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[2015] ZAGPPHC 703
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L.A.O v K.O (19449/2013) [2015] ZAGPPHC 703 (14 July 2015)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
14/7/2015
CASE NO: 19449/2013
In the matter between:
L.
A.
O.
Applicant
and
K.
O.
Respondent
JUDGMENT
Baqwa
J
[1]
This is a Rule 43 application in which the applicant seeks an order
for the payment, pendente lite of maintenance in the sum
of R7 900.00
per month for the minor child M., and a contribution of R25 000.00
towards the applicant's legal costs.
[2]
The parties were married to each other on 7 February 2004 out of
community of property and the marriage still subsists. A divorce
is
pending before this court, hence this application in terms of Rule
43.
[3]
There is one minor child born of this marriage, namely, M. O., a girl
born [….] 2004.
[4]
The parties are no longer living together as husband and wife, the
applicant having left the common home at no. […],
Silverlakes,
Pretoria. The said property has since been sold and the respondent
assisted the applicant to obtain alternative accommodation
in
Silverlakes where the applicant and the minor child, M. currently
reside.
[5]
The applicant is currently employed as an office manager at Survival
Tyre Safety, Waterloo where she earns a salary of R18 617.00
per
month.
[6]
The respondent is employed by a company known as the Reclamation
Group Scrap Metal Group earning according to his payslip a
net income
of about R50 000.00.
[7]
I do not propose to go into an analysis of the allegations and
counter allegations between the parties as I propose to
be
guided by the facts which are common cause and the law.
[8]
It is trite that the court when seized with such matters has to place
the best interests of a child above all considerations.
This is
endorsed in the supreme law of the land, the Constitution of the
Republic of South Africa Act 108 of 1996 which provides
in Section 28
(2) that
"A child's
best
interests
are
of paramount importance in every matter
concerning the child".
In other words any acrimony that may
be prevalent between the parties should not be allowed to
impact on the interests of
the child.
[9]
The applicant's counsel has conceded that some of the amounts claimed
in the applicant's income and expenditure statement may
appear to be
inflated but she submits that the applicant has also submitted 5 bank
statements to
facilitate
a process of verification of the amounts claimed.
[10]
As against this, the respondent has submitted an illegible salary
slip. He has not given any account regarding the existing
Family
Trust nor has he disclosed whether he receives any income therefrom.
He has not submitted even a single bank statement to
throw light into
his financial state of affairs. Even though the respondent has
seemingly conducted matters in a most reasonable
manner, even to the
extent of providing a R3 million house to the applicant for use by
herself and the minor child, it appears
that he has beenless than
candid in his disclosure to this court in this application.
[11]
Taking the evidence presented by the parties into account, the
approach in Rule 43 proceedings was established in the well-known
decision of
Levin v Levin
and
Another
1962 (3) SA 330
0/11) at 331 D as follows:
"To
decide
the issue
I am compelled
to
draw inferences
and to look
to the
probabilities as they emerge from the
papers. Obviously
my findings are in no way binding
on the trial court
and indeed after hearing
the evidence it may emerge
that some or all the inferences I have drawn are wrong. On this basis
I
now tum
to
the
issues as they emerge from the
papers."
[12]
I have accordingly tried to balance the scales not only from a
maintenance for the child point of view but also from a litigation
point of view in light of a claim for a contribution towards costs.
[13]
Section 9 (1) of the Constitution guarantees both parties the right
of equality before the law. Even though the economic circumstances
of
the respondent may have altered, he has and in my view still does
enjoy a better standard of living than the applicant. He earns
more
than double the income of the applicant. The applicant has to see to
the needs of the minor child of the marriage on a day
to day basis
even though she is now a working mother.
[14]
As to the contribution towards costs the approach appears to
be that the applicant is entitled, if the respondent has
the means
and she does not, to be placed in a position to present her case
adequately. The obligation arises from the duty of support.
See
Chamani v Chamani
1979 (4) SA 804
(W) at 806 F-H.
[15]
The approach in the determination of the contribution is that set out
in
Glazer
v Glazer
1959 (3) SA 928
(W) where it
stated that:
"The
scale
upon
which
she
is
entitled
to
litigation
in
my
view
is
a
scale commensurate
with the
means
of
the parties....
If
he
is
to employ
the best
possible
legal assistance obtained by means of his
wealth, she is entitled to be assisted
upon a somewhat
similar
scale.
I think
that
at this stage
she is entitled to
quite
a
considerable contribution towards
costs.
"
[16]
Having considered the facts and the law applicable I have come
to the conclusion that the draft order handed in by the
applicant as
amended be marked "X" and made a court order. I read only
paragraphs 6, 7, 8 and 9 of that order which reads
as follows:
"6.
The respondent is ordered to pay maintenance to the applicant
in respect of the minor child in the amount of R5 000.00
per month,
into a bank account appointed by the applicant.
7.
The respondent is ordered to make a provisional contribution of R20
000.00 to the applicant's legal costs
pendente
lite
in monthly instalments of R4 000.00.
8.
The payments in 6 and 7 above will commence on or before the 7
th
day of August 2015 and shall thereafter be made on or before the 7
th
day of each succeeding month.
9.
Prayers 2, 3, 4, 5, 6, 7 and 8 above shall be in force and effect
pendente lite,
pending the finalization of the divorce
proceedings.
__________________________
S.
A. M. BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Heard
o
n:
14 July 2015
Delivered
o
n:
14 July 2015
For
the Applicant:
Wiese & Wiese Attorneys
For
the Respondent:
Van
der Merwe Inc.