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[2011] ZAFSHC 101
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Mankalemeng and Another v Ramathe (3071/2011) [2011] ZAFSHC 101 (23 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 3071/2011
In the matter between:
NTSOAKI MANIA
MANKALEMENG
MJALEMOTHO SOPHY
RAMATHE
…..........................................
Applicant
and
LENKA AZAEL RAMATHE
…...................................................
Respondent
JUDGMENT:
LEKALE, AJ
HEARD ON:
9
JUNE 2011
_______________________________________________________
DELIVERED ON:
23 JUNE 2011
_______________________________________________________
[1] The applicant and the
respondent have been married to each other in community of property
since the 15 April 1998. They are
currently going through a divorce
process and the action is pending before this court.
[2] The parties are
presently staying under the same roof together with one of their two
minor children. The other child is in Bloemfontein
where she attends
school.
[3] The applicant now
approaches this court in terms of rule 43 of the Uniform Rules of
Court for relief
pendente lite
as follows, among others:
3.1 that the parental
responsibilities and rights with regard to the care of the two minor
children as contemplated in section 18(2)(a)
of the Children’s
Act be awarded to her;
3.2 that the primary
residency of the minor children be awarded to her;
3.3 that the respondent
be ordered to pay an amount of R11 750,00 per month as maintenance in
her favour;
3.4 that the respondent
be ordered to pay school fees for the two minor children including
school clothes, sport and other school
related activities;
3.5 that the respondent
be ordered to pay the necessary and reasonable medical costs of the
applicant and the two minor children;
3.6 that the respondent
be ordered to pay a contribution towards applicant’s costs in
the amount of R5 000,00;
3.7 that the respondent
be ordered to pay the costs of the application.
[4] On his part the
respondent prays for the following in opposition:
4.1 that the parental
responsibilities and rights with regard to the care of the minor
children be awarded to the parties jointly
pending the divorce
action;
4.2 that he be ordered to
pay the following
pendente lite
;
4.2.1 water and
electricity;
4.2.2 groceries in the
amount of R2 500,00;
4.2.3 domestic worker’s
remuneration;
4.2.4 gardener’s
remuneration;
4.2.5 minor children’s
school fees;
4.2.6 minor children’s
pocket money, uniforms, books and civil clothing;
4.2.7 applicant’s
cellphone accounts;
4.2.8 applicant’s
retirement policy;
4.2.9 applicant’s
motor vehicle instalments and insurance;
4.2.10 allowance to the
applicant in the amount of R1 200,00 per month;
4.2.11 petrol for
applicant in the amount of R800,00 per month.
4.3 that the costs of the
application be costs in the main action.
[5] The applicant’s
claim is for anticipated monthly expenses in the event of her moving
out of the matrimonial home together
with minor children. On the
other hand, the respondent feels that there is no need for the
applicant to leave the common home.
The respondent, effectively,
approaches the present proceedings on the footing that the present
arrangement should continue unaltered
with the parties and the minor
children remaining in the common home and eating from the same pot.
[6] The parties are,
further, at variance with regard to primary residency of the minor
children. The respondent does not deal with
the issue directly and
alludes to the disagreements between the applicant and the parties’
daughter as indicative of the
fact that it would not be in the best
interests of the minor children for them to reside primarily with the
applicant. Ms Reinders,
for the respondent, points out that it is not
in the best interests of minor children to be separated from each
other.
[7] Ms Reinders, further,
contends that the monthly expenses claimed by the applicant are not
actual and that no quotations are
made available to the court in
support of the same.
[8] Mr Heymans, appearing
for the applicant, submits that the application is not premature and
that it is clear from the applicant’s
supporting affidavit that
the respondent spoils the minor children and, as such, is not
suitable to have their primary residency.
He, further, contends that
it is necessary to award the applicant the relief she seeks in order
to enable her to move out of the
common home. In his view, the
respondent seeks to retain control over the applicant in an old
fashioned manner by manipulating
the household purse.
[9] The determination of
the present application, in my view, depends on the answers to the
following cardinal questions:
9.1 whether or not the
applicant is in actual need of maintenance;
9.2 whether or not it is
in the best interest of minor children for parental responsibilities
and rights in respect of their residency
to be awarded to the
applicant exclusively.
[10] The purpose of
interim maintenance is to supplement expenses which the applicant
cannot meet. (See
BOTHA v BOTHA
2009 (3) SA 89
(WLD) at
106C.)
[11] The applicant in a
Rule 43 application is entitled to reasonable maintenance regard
being had to the parties’ standard
of living, the applicant’s
actual and reasonable requirements and the capacity of the respondent
to meet such requirements.
(Compare
TAUTE v TAUTE
1974
(2) SA 675
(E) at 676D-E.)
[12] It is effectively
common cause between the parties that the expenses claimed by the
applicant are not actual but are anticipated.
The aforegoing prevails
because she still stays in the same house as the respondent and it is
not her case that the respondent
does not presently provide for her
needs.
[13] As correctly
submitted by Mr Heymans, the fact that the expenses claimed are not
actual does not
per se
disqualify a party, in the position of
the applicant, from interim maintenance. In an appropriate case,
where such expenses are
motivated and are both reasonably foreseeable
and imminent, an order for maintenance on such basis may be
justified. The question
is whether or not the relevant expenses
constitute the applicant’s reasonable imminent monthly
requirements and, if so, whether
she would, most probably, not be
able to meet the same.
[14] It is simply
difficult, if not impossible, for the court to determine whether or
not such anticipated expenses are the applicant’s
reasonable
imminent requirements without supporting documents such as lease
agreement setting out the rental. The court is, further,
unable to
assess the reasonableness of the applicant’s anticipated needs
without a yardstick against which to measure the
same such as her
present actual monthly expenses. An attempt on the part of the court
to determine this issue would, in my judgment,
be based solely on
speculation and conjecture and not on probabilities.
[15] In determining the
question relating to primary residency of minor children it is
necessary to apply the standard of the best
interest of the child
insofar as the best interest of the child is of paramount importance
in all matters concerning the care,
protection and well-being of the
child. (See section 9 of Children’s Act no 38 of 2005 (“the
Act”).
[16] The factors that
must be taken into consideration in the application of the aforesaid
standard include the nature of the personal
relationship between the
child and the parents or any specific parent. (See section 7 of the
Act)
[17] The parties made
allegations against each other suggesting that the other is not
suitable to have the primary residency of
minor children.
[18] Owing to the limited
number of sets of affidavits permissible and filed in the present
proceedings it is not possible for the
court to investigate the
issue, in my view, with the care and degree it deserves. The issue
clearly calls for professional intervention
aimed at getting to the
bottom of the matter. It is, therefore, advisable, in my opinion, for
the present position to continue
unaltered until such time as the
family advocate may have submitted a report on the matter.
[19] With regard to
contribution towards the costs of litigation the respondent requests,
in the alternative, that such a contribution
be directed to be made
by way of monthly instalments of R500,00. The court finds no reason
to decline this request.
[20] The applicant
requests, in the application, that the respondent be directed to pay
the costs of the application. Mr Heymans,
however, correctly does not
persist in this attitude in his submissions. There is no cause shown
for the court to depart from the
established practice of ordering
such costs to be costs in the divorce action.
ORDER:
[21] For the aforegoing
reasons the following order is made:
Parental
responsibilities and rights with regard to the care of minor
children are awarded to the parties jointly;
The respondent is
directed to pay the expenses set out in paragraph 6.3. of the
opposing affidavit;
The respondent is
directed to pay R5 000,00 as contribution towards the applicant’s
costs in the divorce matter at the
rate of R500,00 per month
commencing on or before the 7
th
July 2011 and continuing
monthly thereafter on or before the 7
th
of each
succeeding month until the full amount has been paid;
That the respondent
shall pay the necessary and reasonable medical costs relating to
the applicant and the minor children to
the extent to which they
may not be covered by a Medical Aid;
That the costs of the
application shall be costs in the divorce action.
_______________
L. J. LEKALE, AJ
On behalf of the
applicant: Attorney A. S. Steyn
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Attorney N. C. Oosthuizen
Instructed by:
E G Cooper Majiedt Inc
BLOEMFONTEIN
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