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[2014] ZAFSHC 142
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J v J (3238/2014) [2014] ZAFSHC 142 (4 September 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 3238/2014
In
the matter between:
A[…]-M[…]
J[…]
…..................................................................................................................
Applicant
and
J[…]
F[…] J[…]
….................................................................................................................
Respondent
HEARD
ON:
14 AUGUST 2014
JUDGMENT
BY:
E.K. TSATSI, AJ
DELIVERED
ON:
4 SEPTEMBER 2014
[1]
This is an opposed application for payment of maintenance
pendente
lite
and contribution towards costs in
terms of Rule 43 of the Uniform Rules of the High Court (“the
Rules”).
[2]
The applicant instituted divorce proceedings against the respondent
under Case No 1028/2014, which action is still pending before
this
court.
[3]
The parties are married out of community of property on 18 December
2004. There are two minor boy children born from the union
aged 6
years and 8 months old at the time of hearing of this matter.
[4]
The respondent got involved in an adulterous relationship with a
certain Ms. L[…] J[…] v[…] R[…].
As a
result the respondent moved out of the marital home in October 2013
to cohabit with Ms V[…] R[…]. At the time
the applicant
was pregnant with their youngest son.
[5]
The applicant earns a salary of about R16 721.53 whilst the
respondent earns a salary of about R31 189.55.
[6]
The applicant is living with the minor children at the moment and she
is presently taking care of them. They live in the matrimonial
home.
[7]
It has been alleged that the respondent is at liberty to visit the
minor children whenever he is willing and able to do so.
The last
time the respondent saw his children was on father’s day in
2014.
ISSUES
[8]
The main issue in this Rule 43 application is whether or not the
respondent will be able to pay maintenance
pendent
lite
and other contributions toward
costs.
[9]
The applicant indicated that the respondent abuses alcohol, as a
result he was involved in two motor vehicle accidents. But
for the
alleged abuse of alcohol the applicant wants to be present every time
the respondent visits the minor children or have
them under his
control. Basically the applicant wants the respondent to see the
minor children under supervision.
[10]
The respondent denied the allegations that he abuses alcohol. He
challenged the applicant to provide proof of such, and submit
any
criminal charges laid against the respondent. The respondent wants to
have access and control of the minor children without
any
supervision. According to the respondent this arrangement of having
the applicant present all the time when he is visiting
the minor
children will not work. The reason being that the applicant and
respondent are always arguing. This will not be
good for the
children. The respondent indicated that he will not be able to
continue to pay the mortgage bond for their marital
home. He is
of the view that the marital home should be sold and the applicant
and the minor children secure accommodation
that is more affordable.
[11]
The applicant estimated her monthly expenses in the amount of
R22 378. 76 and she alleged that she has a shortfall of
about
R7827.23, which the respondent denied. The respondent estimated his
monthly expenses in the amount of R46 797.76, including
a debt
of about R40 000.00 of Wheathermakers, which the applicant
denied.
SUBMISSIONS
The
Applicant
[12]
The following submissions were made on behalf of the applicant.
The
applicant earns half of what the respondent earns.
The
respondent failed to disclose that he earns a bonus of about
R10 000.00 in addition to his salary.
[13]
Counsel for the applicant added that the respondent offered to pay
the school fees and other related costs for the minor children.
Further submissions on behalf of the applicant were that the
respondent should continue paying for the Volkswagen Citi Golf which
is in the respondent’s name in the amount of R1 500.00 per
month. The respondent recently bought an Isuzu “bakkie”
which he is paying R5 700.00 per month for.
[14]
The respondent should further continue to pay the mortgage of
R13 300.00 per month for the marital home, including security
thereof. According to the applicant the respondent has been paying
for insurance for their motor vehicles, household contents and
children's school fees. Further submissions on behalf of the
applicant were that the respondent should contribute an amount of
R5 000.00 towards the applicant’s legal costs. Counsel for
the applicant submitted that the respondent should keep the
applicant
and their minor children on his medical aid.
The
Respondent
[15]
The following submissions were made on behalf of the respondent:
[16]
The respondent is prepared to cut his own children’s hair to
save money. The respondent is prepared to contribute as
follows:
(a)
R1 500.00 for each child per month.
(b)
R800.00 for the domestic helper and R400.00
for the gardener.
(c)
R200.00 for unforeseen medical expenses.
(d)
School fess for the minor children and
related costs, including extramural activities.
[17]
In addition the respondent is willing to keep the children on his
medical aid. The respondent will not afford to pay for the
applicant’s hair, applicant’s maintenance, including her
legal costs.
THE
LAW
[18]
Rule 43 prescribes a simplified streamlined and inexpensive procedure
to obtain the same interim relief as provided by common
law in
matrimonial litigation (see
Zaphiriou v Zaphiriou
1967
(1) SA 342
(W). The procedure together with the stipulated time
limits has been designed to enable the court to deal expeditiously
with
the interlocutory applications (see
De Villiers v De
Villiers (1)
1965 (2) SA 882
(C)). This means that the
court may make findings, albeit not binding on a trial court, on
incomplete or inferences drawn
from them (
Levin v Levin
1962 (3) SA 330
(W)).
[19]
It suffices to consider what the court said in the case of
Nilsson
v Nilsson
1984 (2) 294 (C) at 295
(F):
“
Primarily
Rule 43 was envisaged to provide temporary assistance for women, 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 meal-ticket
to women who quite clearly at
the trial would not be able to establish a right to maintenance. The
grey area between the two extremes
causes problems.”
[20]
In
Kroon v Kroon
1986 (4) SA 616
E, the court stated three principles, first being
that no maintenance will be awarded to a woman who can support
herself, secondly
the aim of the court should be to award a “clean
break” between the parties. The third principle that the court
looked
at in the
Kroon
case,
supra
,
is rehabilitative maintenance to be awarded for a certain period of
time, to support a person while they are being trained for
a job.
APPLICATION
OF THE LAW
[21]
In this application the applicant alleges that although she earns a
salary it is not enough to pay for her expenses.
The respondent
is of the view that the applicant must reduce her expenses,
specifically items he labelled “luxurious”,
like hair
services, DSTV, gym for her. The applicant agreed to abandon
some of the expenses she thought the respondent could
not pay for.
[22]
I am inclined to grant the applicant some of the contributions
towards costs that she is seeking, except maintenance for herself.
(
Kroon v Kroon
,
supra
. In
order to succeed for legal costs the applicant must demonstrate
that she has little or no means of her own to pay for
the legal costs
and the amount sought is reasonably necessary to help pursue her
defence (see
Nicholson
v Nicholson
1998
(1) SA 48
(W
).
[23]
The applicant has already indicated that due to the fact that she has
to devote most of her time taking care of the minor children,
she may
have to give up any potential promotion at work. I am mindful
of the fact that the respondent himself has his own
debts to pay with
the salary that he is earning.
[24]
I am prepared to order that the minor children’s visit with the
respondent be under supervision particularly that the
youngest son is
still an infant. I am satisfied that the applicant has set out
sufficient facts before me which entitles her to
be granted some of
the relief sought.
[25]
In respect of the Rule 43 application, I make the following order
pendente lite
:
25.1
The respondent is ordered to pay the mortgage bond, insurance and
security thereof until finalisation of their divorce action.
The said
amount, including arrears to be paid with effect from 1 October 2014,
and every month thereafter on or before the 7
th
day of each succeeding month.
25.2
The applicant is awarded custody of the minor children subject
to the respondent right of reasonable access which shall
include but
not limited to the right to have the minor children visit him, under
supervision as follows:
(a)
Every first and last Saturday of the month from
9h00am
up to 17h00pm,
(b)
Every second and third Sunday of the month from 9h00am up to 15h00pm.
(c)
Every father’s day from 9h00am to 17h00pm,
(d)
On respondent’s birthday from 9h00am to 17h00pm.
(e)
Respondent is expected to fetch the minor children at the
matrimonial home. Respondent shall return the minor children to the
matrimonial home at the times stipulated above.
25.3
The respondent is directed to pay R1500.00 maintenance per child, per
month, with effect from 1 October 2014 and every month
thereafter on
or before the 7
th
day of each succeeding month.
25.4
The respondent is ordered to put the
couple’s two minor children and the applicant on his medical
aid.
25.5
The respondent is ordered to pay school
fees for the minor children and all related costs, including
extramural activities.
25.6
The respondent is ordered to pay for the
Volkswagen Citi Golf with effect from 1 October 2014 and every month
thereafter on or before
the 7
th
day of each succeeding month.
25.7
Parties can approach the court on the same
papers, duly amplified as soon as the family advocate’s report
is available.
25.8
The costs of this application are to be
costs in the divorce action.
______________
E.K.
TSATSI, AJ
On
behalf of the applicant: Adv C. Reinders
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Ms B. Smal
Instructed
by:
Hugo
& Bruwer Attorneys
BLOEMFONTEIN