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[2014] ZAFSHC 162
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A v A (3505/2014) [2014] ZAFSHC 162 (11 September 2014)
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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 3505/2014
In
the matter between:
A[…]
A[…]
….............................................................................................................................
Applicant
and
H[…]
W[…] A[…]
…..............................................................................................................
Respondent
HEARD
ON:
21 AUGUST 2014
JUDGMENT
BY:
E.K. TSATSI, AJ
DELIVERED
ON
11 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 Court (“the Rules”).
[2]
The applicant instituted divorce action against the respondent under
Case No 3134/2014, which action is still pending before
this court.
[3]
The parties are married out of community of property on 11 January
2003, the marriage still subsists. There are two minor boy
children
born from the union aged 14 and 10 years old.
FACTS
[4]
The applicant is presently staying with her parents, together with
the two minor children. The applicant’s father
used to
maintain her and the two minor children, but he is no more able to do
so. The applicant is diagnosed with depression,
bipolar,
obsessive compulsive disorder and she needs medication on a daily
basis to manage the illness.
[5]
The applicant used to work for a cosmetic company called Annique as a
consultant since 1992. Her commission was about R1 000.00
a
month until she resigned in 2013. The applicant also worked for the
Department of Health until she was medically boarded. She
currently
lives on a disability grant of about R3 500.00.
[6]
According to the applicant, respondent abandoned her, and the minor
children including his responsibilities. The only thing
that the
respondent was paying for was the applicant’s and the two minor
children’s cellphone bills. The respondent
wanted to sell the
household furniture to Nico Smith Auctioneers, in order to pay for
his debts.
[7]
The respondent is in car sales business, presently living with his
mother since his father passed away on 29 June 2014. At
the
moment the respondent is paying his mother rental in the amount of R5
500.00.
[8]
The respondent denied that the applicant was no more a consultant for
Annique cosmetics. He alleged that the applicant
was still
working for Annique cosmetics and making between R1 500.00 to
R2 000.00 per month.
[9]
The respondent earns a salary of about R57 078.15 per month.
Applicant has got no source of income except the disability grant
of
R3 500.00.
ISSUES
[10]
The main issue in this application is whether or not the respondent
will be able to pay maintenance
pendente
lite
and other contributions toward
costs.
[11]
The applicant pleaded with the respondent to assist her and the minor
children financially, but all in vain. In response to
the applicant’s
request, the respondent paid an amount of R1000.00 in the applicant’s
bank account on 21 July 2014.
The amount was not enough because the
applicant had to pay the domestic worker R300.00 for a two day work,
R300.00 diesel for the
“bakkie”, R100.00 for electricity,
R300.00 for anti-depressant currently used by the children.
[12]
The applicant estimated her monthly expenses in the amount of
R30 569.00 and she has a shortfall of about R27 069.00,
this included using her disability grant.
[13]
According to the respondent he paid an amount of R4 000.00 into
the applicant’s bank account on 29 July 2014.
He also
paid an amount of R1 597.00 for medical services. The
respondent’s nett income was about R38 376.07
on 31 August
2013 and R20 375.17 on 31 July 2014.
[14]
The respondent’s monthly expenses was said to be R305 599.18
which included various credit facilities, college fees
and arrears.
In addition his alleged reasonable expenses amounted of R28 958.39.
SUBMISSIONS
:
APPLICANT
[15]
It was submitted on behalf of the applicant that the court, as the
upper guardian of children, should take cognisance of the
best
interest of the minor children. The court should intervene and make
sure that the respondent was taking care of his minor
children
adequately. The respondent’s children are suffering as
respondent neglected them. The applicant was unable
to take
care of the minor children adequately, because her disability grant
was not enough. The R5 500.00 that the respondent
was paying to
his mother, he could spend same on his children.
[16]
Counsel for the applicant argued that, ever since the applicant
instituted the divorce action against the respondent, the latter
decided to work less. As a result the respondent was earning
very little commission compared to what he used to earn before
the
institution of the divorce action against him. Counsel for the
applicant submitted a document in court showing a decline
in the
respondent’s earnings. For example on 31 July 2013 the
respondent’s total earnings were R100797.00, incentive
bonus of
which was R69677.00 and on 30 July 2014 his total earnings were
R38 620.00, incentive bonus of which was R5000.00.
It was
further submitted that for the respondent to earn commission as he
did before he needed to work harder.
RESPONDENT
[17]
Counsel for the respondent denied that the respondent worked less to
earn less commission due to the fact that a divorce action
has been
instituted against him. The commission started to decline from August
2013 to July 2014. Divorce summons were issued
against
respondent in July 2014. He would not have known that the applicant
was going to divorce him. The reason for the
decline in the
commission was due to the bad economy in the country. A submission
was made on behalf of the respondent that August
2013 to July 2014
car sales declined and this has affected the respondent’s
earnings. End of February is end of financial
year and the respondent
had to pay his income tax, which resulted in a drop in respondent’s
earnings. It was
submitted on behalf of the respondent
that the applicant misled the court. It was alleged that
she claimed an amount
of R30 000.00 for her expenses which was
extreme and exaggerated. Therefore the court may dismiss the
applicant’s application
with costs. The respondent cannot
afford to pay for all the costs the applicant is asking for, due to
the fact that his earnings
were not enough.
THE
LAW
[18]
Section 7 of the divorce Act of 1979 (“the Act’) empowers
the court granting a decree of divorce to make an order
of
maintenance in favour of one of the spouses after considering the
following facts: the existing or prospective means
of the
parties, the parties respective earning capacities, their financial
needs and obligations, their ages, the duration of the
marriage, the
standard of living of the parties prior to the divorce, the parties
conduct insofar as it may be relevant to the
breakdown of marriage,
an order for the division of assets and any other factor which may
assist the court.
[19]
In
Levin v Levin and Another
1962 (3) SA 330
(W) at 331D the court said that maintenance
pendente
lite
is intended to be temporary and
interim and cannot be determined with the same degree of precision,
as would be possible in a trial
where evidence is adduced. A
claim supported by reasonable and moderate details carries more
weight than one which includes
extravagant or extortionate demands.
More weight will be attached to the affidavit of a respondent who
evinces willingness
to implement his lawful obligations than to that
of one who is seeking to evade them. (See:
Taute
v Taute
1974 (2) SA 675
(E) at
676H.)
[20]
The claim for a contribution towards costs is based on the duty of
support the spouses owe each other. (See:
Lyons
v Lyons
1923
TPD 345
at 346.) The applicant, asking for contribution towards
costs, must show that she has insufficient means of her own. (See:
Engelbrecht v Engelbrecht
1944 NPD 186.)
Our courts are generally inclined to award maintenance
where there are minor children and the spouse asking for maintenance
pendente lite
is unemployed (See:
Kroon v Kroon
1986 (4) SA 616
(E); and
Pillay v
Pillay
2004 (4) SA 81
SE.)
APPLICATION
OF THE LAW
[21]
Although this is a Rule 43 application, I have taken factors provided
for in section 7 of the Divorce Act into account. The
applicant’s claim is supported by reasonable and moderate
details and it is not exaggerated or extravagant. I am reluctant
to
say the same thing about the respondent. I find the
respondent’s expenses to be excessive and exorbitant. For
instance, there are various credit facilities with huge instalment
payments. In addition the respondent included cell phone payments
as
part of his expenses but omitted to mention that R620.00 of the
alleged R1 000.00 for his cellphone bill is paid by his
employer.
[22]
I am inclined to think that the respondent’s willingness to
implement his obligations is lacking (See:
Taute
v Taute
, (
supra
.)The
respondent alleged that his total expenses amounted to R305 599.18
and R28, 958.39, with a monthly salary of R19 674.00.
Based on the submissions made on behalf of the respondent,
respondent’s earnings fluctuated and was also dependent on
commission
which was affected negatively or positively by car sales.
[23]
I am satisfied that the applicant has set out sufficient facts which
would justify the court in granting her maintenance and
contribution
towards costs
pendente lite
.
[24]
I accordingly make the following order
pendente
lite
, in terms of Rule 43:
24.1
The
respondent is ordered to pay an amount of R6 600.00 for an
accommodation for the applicant and the two minor children.
The said
amount to be paid with effect from 1 October 2014 and every month
thereafter on or before the 7
th
day of each succeeding month.
24.2
The applicant is awarded custody of the
minor children subject to the respondent’s right of reasonable
access, which shall
include but not limited to the right to have the
minor children visit him at times and places agreed to by both
parties.
24.3
The respondent is further directed to pay
R6 000.00 per month per child with effect from 1 October 2014
and every month thereafter
on or before the 7
th
day of each succeeding month.
24.4
The respondent is ordered to put his two
minor children on his medical aid with immediate effect. The
respondent is also ordered
to pay for all reasonable expenses
regarding hospital, dental, eye and pharmacy services including
related costs which are not
covered by medical aid.
24.5
The respondent is ordered to pay an amount
of R8 000.00 towards the applicant’s maintenance with
effect from 1 October
2014 and every month thereafter on or before
the 7
th
day of each succeeding month.
24.6
The respondent is ordered to pay a
contribution of R5 500.00 towards the applicant’s legal
costs. The said amount to
be paid monthly at a rate of about R500.00
per month with effect from 1
st
October 2014 and every month thereafter on or before the 7
th
day of each succeeding month.
24.7
Parties can approach the court on the same
papers, duly amplified, as soon as the family advocate’s report
is available.
24.8
The costs of this application are to be
costs in the divorce action.
______________
E.K.
TSATSI, AJ
On
behalf of the applicant: Adv Wessel Groenewald
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN
On
behalf of the respondent: Adv S Tsangarakis
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN