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[2018] ZANCHC 52
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Van Schalkwyk M v Van Schalkwyk I (1982/2017) [2018] ZANCHC 52 (12 June 2018)
IN
THE HIGH COURT OF SOUTH AFRI CA
(Northern
Cape High Court, Kimberley)
Case
No: 1982/2017
Heard:
08/06/2018
issued:
12/06/2018
In
the matter between:
MAGDEL
ELIZABETH VAN SCHALKWYK
Applicant / Defendant
and
IZAK
JOHANNES VAN SCHALKWYK
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 in the circumstances
of either party or a child, or the contribution
towards costs proving
inadequate. 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 R1 7
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 R1 7
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
R3000.00
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
R5OO; 7.4 clothing
and grooming R5OO; 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 R1OO and 7.15 to be reduced
to R1OO 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, Izak Johannes Van Schalkwyk, is to contribute
maintenance to the applicant
Magdel Elizabeth Van Schalkwyk 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