalised.
The
Toyota Hilux Legend bakkie
[11]
The respondent maintains that the applicant should return the Toyota
Legend Hilux because she has the use of her employer’s
bakkie
where diesel/petrol is also catered for. Although the applicant
argues that the bakkie allocated is not for private use,
there was
nothing filed to substantiate her submission.
Contribution
towards legal costs
[12]
What seems to be the main bone of contention is the contribution by
the respondent towards the legal costs that the applicant
is
claiming. When the matter came before Phatshoane J, consideration was
made of the applicant’s need to call an expert as
well as legal
costs when an order of R45 000.00 was awarded, submitted counsel
for the respondent. The applicant seems to
be making the same
submission without any supporting documentation. The respondent
contends that despite the fact that he has invited
the applicant to
show by a bill of costs how her attorney’s fees was R104 638.54
as at 31 March 2018 and expected to
reach R250.000 up to the first
day of trial, the applicant has failed to do so and failed to furnish
any explanation for the failure.
It was argued on behalf of the
respondent that the applicant should make a proper application at a
later stage for this
contribution towards costs as at this stage no
proper case has been made for the Court to rule in her favour.
[13]
There is an old saying “money does not fall from trees it is
earned”. When the respondent or any other person for
that
matter, requests for a breakdown in terms of how his money should be
spent, this request in my view, is not unreasonable
particularly
because the same need of an expert and legal fees was previously
argued before Phatshoane J. It should be remembered
that the payslip
was also not furnished to show how much the applicant is
really earning. This is not good accounting practices
even if it were
assumed that the respondent was filthy rich and what the applicant
was seeking was a tip of the iceberg. There
must still be documents
to support the averments. I do not think the applicant has made
out a case on the papers why her
legal fees should be increased to
R250 000.00 payable by the respondent when what is expected from
the respondent is to make
a contribution towards her legal fees. In
Nicholson
v Nicholson
[3]
Wunsh J remarked
as follows pertaining to cost contribution:
“
The
applicant is entitled, if the respondent has the means and she does
not have them, to be placed in the position adequately to
present her
case, relevant factors being the scale on which the respondent is
litigating and the scale on which the applicant intends
litigating (I
would have qualified this by reference to what is reasonable having
regard to what is involved in the case), with
due regard being had to
the respondent’s financial position.”
[14]
Counsel for the applicant referred me to the Full Bench unreported
decision of this Court in
Bekker
v Bekker
[4]
.
This
was an appeal and not a Rule 43 application. The appellant in that
case appealed against the order of the court
a
quo
for
the maintenance of R2500 per month to his divorced wife contending
that his ex-wife had the means while he on the other hand
could
not afford the stipulated amount. The facts are not similar to the
case before me.
[15]
Coming back to the facts of this case, having regard to the changed
circumstances of the applicant being employed, it has not
been shown
neither is there any justification for the respondent to continue to
pay R17 000.00
pendente
lite
,
even if it may be for the next four months. I am also not
persuaded by the submissions that the applicant is paying R5000.00
per month towards her attorney’s fees, R3000.00 towards
Saamstaan and R2000.00 towards her father’s repayment because
there was no supporting documentation to that effect. As a
result, these figures will not be considered.
[16]
The parties are still married to each other and there is no reason
why the applicant cannot keep the Isuzu bakkie until the
divorce
action when the circumstances around the division of the joint
estate will be fully ventilated.
Besides, her argument that the
bakkie by her employer is only for work-related purposes is sensible.
In the meantime, there is
no reason for me to order otherwise. I am
mindful of the remarks made by Van den Heever J in
Nilsson
v Nilsson
[5]
where the
following was emphasised
:
“
Primarily,
Rule 43 was envisaged to provide temporary assistance for
women…………..It was not created to
give an
interim meal-ticket to women who quite clearly at the trial would not
be able to establish a right to maintenance.”
The
following pronouncements by Van den Heever J are also apposite
[6]
:
“
The
shorter the duration of a marriage, the more important the conduct of
the parties within the relationship – their respective
“guilt”
or “innocence” – would ordinarily be in relation to
the question whether maintenance should
be paid at all, outside of
cases where the marriage itself resulted in a loss: for example
because of loss of previous alimony
or a usufruct or perhaps of other
marriage prospects, or by reason of resignation from employment.”
[17]
I am not persuaded either, by the applicant’s submissions in
respect of the contribution
by the
respondent towards costs since she has not made out a case on
the papers. Once the applicant has sorted
her
documentation she can still launch
another application and her door to litigation
is not shut by my
findings.
[18]
That being said, I make the following order:
(1)
That
the respondent, I. J. V. S., is to contribute maintenance to the
applicant M. E. V. S.in the amount of
R_6 000.00
per month
pendente
lite,
until
the 1
st
of October 2018.
(2)
That
the applicant is to retain the use of the Isuzu bakkie until the main
divorce action.
(3)
That the respondent retain the applicant as beneficiary on his
medical aid fund and be liable for all of their
reasonable
medical expenses which are not covered by the medical aid
until 10 October 2018.
(4)
The costs of this application
will be costs in the divorce action.
____________________________
M
C MAMOSEBO
JUDGE
Northern
Cape High Court, Kimberley
On
behalf of the Applicant:
Adv SL Erasmus
Instructed by:
Duncan & Rothman Attorneys
On
behalf of the Respondent:
Adv AS Sieberhagen
Instructed
by:
Haarhoffs
Attorneys
[1]
Rule 43(6) stipulates:
(6) The court may, on the same
procedure, vary its decision in the event of a material change
taking place in the circumstances
of either party or a child, or the
contribution towards costs proving inadequate.
[2]
[1974] 2 All SA 312 (E)
[3]
1998 (1) SA 48
(WLD at 50C – D
[4]
Case No 685/2004 delivered 21/05/2010
[5]
1984 (2) SA 294
(CPD) at 295E - F
[6]
At 297H