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[2013] ZAGPPHC 525
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E v E (68802/12) [2013] ZAGPPHC 525 (1 March 2013)
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 NORTH GAUTENG
HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO. 68802/12
DATE:
1/3/2013
In
the matter between:
E[…]
...........................................................................................................................................
Applicant
and
E[…]
.........................................................................................................................................
Respondent
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
1.
The applicant and respondent married out of community of
property on 07 May 1994. Two children, a boy and a girl were born
on
[…] and […] respectively. The applicant left the
common household during July 2012 and was staying
with a friend
at the time this application was launched.
The
children are in the custody and care of their father, the respondent.
2.
In this application, applicant seeks an order in terms of Rule 43 of
the Uniform Rules of Court in the following terms:
2.1
That the primary care and parental rights and obligations as well as
primary place of residence of the minor children be awarded
to the
respondent, subject to applicant’s rights of reasonable
contact.
2.2
That respondent be ordered to pay applicant maintenance of an amount
of R24 620,00 per month .
2.3
That respondent be ordered to retain applicant and the minor children
in his medical fund and to pay all reasonable deductibles
in this
regard.
2.4
That respondent be ordered to continue to pay school fees for the
minor children.
2.5
That respondent be ordered to continue to pay for applicant’s
motor vehicle and insurance.
2.6
That the respondent be ordered to pay a contribution to
applicant’s legal costs in the amount of R5 000.00.
2.7
Cost of this application be costs in the proceedings.
3.
It appears from the answering papers and submissions made on behalf
of the respondent that there is no dispute with regard to
the relief
sought on behalf of the children.
The
respondent only mentioned (without placing his liability in issue)
the fact that the boy, who is now 19 years of age, is no
longer a
minor. Therefore, for purposes of this judgment, the only issue is
whether respondent should be ordered to pay maintenance
and other
expenses sought for the applicant and if so, the quantum thereof.
4.
Although divorce summons have not been issued yet, I am satisfied, on
the facts, and concessions made by the respondent that
there is a
pending action between the parties as contemplated in Rule 43.
A
matrimonial action may be pending even though summons has not yet
been issued. See:
Bienestein v Bienestein
1965 (4) SA 449
(T) 451E
See
also:
Noah v Union National South British Insurance Co Ltd
1979
(1) SA 330
(T) 332B-H
5.
The following issues are common cause or were not seriously contested
by the respondent:
5.1
They are joint owners of a property that is situated at erf […]
M[…] V[…], Pretoria. The property is being
rented out
and the rental income is shared between the parties. Applicant
receives an amount of R2 200.00 per month.
5.2
They were shareholders in a close corporation known as Siyaela
Projects between 2004 and 2009.
5.3
The respondent bought and owns the property that is situated at erf
[…] M[…] P[…], Extension 45, Pretoria.
This was
their marital home before their separation during
July 2012. He continues to stay with the children
in this property. A
mortgage bond with Absa was registered on the property for an amount
of R2 167 500.00. This amount includes
a first covering bond of
R722 500.00 in respect of the joint property referred to above.
5.4
In 2009, a joint decision was made that applicant should resign from
her employment with Medihelp where she had worked since
2003. Part of
her pension money was injected in a business known as SP Micro
Loans.
5.5
Applicant helped the respondent to start and build the micro loans
business and worked there full time until 16 April 2010 .
The reason
she stopped working full time is because they were robbed, whereafter
it was decided that they should employ staff to
do most of the work.
She continued to assist and drew a salary of R8 000.00 per month from
the business.
6.
Respondent alleges that he borrowed R100 000.00 from applicant’s
father to start the micro loans business and that he refunded
applicant the money she contributed when they started the business by
buying her a motor bike and a camera set for R88 000.00 and
R25
000.00 respectively.
7.
The issues around applicant’s contribution to the micro loans
business will undoubtedly form a basis for her claim for
rehabilitative maintenance and other claims in the main (divorce)
action .
8.
In terms of common law, maintenance for a spouse upon divorce
is not a right. However,
Section 7(2)
of the
Divorce Act, 70 of 1979
confers discretion on the court in this regard. Applicant need to lay
a factual basis for such a claim. (
see: Botha v Botha
(2009) 3 SA
89
(W).
9. I
am satisfied that applicant has a prima facie claim for
rehabilitative maintenance on the undisputed facts laid before me.
As
a result, the only remaining issue is the quantum thereof.
10.
Save for acknowledging receipt of an amount of R2200.00 (rental
income in respect of the joint property), applicant alleges
that
respondent deprives her of financial support since she moved out of
the common household.
11.
Respondent alleges that he makes certain payments for the benefit of
applicant. If this were not correct, applicant would have
requested
leave to file a further affidavit to gainsay these allegations. The
payments are:
11.1
R3 000.00 in respect of applicant’s share for the joint
property.
11.2
R623,47 for a policy
11.3
R350,00 motor vehicle (Yaris) insurance .
11.4
R1 125,00 medical fund contributions
11.5
R250,00 for applicant’s share of the erf levy in respect of the
joint property.
12.
Respondent also alleges that he gave applicant R5000.00 deposit for a
motorbike. This amount, in my view does not count as maintenance.
He
makes a further allegation that he paid the deposit of R5 000.00
for her accommodation. However, it appears from the document
attached
as proof that this was a loan.
13.
Respondent also contends that he paid an amount of R24 000.00 on 15
December 2012 as an advance for 6 months’
rental for applicant’s accommodation. This amount was
paid to a third party and it is not clear from papers (and
respondent’s
counsel could not explain too) whether applicant
indeed benefited from this payment. In her founding affidavit,
applicant stated
that she is presently staying with her friend and
she is paying an amount of R1 500 per month. She also attached a
confirmatory
affidavit by her friend. She also stated that she is
looking for a two bedroom flat and expects to pay about R6 000.00
monthly
rentals.
14.
I am not satisfied that the alleged payment of R24 000.00, even if it
was made, did benefit the applicant. Save for the allegation
that the
payment was made and an attachment showing proof of payment to a
third party, nothing more was alleged, for example, where
this
accommodation is, whether applicant is occupying it or not, etc.
15.
I will accept, for purposes of this judgment that respondent makes
the payments referred to in paragraph 11 above and that he
is
prepared to continue to make these payments
MEANS
AND EXPENSES OF APPLICANT
16.
Applicant is employed by Oasis Water Annlin on a temporary basis in a
post occupied by a person who is on maternity leave.
Her income for
11 days in November 2012 was R1 269.29. She submitted that her
monthly income would then be R3 000.00. The founding
affidavit was
deposed on 28 November 2012. I will accept that this is her
income. She acknowledged the fact that she is receiving
R2 200
on a monthly basis from the respondent as her share for the rental
income derived from the joint property.
17.
She is looking for a better paying work, however, she has been out of
the market for some time since the joint decision that
she should
resign and that she would need further training. She does not state
what her qualifications or nature of experience
is. She has
sent several CV’s to prospective employers but she has been
unsuccessful thus far. She attached a letter
of regret from a company
known as PNet dated 12 September 2012. She did not present
further evidence on her job-hunting efforts
or whether she is
receiving any training in any trade or career as she lamented she
would need it.
18.
Applicant’s income is therefore R5 220.00 per month, made up of
the R3 000.00 salary and R2 200 she receives as her share
of the
rental income.
19.
The expenses mentioned in paragraph 5.2 of the founding affidavit
appears to be an ideal rather than actual. Applicant refers
to them
as “
My maandelikse uitgawes sien as volg daarna uit”.
It is probably for this reason that her counsel, from the outset
conceded that the total amount is excessive and that an amount
of R12
000.00 (half thereof) should be ordered. This was a submission from
the bar and there was no explanation or motivation as
to which of the
listed expenses should be discounted.
The
expenses that applicant says she will incur are:
19.1
House/apartment rental
R6 000.00
19.2
Water and electricity
R1 000.00
19.3
Edgars account
R500.00
19.4
Dr Winando Van Zyl
R500.00
19.5
Policy
R1 000.00
19.6
Motor vehicle
R2 800.00
19.7
Vodacom
R200.00
19.8
Groceries, including meat and
cleaning
materials
R5 000.00
19.9
Bread and milk
R450 00.
19.10
Toiletries
R500.00
19.11
Petrol
R1 500.00
19.12
Clothes
R500.00
19.13
Savings for own medical fund
R1 000.00
19.14
Hair care (cut)
R220.00
19.15Monthly
purchases of furniture
R2 500.00
19.16
Motor insurance
R450.00
19.17Mr.
Price account
500.00
20.
The respondent conceded that applicant pays for certain items and
these are:
20.1
Dr Van Zyl
R500.00
20.2
Vodacom
R200.00
20.3
Petrol
R1 200.00
20.4
Hair care (cut)
R220.00
20.5
Motor vehicle. The amount is
R2 450.00
21.
Respondent disputes the amounts that applicant contends are
payment for rental of house/apartment, water and electricity,
groceries, bread and milk and toiletries. He describes them as
excessive because applicant lives alone. He maintains that he has
already made a six-months advance payment for applicant’s
accommodation (R24 000,00). This means that in his
view, an
amount of R4 000, 00 per month would be sufficient to pay rental for
a house or apartment. He regards an amount
of R450,00 as
sufficient to pay for electricity and water. An amount of R2 000.00
would be sufficient to cover for groceries,
cleaning materials, meat,
bread, milk and toiletries.
22.
According to respondent, applicant’s claim for clothes is
covered in the Edgars and Mr. Price accounts, which he contends
are
paid by him.
23.
As indicated above, respondent maintains that he is paying for
applicant’s medical fund, motor insurance
and Absa policy.
24.
After discounting certain expenses as excessive or being paid by him
already, the respondent submitted that applicant’s
expenses are
R8 743.47. He then made an offer to pay R4 000.00 to cover for
the shortfall on an income of R4 000.00
which she allegedly
receives.
25.
Taking into account the expenses that respondent pays for, which he
should continue to pay, applicant’s realistic expenses
per
months should be as follows:
25.1
Water and lights
R600 00.
25.2Dr
Van Zyl
R500.00
(balance
not indicated)
25.3
Motor vehicle
R2450.00
25.4
Vodacom
R200.00
25.5
Groceries, including cleaning
materials,
meat, bread, milk
R2 000.00
25.6
Toiletries
R500 00
25.7
Petrol
R1 500.00
25.8
Hair care (cut)
R220.00
25.9
Motor vehicle insurance
R450.00
25.10
Clothes
R500.00
TOTAL:
R8 920
26.
Respondent disputed her claim for monthly purchases of furniture on
the basis that she took certain items with her when she
left amongst
which was:
26.1
Queen size bed with cabinets and bed lamps
26.2
Dining room suite
26.3
New 43 Plasma TV
26.4
Fridge
26.5
Washing machine
26.6
Pots, pans, knives, forks , etc
26.7
Utensils to the value of R10 000.00
26.8
Orbitrek
26.9
Lounge suite
26.10
Applicant’s clothes.
27.
The fact that applicant admitted to selling the dining room
suite in order to obtain money to survive is an indication
that
she left the common household with some furniture.
I
therefore make a finding that she is in possession of basic furniture
and if she continues to sell it that is her own problem.
MEANS
AND EXPENSES OF RESPONDENT
28.
Respondent indicated in his affidavit that his income is R73 000.00
and his expenses are R65 325.05. In this amount he has included
expenses he allegedly pays for the applicant. His income is made up
of income from two properties (R6 000.00) and R2 200.00), SP
Micro
salary cheque R45 000.00 and SP
Micro Salary savings account (R20 000.00).
29.
Except for the statement of income and expenditure, respondent has
not attached anything to prove his income, such as bank statements
and audited financial statements .
30.
I have noted in this application that both parties have misstated or
failed to state the true state of their financial affairs.
Applicant,
as his counsel correctly conceded, overstated her expenses. To her
credit however, I do not think that this was deliberate.
As I have
already stated above, she has not yet incurred most of the expenses
because she is still living with a friend.
Her
projections may be based on her previous lifestyle with the
respondent because they sure do not look like they were of meager
means. On the other hand, I am unable to accept respondent’s
income because he has not attached proof.
In
the matter of
Du Preez v Du Preez
2009 (6) SA 28
(T)
at
paragraph 15, 32 C -E. Page 32Murphy J held (after making similar
observations) that “
the tendency for parties in
rule 43
applications to misstate the true nature of their financial affairs
by exaggerating their expenses and understating their
income,
was unacceptable. Where such conduct occurred at the instance of the
applicant relief had to be denied”
31.
The fact that respondent has not attached a shed of proof for his
alleged income is not different from the conduct that Murphy
J is
referring too.
32.
Respondent’s own expenses are listed as follows:
32.1
Joint properties
R18 000.00
32.2
Payment to applicant
R2 200.00
32.3
Own policy at Absa
R2 151.47
32.3
Applicant’s policy at Absa
R623.47
32.4
Absa insurance
R3 587.63
32.5
Pretoruim Trust—Kos
R8 000.00
32.6
Medihelp : children
R2 250.00
32.7
Medihelp: Applicant and respondent R2 250.00
32.8
Fortuner
R6 363.48
32.9
Erf levy at Karel Trichatdt
R500.00
32.10
Water and lights, erf levy
at
Montana Park
R2 500.00
32.11
Prepaid electricity
R2 000.00
32.12
8ta
R299.00
32.13
Girl’s orthodontist
R5000.00
32.14
Wonderboom
R1 500.00
32.15
Maid
R1 500.00
32.16
Petrol
R3 500.00
32.17
Unforeseen expenses
R4 000.00
32.18
Yaris. Extra car
R2 450.00
33.
Respondent alleges that he already pays R8 847.47 for expenses that
should by right be paid by applicant. These are:
33.1
R3 000.00 for joint property
33.2
R2 200.00 her share for the rental income
33.3
R623.47 Absa policy
33.4
R350 Yaris
insurance
33.5
R1125.00 Medical fund
33.6
R250.00 levy for Karel Trichardt
property
33.7
R299.00 8ta ( taken away)
33.8
Girl’s orthodontist
R250.0
33.9
Wonderboom
R750.00
34.
Most expenses are not explained, for instance the R8 000.00
(Pretoruim Trust – kos), the balance on the orthodontist
account.
35.
Respondent has a surplus of R7 874.95. Taking into account the
“
onvoorsiene”
budget of R4 000.00, his surplus is
R11 874.00.
36.
Except for the medical fund and orthodontist fees, no mention is made
of the children’ school fees and other necessities.
In
any event, respondent has sufficient surplus funds to pay for these.
37.
Respondent alleged that he pays clothing accounts such as Edgars and
Mr. Price. However, they do not appear in his list of expenses.
It
may be these too are paid from the surplus fund.
QUANTUM
OF MAINTENANCE
38.
Applicant drew a salary of R8 000.00 from SP Micro Loans. She helped
to start the business. Respondent has been paying certain
expenses
for her, but these are in the main their joint responsibilities in
respect of the properties as well as her medical aid.
He only gives
her R2 200 .00 from the rental income and nothing else.
39.
Respondent indicated that he has already paid R24 000,00 for
applicant’s accommodation. This means he was prepared to
pay
for her accommodation. The only problem is that applicant did not
utilize that accommodation and it appears she was not aware.
This
money can be returned and utilized for applicant’s
accommodation.
40.
I accept, and under the circumstances, respondent should continue to
make payments reflected in paragraph 33 above.
41.
If applicant was still receiving her R8 000,00 salary from SP Micro
Loans , she would have no shortfall after receiving her
current
salary of R3000.00 and the rental income of R2 200.00.
If
any, her shortfall would be insignificant.
In
the matter of
Botha v Botha
2009 (3) SA 89
(W),
Satchwell J
said the following at paragraph 106 at 107F
“
The
court’s understanding of rehabilitation gives meaning to the
concept and purpose of limited-period maintenance. The spouse
who has
been disadvantaged or disabled in some way by the marriage is
enabled, through training or therapy or opportunity, to be
restored
either to the economic position vis-a×
vis employment
which she occupied prior to the marriage, or to be reintroduced to
the ability to participate effectively and profitably
in normal
economic life”
CONTRIBUTION
TO LEGAL COSTS.
42.
Applicant must establish that she has insufficient means of her own
to pay for legal costs and that the amount she seeks is
reasonably
necessary to pursue her defence.
Nicholson
v Nicholson
1998 (1) SA 48
??? AT 50C where Wunsh J said:
‘
The
question to be considered is what the applicant needs for reasonable
proceedings. The cases were reviewed in Dodo v Dodo
1990 (2) SA 77
(W).
The
applicant is entitled, if the respondent has the means and she does
not have them, to be placed in he position adequately to
present her
case, relevant factors being the scale on which the respondent is
litigating and the scale on which the applicant intends
litigating (I
would have qualified this by reference to what is reasonable having
regard to what is involved in the case), with
due regard being had to
the respondent’s financial position.”
43.
Litigation can be luxurious or economical and it is commensurate with
the means of the parties. When litigating against a rich
man who
employs senior and junior counsel, Willamson J said she is entitled
to litigate upon somewhat the same sort of scale as
that upon which
he can be expected to litigate.
Glazer v Glaze 1959 (3) 928 (W) at
A-C
44.
In support of her claim for legal costs, applicant has made a terse
bald statement that “
Ek benodig dringend n’ bylae tot
my regskoste ten einde my in staat te stel om op dieselfde vlak as
die respondent te litigeer”
45.
There is no evidence to suggest that respondent is litigating on a
luxurious or expensive level, instead, respondent says he
intends to
settle the divorce action in order to save costs.
46.
I do accept though that the issue of applicant’s contribution
to respondent’s business may need further investigations
and
expert evidence of some sort. Moreso because respondent underplays
her contribution and avers that he refunded her what she
put into the
business. Applicant requires an amount of R5 000, and the offer made
by respondent is R3 000.00.
ORDER
47.
Under the circumstances, I make the following order:
47.1
Parental responsibility and right to care for the minor children
shall vest jointly in the parties. Their primary place of
residence
shall be with the respondent, with the applicant having her rights of
reasonable access and contact.
47.2
Respondent is ordered to pay applicant maintenance of an amount of
R10 000,00 per month .
47.3
Respondent is ordered to pay an amount of R4 000.00 per months
towards rental of accommodation for the applicant. This amount
should
be paid directly to a rental agent whose details will be provided to
respondent by applicant.
47.4
The respondent is ordered to pay or continue to pay the installments
and insurance of the applicant’s vehicle.
47.5
The respondent is ordered to retain applicant and the minor children
in his medical fund and to pay all reasonable deductibles
in this
regard.
47.6
The respondent is ordered to continue to pay school fees and all
living expenses for the minor children.
47.7
The respondent is ordered to pay a contribution to applicant’s
legal costs in the amount of R5 000.00 in monthly
installments of
R500.00
47.8
All payments in terms of this order shall commence with immediate
effect, thereafter, subsequent payments will be made on the
1
st
day of each and every succeeding month. Respondent is ordered to
provide applicant with proof of all payments made to third parties
on
a monthly basis.
47.9
Costs of this application are costs in the proceedings.
47.10
The limitations as stipulated in
Rule 43(6)
/ (7) / (8) are not
applicable.
MAKHUBELE
AJ
Acting
Judge
DATE
OF HEARING: 14 FEBRUARY 2013
DATE
OF JUDGMENT: 01 MARCH 2013.
APPEARANCES:
APPLICANT:
ADV. J. VAN HEERDEN
Instructed
by: SP VAN NIEKERK ATTORNEYS
308 Tiperrary Street
Bronberick
PRETORIA
RESPONDENT:
ADV. J VAN DER MERWE
Instructed
by: EW SERFONTEIN & ASSOCIATES INC.
15 Bond Street
Clydesdale
PRETORIA