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[2014] ZAFSHC 190
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R v R (292/2014) [2014] ZAFSHC 190 (30 October 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 292/2014
In
the matter between:-
M[…]
B[…] R[…]
…..................................................................................................................
Applicant
(Born
S[…])
and
M[…]
H[…] R[…]
…..............................................................................................................
Respondent
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
9
OCTOBER 2014
DELIVERED
ON:
30
OCTOBER 2014
INTRODUCTION
[1]
This is an opposed application for payment of maintenance,
contribution towards costs, awarding of parental responsibilities
and
rights with regard to the care and custody of the minor children
pendente lite
in terms of Rule 43 of the Uniform Rules
of court (“the Rules”).
[2]
The applicant instituted divorce action against the respondent under
case number 292/2014, which action still pending before
this court.
[3]
The parties are married in community of property on 10 December 1996,
in Bloemfontein and the marriage still subsists.
There are two
minor girl children born from this marriage aged 17 and 7 years.
FACTS
[4]
The applicant left the communal home in November 2011, to live in
Pretoria due to her work commitments. She returned permanently
to Bloemfontein during July 2013. When she returned from Pretoria to
Bloemfontein, she stayed with her mother. She did not go back
to the
communal home. It was alleged at the hearing of this application that
she bought her own home. The applicant is currently
employed as an
agent in the service of the Motor Industry Bargaining Council with a
net salary of R9 480, 00. As an
agent of the Motor
Industry Bargaining Council, the applicant travels a lot. She
receives an allowance of R3 588, 00
per month. She spent
R2 000, 00 of this money when she is out of town and she is
usually left with R1 500, 00.
This was added to her salary
of R9 480, 00. She alleged that her expenses amounted to
R15 420, 00.
[5]
The respondent is a deputy principal at one of the High Schools in
Bloemfontein. He is presently living in the communal
home with
the younger daughter. He took care of the couple’s two
minor girl children when the applicant lived in Pretoria.
The 17 year
old daughter left the communal home to live with the applicant at the
latter’s mother’s home. The
respondent’s net
income is said to be R14 361, 94. His expenses amount to
R13 892, 00.
ISSUES
[6]
The issue is whether both applicant and respondent can be awarded
parental responsibilities and rights with regard to the care,
maintenance and custody, of their minor children.
SUBMISSIONS
[7]
It was submitted on behalf of the applicant that the family advocate
recommended that the minor children not to be separated.
A
further submission was that primary care of the two minor children be
awarded to the applicant. The applicant has moved
into a new
house which is within walking distance of the minor child’s
school. The applicant’s expenses of R15 420,
00 were
concluded to accommodate three people, meaning the applicant, and the
two minor children. The respondent has access
to the communal
home which the applicant did not have. It will be in the best
interest of the minor children to be in the
care of the applicant.
The respondent can afford maintenance of R3 000, 00 per child,
per month. The applicant’s
mother will be able to look
after the minor children when the applicant was not there.
[8]
A submission on behalf of the respondent was that the applicant left
the communal home in November 2011 at the time the youngest
daughter
was only four. Counsel for the respondent referred me to
Erasmus Superior Court Practice, page 316, Rule 43(1) (c)
which
provides that the court will be generally reluctant to upset the
status
quo
concerning the custody of the minor children.
The principles of preserving the status
quo
is subject to the considerations that the paramount interest of the
children must prevail and the status
quo
must not constitute an unreasonable state of affairs. Counsel
for the respondent further submitted that uprooting the 7 year
old on
the wishes of the older sister was not a good thing to do.
Besides the 17 year old girl was in boarding School, therefore
she
will not be staying with her younger sibling. There was a
magistrate court maintenance order which the respondent was
taking
care of by complying. A further submission was that if the
applicant’s R15 420, 00 expenses were based on three
people, this should be reduced. The reason being that the elder child
is in boarding school and the younger child stays with her
father.
Counsel for the respondent argued that the family advocate’s
report contained recommendations and the court is entitled
to deviate
from such recommendations if it deems fit.
THE
LAW
[9]
In
Kroon v Kroon
1986 (4) SA 616
(E) the court said
that:
“
The
parties are no doubt aware that in most cases persons who have become
divorced will be compelled by necessity to reduce their
standard of
living, for where the available means of support are not adequate to
maintain both according to their former scale
of living, each must of
necessity scale down his or her budget … The fact of the
matter is that two living together
can live more cheaply than two
living apart, for obvious reasons such as the need for two residences
plus rates, maintenance, service
charges, and all the rest of it, two
cars plus the concomitant expenses, two lots of household goods to
buy and maintain, and so
forth. The problem of “indivisible
expenses” is a real one.”
[10]
Section 28(2) of the Constitution provides that
“
A
child’s best interest are of paramount importance in every
matter concerning the child.”
[11]
Section 18(2) of the Children’s Act, Act 38 of 2005 provides
that:
“
The parental responsibilities
and rights that a person may have in respect of a child, include the
responsibility and the right:
-
(a)
to care for the child
(b)
to maintain contact with the child
(c)
to act as guardian of the child; and
(d)
to contribute to the maintenance of the child.”
[12]
Section 7 of the Child’s Act provides that:
“
(1)
Whenever a provision of this Act requires the best interests of the
child standard to be applied, the following factors must
be taken
into consideration where relevant, namely-
(a)
the nature of the personal relationship between-
(i)
the child and the parents, or any specific parent; and
(ii)
……...
(b)
the attitude of the parents, or any specific parent, towards-
(i)
the child; and
(ii)
the exercise of parental responsibilities and rights in respect of
the child;
(c)
the capacity of the parents, or any specific parent, or of any other
care-giver or person, to provide for the needs of the child,
including emotional and intellectual needs;
(d)
the likely effect on the child of any change in the child's
circumstances, including the likely effect on the child of any
separation from-
(i)
both or either of the parents; or
(ii)
any brother or sister or other child, or any other care-giver or
person, with whom the child has been living;
(e)
the practical difficulty and expense of a child having contact with
the parents, or any specific parent, and whether that difficulty
or
expense will substantially affect the child's right to maintain
personal relations and direct contact with the parents, or any
specific parent, on a regular basis;
(f)
the need for the child-
(i)
to remain in the care of his or her parent, family and extended
family; and
(ii)
to maintain a connection with his or her family, extended family,
culture or tradition;
(g)
the child's-
(i)
age, maturity and stage of development;
(ii)
gender;
(iii)
background; and
(iv)
any other relevant characteristics of the child;
(h)
the child's physical and emotional security and his or her
intellectual, emotional, social and cultural development;
(a)
the nature of the personal relationship between-
(i)
the child and the parents, or any specific parent; and
(ii)
the child and any other care-giver or person relevant in those
circumstances;
(b)
the attitude of the parents, or any specific parent, towards-
(i)
the child; and
(ii)
the exercise of parental responsibilities and rights in respect of
the child;
(c)
the capacity of the parents, or any specific parent, or of any other
care-giver or person, to provide for the needs of the child,
including emotional and intellectual needs;
(d)
the likely effect on the child of any change in the child's
circumstances, including the likely effect on the child of
any
separation from-
(i)
both or either of the parents; or
(ii)
any brother or sister or other child, or any other care-giver or
person, with whom the child has been living;
(e)
the practical difficulty and expense of a child having contact with
the parents, or any specific parent, and whether that difficulty
or
expense will substantially affect the child's right to maintain
personal relations and direct contact with the parents, or any
specific parent, on a regular basis;
(f)
the need for the child-
(i)
to remain in the care of his or her parent, family and extended
family; and
(ii)
to maintain a connection with his or her family, extended family,
culture or tradition;
(g)
the child's-
(i)
age, maturity and stage of development;
(ii)
gender;
(iii)
background; and
(iv)
any other relevant characteristics of the child; (h) the child's
physical and emotional security and his or her intellectual,
emotional, social and cultural development;…”
APPLICATION
OF THE LAW
[13]
It is trite that Rule 43 is designed to give parties fast and
affordable relief in terms of interim disputes regarding maintenance
care and access of minor children.
[14]
The amount of R15 420, 00 of the applicant expenses required
further scrutiny. It has been said that the said amount
was
based on expenses for three people. The applicant indicated
that the groceries amounted to R2 300, 00. At
the same
time she included an amount of R2 040, 00 for the elder minor
child. There is a Standard Bank personal loan
of which the
outstanding amount is R24 000, 00. Another Standard Bank
overdraft with a balance of R11 000, 00 was
said to be money
used on renovating the communal home. The respondent
disagreed. He indicated that it was not possible
for the
applicant to renovate the communal home as the applicant left the
communal home in November 2011. There was also
a Nedbank amount
with an outstanding balance of R9 000, 00. The applicant
did not inform the court about the purpose
of this expense. The
elder minor child will turn 18 years In November 2014 and she will be
ready to go to University.
The R2 040, 00 boarding fee
will fall away, even though it will be replaced by the University
fees. I am of the view
that the applicant exaggerated her
expenses regarding loans and credit cards. She worked on a
wrong principle by trying to
maintain the same standard of living she
had when she was still living in the communal home with the
respondent. My view is that
the applicant equated “want”
with “need”. She basically included her “wants”
in a list of her
“needs”.
[15]
What does the applicant want and what does she need? Wants and
needs are two different things. People usually want
more than
they need (
Kroon v Kroon
supra
). The applicant
may not expect to have the same standard of living she had when
she lived with the respondent. I agree with
counsel for the
respondent that 1/3 of the applicant’s expenses would fall away
if the status
quo
was not disturbed. This means that if the
minor child remained in the respondent’s care.
[16]
The respondent’s R13 982, 00 expenses also needed further
consideration. In addition to the R13 982,
00 monthly
expenses, there are other deductions on the respondent’s
payslip. A concern was raised by counsel for the
applicant that
the respondent’s car instalment was R5 500, 00, which he
considered unnecessary and exorbitant. There
was an amount of R1 327,
00 deducted from the respondent’s salary on behalf of First
Rand. The respondent’s salary
is R28 517, 00 and after
deduction the net salary is R14 361, 94. It is not evident
on the papers whether or not
the respondent had any personal loans
and or overdraft facilities. There was no exaggeration
regarding credit card or overdraft
facilities.
[17]
There was a magistrate court maintenance order dated 7 February 2014,
which was attached to the court papers. According
to this order
both the applicant and the respondent were ordered to be responsible
for both children’s secondary and university
fees. The
order further provided that each party will be responsible for
medical expenses and upbringing of the child living
with such party.
I have taken this order into account.
[18]
Both the applicant and respondent are entitled to parental rights and
responsibilities as specified in the Act. They
are both capable
and competent parents. I have no doubt that both of them love
their minor children very much. It will
be in the best interest
of the minor children if both parents are granted parental rights and
responsibilities equally. This
can be achieved by not upsetting
or disturbing the status
quo
concerning custody of the minor
children. The elder daughter who is 17 was going to turn 18 in
November 2014. Despite
that she will still need parental
guidance and supervision.
[19]
I am of the view that the applicant is not entitled to be granted
contribution towards her legal costs. The respondent’s
net
salary is almost the same as that of the applicant. For the
applicant to succeed with legal costs she must demonstrate
that she
has little or no means of her own to pay for the legal costs
(
Nicholson v Nicholson
1998 (1) SA 48
(W).
[20]
I have taken the family advocate and the family counsellor’s
reports into account. This is despite the fact that
I only
received the said reports at lunch time on the day of the hearing. I
have had regard to the provisions of section 28(2)
of the
constitution, including provisions of the Children’s Act and
the magistrate court maintenance order. Based on
the
submissions made in court, including the preceding, I am not inclined
to disturb the status
quo
concerning the permanent residency
of the minor children. I am mindful of the fact that normally
young children should go
to the mother. Although this may not be
tradition any longer, as men are also domesticized and have become
good child minders.
I am also mindful of the fact that separation of
children from one another should be avoided where possible. I
am influenced
by the fact that, the respondent even though he is the
father, he has taken care of his daughters alone since 2011, when the
youngest
one was only four. I am aware of the criticisms the
respondent levelled against the applicant and
vice versa
.
[21]
I am mindful of the fact that the younger minor child expressed
concern that the respondent at this stage involved his girlfriend
in
the upbringing of the younger minor child. This was
despite the fact that the younger minor child regarded the
respondent’s girlfriend as a third party and a stranger.
The younger minor child should not be forced to have a mother-child
relationship with the respondent’s girlfriend. This can
be confusing for a child as her mother is still around.
It is
my view that the respondent should rather make sure that he is the
one involved in the care and supervision of the younger
child and he
should keep the girlfriend’s involvement at a minimum.
[22]
I am satisfied that both the applicant and respondent have set out
sufficient facts which would justify them in being awarded
parental
responsibilities and rights with regard to the care, maintenance and
custody of their minor children,
pendente lite
.
[23]
I accordingly make the following order
pendente lite
, in terms
of rule 43:
23.1
Both parties to be the holders of parental rights and
responsibilities as contemplated in section 18 of the Children’s
Act.
23.2
That the permanent residency of the elder minor child be awarded to
the applicant and that of the younger minor child be awarded
to the
respondent.
23.3
That the respondent employ the services of a nanny on a full time
basis to take care of the younger minor child, including
afterschool, and Saturdays when the minor child is in the care
of the respondent.
23.4
That specific parental responsibilities with regard to the contact of
the minor children as contemplated in section 18(2) of
the Children’s
Act be awarded to both parties in the following manner. The
arrangement should be such that the two minor
children are with the
same parent with one is visiting:
23.4.1
Contact on alternative weekends from 17H00 on a Friday to 17H00 on a
Sunday of the younger minor child with the applicant
and the elder
minor child with the respondent.
23.4.2
Public holidays to alternate between the parties: younger minor child
to visit the applicant and elder minor child to visit
the respondent
23.4.3
Short school holidays to alternate between the parties: younger minor
child to visit the applicant and elder minor child
to visit the
respondent and school holidays to be shared equally;
23.4.4
Christmas day to alternate between the parties: the minor child to
visit the applicant and the elder minor child to visit
the respondent
23.4.5
Reasonable telephonic contacts between both parties and their minor
children;
23.4.6
The applicant to have the younger minor child with her
every mother’s day and on the applicant’s
birthday and
the respondent to have the elder minor child with him on father’s
day and on his birthday
23.4.7
The applicant to have at least three hours contact with the younger
minor child on the child’s birthday and the respondent
to have
at least three hours contact with the elder minor child on
the child’s birthday .
23.5
That each party is responsible for the care and maintenance expenses
of the child they are living with.
23.6
That each party contributes fifty (50) percent of the minor
children’s school fees and extra-mural activities.
23.7
That both parties be responsible for the payment of the medical
related expenses of the minor children.
[24]
That costs of this application are to be costs in the cause.
_________________
E.
K. TSATSI, AJ
On
behalf of the applicant: H. J. Stander
Instructed
by:
Stander
and Partners
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. P. Berry
Instructed
by:
Callis
Attorneys
BLOEMFONTEIN