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[2017] ZAFSHC 98
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B v B (2243/2017) [2017] ZAFSHC 98 (15 June 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,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
2243/2017
In
the application between:
C.
B.
Applicant
and
H.
B.
Respondent
HEARD
ON:
8 JUNE
2017
JUDGMENT
BY:
RAMDEYAL, AJ
DELIVERED
ON:
15 JUNE 2017
[1]
The Applicant approaches this court in terms of Rule 43 of the
Uniform Rules for interim relief pending divorce.
[2]
The parties are married and are currently engaged in a divorce action
which is pending in this Court.
[3]
It is common cause that the Applicant and the minor child, of both
parties, are currently living in the matrimonial home and
are also
using the Respondent’s Toyota Hilux motor vehicle.
[4]
The Respondent pays for the house and vehicle.
[5]
It is further common cause that the Respondent pays for the taxes,
rates and water bill for the house, a Vodacom bill for his
laptop
used by the Applicant, school fees and other related expenses for the
child, maintenance for the child and pays for the
Applicant and the
child as registered members on his Discovery Medical Aid.
[6]
He is willing to continue to do so. The Respondent opposes the
application for maintenance for the Applicant and the child
in the
amount of R14 000.00, being R10 000.00 for the Applicant
and R4000.00 for the child respectively. He opposes
any further
financial payments required by the Applicant as he claims that he is
not in a financial position to do so.
[7]
He further opposes the application on the grounds that the
Applicant’s financial disclosure is not a true reflection of
her earning, that she actually earns more than him as contemplated in
his opposing affidavit and that her application is unreasonable.
[8]
In
Botha
v Botha
2009 (3) SA 89
(WLD) at 106 C
it was held that the purpose of interim maintenance is to supplement
expenses which the Applicant cannot meet however, in terms
of Rule
43, such maintenance must be reasonable in the circumstances;
depending upon the marital standard of living of the parties,
the
Applicant’s actual and reasonable requirements and the capacity
of the Respondent to meet the requirements.
[9]
In doing so, the court must establish whether the Respondent can
further supplement the expenses of the Applicant which she
apparently
cannot meet.
[10]
Indeed there has been co-operation and willingness on the part of the
Respondent. The Court must determine whether he
has the
capacity to make further financial contributions to the Applicant’s
expenses.
[11]
It is so that the Applicant and Respondent lived a comfortable life
style when they lived together on a combined income.
[12]
The Respondent no longer lives at the matrimonial home. He
lives with his parents at their home. According to his
salary
advice, which is not specifically in dispute, he earns a nett salary
of R29,288.81. Counsel for the Applicant contends
that the
Respondents expenses as disclosed in his opposing affidavit is not a
correct reflection as it makes no room for his personal
expenses.
[13]
The Respondent, in paragraph 7 of his affidavit sets out that he
cannot even make a contribution towards his parents expenses
where he
currently resides.
[14]
In light of common cause factors, such as almost two-thirds of his
salary being used for the Applicant and child, together
with expenses
he has incurred and must pay, it is apparent that there are no
surplus funds.
[15]
In fact, it leaves him in a dire financial state with an incapacity
to meet any further financial expenses of the Applicant.
[16]
Some of the Applicant’s expenses in my view does appear to be
unreasonable.
[17]
In
Taute
v Taute 1974 (2) SA at 675
it was held that:
“…
A claim
supported by reasonable and moderate details carries more weight than
one which includes extravagant or extortionate 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...”
[18]
In Taute’s case the court dismissed the Rule 43 application
with costs and found ‘no reasons for the Applicant
to have come
to court.’
The
Court further held that her action in doing so incurred further and
unwarranted costs and found no reason to depart from the
ordinary
rule that the unsuccessful party should bear the costs.
[19]
In spite of the Respondent’s dire financial state, he is still
willing to continue to pay as he is and does not seek
a dismissal of
the application with costs.
[20]
The court now turns to the aspects concerning the custody and access
of the minor child. The ordinary principles apply,
namely the
best interest of the child concerned. The matter may be
referred to the Family Advocate for a report for the purpose
of
disposing of the application.
See
Willies
v Willies
1973 (3) SA 257
(D)
.
[21]
It is not in dispute thus far that the minor child reside with the
Applicant. Contact and access rights of the Respondent
with the
said minor child is also not in dispute; but restricted.
[22]
The Applicant seeks an interim order for the Respondent to have
visitation rights only on a Saturday with the said minor child
at his
parents home under the supervision of the Respondent’s mother.
[23]
The Respondent disputes this and wants more unsupervised contact
during the week as well.
[24]
It is common cause that the Respondent abused alcohol and had related
incidents as a result of same.
There
are also allegations of drug usage and the Applicant is concerned
about the minor child’s safety.
Visitation
during the course of the week could also be disruptive to a 4 year
old who also attends extra murals.
[25]
The court as the Upper Guardian of all children must rule in the best
interests of the minor child taking into consideration
all the
information it has.
[26]
Since contact with the minor child and the Respondent has continued
since he left the matrimonial home, the court finds no
reason to
prevent same at this stage, especially if it is at his parents home
and under the supervision of the Respondent’s
mother.
[27]
However, this is only interim and an enquiry and report from the
Family Advocate pertaining to all aspects in terms of Section
18(2)
of the Children’s Act 38 of 2005 is imperative before
finalization of this Divorce matter in order for the court to
further
determine the best interests of the said minor child.
Accordingly,
the court makes the following interim orders:
i)
Primary
care of the minor child is awarded to the Applicant; whereby the
minor child is to reside with her.
ii)
The
Respondent is allowed reasonable telephonic contact during the week
and visitation with the child at his parents home every
Saturday
between 10h00 and 17h00 to be supervised by his mother (as is
currently in place).
iii)
A Family
Advocate Report is to be requested and compiled to determine the best
interests of the child hereafter.
iv)
The
Applicant and the minor child are to continue to live at [...] B. R.,
Westdene, Bloemfontein and to use and keep the Toyota
Hilux LDV;
payments in respect of the house and vehicle are to be paid for by
the Respondent.
v)
The
Respondent is to pay all other reasonable medical expenses for the
Applicant and child and to continue to keep both of them
on his
Discovery Medical Aid and to pay their contributory portions.
vi)
The
Respondent is to pay the rates, taxes and water bill for the said
house.
vii)
The
Respondent is to pay schools fees and extra murals for the child.
viii)
The
Respondent is to pay maintenance for the child in the amount of
R1125.00.
ix)
Costs of
this application to be costs in the cause.
________________
T.
RAMDEYAL, AJ
On
behalf of the Applicant:
Honey Attorneys
Instructed
by:
Adv. J.C Coetzer
BLOEMFONTEIN
On
behalf of the Respondent:
Spangenberg Zietsman & Bloem
Instructed
by:
Adv. W.A van Aswegen
BLOEMFONTEIN