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[2016] ZAFSHC 215
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U v U (4739/2016) [2016] ZAFSHC 215 (28 November 2016)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 4739/2016
In the
application between:
M.
W. U.
Applicant
and
B.
D. U.
Respondent
JUDGMENT
BY:
C REINDERS, J
DELIVERED
ON:
28 NOVEMBER 2016
[1] The
marriage boat of the U. couple has been through rough storms,
culminating in the applicant instituting divorce proceedings
on 18
August 2016. The applicant in terms of Rule 43 of the Uniform
Rules of Court moves for orders pending finalisation
of the main
action which include monthly maintenance, an amount in respect of
relocation costs, an order that she be retained as
a beneficiary on
the respondent’s medical aid scheme and a contribution towards
her legal costs.
[2] The
respondent in his opposing affidavit moves for an order that the
applicant’s application be dismissed. It is trite
that
maintenance entails amongst others the provision of accommodation,
food, clothing, a car and medical expenditure. Nowhere
in his
opposing affidavit is it denied by respondent that he provided the
applicant with the aforementioned. In fact, respondent
tenders
in his papers that he will retain the applicant as a dependant on his
medical aid scheme and I therefore do not have any
uneasiness in
granting the prayer in relation to the medical care of the applicant
pendente lite
.
[3] It is
not disputed that the applicant left the communal home in Mossel Bay
on 5 August 2016 (the reasons therefore being disputed)
with a 2008
Toyota Auris vehicle, the property of the respondent. She invites the
respondent to consent to her keeping the motor
vehicle as her
property, but does not request such an order in her prayers as she
includes expenses relating to the acquisition
of a vehicle in her
summary of monthly expenses. In reply the respondent indicates that
he is “willing to transfer”
the vehicle to the applicant.
I am satisfied that an order be granted that the applicant retain
usage of the Auris
pendente lite
, including the maintenance
of the vehicle and paying the insurance and licensing fees in
respect thereof. (See:
Van der Spuy v Van der Spuy
1980 (3) SA
638
(CPA) at 642H-643A
).
[4]
According to the respondent the applicant was employed until “at
least 2002”. From the papers it is thus clear that
the
respondent maintained the applicant at least for the last 14 years of
their 23 year marriage. It is not disputed that applicant
is
currently unemployed and left the communal home with only the Auris
and her personal clothing, finding accommodation with her
family on a
farm in Kroonstad. She avers that the present housing arrangement
cannot continue indefinitely as she would have to
move to a city like
Kroonstad or Bloemfontein in order to obtain employment. Although
respondent reacts to the listed expenses
of applicant by indicating
that they are exorbitant and that applicant “is well able to
maintain herself”, it was conceded
by counsel for the
respondent at the onset of the proceedings that the applicant is
entitled to maintenance
pendente lite.
I am indeed satisfied
that the applicant has made out a proper case that she is entitled to
such maintenance. I do not intend dealing
with every expense listed
by applicant as it was canvassed fully during hearing of argument.
[5] In
support of her prayer for relocation costs
pendente lite
, the
applicant lists expenses relating to furnishing a rental residence.
These include a bed, sofa set, television, washing machine,
crockery
and cutlery. Respondent in reaction hereto insists that the applicant
is not entitled to relocation costs in the present
application and
that the costs claimed by the applicant are excessive. That the
respondent acknowledges that the applicant would
be in need of
furnishing her home can be gleaned from his introduction before
dealing
ad seriatim
with the applicant’s founding
affidavit. He annexes correspondence relating to settlement proposals
in which he tendered
lounge, bedroom and dining room suites and a
computer from the communal home “in order to assist” the
applicant “with
her relocation”.
[6] In
pursuing his argument that I should include a separate order for
relocation costs, I was referred by the applicant to
W v W
(32130/2014) [2014] ZAGPPHC 768
. Kubushi J was prepared to
grant under a separate heading a lump sum for relocation costs.
I am not persuaded that I should
follow the decision on that basis
for the reasons stated herein later.
[7]
In supporting the submission that the applicant cannot claim for
relocation costs
pendente lite,
counsel
for respondent relied on
Greenspan v
Greenspan
2000 (2) SA 283
(C)
where
the learned judge held that lump sums cannot be awarded in terms of
Rule 43 and accordingly dismissed,
inter
alia,
the claim for cost of relocation.
In coming to this conclusion, some reliance was placed on the full
bench decision in
Zwiegelaar v
Zwiegelaar
1999 (1) SA 1182
(C) at 1184-1185.
The High Court’s decision in Zwiegelaar was overturned on
appeal by the Supreme Court of Appeal and reported as
Zwiegelaar
v Zwiegelaar
2001 (1) SA 1208
(SCA).
Chetty AJA writing on behalf of the court found as follows at 1213
par [16]:
“
Whilst
the section may envisage periodic payments these need not be equal.
In principle there can be no objection to an order which
in effect
makes provision for fixed monthly payments but in respect of one or
more months makes provision for the payment of an
increased amount,
or provides for recurring, unquantified future amounts such as
medical expenses or school fees - cf Schmidt v
Schmidt
1996 (2) SA
211
(W). In doing so, the court must of course take into account the
prospective means of the parties and the ability of the party in
respect of whom the order is made to comply therewith. By way of
example, the sum of R50 000 awarded to the appellant could have
been
spread over the first ten months and the respondent ordered to pay
R13 000 per month over that period and R8 000 per month
thereafter.
Mr Cloete did not dispute that Louw J could legitimately have done so
to give effect to what he intended.”
[8] Not
only does it go without saying that I am bound by this decision, but
I am in respectful agreement therewith. I fail to see
why the
principle enunciated would not be applicable in Rule 43 applications.
Although therefore I cannot award a separate amount
for relocation
costs I am entitled to order monthly payments (
pendente lite
)
even though those amounts may not be equal. Should I therefore find
(which I do) that the applicant as part of her maintenance
needs an
amount to relocate and the respondent can afford it, I cannot
fathom why I should not make provision therefore in
the order.
[9] In as
far as the respondent objected to the expenses listed by the
applicant for relocation as being excessive, I am in agreement
with
him. I do not intend to deal with every expense individually, but
where the applicant claims for instance an amount of R 699.00
for a
kettle, R 8 000.00 for a washing machine and R 12 290.00 in
respect of a mattress and base set, I am of the view
that she would
be able to purchase items at a more affordable price. I am satisfied
that an amount of R 30 000,00 is appropriate.
[10] The
applicant’s entitlement to maintenance
pendente lite
is
dependent upon the marital standard of living of the parties, the
applicant’s actual and reasonable requirements and the
capacity
of the respondent to meet such requirement. The respondent, a
property developer and sole proprietor of,
inter alia
, U.
Ontwikkelings, avers that he earns a net monthly income of
approximately R 29 527.00. He stresses that this is an
“estimate”.
Applicant invited the respondent to fully
deal with his income. He elected to do so by annexing the South
African Revenue Service
ITA34 documentation in respect of U.
Ontwikkelings instead of banking statements reflecting his personal
income. The respondent
is the owner of several vehicles and
properties, including the communal home which he alleges is worth
between R4 and R5 million.
The applicant annexes proof that the said
property is marketed currently for R 13 750 000.00. I have my
serious doubts weather
respondent disclosed his full income to me and
it suffices to say that I am satisfied that he would be able to
comply with the
orders I intend to make.
[11] It
is trite law that each case under this subrule should depend upon its
own particular facts. (
See: Taute v Taute
1974 (2) SA 675
(E)
.
Maintenance
pendente lite
cannot be meticulously calculated,
but in all the circumstances I consider an amount of R 15 000.00
to be the applicant’s
reasonable monthly need for maintenance.
I am further persuaded that in order for her to leave the farm and
relocate she would
have a further need for maintenance initially in
the amount of R 30 000,00. Applying the principle laid down in
Zwiegelaar
supra
I intend to have these needs
reflected in the maintenance amount by ordering respondent to pay
maintenance on a monthly basis albeit
unequal amounts. I am also
satisfied that the applicant has made out a proper case for a
contribution towards her legal costs as
prayed for.
[12]
Accordingly I grant the following order
pendente lite
:
1.
The respondent to pay maintenance to the
applicant as follows:
1.1
R30 000.00 before or on 10 December
2016.
1.2
R30 000.00 before or on 3 January
2017.
1.3
R15 000.00 before or on 3 February
2017 and thereafter before or on the 3
rd
of every subsequent month.
2.
The respondent to retain the applicant as a
beneficiary on his medical aid scheme and in addition thereto pay all
reasonable medical
costs not covered by the said scheme.
3.
The respondent to make available the Toyota
Auris motor vehicle to the applicant, maintain it and pay the
insurance and licensing
fees in relation thereto.
4.
The respondent is ordered to make a
contribution towards the legal costs of the applicant in the amount
of R 5 500,00 on or
before 7 January 2017.
5.
Costs of this application is costs in the
main cause.
________________
C.
REINDERS, J
On behalf
of the applicant:
Adv. A. Sander
Instructed by:
Hill, McHardy & Herbst Inc.
BLOEMFONTEIN
On behalf
of the respondents: Adv.
Instructed by:
Beukes & Sonja
Nel Attorneys
c/o Wessels &
Smith
BLOEMFONTEIN