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[2016] ZAGPPHC 1216
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V.N v S.N (9932/2016) [2016] ZAGPPHC 1216 (2 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
2/12/2016
CASE
NUMBER: 9932/2016
In
the matter between:
V
N
Applicant
and
S
N
Respondent
JUDGMENT
MOTHLE
J
1.
This is a Rule 43 application for maintenance
pendent lite,
in which
the Applicant is claiming maintenance and other consequential relief.
2.
The Respondent opposes this application,
contending that in addition to an allowance of R10,000.00 which he
provides to the Applicant
on a monthly basis, he pays for all the
expenses which related to their joint estate as well as in particular
the common home where
the Applicant still resides.
3.
It is common cause that the parties were married
to each other on 17 June 1992 at Witbank, Mpumalanga. The marriage,
which is in
community of property, still subsists.
4.
The couple has one child, S M N born on […]
January 1995 who is presently studying and being maintained by the
Respondent.
5.
The Applicant instituted divorce proceedings
against the Respondent on 9 February 2016 in this Court. The action
is still pending.
It is further common cause between the parties
that;
5.1
During their marriage and after the Respondent
left the common home, the Applicant was and still is unemployed;
5.2
The Respondent provided the only income in the
marriage;
5.3
The Applicant has been provided with a credit
card which the Respondent took from her at the time he left the
common home;
5.4
The Respondent continues to pay all expenses
relating to the common home and provides a monthly allowance of
R10,000.00 to the Applicant,
for groceries, personal needs and her
cell phone expense.
6.
The Respondent contends that the Applicant is
sufficiently catered for and that there is no need for any
maintenance to be paid.
The Respondent even refuses to make a
contribution to the legal costs of the Applicant, notwithstanding the
fact that he has lodged
a counter action in the divorce proceedings
in which he claims forfeiture of the assets from the marriage against
the Applicant.
I will return to this aspect further in this judgment.
7.
The Respondent admits that he is a director of
several companies and earns an amount of at least R84,000.00 per
month after deductions.
He claims that his total monthly expenses
amount to R98,716.44 which includes expenses for the Applicant in the
amount of R51,913.72;
the Respondent's niece L. R8,363.00; their son
S. R13,362.43; residence of Applicant's extended family R1,123.99;
expenses of accommodation
for himself S. and L. R6,902.41; expenses
for himself R25,413.89.
8.
The Applicant on the other hand contends that:
The Respondent should pay a monthly amount of R24,767.00 per month,
be ordered to
retain the Applicant on his medical aid fund and make a
contribution to payment of medication that is not covered by the
fund;
be ordered to continue paying the monthly instalments,
insurance and maintenance of the motor vehicle; be ordered to pay the
Applicant's
cell phone account as well as contribution to the legal
costs in the amount of R20,000.00.
9.
It seems to me that the dispute between the
parties can be narrowed to three aspects, namely:
9.1
The allowance payable to the Applicant on a
monthly basis. The Applicant needs approximately R24,000.00 per month
while the Respondent
claims that R10,000.00 per month is sufficient;
9.2
The request by the Applicant of a Court order
compelling the Respondent to continue paying for the expenses
relating to The common
home which, it seems, the Applicant is
concerned that the Respondent may discontinue paying; and
9.3
The contribution towards legal costs wherein the
Applicant requests the payment of R20,000.00 while the respondent
through counsel
in Court offers R3,000.00.
9.4
I
now turn to deal with each of these three aspects.
MONTHLY
ALLOWANCE:
10.
There is no evidence to point out that the
monthly maintenance of the Applicant which Respondent claims is
R9,000.00 plus R1,000.00
for cell phone, was agreed to by the
parties. It seems to me that the Respondent on his own decided on
what he deemed sufficient
for the Applicant and paid out that amount.
11.
The Applicant has presented a budget estimate
which appears to have some of the amounts being repeated. After
taking counsel through
the various items in what the Applicant claims
are shortfalls in her personal upkeep, it became clearer that the
amount claimed
by the Applicant being R24,000.00 per month is clearly
excessive.
12.
Similarly, it is clear on consideration of the
Applicant's needs that the R10, 000.00 which the Respondent pays per
month to the
Applicant is insufficient. The Respondent in fact
contends that this amount should be reduced to R7, 800.00 per month.
In dealing
with the Applicant's budget estimate, the Respondent in
Annexure "1" to his affidavit dismisses most of the items
as
being excessive. It cannot depend on the Respondent, for example,
as to what hairstyle the Applicant must make by unilaterally
determining the amount he regards as being appropriate! It should be
considered that prior to the Respondent leaving the common
home, the
Appellant had access to a credit card and was able to decide how to
regulate her spending.
13.
It will be beyond the scope of this judgment to
deal with each and every item of a rather long list of items stated
in each budget.
Suffice to state that after considering the budget
estimates by both parties, the Court is of the view that for the
Applicant to
remain in the lifestyle she is used to, a fair and
reasonable amount which the Respondent has to pay to the Applicant
for her upkeep,
pending the divorce proceedings should be R16, 000.00
per month plus R1, 000.00 per month for cell phone. All payments for
medication
not covered by the medical aid, hair maintenance,
manicure, cosmetics, church contributions and food for the
helper/gardener should
be reasonably covered by this amount.
14.
The Respondent should also keep the Applicant in
his medical aid and pay for fuel and repairs of the motor vehicle
allocated to
her for her use.
PAYMENT
OF THE MONTHLY EXPENSES RELATING TO THE COMMON HOME
15.
The Applicant admits that the Respondent does pay
for most of the items relating to the common home. However, she
complains that
she has to ask him every week to purchase electricity
and he has reduced the DSTV premium to a limited view option.
16.
The Respondent, being the sole breadwinner, is in
control of the finances of the joint estate and it seems he
unilaterally decides
what is sufficient or good for everyone,
including the Applicant. The Applicant requires certainty that the
payments will be effected
and not be put in a position where she must
always plead after the Respondent to effect payments. In the
circumstances it is necessary
for this Court to make an order that
the Respondent should pay all the expenses relating to the common
home in exactly the same
way as it was before he left the common
home. That will include restoring the DSTV to the same channels that
operated before he
left the common home, and to purchase the
electricity regularly to avoid a situation where the Applicant has to
ask him to do that.
CONTRIBUTION
TOWARDS LEGAL COSTS
17.
The parties are married in community of property.
Applicant is unemployed. The Respondent admits the allegation by the
Applicant
that in defending the divorce action, he instituted a
counter claim wherein he demands forfeiture of three immovable
properties,
a BMW motor vehicle and any interest in his pension
benefits. The rest of the estate he claims should be divided equally.
18.
It is trite that the Applicant needs to be placed
in sufficient funds to acquire legal representation to protect her
interests arising
out of the common estate. The amount of R3, 000.00
offered by the Respondent for the Applicant's legal fees, viewed in
the context
of the size of the marital property, is woefully
inadequate. According to the Respondent's own version as stated in
Annexure "4"
to
his replying affidavit, he estimates the total assets at R13,
400,000.00 as against liabilities of R10, 432,000.00. The statement
however does not indicate any interest or shares held by the
Respondent in the various companies as well as other forms of income
and investments.
19.
I am of the view that the amount of R20, 000.00
claimed by the Appellant as a contribution to legal fees is not
unreasonable. In
fact, for the Applicant to obtain competent counsel
to assist her in the divorce proceedings, the legal fees may be in
excess of
this amount. However that will be for the trial court to
decide.
20.
Counsel for the Respondent referred this Court to
authorities such as
Du Preez v Du Preez v
2009 (6) SA 28
(T) and Taute v Taute
1974 (2) SA
675
(E),
in
support of the contention that the application should be dismissed.
The principles established it these two cases, namely the
prolixity
of the application and the Respondent's preparedness to meet
reasonable claims were not in issue in this case. This case
is
clearly about one party being in control of the income and
unilaterally deciding what is or is not good for the other, which
negatively impacts on the lifestyle of the other party which he/she
may be accustomed to. This case is thus distinguishable from
the
authorities referred to by Respondent's counsel.
CONCLUSION
21.
It appears from the evidence that prior to the
institution of th1 divorce proceedings, the Applicant and Respondent
enjoyed and
are accustomed to an affluent lifestyle, having regard to
the size of the joint estate as viewed within the context of the
broader
society in South Africa. The income declared by the
Respondent excluding all other expenses, indicate that the Respondent
can afford
to maintain the Applicant such that she continues with
that lifestyle, pending the conclusion of the divorce proceedings.
22.
In the premises I make the following order:
1.
Pending the prosecution to finality of the
divorce proceedings between the Applicant and the Respondent, the
Respondent is ordered
to:
1.1
pay an amount of R17,000.00 per month into the
bank account of the Applicant for her maintenance, cell phone and
upkeep;
1.2
keep the Applicant as a dependant in his medical
aid and pay for fuel and repairs of the motor vehicle allocated to
her for her
use;
1.3
continue to pay all the expenses relating to the
common home where the Applicant is resident as they have been paid
prior to him
leaving the common home, including restoring the DSTV to
the full compliment of the channels; and
1.4
pay to the Applicant an amount of R20,000.00 as a
contribution towards the Applicant's legal costs within 15 days from
the date
of this order.
2.
The Respondent is further ordered to pay the
costs of this application subject thereto that Rule 43(7) and (8)
shall not be applicable.
____________________
S
P MOTHLE
Judge
of the High Court
Gauteng
Division, Pretoria
For
the Applicant:
Adv. J H Jooste
Instructed
by:
Krügel Heinsen Incorporated
c/o
Martin Terblanche Attorneys
Eastwood
Law Chambers
876
Pretorius Street
Arcadia
For
the Respondent:
Adv. A De Wet
Instructed
By:
Steve Merchak Attorneys
c/o
Helen Karsas Attorney
194
Pienaar Street
Brooklyn,
Pretoria