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[2016] ZAGPPHC 418
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Van Jaarsveld v Van Jaarsveld (18349/2016) [2016] ZAGPPHC 418 (3 June 2016)
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IN
THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER:18349/16
DATE:3
June 2016
ESREEZ
VAN
JAARSVELD
.................................................................................
Applicant
V
ABRAHAM
JOCOBUS
VAN
JAARSVELD.
....................................................
Respondent
JUDGMENT
MABUSE
J
:
[1]
This matter came before the Court as an application in terms of Rule
43(1) of the Uniform Rules of Court for maintenance of
the applicant
pending the hearing of an action in which the applicant is suing the
respondent for a divorce. The application JUDGMENT
was fully argued
on 31 May 2016 in an unopposed Court roll. After I had listened to
all the arguments by Adv. N van Niekerk on
behalf of the applicant
and Adv. Ferreira on behalf of the respondent, I stood the matter
down to 3 June 2016 that is today, for
judgment. I am ready to
deliver the judgment in this matter and proceed hereby to do
likewise.
[2]
The applicant in this matter is Mrs. Esreez van Jaarsveld, an adult
female who currently resides at [2 …Street], Middelburg,
in
the province of Mpumalanga. The respondent is described as an adult
business man who stays at the same address as the applicant.
[3]
The applicant is the plaintiff and the respondent is the defendant in
the divorce action that the plaintiff has initiated by
a combined
summons issued by the registrar of this Court, under case number
18349/16. According to the applicant's founding affidavit
in support
of the said application, the applicant seeks, in the said divorce
action, permanent maintenance, payment to her of an
amount to which
she may be entitled in terms of the provisions of Chapter 1 of the
Matrimonial Property Act 88 of 1984, and thirdly
and lastly, that the
respondent should retain her on his medical aid and that the
respondent should, over and above retaining her
on his medical fund,
pay all the reasonable medical expenses not covered by the medical
aid fund.
[4]
Today this Court is less concerned with the said divorce action but
more concerned instead with the application in terms of
Rule 43(1) as
set out supra.
[5]
The said Rule 43(1) states that:
"This
rule
shall
apply whenever a spouse seeks relief from
the Court in respect of one
or
more
of
the
following
matters:
(a)
maintenance pendente
lite;
(b)
a
contribution
towards the
costs of
apending
matrimonial
action;
(c)interim
custody
of
any child;
(d)interim
access
to
any child.
It
is important to state that the applicant seeks the relief set out in
paragraphs (a) and
(b)
supra of the Rule 43 as set out above in respect of maintenance for
herself,
pendente lite.
In addition, and only in the event of
her relocating, she seeks an order in terms of which the respondent
makes available to her
certain of her personal effects, clothing, and
certain movable assets and household assets listed in a document
annexed to her
founding affidavit and marked
"A".
Finally she seeks an order in terms of which
the respondent contributes towards her costs of litigation in the sum
of R15,000.00.
Needless to say the application is opposed by the
respondent who has, for that purpose, delivered an opposing
affidavit.
[6]
Before dealing with the reasons why the respondent opposes the
application, I
will
proceed to deal firstly with the reasons why the applicant seeks
the relief set out in her application.
[7]
As pointed out earlier, the parties hereto, although going through a
divorce, are still living together at the address set out
in
paragraph 2 supra. The respondent finds this situation acceptable to
him, finds nothing wrong with it and, if his wishes could
be granted,
he would, against all odds, continue to co-habit with the applicant.
The applicant, however, finds, for reasons that
I will hereinafter
set out, co-habitation with the respondent stressful. To her the
situation is unbearable. She contends that
she is not emotionally
strong enough to continue living with the respondent in the same
house while their divorce action carries
on.
[8]
The reasons she has now given are as follows:
8.1
that communication between her and the respondent has deteriorated to
an extend that she always attempts to avoid the respondent
and any
communication with him;
8.2
that every time her attorney of record addresses a letter in respect
of the divorce action to the respondent and upon receipt
thereof the
respondent becomes unpredictable, volatile, emotionally and verbally
abusive towards her and threatens her with financial
ruling;
8.3
after the respondent received a copy of the divorce summons, he cut
her off financially by stopping the credit card which was
issued in
her name but linked to the respondent's account and which credit card
he paid and she used for personal and household
expenses;
8.4
the respondent threatened, among others, to sequestrate himself on 5
April 2016 after receipt of her attorney's letter dated
4 April 2016
in which it was recorded that due to the respondent's conduct by
cutting her off financially, she had no alternative
but to launch the
Rule 43 application for interim maintenance;
8.5
the respondent threatened to stop paying for all the insurance he is
presently paying;
8.6
during or about the beginning of April 2016 the respondent failed to
pay her cell phone account which she had always been paying
by way of
a debit order from his account as a result of which she was forced to
pay an amount of R450.00 in respect of the said
cell phone;
8.7
that the respondent is attempting to force her to stay in the
marriage by financially abusing her and putting her in an untenable
financial position which he would alleviate if she commits
reconciliation;
8.8
that the respondent is obsessed with pornography and dating sites
which he uses, notwithstanding her presence and attempt to
avoid
same;
8.9
that the emotional stress and trauma caused by the situation at their
house is such that in an attempt to avoid conflict and
abuse by the
respondent she locks herself in her room every evening before he
returns home;
8.1O
in attempt to harass her, the respondent activates the alarm sensor
in her room, resulting in the alarm being triggered if
she moves
within the room;
8.11
that the respondent's reactions are triggered by the divorce process
and anything relating to the divorce process and he is
unpredictable
in his conduct.
Consequently
she is unable to live under the same roof in these conditions.
[9]
According to her, before he was served with a copy of the divorce
summons, the respondent contributed to all the household expenses,
her entire personal expenses and the expenses of the parties' two
grownup children. The applicant has listed the respondent's
contributions to the household. In view of the fact that it is the
applicant's evidence that the respondent has contributed to almost
everything it is not necessary for this Court to detail in this
judgment all the contributions that the applicant made. It is however
sufficient to mention that the respondent paid for all the expenses.
[1O]
The applicant testified further that the respondent also paid, from
either his personal or business account, all the applicant's
personal
expenses. For the purposes of paying her personal expenses, the
respondent had given the applicant a credit card which
she used as
she pleased. The credit card was linked to the respondent's bank
account but was issued in her names. The applicant
utilised the said
card for both her personal and household expenses and also for the
needs of the parties' two children. It is
clear from the evidence of
the applicant that she used the said credit card for amounts ranging
from R7933.18 for only nine days
to R37,255.65 per month. In addition
the applicant has also listed all the items which she purchased using
the said credit card.
[11]
It is, in my view, crucial to summarise her evidence simply as
follows. The respondent paid for all their expenses. She did
not
contribute anything despite the fact that she herself had her own
income.
[12]
The straw that broke the camel's back was firstly that the respondent
stopped her from using the credit card. Since March 2016,
the
respondent has been depositing, on a monthly basis, a sum of
R2,000.00 into her bank account and, over and above, giving her
cash
of R2,000.00. At the beginning of April 2016, the respondent gave her
R4,000.00. Secondly, she complains that the respondent
does not
purchase proper groceries for the household; does not provide for
some of the necessities of the family. What is of crucial
importance
with her evidence is that she does "not know if the respondent
will continue paying for all her expenses he previously
paid."
[13]
The applicant alleges that the respondent is possessed of sufficient
funds from which amount her maintenance may be paid. She
claims that
she has bank statements of the respondent's company known as
[S…Investment 84 (Pty) Ltd] which shows that as
at January
2015 the balance in the relevant bank account was R912,802.83; in
February 2015 R987,601.77; in March 2015 R1,201,211.92
and in
April
2015 R1,041,675.61. This company, [S..Investment 84], was registered
in 2006 and the respondent is its sole director.
[14]
Over and above the funds in the [S… Investment 84] account,
the respondent has a membership interest of 33.33% in [L..
Trading
and Investment] and another membership interest of 40% in [S..
Trading]. He is also a director of [C.. Fields Reclamation].15]
The
respondent is a registered owner of the immovable property known as
Nr. J.. Street, K…, Middelburg. This is, according
to the
applicant's testimony, a spacious three bedroomed house with an
office which the respondent has rented out at R13,000.00
per month.
[16]
The respondent, who is the owner of two other immovable properties
located at[ 2.. and 29… Street, .., Middelburg],
receives
R24,000.00 per month at least from the rental of such properties.
Although she and the respondent are jointly income beneficiaries
in
respect of the aforementioned properties, the respondent does not
share such income with her.
[17]
The respondent does not support the application and, as it is to be
expected, opposes it vigorously. He has labelled the application
as
an absolute abuse of the Court process, premature and launched simply
to manipulate him and to have her own way. The respondent
contends
that, by reason of the fact that he and the applicant are still
staying together in the same household, there exists no
genuine basis
for the launching of this application. More so for the following
reasons:
17.1
he is still meeting all his obligations towards the applicant;
17.2
the applicant herself earns income;
17.3
the applicant has no debts;
17.4
the applicant has been less than candid in placing information before
the Court;
17.5
he has already, in writing, undertaken in correspondence exchanged
between the parties, to continue to pay. For the aforementioned
reasons, the respondent seeks the dismissal, with punitive costs of
the applicant's application.
[18]
The respondent contends furthermore that his financial position has
changed drastically. Such change he has explained to the
applicant
but the applicant has refused to accept it. Despite all his efforts
to live within his financial means, the applicant,
so he testified,
still expected him to continue providing funds for her as he used to
do. The respondent denies it flatly that
there is njo meaningful
communication between him and the applicant. While he and the
applicant do not communicate as well as they
should, when the need to
communicate arises, they do speak to each other.
[19]
In order to succeed with the application, the onus lies on the
applicant to satisfy the Court that:
19.1
there exists an obligation on the respondent to support or to
maintain her;
19.2
that the respondent has failed in his obligation of maintaining her.
This means that she must satisfy the Court that she is
entitled to
maintenance. She must show that she is entitled to maintenance
pendente
lite
because,
prima
facie,
the
respondent, as her husband, owes her the duty of supporting her as
long as their marriage subsists. See in this regard Hamman
vs Hamman
1949(1) SA 1191(W);
19.3
that, as a consequence of such failure, she is in need of being
maintained by
the
respondent; and
19.4
that the respondent is financially capable of maintaining her. The
applicant, in other words, must satisfy the Court that the
respondent
has the capacity to meet her financial requirements.
[20]
There is no doubt in the Court's mind that the applicant has, in her
evidence, succeeded in establishing that there exists
an obligation
on the respondent to maintain her. Secondly, the applicant has, in my
view, satisfied the Court that the respondent
has the financial
capacity to meet her financial obligations and thereby to support
her.
[21]
Having said that, I have not been persuaded that the respondent has
failed in his obligations to maintain the applicant. In
the first
place, the respondent has been supporting the applicant. He has been
paying for all her personal expenses and household
expenses without
any contribution from the applicant. This evidence was also supported
by the respondent. Even where the applicant
complained that here and
there the respondent fell short, which is denied by him, the
respondent still supports the applicant and
pays for all the
household expenses and her personal expenses to a large extent. The
respondent has even undertaken incorrespondence
exchanged between the
parties, to continue maintaining the applicant. In cases where there
exists clear evidence that the respondent
fulfils his obligations of
maintenance towards his family or those who are entitled to be
maintained by him. There some measure
of inequity to the respondent
if the Court were to order such a respondent to maintain. Such an
order becomes otiose and serves
no purpose than being oppressive. The
respondent has not failed in his obligations. An order of this nature
should only be made
against a respondent who, while being capable of
doing so, is unwilling to carry out his obligations to maintain those
who depend
on him for maintenance.
[22]
What is of paramount importance in the applicant's case is her
following evidence that:
"I do not know if the respondent will
continue with the payment
of any of
the expenses he
previously paid ... I have no alternative but to launch this
application.
• This is quite clearly an admission that the
respondent does maintain the applicant. The only problem that the
applicant has
is, so she thinks, absence of an unwavering guarantee
from the respondent that the maintenance will, even after the
commencement
of the divorce action, continue. In my view, the
applicant has that unconditional guarantee given by the respondent.
[23]
Finally the law in so far as it concerns the fear that the respondent
may not continue with the payments of any of his expenses
has been
set out as follows in The South African Law of Husband and Wife, 5th
Edition, by HR Hahlo at page 432:
"As
long as the husband maintains his wife and children adequately,
the
mere apprehension that he might no longer do so in future
is not sufficient ground
for granting an
order for
maintenance
pendente lite.
In
this regard, the Court in Mostert vs Mostert 1974(2) SA 116 OPA at
page 119 E- F has the following to say where there was an
apprehension by the applicant that the respondent may not execute his
maintenance obligations towards the applicant and her children:
"Maar
selfs
al
dui
die
applikante
se
beedigde
verklaring
aan
dat
sy
so
'n
vrees
het,
is el<, nogtans, van
mening
dat
die
blote vrees
dat
die
respondent
nie
sy verpligting
om
vir
die applikante en die kinders te onderhou sou nakom nie, nie
voldoende grond
bied vir die aansoek nie en dat die applikante
eers nadat die respondent inderdaad
versuim
het om sy
verpligting na te
kom geregtig sou wees om
na die Hof
te
kom vir
die nodige
regshu/p.
"
It
is for these reasons that the respondent contends in his affidavit,
and Mrs. Ferreira argued, that the applicant's application
in terms
of Rule 43 was, at this stage, premature. The applicant would only be
entitled to a maintenance order if the respondent
failed properly to
support her after the respondent had stopped providing for her. This,
in my view, sets out the requirement that
must be established before
an application for maintenance
pendents lite
can be made.
[24]
Mrs. Ferreira placed much reliance on the case of Taute vs Taute
1974(2) SA 675 ECD. In this matter the Court had this to say
at page
676 G-H:
"A
claim supported by reasonable and moderate details carries more
weight than
one
which
includes
extravagant
or
extortionate
demands
-
similarly
more
weight
wil
l
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.
"
(my
own
underlining).
The
application for maintenance
pendents lite
must therefore fail.
[25]
With regards to costs, there exists, in my view, no genuine reason
for departing from the ordinary rule that the unsuccessful
party
should bear the costs. The respondent has always shown a willingness
to comply with his obligations to support the applicant.
Considering
the respondent's willingness to pay for all the expenses, personal or
household, of the applicant, there was no reason
for the applicant to
come to Court. The application was unnecessary. Her actions, in
hauling the respondent before the Court when
it was unnecessary, have
now escalated the costs which should never have been incurred. It has
now increased the costs not only
of these proceedings but also of the
divorce action between the parties.
This
Court makes the following order:
The
application is accordingly dismissed with costs.
_____________
P.
M. MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for
the
applicant:
.................................
Adv.
N van
Niekerk
Counsel
for
the
respondents:
...........................
Adv.R Ferreira
Instructed
by:
....................................................
Weavind
& Weavind Attorneys
Instructed
by:.
....................................................
Kruger
& Bekker
Attorneys
Date
Heard:.
.......................................................
31
May 2016
Date
of Judgment:.
.............................................
3
June 2016