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[2016] ZAFSHC 171
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M v M (3876/2016) [2016] ZAFSHC 171 (20 October 2016)
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: 3876/2016
In
the matter between:
V.
V. M.
Applicant
and
P.
M.
Respondent
HEARD
ON:
13 OCTOBER 2016
JUDGMENT
BY:
GELA, AJ
DELIVERED
ON:
20
OCTOBER 2016
[1]
This is a Rule 43 application brought by the applicant against her
husband, the respondent, for an order in the following terms:
1.
Maintenance
for the applicant in the sum of R3000.00, and R3000.00 for each child
per month
pendent
lite
.
2.
A
contribution towards the applicant’s legal costs in the amount
of R5000.00.
3.
That
the respondent be ordered to give to the applicant one of the parties
motor vehicles, namely, NISSAN ALMERA with registration
numbers
[B...].
4.
Costs
to be costs in the cause.
[2]
The parties are no longer staying together as man and wife, the
applicant having left the common home during December 2013.
She
has since instituted an action for divorce which is pending in this
court. She says that the marriage relationship between
herself
and the respondent has broken down irretrievably and there is no
reasonable prospects of a normal marriage relationship
between them.
[3]
The parties were married in community of property on the 27 April
2006. Three children were born out of this marriage
and all
three children are still minors. These children are currently
staying with the applicant.
[4]
The basis of the claim for maintenance
pendent
lite
is that though the applicant is employed her income is not enough to
support herself and the three minor children. She has
submitted
a statement of her monthly financial requirements totalling
R3102-70. She wants the respondent to contribute an
amount of
R3000-00 for herself and R3000-00 per month for each child.
[5]
She is also claiming a contribution towards the costs of her divorce
action in the amount of R5000-00. Furthermore, that
the
respondent hands over to her one of their vehicles (Nissan Almera
[B...]) for use by her and the children.
[6]
The respondent is opposing the application on the following grounds:
1.
He
denies that the applicant’s monthly expenses are true and
correct, further stating that they are inflated and unrealistic.
2.
He
also states that his monthly expenses are exceeding his monthly
income with a deficit of R880-43 per month.
3.
He
has no knowledge of the Capitec Bank loan, the African bank loan and
the African Bank credit card alleged by the applicant and
he denies
that these loans were taken up by the applicant while they were
staying together in Upington.
4.
He
alleges that when the applicant left the communal home in December
2013, it was out of her own accord and she left the respondent
with
all the debts they incurred while they were still staying together.
5.
He
further alleges that the Nissan Almera motor vehicle has serious
mechanical defects which will cost approximately R30 000-00
to
repair which is more than its current market value.
[7]
When the matter was called, the respondent’s counsel, on a
point in
limine
,
submitted that the Court had no jurisdiction to consider the issue of
maintenance for the minor children, in the light of the
order made by
the maintenance court. I was referred to
Rabie
v Rabie
1992 (2) SA (W) where an order against the respondent made by the
maintenance court for the payment of maintenance for the children
was
still existing.
[8]
In the Rabie case it was contended on behalf of the applicant that
the cases which had held that the court had no jurisdiction
where
there was a maintenance order in existence had dealt with a
post-divorce situation and were therefore distinguishable.
[9]
The Court held, that the principle had a general application and was
not to be confined to a post-divorce situation. It
was held
further, that there were no exceptional circumstances justifying the
court supplementing the order of the maintenance
court. It was
held, accordingly, that the court had no jurisdiction to deal with
the question of maintenance for the three
minor children.
[10]
The position in the matter before me is the same as in the Rabie case
(
supra
)
in that there is an existing order against the respondent, made by
the maintenance court in terms of which the respondent was
ordered to
pay an amount of R2040,00 per month towards the maintenance of the
three minor children.
[11]
It was contended on behalf of the applicant that the same Rabie case
did not shut the doors for cases where exceptional circumstances
existed justifying the court to entertain this aspect.
[12]
The existence or non-existence of exceptional circumstances is still
a matter to be determined by this court.
[13]
In
Joseph
v Joseph
1958 (4) SA 268
(SR) the court stated at 199:
“
the
ordinary rule of law is that an order made by a court can (except by
way of appeal or review in a higher court) not be varied
except by
the court itself; and in maintenance cases where there is a
change of circumstances the court which made the original
order must
be approached for variation.”
Later,
at 199H the court said the following:
“
If,
however, it be regarded not as a variation of the original order
co-existing with it, it is equally open to objection.
The
principle
nemo
debet
bis
vexari pro una et eadem causa
is fundamental in our law and is infact the basis of the rule as to
the finality of judgments …
The
existence of judgments by two
different courts each dealing with the same subject and mutually
inconsistent clearly infringes the principles.”
[14]
I have not found any exceptional circumstances in the current
matter. In my view, the exceptional circumstances referred
to
by the applicant’s counsel have no application here. It
follows therefore, that I have no jurisdiction to deal with
the
maintenance of the three minor children.
[15]
I am however able to deal with the other matters provided for in this
application which were not dealt with in the maintenance
court or any
other competent court, including maintenance of the applicant.
[16]
I have considered counsel’s argument and the papers before me
and the following order is made:
That
pendent
lite
,
the respondent shall
1.
Pay
an amount of R2000-00 per month as maintenance for the applicant,
2.
The
applicant’s claim for maintenance of the three minor children
is dismissed,
3.
The
maintenance order granted by the maintenance court in the amount of
R2040.00 in respect of the three minor children to remain
in
existence,
4.
Respondent
is further ordered to make contribution towards the applicant’s
legal costs in the amount of R5000-00, payable
at the rate f R1000-00
per month.
5.
All
payments are to commence in December 2016 and payment is to be made
on or before the 7
th
of each month.
6.
Respondent
is further ordered to hand over to the applicant one of the parties
motor vehicles, namely Nissan Almera with registration
numbers
[B...].
7.
Costs
herein shall be costs in the cause.
____________
N.
GELA, AJ
On
behalf of the applicant: Mr M Khang
Instructed
by:
Mphafi Khang Inc
No. 9
Lustitia Building
Cnr
Aliwal Street & St. Andrews
Bloemfontein
On
behalf of the respondent: Adv A Olivier
Instructed
by:
Lange Carr & Wessels Inc
Upington
c/o
H.F. Fourie
Phatshoane
Henney Inc
3
rd
Avenue No. 17
Westdene
Bloemfontein
/PK