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[2016] ZAGPPHC 746
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V.O.W v B.L.W (61861/2015) [2016] ZAGPPHC 746 (24 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 61861/2015
24/8/2016
In
the matter between:
V
O
W
Applicant
and
B
L
W
Respondent
JUDGMENT
MAAKANE
AJ:
1.
This is an application in terms of Rule 43 of the Uniform Rules of
thi$ court. The Applicant, who is the Plaintiff in the main
divorce
action, is seeking an order in the following terms,
pendente lite:
1. That both parties
retain their full parental responsibilities and rights in terms of
Sections 18
,
19
and
20
of the
Children's Act, 38 of 2005
in
respect of the minor child born of the marriage relationship between
the parties;
2.
That primary
residence and primary care of the minor child born of the marriage
relationship between the parties shall be with the
Applicant;
3.
That the
Respondent shall be entitled to reasonable contact with the minor
child at all reasonable times;
4. That the Respondent
pay maintenance to the Applicant n respect of the minor child born of
the marriage between the parties in
a
sum of R5,000.00 per
month, on or before
the first day of every month;
5. That the
Respondent, in addition to the aforegoing maintenance in respect of
the minor child, pay:
5
.
1 Respondent
shall retain the minor child, at his costs, as
a
dependent on
the Applicant's current medical scheme or
a
scheme with
analogous benefits and shall pay the monthly premiums (and any
escalations) timeously and on due date. Respondent shall
also bear
the costs of all reasonable expenditure in respect of medical,
dental, surgical, hospital, orthodontic and ophthalmological
treatment needed by the child and not covered by the medical aid
scheme, including any sums payable to
a
physiotherapist,
occupational therapist, speech therapist, psychiatrist, psychologist
and chiropractor, the costs of medication
and the provision, where
necessary, of spectacles and/or contact lenses;
5.2 That the
Respondent pay the minor child's private school fees and the costs of
the minor child's school necessities, including
the costs of school
uniforms (two summer and two winter school uniforms per annum), the
costs of the minor child's extra-mural
activities, the costs of the
minor child's international and local polo tours, the costs of the
minor child's extra lessons and
the costs of the minor child's books
and stationery for schooling purposes.
6. That the Respondent
pay maintenance to the Applicant for herself in
a
sum of
R20,000.00 per month, on or before the first day of every month.
7.
Defendant
shall retain the Applicant, at his costs, as a
dependant on
her current medical scheme or
a
scheme with analogous benefits
and shall pay the monthly premiums (and any escalations) timeously
and on due date. Respondent shall
also bear the costs of all
reasonable expenditure in respect of medical, dental, surgical,
hospital, orthodontic and ophthalmological
treatment needed by the
Applicant and not covered by the medical aid scheme, including any
sums payable to
a
physiotherapist, occupational therapist,
speech therapist, psychiatrist, psychologist and chiropractor, the
costs of medication
and the provision, where necessary of spectacles
and/or contact lenses.
8. That the
Respondent, in addition to the aforegoing, continue to pay:
8.1 the bond
instalment in respect of the immovable property where the Applicant
resides, being […] Road, Douglasdale, Randburg,
Gauteng, which
is also
a
bond in respect of property where the Respondent
resides and works from;
8.2 the rates and
taxes and electricity costs in respect of that immovable property;
8.3 the cellular
telephone costs of the Applicant and of the minor child;
8.4 the salary of
a
domestic worker, not to exceed R2,600.00 per month;
8.5 the costs of
a
landline and internet subscription;
8.6 the costs of
DSTV supply to the said immovable property.
9. That the Respondent
be ordered to make an initial contribution towards the Applicant's
legal costs in the sum of R10,000.00 in
equal monthly instalments of
R1,000.00 per month, on or before the first day of every month.
10. That costs hereof
be costs in the divorce action, the restrictions of
Rule 43(7)
and
(8) not to be applicable."
2.
The Respondent has consented to some but not all of the prayers
sought. More specifically, the issues in dispute are the following:
(a) Maintenance payable
to the minor child;
(b) Maintenance payable
to the Applicant;
(c) Contribution towards
legal costs.
MAINTENANCE
TOWARDS THE MINOR CHILD:
3.
As maintenance towards the minor child, Applicant is seeking an
amount of R5,000.00 per month. Over and above that, she seeks
an
order in terms of which Respondent is to be liable for the minor
child's medical aid, school fees as well as all necessary costs.
4.
On the other hand, Respondent tenders to pay as maintenance toward
the minor child pocket money directly to her. In addition
thereto, he
tenders to pay for her school fees and all related school expenses,
medical aid, clothing and cell phone.
MAINTENANCE
TOWARDS THE APPLICANT:
5.
The Applicant is seeking
maintenance for herself
pendente
lite,
in the amount of
R20,000.00 per month. In addition to that, she seeks an order in
terms of which Respondent is to be liable for
her medical aid fees,
bond instalments in respect of the property she now occupies, rates
and taxes, cell phone; salary for the
domestic worker, costs of the
landline and internet subscription as well as DSTV.
6.
Respondent tenders to pay to the Applicant rehabilitative maintenance
in the amount of RS,000.00 per month for six months. Notwithstanding
the tender, Respondent argues that the Applicant has not made out a
case for maintenance for herself in the amount claimed. In
this
regard, reliance was placed on the case of
Willson v Willson
1984
(2) SA 294
(C)
at page 295 E - F
where the Court held the
following:
"Primarily
Rule
43
was envisaged to provide temporary assistance for woman, who had
given up careers or potential careers for the sake of matrimony
with
or without maternity, until such time as at
a
trial and after
hearing evidence, maintenance claims and, if children had been born,
custody
claims could be properly determined.
It was
not created to give an interim mealticket
to women who
quite clearly at the trial would not be able to establish
a
right
to maintenance"
7.
Respondent further argues that the Applicant is currently receiving
some work and is able to earn an income of approximately
R40,000.00
per month. This amount of money so goes the argument, is sufficient
for the Respondent to maintain herself. Respondent
denies Applicant
allegation that her monthly expenses amount to approximately
R52,000.00.
8.
Be that as it may, and notwithstanding all of the above, Respondent
tenders to pay to the Applicant as rehabilitative maintenance,
an
amount of RS,000.00 for six (6) months.
CONTRIBUTION
TOWARDS LEGAL COSTS:
9. The Applicant is also
demanding from the Respondent an amount of R10,000.00 payable at the
rate of R1,000.00 as contribution
towards her legal costs.
10.
Respondent argues that he is not in a financial position to can make
this contribution. Taking into account his current financial
position, the Applicant is better off. He also complains that the
Applicant has frustrated the whole divorce process and has been
the
reason for incurring of additional legal costs.
EVIDENCE:
11. Rule 43(1) provides
as follows:
"43 Matrimonial
matters
(1) This rule shall
apply whenever
a
spouse seeks relief from the court in respect
of one or more of the following matters:
(a)
Maintenance
pendent lite;
(b)
A
contribution towards the costs of a
pending matrimonial
action;
(c)
interim
custody of any child;
(d)
interim
access to any child."
12.
The circumstances of this case are not unusual. The Applicant is
currently 58 years old, and the husband, the Respondent is
now 44.
They were married for approximately eighteen (18) years. As regards
the causes of the breakdown of the marriage, allegations
and
counter-allegations of infidelity have been made by each party
against the other. I do not deem it necessary to deal with that
any
further.
13.
Both parties have in their affidavits set out their financial
positions and also their capacity to earn income.
14.
In her founding affidavit, Applicant states that they used to conduct
business through a company known as N. (Pty) Ltd. She
was employed by
S. until January 2007 when she started working for their company as
its Commercial Director.
15.
According to her, Respondent then started to insult and manipulate
her. He ultimately sold the company to an employee. The business
gradually failed and the Respondent was not paid the purchase price.
16.
The parties hereafter started working from home, through a business
entity known as […] & Associates. The entity
did business
in strategy leadership facilitation and consulting.
17.
According to the Applicant, Respondent to this day runs the business.
Applicant however, appeared to have registered it in the
name of his
mistress, and is now known as B… (Pty) Ltd.
18.
In his answering affidavit Respondent admits that they did run a
business, known as N.. A portion of this was sold to a BBBEE
company
for approximately R2.7 million. The proceeds of this sale were used
to pay the parties' debts. He points out that he took
the company
back it had debts of about R6 million. He managed to pay about 98% of
these debts and was able to prevent having it
liquidated.
19.
He admits that he still owns the business of his own. He however
denies that the business is registered in the name of Ms Williams
and
or that they run the business together. Ms Williams runs a separate
company registered in her own name.
20.
Respondent has two (2) other children from his previous marriage that
he is maintaining. He is currently making bond repayments
in respect
of their two properties, including the one occupied by the Applicant.
He also pays for electricity, water as well as
rates and taxes for
both properties.
21.
He has the potential of earning between R60,000.00 and R200,000.00
per month. However, is not the actual income he earns. His
financial
situation is not sound at all. As a result of this the City of
Johannesburg from time to time disconnects the water and
or
electricity supply to both properties. This is because he is unable
to keep up with the payments. When this happens, his father,
who is a
pensioner would help, utilising his pension. This situation is
confirmed by the Applicant.
22.
Respondent points out that if he were to be ordered to pay the amount
claimed by the Applicant, he will not be able to do so
and his fear
is that this may result in the sequestration of his estate.
23.
It must be borne in mind, that relief in terms of
Rule 43
is only
pendent lite,
pending finalisation of the divorce action.
24.
Taking into account all the above considerations, I am of the view
that the Applicant has made a proper case for her own maintenance
and
contribution for legal costs
pendente lite.
However, in
deciding on the amounts, I have to take into consideration the
parties' financial means.
ORDER:
25.
Consequently the order that I make
pendente lite
is the
following:
1. Both parties shall
retain their full parental responsibilities and rights in terms of
Sections 18
,
19
and
20
of the
Children's Act, 38 of 2005
in respect
of the minor child;
2. The primary residence
and primary care of the minor child shall be with the Applicant;
3. The Respondent shall
be entitled to reasonable contact with the minor child at all
reasonable times;
4. The Respondent shall
pay maintenance to the Applicant in respect of the minor child in an
amount of R2,000.00 per month, on or
before the seventh day of every
month;
5. Respondent shall
further pay the minor child's private school fees as well as all
related school necessities, including the costs
of school uniforms,
extra lessons, books, stationery and cellular telephone costs.
6. The Respondent shall
pay maintenance to the Applicant for herself an amount of R10,000.00
per month, on or before the seventh
day of every month;
7. Respondent shall
retain both the Applicant and the minor child, as dependants on his
current medical aid scheme and shall pay
the monthly premiums
timeously and on due date;
8. Respondent shall also
bear the costs of all reasonable expenditure in respect of medical,
dental, surgical, hospital, orthodontic
and ophthalmological
treatment needed by the minor child and not covered by the medical
aid scheme;
9. The Respondent shall
continue to pay the bond instalments as well as water, electricity
and rates and taxes in respect of the
immovable property where the
Applicant resides, being […] Road, Douglasdale, Randburg,
Gauteng, and also in respect of property
where the Respondent
currently resides and works from;
10. Respondent shall in
addition continue to pay:
10.1 Costs of a landline
and internet subscription;
10.2. Costs of the DSTV
supply to the immovable property.
11. The Respondent shall
make an initial contribution towards the Applicant's legal costs in
the sum of RS,000.00 payable in equal
monthly instalments of
R1,000.00 per month, on or before the seventh day of every month;
12. Costs hereof shall be
costs in the divorce action and the restrictions of
Rule 43(7)
and
(8) shall not be applicable.
__________________________
S
S MAAKANE
Acting
Judge of the
High
Court of South Africa
Gauteng
Division, Pretoria
APPEARANCES:
Counsel
for the Plaintiff
:
Adv. S
Venter
Instructed
by
: Shapiro
and Ledwaba Inc.
Counsel
for Defendant
:
Adv. A
M Smit
Instructed
by
: Douglas
McCuster Attorneys