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[2016] ZAGPPHC 675
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N.L v J.M.L (14656/15) [2016] ZAGPPHC 675 (22 August 2016)
SAFLII
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IN
THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION,
PRETORIA)
Case
Number: 14656/15
DATE:
22 JULY 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter
between:
N
L
.....................................................................................................................
PLAINTIFF
AND
JML
..................................................................................................................
DEFENDANT
JUDGMENT
1.
The
plaintiff, Mrs N L L, instituted a divorce action against the
defendant, Mr J M L. The following facts are common cause:
1.1
Both parties are domiciled within in the jurisdiction of this court.
1.2
The parties were married to each other in community of property at [A
p], in Gauteng on 11 March 2000.
1.3
Two minor children were born from the marriage relationship between
the parties, now aged between 12 years and 7 years respectively.
1.4
It is clear from the submissions made by both parties' legal
representatives and from the evidence adduced that the marriage
relationship between the parties has irretrievable broken down and
that there are no reasonable prospects of a reconciliation.
1.5
The joint parental rights and responsibilities in respect of the two
minor children should be awarded to the parties jointly.
1.6
Primary residence of the two minor children would be with the
plaintiff and the defendant would have reasonable rights of contact.
1.7
The joint estate of the parties is to be divided equally between
them.
1.8
The parties are not claiming personal maintenance against each other.
1.9
The only issue between the parties is that the payment of the
maintenance of the minor children by the defendant.
2.
In
the summons the plaintiff is claiming against the defendant:
2.1
An amount of R11 000.00 (eleven thousand rand) per month for the two
minor children.
2.2
That defendant retains the minor children on his medical aid scheme
and that he pays all reasonable medical expenses for the
two minor
children.
2.3
An order that the defendant pays all scholastic expenses in respect
of the minor children, including pre-primary and secondary
school
fees (in a private school) and all cost associated therewith,
including school clothes, book fees, hostel fees and all the
costs
associated with or occasioned by the extramural activities of the
minor children (which includes sporting equipment, clothes
and costs
involved for school tours of the minor children).
2.4
An order that the Defendant pays all tertiary expenses of the minor
children including all expenses associated with or occasioned
by the
minor children attending any university or technikon, including book
and hostel fees.
3.
Regarding
the maintenance of the children the, defendant seeks that the court
should order that the maintenance payable for the
two minor children
be referred to the Maintenance Court having jurisdiction.
4.
In
summarising the parties' evidence I will mainly deal with the aspects
relevant to the issue of maintenance for the minor children.
The
plaintiff and defendant in their evidence are
ad idem
that
the defendant left the common home in July 2015 and has since then
contributed a cash amount of about R10 000.00 for the minor
children,
he continue to pay the instalment of the bond for the house. The
children and the Plaintiff were retained as members
and the
beneficiaries of his medical scheme. The defendant continued to pay
for the school fees of the minor children and both
parties
contributed for the minor children's necessary extra expenses.
5.
The
plaintiff's and defendant's monthly salary is about R25 000.00 and
R75 000.00, respectively. When the plaintiff testified she
mentioned
her the monthly expenses. Initially in her testimony she stated that
she needs maintenance in amount of R13 000.00 per
month for the minor
children and the defendant should further contribute financially for
the extra medical expenses and the school
fees. She further said she
wants the defendant to retain her on his medical aid scheme.
6.
The
defendant also testify about his monthly expenses and stated that he
can contribute an amount of R10 000.00 per month for the
two minor
children, he would retain the minor children on his medical aid
scheme and will contribute 50% (fifty present) of the
minor
children's school fees, uniforms and necessary school expenses.
Before evidence was led, the Adv. Kgariya, representing the
defendant
in her opening remarks submitted that the issue of maintenance for
the minor children should be referred to the Maintenance
Court. The
reason why she submitted that the issue of maintenance of the minor
children referred to the Maintenance Court was that
there was no
guarantee that the defendant's contract of employment terminating on
October 2016 would be extended. She later submitted
that the
defendant can only afford the sum of R2 000.00 for each minor child.
7.
The
submissions made by Adv. Kgariya were contradicted by what the
defendant said when he testified.
8.
In
my view, there is no valid reason why the defendant cannot continue
to maintain his children. There is no justification for me
to order
that the maintenance for the minor children should be referred to the
Maintenance Court. Such an order would not be in
the best interest of
the minor children. The proceedings in the Maintenance Court may take
some months before they are finalised
and the minor children would
not be receiving any contribution from the defendant. The defendant
stated in his evidence that he
is aware that should he be unemployed
and cannot afford to pay maintenance for the minor children he can
approach the Maintenance
Court for the variation of the maintenance
order.
9.
I
need to record that on the evidence of the defendant, if there was
proper consultation and the defendant was given proper legal
advice
the matter could have been finalised on the first day of the hearing.
10.
On
careful consideration of the income and expenses of the parties I am
satisfied that the plaintiff has proved and it would be
in the best
interest of the minor children that I should order that the defendant
should continue to pay maintenance for the children.
11.
The
plaintiff did not ask for personal maintenance in her particulars of
claim and her request that she retains on the defendant's
medical aid
scheme for 9 months will not be granted. However, the defendant
stated that he is willing to retain her on the medical
aid scheme for
3 months.
12.
I
need to emphasise that Adv Kgariya in my view, did not execute her
profession duties as required from an officer of the Court.
She was
argumentative and did not properly prepare herself for the trial. She
was not clear about the interim order that was made
by the Court in
the Rule 43 application. Her conduct in Court is strongly deprecated
I rule that she is not entitled to claim any
legal fees for
professional services rendered on 2 July 2016 and for attending the
trial on the 2 July 2016. The plaintiff had
to unnecessarily incur
legal costs of the trial in the second day.
13.
Having
considering all the evidence in particular their income and expenses
I make the following order:
13.1
A decree of divorce is granted.
13.2
The parties shall remain co-holders of parental responsibilities and
rights in respect of the minor children born of the marriage
between
the parties, namely
[P L], a
minor daughter born on [.....] 2004, currently 12 years old, and the
minor son
[M M L],
born on
[.....] 2008 and currently 7 years old and hereinafter referred to as
the "minor children".
13.3
The parties shall act as co-guardians of the minor children as
provided for in Sections 18(2)(c), 18(3), 18(4) and 18(5) of
the
Children's Act, Act 38 of 2005 (herein
"the Children Act')
13.4
The parties remain co-holders of parental responsibilities and rights
with regards to care of and contact to the minor children,
as
envisaged in Sections 18(2)(a) and 18(2)(b) of the Children's Act,
subject to the provisions set out below.
5.
The minor children shall reside primarily with the Plaintiff who
shall be their primary caregiver.
13.6
The Defendant shall be entitled to reasonable contact with the minor
children as follows:
13.6.1
Every alternate weekend from the Friday at 17h00, where the
defendant will collect the minor children at the Plaintiff's
residence,
until 17h00 on the Sunday where the Defendant will return
the minor children to the Plaintiff's residence. Should any such
weekend
be preceded or succeeded by a public holiday, then such
public holiday shall be included in the contact weekend which shall
commence
or terminate one day earlier or later as the case may be.
13.6.2
The minor children will spend Mother's day and the Plaintiff's
birthday with the Plaintiff and Father's day and Defendant's birthday
with the Defendant (from 8h00 - 17h00), on condition that these days
do not fall within a holiday period that the children spend
with the
other party.
13.6.3
The defendant shall have reasonable telephonic access to the
minor children during weekdays and weekends when the minor children
are not in his care, which contact he will be entitled to exercise to
the minor children between 18h00 and 20h00 at night, whilst
also
being at liberty to contact the eldest daughter at all reasonable
times.
13.6.4
The defendant will be entitled to have the minor children with
him for one half of their school holidays, where the children will
spend the other half of the said holiday with the Plaintiff, the
Defendant to collect the minor children at the Plaintiff's residence
and to return them to the Plaintiff's place of residence. The parties
are at liberty to agree to share a Christmas holiday.
13.6.5
Neither party shall remove the children from the Republic of
South Africa without the other party's written consent.
Access
to and contact with the minor children shall be exercised in their
best interest, with a minimum degree of disturbance
to their
routine, education and schooling activities. The Defendant's right
of reasonable contact to the minor children is
subject to the
children's educational, sporting, social and religious activities.
14.
The
Defendant shall pay the following maintenance toward the minor
children:
14.1
The defendant shall retain the minor children as dependent members
on his current medical aid and benefit plan until
they become
self-supportive. The defendant shall pay the membership fees
relating to the minor children in full. The defendant
shall
further pay two thirds (66.66%) of all reasonable medical aid.
14.2
The defendant shall pay to the Plaintiff as maintenance for
the minor children, an amount of R6 500.00
(SIX
THOUSAND FIVE
HUNDRED RAND) per month per child on or before the 1st day of each
month, the first payment to be made on or before
the 1st day of the
following month until the minor children become self-supportive. The
aforementioned maintenance is to increase
yearly in accordance with
CPI on each anniversary of the date of divorce.
14.3
The defendant shall pay the primary and secondary school fees
of the minor children in a private school or such other school as
agreed between the parties, and two thirds (66.66%) of all further
costs associated with the schooling and education of the minor
children, including school clothes, book fees, hostel fees, school
tours and the cost associated with or occasioned by the extra
mural
activities of the minor children (which includes sporting equipment,
clothes and costs involved for school tours of the minor
children).
The
defendant shall pay two thirds (66.66%) of the tertiary cost
related to the minor children, should the minor children study
towards a formal degree, diploma or higher certificate, which costs
shall include, but not be limited to, all expenses in respect
of
training and academic fees, boarding / hostel fees (if applicable),
the costs of all textbooks and all additional expenses
reasonably
incurred in respect of such tertiary education. The responsibility
to pay for the tertiary education is subject
thereto that the minor
children's progress is successful and satisfactory.
With
regards to the additional expenses indicated in paragraphs 14.1,
14.3 and 14.4, the Plaintiff shall before the 25th of
each month
provide the defendant with a list of all the expenses to be paid in
terms of paragraphs 7.1, 7.3 and 7.4, and in
which it is indicated
the portion for which the defendant is liable in terms of these
stated paragraphs. The defendant will,
simultaneously when he pays
to the plaintiff the monthly maintenance mentioned in paragraph
14.2
supra,
pay his contribution towards these
expenses to the Plaintiff. His contribution towards these expenses
are payable in addition
to the maintenance payable in terms of
paragraph 14.2
supra.
15.
The
defendant shall at his costs retain the Plaintiff as a dependant
member on his current medical aid and benefit plan for
a period of
3 (THREE)
months from the date of the divorce order.
16.
Division
of the joint estate as at date of this Order is ordered, and as
follows:
16.1
The plaintiff is a registered member of the Old Mutual Superfund
Pension Fund with member number [S0..] and with sub-fund name:
NIMSA
and sub- fund number [R00..] as well as a Retirement Annuity Builder
with Liberty Life with contract number [1310…].
16.2
The defendant is a registered member of the Government Employees
Pension Fund with member number [983…] and a Retirement
Annuity Builder with Liberty Life with contract number [202…].
16.3
Such pension fund and annuities as stipulated in paragraphs 16.1 and
16.2 will form part of the joint estate.
16.4
Should it transpire that any party had any interest / further
interest in any pension fund or annuity which existed on date
of
divorce, such will also form part of the joint estate.
16.5
The parties will within
3 (THREE)
months from date of this
Order attempt to equally divide the joint estate between them by
agreement and in writing. In order to
so divide the joint estate, the
parties must provide the other party's attorney within
14
(FOURTEEN)
days from date of this Order with full details
pertaining to all the assets (including pension benefits and
annuities) and liabilities
as on date of divorce which that party
deems to form part of the joint estate, which shall include
statements of all creditors,
indicating the amounts payable to these
creditors as on date of divorce.
16.6
Should the parties fail to reach an agreement in writing with regards
to the division of the joint estate within
3
(THREE)
months
after date of this Order, a liquidator is appointed to divide the
joint estate of the parties, and as follows:
16.6.1
The parties will within
10 (TEN)
days thereafter agree upon
the identity of a liquidator, failing which the President of the Law
Society of the Northern Province
will nominate a suitable person with
suitable experience as such a liquidator and such a nomination will
be final.
16.6.2
The powers of the liquidator are those as set out in
ANNEXURE "A"
hereto. The liquidator shall determine the extent of the joint
estate by taking into account all the assets and liabilities of the
parties, including the moveable and immoveable property and the
parties' respective pension benefits, annuities and investments.
17.
Until
the division of the joint estate is finalised, the defendant will be
liable for the payment of the bond instalment payable
in respect of
the bond account held by the parties at Standard Bank under account
number [218…], which bond instalment the
defendant shall
promptly pay each month, until the joint estate has been divided
between them. In addition thereto, the defendant
will also be liable
for the payment of two thirds (66.66%) of all rates and taxes, all
expenses incurred of the maintenance of
the immovable property and
the water and electricity supply to the immovable property owned by
the parties until the joint estate
has been divided between the
parties.
18.
The
defendant is ordered to pay the costs of the action whereof such
costs will not form part of the joint estate.
A.P.
LEDWABA
DEPUTY
JUDGE PRESIDENT
OF
THE GAUTENG DIVISION OF THE HIGH
COURT,
PRETORIA
ANNEXURE
"A"
1.
The liquidator shall take control over the joint estate of the
parties and shall enjoy all the powers as administrator thereof.
Without derogating from the generality of the aforegoing, the
liquidator shall also be entitled:-
1.1
to accumulate details of all the assets, movable or immovable,
tangible or intangible which form part of the joint estate as on
date
of divorce;
1.2
to accumulate details of all liabilities of the joint estate
as on date of divorce;
1.3
to make all investigations necessary and in particular to
obtain from the parties all information with regard to the assets and
liabilities of the joint estate as on date of divorce;
1.4
to obtain information regarding the financial affairs of the
parties from bank managers and/or managers of any other financial
institution
with regard to the assets and liabilities of the joint
estate as on date of divorce;
1.5
to obtain information from all the auditors or any other people who
may have knowledge of the financial affairs of any companies,
close
corporations, trusts or businesses in which the Plaintiff, the
Defendant and/or the joint estate of the parties may have
an interest
as on date of divorce;
1.6
to obtain copies of the financial statements of any and all
companies, close corporations, trusts or businesses in which the
Plaintiff,
the Defendant and/or the joint estate of the parties may
have an interest as on date of divorce;
1.7
to inspect the books of accounts of any companies. close
corporations, trusts c, businesses iii which the Plaintiff, the
Defendant
and/or the joint estate of the parties may have an interest
as on date of divorce;
1.8
to physically inspect the assets of the joint estate and to
compile a full inventory of all assets referred to in paragraph 1.1
above;
1.9
to obtain sworn valuations of all the assets referred to in
paragraph 1.1 above;
1.·10
to interrogate or interview the Plaintiff and the Defendant and any
other person in order to give effect to paragraphs
1.1 and 1.2 above;
1.11
to subpoena the Plaintiff, the Defendant and witnesses out of the
above Honourable Court for purposes of interviewing and/or
interrogating
such persons at a date, place and time to be determined
by the Liquidator and to ensure that the proceedings in terms hereof
are
recorded in order to give effect to paragraphs 1.1 and 1.2 above;
1.12
to inspect all books, vouchers, cheques, deposit slips, bank
statements and, in general, all documents in possession of any
person,
for the purposes of giving effect to paragraphs 1.1 and 1.2
above;
1.13
to make and retain copies, at his discretion, of all the
documents and books referred to in paragraph 1 .12 above;
1
.14 to submit, after completion of his duties referred to in
paragraphs 1.1 and 1 . 13 above, a full report of his investigations
to both the Plaintiff and the Defendant;
1.15
to distribute the nett assets of the joint estate in
accordance with paragraphs 2 and 3 hereunder between the Plaintiff
and the
Defendant on such basis as may be agreed upon between them,
alternatively if no such agreement can be reached, to sell the assets
of the joint estate either by public auction or private treaty (the
Plaintiff and the Defendant having a right also to bid) and
there
upon to divide the nett proceeds between the Plaintiff and the
Defendant in accordance with paragraphs 2 and 3 hereunder;
1.16
to engage the services of any suitable qualified person or persons to
assist him in determining the proper value or whereabouts
of any of
the assets of the joint estate and to pay such person or persons the
reasonable fees which may be charged by him;
1.17
to afford both the Plaintiff and the Defendant personally the
opportunity to make recommendations to him about any matter relevant
to his duties and to this order and to the identity of any purchaser
as well as the purchase price of any asset, including, but
not
necessarily limited to: -
1.17.1
the time and/or manner in which any assets shall be realised;
1.17.2
the price for which any assets should be realised;
1.17.3
the sequence in which any assets should be realised;
1.18
to give due consideration to the wishes of the parties
pursuant to the representations made by them and make such decisions
in respect
thereof as he may deem fit;
1.19
to sell any assets to either the Plaintiff or the Defendant for a
price that he deems to be the true market price of such assets;
1.20
to sign any documents as may be necessary to effect the
transfer of any assets sold from the person in whose name it is
registered
to the purchaser thereof;
1.21
not to realise any movable assets excluding shares, unit trusts and
insurance policies without giving both Plaintiff and Defendant
ten
day's notice of his intention to do so;
1.22
to give both parties a first right to purchase any assets as
envisaged in paragraph 1.21, in the case of sale by treaty at the
same
price he is able to obtain from a bona fide third party, or in
the case of a public auction, at a better price than that offered
by
a bona fide third party;
1.23
to apply to this Court for any further directions as he shall or may
consider necessary;
1.24
to institute legal proceedings against any persons for the delivery
to him of any assets, deeds or documents of the joint estate
in
whatever Court it shall be appropriate to bring such proceedings;
1.25
to instruct and appoint attorneys and/or counsel to institute
proceedings on his behalf for the purposes of obtaining delivery
of
any assets alleged to be vested in the joint estate and to obtain
such other or alternative relief as the circumstances may
require,
the costs of Counsel and/or attorneys to be paid by the joint estate
in accordance with the principals enounced in Muller
v The Master and
Others.
1992 (4) SA 277
(T);
1.26
to collect debts due to the joint estate unless the same be
disposed of by sale;
1.27
to defend any action launched against the joint estate;
1.28
to pay the liabilities of the joint estate;
1.29
to pay his reasonable fees (5% of the gross value of the estate) and
to apportion such fees between the parties in the same proportion
as
they am entitled to the assets of the joint estate;
1.30
to obtain full particulars of all the Plaintiff's and the
Defendant's insurance policies including life policies, endowment
policies,
annuity policies and retirement annuity policies from the
underwriters thereof, alternatively from such underwriter's duly
authorised
agents and to deal with such policies in his discretion in
order to enable the Liquidator to give effect to the provisions of
paragraphs
2 and 3 below;
1.31
to instruct banks and/or financial institutions to deal with the
investments and bank accounts as the Liquidator may in his
discretion
deem necessary in order to protect the rights of one of the parties
or both parties in order to give effect to the provisions
of
paragraphs 2 and 3 below;
1.32
to allocate, in his discretion, both assets and liabilities between
the parties.
2
The division of the nett assets referred to in paragraph 1.15 above
shall be subject to the protection of the rights and claims
of
secured and preferent creditors of the joint estate.
3
The division of the nett assets referred to in paragraph 1.15 above
shall be in equal proportions between the Plaintiff and the
Defendant
but subject to paragraph 4 below.
4
Any losses suffered by the joint estate as 3 result of the wrongful
behaviour of the parties in dissipating the joint estate's
assets,
shall be borne exclusively by such party and a distribution and
division of the assets of the joint estate or the proceeds
thereof,
as the case may be, shall accordingly be subject to adjustment in
accordance with the Liquidator's discretion.