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[2012] ZAGPPHC 239
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A.B v P.B (52079/12) [2012] ZAGPPHC 239 (1 November 2012)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
[REPUBLIC OF SOUTH AFRICA]
Case
no: 52079/12
DATE:01/11/2012
In
the matter between:
B,
A
…..............................................................
Plaintiff
and
B,
P
...................................................................
Defendant
JUDGEMENT
LEGODIJ.
Judgment
reserved: 16/10/2012 Judgment handed down:
[1]
What is envisaged in Rule 43 of the uniform Rules has become the
subject of contention before me.
[2]
The issue is whether the relief sought by the applicant in paragraph
2 of her prayers is competent under Rule 43? The question
was raised
by the court in the course of argument and parties were requested to
file written heads of argument in addition to their
oral submissions
that were made on the 16 October 2012.
[3]
The relief sought in paragraph 2 of the applicant's prayers is stated
as follows:
"2.
The respondent shall pay maintenance as follows;
2.1
By continued payment of the following expenses:
2.1.1
The bond over the common home.
2.1.2
Municipal relief and taxes and utilities levies of the common home.
2.1.3
School fees in her current school and all related schooling expenses.
2.1.4
Extra mural activities of the minor child inclusive of the gear,
clothing and other related expenses in respect thereof.
2.1.5
Short term household insurance, together with house owners insurance
and All Risk Insurance together with the applicant's
Discovery Policy
nr. 5100016089.
2.1.6
House security premiums (ADT)
2.1.7
DSTV subscription and TV licence.
2.1.8
Maintenance and up keep of common home.
2.1.9
Maid salary, UIF and bonus.
2.1.10
Gardener's salary.
2.1.11
The applicant's and minor child's monthly cell phone accounts.
2.1.12
Undisturbed use and all maintenance costs together with fuel of the
Mercedez Benz CDI with registration number "…....
GP"
2.1.13
By retaining the applicant and minor child as dependants on his
current medical aid with the same benefits and paying all
reasonable
medical expenses, including but not limited to all expenses which are
not covered by the Medical aid"
[4]
'By continued payment of the following expenses', in 2.1 of the
quotation above, is premised from the following set of facts:
[4.1]
that the respondent has repeatedly intimidated and threatened her,
for example, that he threatened to cut the minor child
and the
applicant off from all financial resources,
[4.2]
that on various occasions the applicant had to hand over her credit
card to the respondent as the applicant failed to ask
the
respondent's permission for even small and necessary day to day
grocery purchases 24 hours ahead of purchase,
[4.3]
that the respondent threatened to cut off both the minor child's and
the respondent's cell phones and that both accounts are
in the
respondent's name,
[4.4]
that the respondent threatens to deprive the applicant the use of the
vehicle that she is currently driving and that he has
threatened to
keep the applicant stranded,
[4.5]
that on various occasions the applicant had to stay at home away from
work as the respondent refused her to use the car,
[4.6]
that the respondent had threatened to report the car as stolen to the
SAPS and have the applicant arrested should she drive
the vehicle
without his prior consent, and
[4.7]
that most recently the respondent instructed the applicant to return
to the common bedroom failing which, he will finally
cut the
applicant and the minor child off from all financial resources.
[5]
The applicant and respondent are husband and wife. They live in the
same common home although not sharing same bedroom. They
have only
one minor child, a girl doing grade 11 at Abbots College Silver
Lakes.
[6]
Of relevance, Rule 43 (1) provides that the rule shall apply whenever
a spouse seeks relief from the court in respect of one
or more of the
following matters:
(a)
Maintenance pendente lite.
(b)
A contribution towards the costs of a pending matrimonial action.
(c)
Interim custody of any child.
(d)
Interim access to any child.
[7]
It is clear from the provisions of the sub-rule (1) (a) that it is
concerned with payment of maintenance pending finalisation
of
matrimonial proceedings.
[8]
The object as I see it; is that those who are entitled from claiming
maintenance should find it easy, inexpensive and expeditious
to get
maintenance without being burdened with long protracted matrimonial
disputes.
[9]
It is a sub-rule that serves to ensure that children and the
estranged spouses who are dependent on the other for support, are
not
deprived of such a support due to the fact that divorce or
matrimonial proceedings are still pending.
[10]
It is not an interdict that is envisaged in the sub-rule and it
should not serve as such. The sub-rule was never meant to settle
the
scores or to resolve issues which may not even form the subject of
divorce or matrimonial proceedings.
[11]
Inasmuch as a suggestion could have been made in the matter of
Gunston v Gunston
1976 (3) SA 179(W)
that a wife or a husband could
be entitled to bring an action to restrain the other spouse from
disposing of assets pendente lite
under sub-rule (1)(a), I cannot
agree with this interpretation.
[12]
A claim of non-disposal of property forming part of the joint estate
cannot be equated to a claim for payment of maintenance
pendente lite
as envisaged in the sub-rule. It will be an interdict claim that can
be sought to protect disposal of such a property,
but that cannot in
my view, be claimed under Rule 43.
[13]
'By continued payment of the expenses' referred to in 2.1 of the
quotation under paragraph 4 above, is in my view, a disguised
interdict, but it is not a claim for maintenance pendente lite.
[14]
Guided by the nature of the facts set out in paragraph 4 of this
judgment, as a cause of the action for the relief sought,
it is clear
that the applicant is not asking for maintenance pendente lite, but
rather a declaratory order that the respondent
be found to be obliged
to continue to provide maintenance as he is doing.
[15]
Put differently, the applicant indirectly wants the respondent to be
interdicted from deviating to provide maintenance as he
has been
doing. The relief sought is not due to failure to maintain, but
rather due to threats of possible deviation from the pattern
of
maintenance to which the applicant and her daughter are accustomed
to. This is not sanctioned under Rule 43. Therefore, it cannot
be a
competent relief under Rule 43.
[16]
One needs to be careful that rule 43 is not abused. As I understood
counsel for the applicant, it was necessary to bring the
application
and relief sought under Rule 43, as the applicant did not want to
react or take legal steps only when the respondent
had acted in terms
of his threats. The suggestion around this was that it would be too
expensive for the applicant, and secondly
that it would cause a delay
to the prejudice of the applicant and the minor child.
[17]
Dealing with the threats, the applicant seems to have been
particularly worried due to the fact that there were threats to
cut
off the cell phone payments, to stop paying for the credit card or
cards of the applicant and to cut off the facility to use
petrol
card.
[18]
In paragraph 10.8 of the answering affidavit, the respondent amongst
others stated as follows:
"I
have constantly quarrelled with the applicant in the past and
recently due to her spendthrift manner and her refusal to
cut down
her excessive spending in view of my worsened financial position. The
applicant has not been cut off from any financial
resources. On two
occasions, I did take possession of the credit card as the applicant
had simply excessively abused that facility.
She did however receive
it back the next morning. I was simply trying to manage my poor
financial position under circumstances
where the applicant was
wasteful, financially irresponsible and ignoring the reality of our
financial situation. I tried to get
the applicant to live within our
means, but she did not wish to do so. I did request of the applicant
to consult me before spending
unnecessarily and excessively on the
credit card account. The credit card was not taken (and later
returned) due to the applicant
not having asked my permission as is
alleged by her"
[19]
The cell phones and the credit cards when used must be used
responsibly. They are an easy use of facilities. It is nice and
good
to use them. However, if not carefully and responsibly used, they can
turn into a huge liability, so huge that they can turn
into a
financial disaster.
[20]
The respondent as a provider for all these facilities should be
entitled to ensure that there is control in the usage of the
facilities. The fact that he tried all tricks to exert pressure on
the applicant to ensure responsibility and care in the usage
of the
cell phone accounts, the credit and petrol cards cannot be the basis
for the institution of Rule 43 proceedings and to claim
the relief as
sought by the applicant.
[21]
By the way, in terms of paragraph 3.1 of the applicant's prayers, she
claims for R40 000 per month for herself and the minor
child. This is
said to be for maintenance. It transpired during argument that this
is a somewhat an alternative to prayer 2 insofar
as it might be
having a bearing on the maintenance, including household things.
[22]
Further in the course of argument counsel for the applicant indicated
that in the event the credit cards are not used by her,
she should
then be paid R10 000 and not R40 000. Later the submission around R10
000 was withdrawn on the suggestion that it was
not the correct
instruction.
Then
a sum of about R20 000 was mentioned to replace the credit card or
cards.
[23]
What remains however is that the respondent never stopped from
maintaining as he has been doing all along. In his own words
as
stated in paragraph 4 of the answering affidavit: '4.The applicant,
our daughter and myself continue to occupy the matrimonial
home and
it is obvious that the applicant intends to remain in occupation
thereof with me pendente lite. I am presently paying
for most of our
household expenses and necessarily. It is most opportune and
unreasonable of the applicant to try and secure an
order as she
presently does and she is not entitled thereto. The applicant and our
daughter are properly maintained, as they have
been in the past. An
order is not necessary in view of the existing status quo'
[24]
In the circumstances of the case, 1 cannot agree more with the
respondent. Therefore even if I was to be wrong with regard
to the
incompetency of the relief sought under paragraph 2 of the
applicant's prayers, I am not satisfied that the applicant is
entitled to anything more than what the respondent has provided in
the past and continues to provide. Therefore, there is no need
to
make an order as prayed for.
[25]
Counsel for the applicant also sought to suggest that to wait until
the respondent had acted in terms of his threats, would
be too
expensive for the applicant and prejudicial in the sense that there
could be a delay. Any carrying out of threats, if it
amounts to
failure to pay maintenance, should entitle the applicant to bring
Rule 43 application and if circumstances so justify
on an urgent
basis. Less costs of litigation envisaged under Rule 43 would still
be applicable.
[26]
Whilst still on the issue of costs of litigation, it was suggested
that for the applicant to resort to other legislative frameworks,
like Domestic Violence Act's provisions, would be too expensive for
the applicant. I do not think so.
[27]
Let me just start by saying, the applicant if she really felt so
strong about the threats, she could have resorted to the provisions
of
Domestic Violence Act 116 of 1998
.
[28]
Remember, in terms of section (2)(d) of the Act, domestic violence in
relation to 'economic abuse', is described as consisting
of
unreasonable withholding of economical or financial resources from a
complainant who is legally entitled thereto or which the
complainant
requires of necessity including the withholding of household
necessities from the complainant or refusal to pay morgage
bond
repayments or rent in respect of the shared residence or the
unreasonable disposal of household effects or other property
in which
the complainant has an interest.
[29]
The laying of complaint of domestic violence in terms of the Act
requires to be acted upon immediately. The complainant is
assisted at
no costs irrespective whether a complaint is made at court or at a
police station.
[30]
In court, the complainant is assisted by the Magistrate who assists
in the presentation of the complainant's case. It is a
very speedy
and cheap process. Sometimes an interim order is given there and then
before the respondent could be heard or served
with papers.
[31]
As regards contribution towards costs, the applicant is claiming R30
000. I am not satisfied that the applicant has made a
case in this
regard. Therefore, R2000.00 contribution towards costs should be
reasonable for now.
[32]
Finally, the applicant and respondent are still staying together at
the same common home with the minor child. I do not think
I need to
worry at this stage to make an order as to where and with whom the
minor child should stay. In any event, she is 17 years
old and I have
not been told about her own choice regarding prayers 1.1 and 1.2 of
the applicant's prayers.
[33]
Consequently an order is hereby made as follows:
33.1
A relief as sought in paragraph 2 of the applicant's prayers is
hereby dismissed in its entirety.
33.2
A relief as sought in paragraph 3.1 of the applicant's prayers is
also dismissed.
33.3
The respondent is hereby ordered to make contribution towards costs
of the applicant in the divorce proceedings in the amount
of
R2000.00.
33.4
Costs of the present application to be determined in the divorce
proceedings.
M.F.
LEGODI
JUDGE
OF THE HIGH COURT
ADAMS
& ADAMS
........................................
MR
P B
APPLICANTS
ATTORNEYS
..........................
RESPONDENT
LYNWOOD
BRIDGE
.....................................
98
CHARLES STREET
OFFICE
PARK
.................................................
BROOKLYN
4
DAVENTRY ROAD
......................................
PRETORIA
LYNWOOD
PRETORIA
TEL:
(012) 432 5000
REF:
DBS/HC/W/F82