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[2013] ZAFSHC 180
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Kabagambe v Kabagambe (3379/2013) [2013] ZAFSHC 180 (24 October 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRCIA
Case No: 3379/2013
In the matter between:
THEMBELA KABAGAMBE
...........................................................
Applicant
and
HERBERT KABA
KABAGAMBE
.............................................
Respondent
JUDGMENT BY:
SESELE, AJ
HEARD ON
:
17 OCTOBER 2013
DELIVERED ON
:
24 OCTOBER 2013
[1] This 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. maintenance
pendentelite
in respect of the applicant;
1.3. interim order in
respect of the parental rights and responsibilities for the case and
contact with the minor child as contemplated
in
section 18(2)(a)
of
the
Childrens Act 38 of 2005
;
1.4. contribution towards
costs of a pending divorce action.
[2] The applicant
instituted divorce action against the respondent under case number
3378/2013 which action is still pending
[3] The parties have not
been living together since June 2013 and the respondent remains in
the common home.
[4] The applicant is
currently unemployed. The respondent averred that the applicant had
income for the year 2009 which income must
be taken into account when
her means are considered.
[5] I am not persuaded
that the income which was earned 4 years ago can be considered
relevant in this application.
[6] The respondent also
speculated about some income which the applicant might have earned
during June 2013 through her company
known as Triple Options. The
respondent, however did not give sufficient information to enable me
to assess whether that income
was in fact earned or not.
[7] It is not in dispute
that the respondent earns a gross salary of approximately R150 000,00
per month and a net salary in
excess of R98 000,00 per month.
[8] The respondent has
two immovable properties and four cars, namely a BMWX5, an Audi TT, a
Toyota 7-seater SUV and a Golf 3. The
applicant used the Audi TT
while she and the respondent lived together.
[9] The applicant’s
case is that the respondent is in fact able to provide for her and
the minor child
pendentelite.
The applicant bases her claim on
their lifestyle during the time they lived together in that the
respondent gave her R9 000,00
per month spending money, to buy
clothes and other luxuries for herself.
[10] I am persuaded that
based on the respondent’s income and the standard of living the
parties enjoyed while they lived
together, the applicant and the
minor child are indeed entitled to reasonable maintenance
pendentelite
(
Botha v Botha
2009 (3) SA 89
(W)
at 105C – 106J.
[11] It is trite that the
two most important considerations when maintenance is in issue are:-
(1) the needs of the
party that needs to be maintained and
(2) the means of the
party from whom maintenance is claimed.
[12] It was submitted for
the respondent that if it is found that the applicant made out a
proper case for maintenance
pendentelite
the amount of at
least R10 000,00 should be deducted from the applicant’s
expenses to arrive at a reasonable amount.
Given the parties
lifestyle, I am not persuaded that the applicant’s expenses are
exorbitant.
[13] In my view the
reasonable amount as maintenance
pendentelite
for the
applicant is R12 000,00 per month.
[14] The respondent has
been paying for the minor child’s school and other educational
fees in full as well as the medical
expenses. The respondent in fact
has undertaken to continue doing so. This clearly demonstrated that
he has the best interest of
the minor child.
ORDER
[15] It is therefore
ordered as follows:
15.1. That the interim
daily care and primary residence of the minor child is awarded to the
applicant subject to the respondent’s
reasonable right of
contact and more specifically:
15.1.1. That the
respondent is to take the child with him every alternative weekend
from the end of his school day on Friday until
17:00 the following
Sunday.
15.1.2. That Public
Holidays will rotate between the parties.
15.1.3. That the short
holidays will rotate between the parties while the long school
holidays will be divided equally between the
parties.
15.1.4. That the
respondent will be entitled to four (4) hours contact with the child
on his birthday as well as on the child’s
birthday.
15.1.5. That parental
responsibilities and rights in respect of guardianship of the minor
child remain jointly with both parties.
15.2. That the respondent
shall pay maintenance
pendentelite
towards the minor child in
the amount of R2 000,00 per month.
15.3. That the respondent
shall pay maintenance
pendentelite
to the applicant in the
amount of R12 000,00 per month.
15.4. That the respondent
shall keep both the applicant and the minor child
pendentelite
as beneficiaries or dependants on his medical aid.
15.5. The respondent is
ordered to pay all expenses related to the minor child’s
education.
15.6. That the respondent
shall pay a contribution of R5 000,00 towards the applicant’s
legal fees.
15.7. That payment of all
amounts in terms of this order shall be made on the 7th November 2013
and thereafter on the 7
th
day of each and every succeeding
month.
15.7. That the costs of
this application be costs in the divorce action.
_________________
L. M. S. SESELE, AJ
On behalf of
theapplicant: Adv.W. Groenewald
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On behalf of the
respondent: Adv.Van Aswegen
Instructed by:
Hill, McHardy&Herbst
BLOEMFONTEIN
/ebeket