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[2016] ZAGPPHC 374
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S v S (11443/20016) [2016] ZAGPPHC 374 (25 May 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
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 11443/20016
In
the matter between
T S (BORN:
J)
.......................................................................................................................
APPLICANT
(Identity No.: 74….)
And
DR S G S (Identity No.:
71.)
.............................................................................................
RESPONDENT
JUDGMENT
MADIMA. AJ
1.
The Applicant is a house wife. The
Respondent is a Specialist Physician in Benoni. They married each
other on 25 November 1995 out
of community of property with the
exclusion of the accrual system. The marriage still subsists.
They are parents to two
minor children, a girl, A and a boy, C
, born on
27 July 2010 and 2 October 2015 respectively.
The Respondent instituted divorce
proceedings against the plaintiff on 20 November 2015 and seeks inter
alia the following relief:
(a)
. A decree of divorce;
(b)
. That both retain full parental
responsibilities and rights in terms of Section 18(2)(a), Section 19
and Section 20 of the Children’s
Act 38 of 2005;
(c)
. That the primary residence of the
minor children be vested in the applicant subject to reasonable
rights of contact in terms of
which he seeks defined contact orders
pertaining to the minor children dependent on their ages;
(d)
. An order that the Respondent pay
maintenance for the minor children in the sum of R3, 000.00 per month
on/or before the first
day of each and every month;
(e)
. That the Respondent maintain the minor
children on his Medical Aid and that he bear the reasonable costs of
expenditure not covered
by the said Medical Aid;
(f)
. The Respondent to effect payment of
the minor children’s educational costs, including school fees,
the cost of two extra
curricula and sporting activities, school
outings, school camps, school books, school uniforms, equipment and
attire relating to
the minor children’s education, sporting
and/or extramural activities engaged in by the minor children;
(g)
. That the Respondent pay rehabilitative
maintenance to me in the sum of R10, 000.00 per month commencing on 1
December 2015 for
a period of twelve months;
(h)
. That the Respondent retain me on his
Medical Aid for a period of twelve months calculated from 1 December
2015;
(i)
. That the Applicant pays the costs of
the divorce action.
The
Applicant and Respondent, despite the breakdown of the marriage still
reside together with the minor children in the matrimonial
home.
The
Applicant in this Rule 43 application seeks maintenance pendente
lite, and a contribution to legal costs.
The
Respondent is a very successful specialist physician. The Applicant
should know as she used to work for the respondent as his
bookkeeper
and performed other administrative duties
.
The
Applicant holds a B.Com Honors degree in Industrial Psychology and a
Post- Graduate Certificate in Education. She use
d to teach at
[…]
in tandem with her bookkeeping
duties at the respondent’s practice. She quit her
teachin
g job after the birth of A
and s
tayed home to look after A
fulltime. The Applicant however continued to perform the bookkeeping
function from home. The Respondent paid the plaintiff a salary
of R14
500.00 per month for her services in his practice.
7.
The Applicant used part of her salary to
buy household items such as groceries and other requirements of the
minor children. She
was able to save approximately R2 000.00 per
month from her salary.
8.
The Applicant also has an investment of
R93 808.61 with First National Bank and another totaling R269 984.92
with ABSA Bank. The
tension between the applicant and Respondent
forced the applicant to resign from her bookkeeping job with the
Respondent in May
2015 and she has been a house wife with a consent
and acquiescence of the respondent. She has not had any source of
income since
then and has used her savings and investment for the
running of the household.
9.
The Applicant claims further that she
has not had access to the petty cash account of the Respondent’s
practice since May
2015. Before their marital problems, the Applicant
had free access to the account, and used such funds to purchase items
for the
home and her own expenses.
10.
The expenses pertaining to the children
are paid for from her credit card for which she is refunded by the
respondent upon production
of a receipt. The Applicant is also on
occasions entitled to approach the Respondent’s mother for cash
to purchase prior
agreed to items.
11.
It is important to note that the
plaintiff’s
requests for funds are
never denied by the Respondent or the Respondent’s mother save
to state that she is required on every
given occasion to account to
the Respondent and his mother. The Applicant complains that the
accounting to the Respondent and his
mother is a new development
which started after the institution of the divorce proceedings.
12.
The Applicant states the Respondent
earns vast amounts of monies, however only pays for the Applicant’s
petrol expenses. She
requires cash payments of maintenance in respect
of her own lifestyle as well as that of the children. The parties’
overall
lifestyle is extremely high because of the excessive amounts
of income of the Respondent. The family eats out or has takeaways
five times per week and go on expensive holidays. They live in a R7
million rand property. The Respondent earned approximately five
million rand from his practice in the past financial year.
13.
The Respondent’s expenses were
approximately R808 667.00 in the past year which left a profit before
tax of R4.6 million thus
earning a net income of R226
, 167.00
per month.
14.
The Respondent has another immovabl
e
property situate at [I…..] [G….] [E…] in [R…..],
[B…..]
, valued at approximately R1 300
000.00 which has a negligible bond. This property is rented out to
tenants who pay R15 000.00 per
month.
15.
The Applicant is unable to work because
she has to look after t
he children especially C
who suffers from a bad reflux and has to be monitored continuously.
The Applicant concludes by stating that her reasonable monthly
expenses are in the order of R36 684. She provides a breakdown of
same in her affidavit.
16.
The Respondent in his answer to the
maintenance pendent life claim states that the Applicant is abusing
the court process and is
not bona fide. She has inflated her
expenses.
17.
The Respondent takes proper care and
fully maintains the Applicant and their children. There is no reason
to bring this application.
Apart from the Respondent’s ability
and willingness to support the Applicant and their children the
Applicant has her own
investments totaling R93 808.61 and R269
984.92. The Respondent claims that the applicant, with her funds is
hardly anyone in need
of personal maintenance.
18.
The Respondent further states that the
Applicant cannot expect to be fully maintained by him. She is 41
years old. She holds a B.Com
Honours Industrial Psychology degree and
a Post Graduate Certificate in Education. Over and above that the
applicant has a B.Compt
qualification which qualifies her to work as
an accountant.
19.
The Respondent states further that the
applicant suffers from a bipolar condition. He should know. He is a
medical doctor. One of
the symptoms is or consequence of the
condition id that the patients are inclined to spend excessively and
unnecessarily. The Applicant
has been spending vast sums of monies
without a proper explanation. That is the reason the Respondent
curtailed the spending by
withdrawing her access to his bank
accounts. He is of the view that the Applicant’s rule 43
application should not succeed.
20.
There is little doubt that the Applicant
is able bodied and has the academic qualifications to secure a job
for herself in no time.
A B.Compt degree is a rare and useful
qualification. Graduates do not struggle to secure employment.
21.
It is also not disputed that the
Respondent indeed does maintain his wife and minor children. It might
not be to the extent envisaged
or desired by the Applicant. The
Applicant has admitted that the Respondent and/or his mother give her
cash. Her beef with the
provision of this cash is that she has to
account for her purchases. In the past she did not have to account to
anyone.
22.
It does not seem fair that the Applicant
should have carte blanche on the bank accounts of the Respondent and
spend monies without
accounting. The Respondent has been more than
fair to the Applicant. Whilst I am alive to the fact that things are
no longer what
they used to be between the Applicant and Respondent,
I am of the view that the Respondent has an obligation to maintain
his wife
in a more controlled manner. The applicant has spent close
to half her entire life as the wife of the Respondent. Surely that
should
in itself count for something.
23.
The Applicant must in due course go out
and look for a job to support herself. However in the meantime, the
Respondent ought to
look after her more especially that she
still must nurse baby C
and his sister.
24.
Having considered all of the facts at my
disposal I make the following Order pendent lite:
24.1.
The Applicant and the minor children be
entitled to occup
y the common home situate at 3.. C….
of L… B…., D…. L…. E…., B….
E…
15, Kempton Park, Gauteng (“the
common home”).
24.2.
The Respondent is ordered and directed
to make monthly payment or continue to make monthly payment of the
following expenses pertaining
to the common home:
(a)
The Medical Aid in respect of the
Respondent, the minor children and the Applicant with Medihelp
Dimension Prime 3;
(b)
All expenses in respect of the mortgage
bond payment on the common home;
(c)
Rates and taxes, electricity and water
in respect of the common home;
(d)
Payment of the domestic worker’s
salary currently in the sum of R3 600.00:
(e)
Payment of the gardener’s salary
currently in the sum of R1 624.00;
(f)
Expenses relating to the maintenance and
upkeep of the common home, including groceries;
(g)
Levies in respect of the common home;
(h)
Payment of the charges levied swimming
pool service provider for the maintenance of the swimming pool
forming part of the common
home; and
(i)
DSTV premium.
25.
The Respondent is ordered and directed
to make payment of the following expenses pertaining to the minor
children and the Applicant
directly to the relevant service
providers:
(a)
All expenses in respect of the mortgage
bond payment on the common home;
(b)
All expenses for the maintenance of the
Applicant’s motor vehicle;
(c)
The insurance for the Applicant’s
motor vehicle;
(d)
The Applicant’s cell phone account
which is part of the Respondent’s cell phone contract up to a
maximum of R800.00
per month.
(e)
. School fees at the [C M School in B…. P… for
A]
;
(f)
. all reasonable school clothes,
stationery and sc
hool related expenses for A
;
(g)
. All reasonable
extra-murals for
A
in respect of horse-riding, ballet, drumming,
soccer and tumbling;
26.
The respondent is ordered and directed
to make a cash payment to the Applicant in the sum of R5 000.00 per
month in respect of the
applicant’s maintenance by no later
than the first day of each month commencing on or before 1 June 2016.
27.
The respondent is ordered and directed
to make a cash payment to the Applicant in the sum of R1 600.00 per
month (R1 000.00
for A
and R600.00
for
C
) in respect of the maintenance of the minor
children to be paid by no later than the first day of each month
commencing on or before
1 June 2016.
28.
The respondent is ordered and directed
to effect payment of the sum of R15 000.00 to the applicant as a
contribution to her legal
costs;
29.
The costs of this application be the
costs in the cause and the limitations of rule 43(7) & (8) be
lifted.
TS MADIMA: AJ
ACTING JUDGE OF THE
HIGH COURT
On
behalf of the Applicant:
Adv LC Leysath
Instructed
by:
Weavind and Weavind
Attorneys
Pretoria
On
behalf of the Respondent: Adv
Instructed
by:Shapiro & Haasbroek INC Brooklyn
Dates of Hearing: 9
May 2016
Date of Judgment: 25
May 2016