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[2013] ZAFSHC 179
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Potgieter v Potgieter (3710/2013) [2013] ZAFSHC 179 (24 October 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRCIA
Case No: 3710/2013
In the matter between:
SYBIL POTGIETER
.......................................................................
Applicant
and
ALBERT POTGIETER
...............................................................
Respondent
JUDGMENT BY:
SESELE, AJ
HEARD ON
:
17 OCTOBER 2013
DELIVERED ON
:
24 OCTOBER 2013
[1] This is an
application in terms of Rule 43 of the Uniform Rules of Court for:
1.1. maintenance
pendentelite
in respect of the minor child;
1.2. interim order in
respect of the parental rights and responsibilities for the care and
contact with the minor child as contemplated
in section 18(2)(a) of
the Children’s Act 38 of 2005;
1.3. contribution towards
costs of a pending divorce action.
[2] Mr Tsangarakis for
the applicant applied for condonation in that the applicant’s
affidavit was not properly attested in
terms of the regulations made
in terms of section 10 of the Justices of Peace and Commissioners Act
16 of 1963.
[3] Mr Bloem was in
agreement that non-compliance with that the regulations should be
condoned.
[4] I accordingly
condoned non-compliance with the regulations as refusal to do so
would only result in extra costs for the parties
because a new
application will have to be launched again. Furthermore, the rule
governing matters of this nature requires same
to be dealt with
inexpensively and expeditiously. (See
Wingaardt v Grobler
2010 (6) SA 148
(ECG) at 150.
[5] The applicant was a
housewife at the time she lived together with the respondent and they
were dependent on the respondent’s
gross salary of about
R11 500,00 per month.
[6] There is a pending
divorce action between the parties under case number 3377/2013.
[7] Subsequent to her
moving out of the common home the applicant secured employment at
Stevens Petrolium CC where she earns a gross
salary of R18 000,00
per month.
[8] The applicant uses
her income to support herself, Shanté Stevens, and Michelle, a
minor child who was born between the
applicant and the respondent.
[9] The total expenses
for the applicant and the two minor children is R21 649,88 per
month. The applicant receives financial
assistance from her parents.
[10] The respondent’s
income is the basic salary of R4 000,00 per month. The amount
was confirmed under oath and is reflected
as such on exhibit “A”.
The respondent’s mother assists him to cover his expenses which
exceed his monthly salary.
[11] It is apparent from
the above that the parties are living beyond their means.
[12] The parties were
joint owners of the immovable property which was subsequently sold
and the proceeds thereof being R219 666,82
were deposited into
the respondent’s bank account. The balance in the account as at
the date of this application was R4 170,00
as reflected on the
bank statement.
[13] Both parties have at
various stages used the money for themselves. The respondent has also
made payments to Dodona Trust which
is administered by his parents.
[14] The applicant seems
to suggest that payment of her claims can be made from the proceeds
of the sale of the immovable property
referred to above.
[15] The apparent dispute
pertaining to the proceeds of the sale of the immovable property or
how same may be utilised is a matter
beyond the provisions of Rule 43
and cannot therefore be entertained.
[16] The respondent
tendered maintenance
pedentelite
for the minor child in the
amount of R400,00 per month, which I consider to be too little. I am
of the view that the amount of
R900,00 per month is reasonable under
the circumstances.
ORDER
[17] I accordingly order
that:
17.1. That the parental
rights and responsibilities in respect of care of the minor child,
Michelle, inclusive of Michelle’s
primary residence in terms of
section 18(2) of the Children’s Act 38 of 2005 is awarded to
the applicant
pendentelite
.
17.2. That the
respondent,
pendentelite
, shall have the right to maintain
contact with the minor child, Michelle, which shall include having
Michelle with the respondent
for two weekends per month from Friday,
17:00 until Sunday at 17:00.
17.3. That the respondent
shall pay R900,00 per month in respect of maintenance
pendentelite
for the minor child, Michelle.
17.4. That payment of
contribution to costs is refused.
17.5. That payment of the
amount in paragraph 17.3 above shall be made on 1 November 2013 and
thereafter on the 1
st
day of each and every succeeding
month.
17.6. That the costs
hereof shall be costs in the main action.
___________________
L. M. S. SESELE, AJ
On behalf of
theapplicant: Adv.Tsangarakis
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Mr Bloem
Instructed by:
SpangenbergZietsman&
Bloem
BLOEMFONTEIN
/ebeket