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[2017] ZAGPPHC 388
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B v B (15804/2017) [2017] ZAGPPHC 388 (26 April 2017)
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
GAUTENG
DIVISION,
PRETORIA.
CASE
NO: 15804/2017
DATE:
15804/2017
In
the matter between:
H.
T.
B.
Applicant
and
C.
B.
Respondent
JUDGMENT
MOTHLEJ
1.
Harmatien Brits
("the
Applicant')
launched
an application against C. B.
("the Respondent")
for
payment of maintenance and contribution towards legal costs,
pedente
lite
in terms of Rule 43 of the Uniform Rules of Court.
2.
The Applicant and the Respondent were married to each other on
13 December 2003 out of community of property. No children were born
of the marriage relationship between them. The Respondent left the
common home on 9 March 2016. A year later on 6 March 2017, the
Applicant delivered the divorce summons, together with this Rule 43
application.
3.
The Applicant alleges that prior to their marriage; both were
employed as members of the South African Police Service. She held the
rank of Warrant Officer, while he held the rank of Assistant
Director. The Applicant further alleges that she was convinced by
the
Respondent to retire from the SAPS and claim her pension of
approximately R500 000.00 to invest in a Guesthouse, called Tree
House and registered in the name of the Respondent.
4.
It is further alleged by the Applicant that she worked at the
Guesthouse until 2011 when the parties moved to Pretoria. The
Applicant's
son took over the business until 2016 when it was
leased out by the Respondent to a third party, at a monthly
rental
of R27 000.00 which the Applicant contends is being paid to
the Respondent.
5.
The Respondent denies the Applicant's allegations. He contends
that the Respondent resigned from SAPS on her own accord and
he
does not know what she did with her pension pay-out. He further
alleges that the Guesthouse business was badly managed
to the
extent that the banks intervened with foreclosure. The Respondent
further adds that the Applicant has not been looking for
work when
they arrived in Pretoria and she presently occupies a three bedroomed
house rented at a cost of R8 000.00 per month.
6.
The essence of the Applicant's claim is a demand for payment
of monthly maintenance of R18 665, 59; a payment of R10 000.00 into
her bank account and costs of all reasonable medical expenses. The
Applicant further demands relief which includes payments for
her
monthly life insurance policy, instalments of the vehicle with its
insurance as well as transfer of the vehicle, a Mercedes
Benz A 200
in her name and thereafter replace it with a similar vehicle of no
less than R350 000.00 in value. She further
claims for
contribution towards legal costs.
7.
The Respondent contents that he is no longer employed
and only earn an income as an independent consultant. He can only
afford R13 000.00 per month as maintenance payment to the Applicant.
He further submits that the Applicant resides alone in a three
bedroomed house at the costs of R8000.00 rental and R900.00 water
bill per month. She refuses to move to a cheaper dwelling.
8.
It is common practice for parties in a rule 43 application
to provide the courts with disputed versions on the papers. Such
is
the position in the case. In
Taute v Taute
1974 (2) SA 675
the
Court held that a claim supported by reasonable and moderate details
carries more weight than one which includes extravagant
or
extortionate demands. Similarly,
Van Den Heever J in Nilsson v
Nilsson
1984 (2) SA 294
(CJ
writes as follows:
"Primarily
Rule 43 was envisaged to provide temporary assistance for women, who
had given up careers or potential careers for
the sake of matrimony
with or without maternity, until such time as at
a
trial and
after hearing evidence, maintenance claims and, if children had been
born, custody claims could be properly determined.
It was not created
to give an interim meal ticket to women who quiet clearly at the
trial would not be able to
establish
a
right to maintenance."
9.
At the hearing of this Application, the Applicant conceded
that certain amounts claimed were more than reasonable. The revised
claim
came to R26 000, 00 per month, including accommodation,
maintenance, transport and contribution towards legal costs.
10.
However, the Respondent offers half of that amount, being R13
000, 00 all inclusive and submits that the Applicant should move to
a
cheaper residence.
11.
The Applicant alleges in the founding affidavit that the
Respondent was a director of ten companies, from which he resigned
the
same day on 10 March 2017, after she told him that she will be
filing for divorce and a rule 43 application, which she did on 6
March 2017. The companies from which the Respondent resigned his
directorship are listed in the affidavit.
12.
In reply, the Respondent starts off in paragraph 27 of his
answering affidavit by denying that he resigned from the ten
companies
on that date. He then proceeds to provide what I can only
describe as a convoluted explanation as to his intention to resign,
(meaning
in future), due to the credit record he has and also
corporate governance compliance issues. On the contrary, the majority
copies
of the search from the companies records attached to the
founding affidavit, clearly contradicts his statement and denials
that
he has resigned but intents to do so.
13.
It would appear that the Respondent is not entirely candid
with the court. Except to plead that he has no sufficient income and
that the Applicant must vacate the residence for a cheaper dwelling,
the Respondent is failing to persuade this court that he is
genuinely
unable to pay the revised maintenance amount claimed. He has failed
to make out a case in support of his contentions.
14.
I am therefore of the view that the Respondent must be ordered
to pay maintenance pending the conclusion of the divorce proceedings.
The Applicant cannot be expected to have a different life style now
that the Respondent has left the common home. I find that her
revised
claim for maintenance
pedente
lite is fair and reasonable.
15.
In the premises I make the following order:
1.
The Applicant's claim for her own maintenance
pedente lite
is
granted with effect from April 2017 as follows:
2.
Pending the conclusion of the divorce proceedings between the
parties, the Respondent is ordered to pay
to the Applicant
2.1
a monthly maintenance of eight thousand rand (R8 000.00) to the
Applicant;
2.2
an amount of eight thousand five hundred
rand (R8 500.00) per month for the Applicant's
accommodation;
2.3
a contribution of three thousand five hundred rand (R3 500.00)
for the Applicant's transport;
2.4
all medical costs of the Applicant;
2.5
seven thousand rand (R7 000.00) contribution towards the Applicant's
legal costs; and
2.6
the costs of this application on a normal party-party scale.
____________________
JUDGE
SP MOTHLE
Judge
of the High Court
Gauteng
Division, Pretoria.