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[2015] ZAFSHC 108
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S v S (5039/2014) [2015] ZAFSHC 108 (18 June 2015)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. : 5039/2014
In
the matter between:-
A.
S.
Applicant
and
R.C.S.
Respondent
JUDGMENT
BY:
MOCUMIE, J
HEARD
ON:
4
JUNE 2015
DELIVERED
ON
:
18
JUNE 2015
JUDGMENT
MOCUMIE,
J
[1]
This is an application in terms of Rule 43 of the Superior Courts
Uniform Practice Rules. The applicant and respondent are married
out
of community of property. Out of the marriage two children were
born. The applicant has filed for a divorce under
case no
5039/2014. The action is still pending. The applicant applies
for maintenance for herself and her minor child; a
girl aged [….]
years, who she resides with after she separated from the respondent
late 2014. The second minor child; a
[…..] year old boy, is
residing with the respondent. The couple have not been living
together in the marital home since
October 2014.
POINT
IN LIMINE
[2]
From the onset, Mr Van Aswegen, relying on several decisions of our
courts
[1]
raised as a point in limine the fact that the applicant had filed
more affidavits than is ordinarily allowed under Rule 43. He
argued
that the applicant used this process as a fishing expedition to get
information that she did not have on how much assets
the respondent
had in his possession. In all the communication between her lawyers
and the respondent’s not once did she
ask for maintenance. He
argued further that the fact that the applicant stayed from October
2014 without any financial support
from the respondent was indicative
that she and the daughter did not need such support from the
respondent.
[3]
It is trite that an application in terms of Rule 43 must be short and
to the point. The purpose of the rule is to deal with
applications of
this nature as inexpensively and expeditiously as possible. The rule
achieves this object by (a) requiring the
applicant to deliver a
sworn statement in the nature of a declaration setting out the relief
claimed and the grounds thereof (Rule
43(2)) and (b) requiring the
respondent to deliver a sworn reply in the nature of a plea (Rule
43(3)).The filing of more than two
sets of affidavits or supporting
affidavits may constitute an abuse of the process if the court does
not exercise its discretion
in terms of Rule 43 (5)It is only in
special circumstances that a departure from this rule will be
countenanced.
[2]
[4]
In an application of this nature, the respondent is bound to disclose
all his earnings and the sources from which he receives
them in
specific details as the applicant invited him to. Not for the
applicant’s benefit or her alleged sinister motives
but to put
this court in a better position to make an informed decision on
whether indeed he can or cannot afford to pay maintenance
pending the
divorce action. And what amount will be suitable to pay. Without such
information from the respondent, the applicant
was obliged to do her
own research and company search and come up with all the proof that
the respondent thereafter could hardly
refute. If these are not
special circumstances, I do not know what other circumstances will be
more special. Even if I may be wrong
in my approach, in the worst
case scenario, it’s the last resort that the applicant had at
her disposal to show this court
that the respondent is not a man of
straw as he claimed and maintained since the divorce action was
instituted and during the negotiations
for a settlement of the
divorce action. Besides this, this application, by its very nature,
needs a speedy resolution considering
the best interests of the
children as provided for by section 28 of the Constitution
[3]
.It
is on that basis and as well as to avoid any prejudice that the
respondent may suffer from disclosure of the documents in dispute,
that I ruled that, pages 22 to 71, forty nine pages, be disregarded.
These pages were in any event not as much as in some of the
cases Mr
Van Aswegen referred to.
[5]
These pages were annexures appended to the papers by the applicant to
show the number of companies and close corporations on
which the
respondent sits is a director. The respondent in any event did not
refute that he was a shareholder of seven companies
and a member of
two close corporations. He confirmed the allegations but indicated
that these companies were dormant and thus not
generating income as
much as the applicant seemed to believe.
[6]
Coming to the merits, the applicant is currently residing with the
couple’s daughter on her parental home premises, in
a
‘kothuis’. She is employed and earns R19 951.73 per month
after the necessary deductions as per her salary advice
dated 25
August 2014. From her salary of R19 957.36 she pays in total R9 751
on herself and the minor daughter. This is divided
up as follows: R3
400 medical fund; R 2 800 motor vehicle instalment; R3 026 motor
vehicle insurance and R3026 on groceries and
the rest on food, school
clothes, sports clothes ,casual clothes as well as pocket money, TV
licence. She alleged she needed R45
036, 55 per month for herself and
the two minor children.
[7]
Although Mr Coertzer acknowledged that the applicant’s
expenditures clearly included the minor child who was not staying
with her, he nonetheless persisted to seek such maintenance. His
argument was that considering that the applicant sought that this
court makes it an order that she has contact with the particular
minor child, so, the child will need items such as pocket money
when
he visited her. But then she could not explain the casual clothes,
school clothes, sports clothes and other items. Mr Coertzer
was at
pains to explain the logic behind this, without success.
[8]
The applicant further alleges that when the couple stayed together as
a family, the respondent provided for all the family needs
including
what can be described as exotic holiday trips every year.
[9]
In his reply, the respondent confirmed that he is employed as a
director at the companies and is a member of the closed corporations
mentioned. But all these entities were dormant and not generating any
income except one. In his defence he alleged that he is staying
with
one of the children, the boy, who does not want to stay with the
applicant. He provides for all this child’s needs on
his own
without any contribution from the applicant. Since the applicant
moved out of the marital home voluntarily in October 2014,
he has
been paying for the bond at R10 500 per month. His defence is that he
does not earn a sufficient income to pay maintenance
for both the
applicant and their daughter as he used to while they all lived under
one roof.
[10]
In a detailed income and expenditure list
[4]
,
he indicates that he earns R11 000 every month from his income from
the one company and commission from Sanlam and he spends R
30 730 on
the two children and himself. He does not say where he gets the money
he spends every month. Nor does he say whether
he ever suffers any
shortfall from his income every month. If so how does he augment that
shortfall. So, I will assume, with the
limited information that he
has provided, that he does generate income from some other
undisclosed source. Otherwise how does he
pay for these expenditures
every month?
[11]
The dispute between the parties is whether the respondent is as well
off as the applicant alleges and whether he can afford
to maintain
her and their daughter and contribute towards the costs of the
divorce action (R5000).
[12]
It is common cause or at least not seriously refuted that at all
times when the parties were staying together as husband and
wife the
respondent maintained the entire household apart from the applicant
paying for the bond and the medical aid. The parties
led a relatively
comfortable life. The respondent has made no reference to what could
have changed so drastically since December
2014 to date because he
has not been maintaining the applicant. I am convinced from a number
of indications including his overboard
list of monthly expenditures
that the respondent is not and can never be a man of straw as he
strenuously attempted to convince
this court.
[13]
Because I have been left to second guess the respondent’s
income, at his own peril, I must add, I have to accept as the
applicant has argued that he earns sufficient enough to afford a life
style of a relatively high standard than he has claimed on
the
papers. This is the difficulty that women ,in most instances, who are
not in charge of the family business or businesses have
to endure to
prove that their spouses actually earn more than they claim. Surely
the fact that they lived longer with their spouses
must put them in a
better position to say that they experienced a life of luxury, and
the money that catered for such luxurious
life could not have
disappeared overnight unless shown otherwise. They in turn must be
forced to go to town to show this much and
at a huge cost when the
spouse can simply say, although we lived such a life, in fact we
could not afford it .Courts are expected
to accept that. That cannot
be correct. Courts must look at the life style the couple lived. In
the absence of any malice or mischief
on the part of the applicant
accept that that is the live that the couple led. This is not to say
courts should make orders will
amount to a meal ticket for the
applicants in applications of maintenance pendente lite. A balance
must be struck. And only necessities
must be paid by the respondent
if so proven.
[14]
That is however not the end of the enquiry. The question remains if
the applicant has established that she needs maintenance
from the
respondent. On the papers before me, the applicant is no longer
paying the R10 000 for the bond, she is not paying for
the
maintenance of the child who is staying with the respondent. Once the
bond payment and the one child’s maintenance fall
off her list
of expenditures, surely the amount claimed should be reduced with
those amounts.
[15]
Once she no longer pays R10 000 but R2 500 for the kot huis then
surely she is left with sufficient money to pay for her own
car and
its insurance as well as water and electricity and rates where she is
staying. There is simply no basis for her claim for
R45 036, 55 per
month for herself and the two minor children. In fact if one
considers what the respondent has been doing when
they were living
together, it is clear that he provided for the family.
[16]
Having said that, I am satisfied that the applicant has shown that
the minor child living with her needs maintenance from the
respondent
and that the respondent can afford to contribute towards this child’s
maintenance as he used to. But, I can however
not find the same in
her respect.
[17]
The decision I have reached is influenced by the fact that I am
convinced that the respondent does have money he can use to
pay
maintenance for both his children. If he cannot on his current
salary/commission from Sanlam and dividends or returns from
Meerland
Twintig (Pty) Ltd and whatever sources he has preferred not to
disclose which makes him afford to spend at least R 30
730 on himself
and one child every month, then he must sell off any asset(s)
including shares and other commodities he has to make
up for his
children’s maintenance.
[18]
As far as costs are concerned, these should be part of the main
action.
[19]
In the circumstances the following order is granted.
ORDER
1.
The
application for maintenance in respect of the applicant is dismissed.
2.
The
respondent is ordered to pay maintenance in respect of the minor
child, J. S., with effect from 30 June 2015.
3.
The
respondent is to pay for the following in respect of the minor child,
J. S. into the applicant’s account:
3.1
Civilian clothes
3.2
School uniform
3.3
Sports clothes
3.4
Pocket money
5.
4.
All payments to be made into the applicant’s bank account to be
provided to the respondent through the parties’ legal
representatives except payment in respect of J. S.’s school
fees which is to be made directly to the school she attends.
6.
That
pendente
lite
specific parental responsibilities and rights as set out in s18(2)(b)
of the Children’s Act 38 of 2005,and in particular,
the right
to maintain contact with the minor child, is awarded to the
applicant, which contact includes, but is not limited to,
the
following:
a.
Every
alternate weekend from the Friday 18h00 to Sunday 18h00.
b.
Every
alternative long and short school holiday (Christmas to rotate)
c.
Reasonable
telephonic contact at all reasonable times.
7.
Costs
of this application to be costs in the main action.
________________
B. C. MOCUMIE, J
On
behalf of the appellant:
Adv. J. C. Coetzer
Instructed by:
Matsepes
Inc
BLOEMFONTEIN
On
behalf of the respondent:
Adv. A. W. van Aswegen
Instructed by:
McIntyre & Van
der Post
BLOEMFONTEIN
[1]
Nienaber v
Nienaber
1980(2) SA 803 (OPD) at 805F-H;
Visser
vs Visser
1992(4)SA 530(SE);
Patmore
vs Patmore
1997(4) SA 785(W) at 785.
[2]
Joffe et al:
High
Court Motion Procedure:APractical Guide
[Issue
5] 3-4 and cases cited therein.
[3]
Section 28 of the Constitution of South Africa, 1996.
[4]
Pages 85-86 of the paginated papers.