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[2016] ZAECMHC 11
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L.P.R v F.M.R (2444/2015) [2016] ZAECMHC 11 (18 February 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
EASTERN
CAPE LOCAL DIVISION, MTHATHA
Case
No. 2444/2015
In
the matter between:
L.
P. R.
Applicant
And
F.
M. R.
Respondent
JUDGMENT
PAKADE
J:-
[1]
This is a judgment consequent upon the hearing of a Rule 43
application brought by the appl
icant
for an order
against
the respondent
for
contribution
to
her
costs
of
the
divorce
action
for
an amount
of
(R 10 000) ten thousand rand
plus
maintenance
of the
ir
(
7 ) seven years old chi
ld.
[2]
It appears from the statement of income filed by the parties that the
applicant's income is more than that of the respondent
and
the applicant does
not dispute this .
[3]
The award in terms of any relief sought by the applicant
pendente
lite
in a Rule 43 application is based on the need of the applicant and
the means of the respondent to afford the amount ordered against
him
to pay.
The
issue for decision will be whether the applicant needs contribution
towards the costs of divorce action or not and whether the
respondent
has means to pay those costs .
[4]
In this application, the respondent does not dispute his obligation
to maintain his child in accordance with the available means
but
dispute that the applicant needs his contribution towards the costs
of
the
divorce
action.
[5]
There are no disputed issues in the divorce action. The only dispute
concerns the joint estate which should be dealt with separately
by
the Receiver
if
jointly
appointed by the parties. The real likelihood is that the divorce may
be granted on an uncontested basis
,
thus
obviating
the
need to
inc
ur
the
costs of the first day’s appearance of counsel.
This
is over and above the obvious fact that the applicant does not need
financial assistance towards the costs of
the
divorce.
She
earns sufficiently to be able to shoulder the litigation. All what
she requires is to apply limitation on the non-essential
expenditure.
The salary slip dated 30 September 2015 reflects her monthly earning
of R 67349.49 less deduction of R 26377
leaving her with a net
salary of R 40472.49.
She
has attached no vouchers to justify her monthly expenditure of R 60
770 plus a further expenditure of R 22 150 in respect of
the child.
These
figures are unreasonable and appear to be a quest to support a
luxurious lifestyle which the respondent can ill afford. The
applicant has
not
taken
the court to her confidence and attach
vouchers
and bank statements to her application.
[6]
The respondent earns a monthly salary of R 26866.03 and a rental
income of R 2257.00 which total up to R 29123.03. His bank
statements
for August to November 2015 reflect an overdraft in his account
revolving around an arranged limit. However, he has
tendered R 5000
per month for the maintenance of the child plus an undertaking to pay
50% shortfall in her medical expenses. He
has also a duty to maintain
his other three children and pay school fees for them.
[7]
Maintenance of the spouses to each other arise
stante matrimonia
and is reciprocal in accordance with their means. It is dictated by
their need. In hoc casu non of the spouses needs support
from
the other . They are self sufficient . They , however , have a
reciprocal duty of support towards their child , Imitha . None
of
them has denounced that duty . Their contribution is proportionate
according to their means . There is no law I am aware of
which
requires the father to contribute more even if his income exceeds
that of the mother of the child . In this case I accept
the fact that
the applicant had for a considerable time shouldered the maintenance
responsibility of the child alone.
The
respondent had not contributed to the support of his child for a
period of between five and six years. That is not laudable.
The
respondent has been lax in this respect.
[8]
In the circumstances, I make th
e
following Order:
ORDER:
1.
That
the
re
spondent
pay
a sum of R
6500
per
month towards the maintenance of the minor child, Imitha,
pendente
lite
,
first
payment to commence on first March 2016 and subsequent payments to be
made on or before first of each month.
2.
That
t
he
respondent pay 50% shortfall on the medical expenses of the minor
child, Imitha as and when incurred.
3.
The
relief sought for contribution towards costs of the applicant
pendente
lite
is dismissed.
4.
The
costs of the application shall be costs in the divorce action.
_____________________
PAKADE
J
JUDGE
OF THE HIGH COURT
For
the Applicant
:
Adv Hobbs
Instructed
by
:
c/o Keightley Inc.
Attorneys
for the Applicant
Tel:
(047) 5324044
For
the Respondent :
Adv Botma
Instructed
by
:
c/o Smith Tabata Inc
Attorneys
for the Respondent
Heard
on
:
16 February 2016
Delivered
on
:
18 February 2016