About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 102
|
|
Van Wyk v Van Wyk (1997/2011) [2011] ZAFSHC 102 (23 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1997/2011
In the matter between:
ANNA SUSANNA VAN
WYK
….....................................................
Applicant
and
JOHN VAN WYK
…...................................................................
Respondent
JUDGMENT:
LEKALE, AJ
HEARD ON:
9
JUNE 2011
_______________________________________________________
DELIVERED ON:
23 JUNE 2011
_______________________________________________________
[1] The applicant
approaches this court in terms of Rule 43 of the Uniform Rules of
Court for interim relief pending divorce as
follows, among others:
1.1 payment of
maintenance in the amount R39 000,00 in her favour;
1.2 payment of medical
and associated costs which are not covered by the medical aid in
respect of the minor child of the marriage;
1.3 payment of her
medical costs which are not covered by the medical aid;
1.4 contribution towards
her legal costs in the amount of R20 000,00.
[2] The parties are
married to each other out of community of property and are currently
engaged in a divorce action which is pending
before this court.
[3] The respondent
opposes the application on broadly the grounds that he is not
financially in the position to pay and that the
applicant’s
expenses are exorbitant and not reasonable.
[4] On the papers before
the court there was a dispute over payment of maintenance for the
minor child as well as her primary residency.
At the commencement of
the proceedings the parties, however, announced that agreement had
been reached on all aspects relating
to the minor child save for the
issue pertaining to medical and related costs not covered by the
medical aid.
[5] The real issues for
determination are, therefore:
5.1 whether or not the
applicant is entitled to claim, as maintenance, amounts of money
which she disburses to third parties for
the benefit and on behalf of
the various businesses in which the parties have interest;
5.2 whether or not the
applicant is in need of maintenance from the respondent regard being
had to the fact that it is common cause
that she recently received
about R87 000,00 out of the sale of a common property after the
respondent waived his right to part
of the proceeds in her favour.
5.3 whether or not the
applicant does not have sufficient funds of her own to finance the
divorce action.
[6] 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.)
[7] Mr Heymans, for the
applicant, submits that the parties have agreed that the R87 000,00
received by the applicant shall be used
by the applicant to improve
her living conditions at her father’s property.
[8] The said amount of
money is still available. Some of the applicant’s monthly
expenses relate to the expenses of the businesses
which the parties
run. The parties are in agreement that the said businesses are legal
entities with separate legal personalities.
[9] As correctly
submitted by Mr Pienaar for the respondent, it can hardly be said
that the applicant cannot meet her alleged monthly
requirements of
R39 000,00 when she is sitting on R87 000,00 in cash. In my view, any
claims that the applicant may have against
the business entities in
question cannot be enforced against the respondent simply on the
basis of the duty of support which he
owes to the applicant. The said
entities may be sued
eo nomine
by the applicant.
[10] An applicant for
contribution towards the costs of the divorce action must show that
she is defending in good faith and that
she has insufficient means of
her own to present her case to the divorce court. (See
GRIESEL
v GRIESEL
1981 (4) SA 270
(O).
[11] There is no
acceptable reason, in my view, advanced for the applicant with regard
to why the money at her disposal should be
used to effect
improvements on her father’s property and not to finance her
own litigation. Mr Heymans correctly and voluntarily
concedes that a
reasonable approach would be to use available funds to pay debts.
ORDER
[13] In the result the
following order is made:
13.1 The applicant’s
claim for maintenance and contribution towards costs is dismissed.
13.2 The primary
residency in respect of the minor child is awarded to the applicant
subject to the following parental responsibilities
and rights with
regard to contact in favour of the respondent as agreed between the
parties:
13.2.1 the respondent may
take the minor child with him every second weekend of the month from
17h00 on Friday or as otherwise agreed
between the parties until
15h00 on Sunday;
13.2.2 the respondent may
take the minor child with him for one week every school holiday;
13.2.3 the respondent
shall, however, not be entitled to take the minor child to his
workplace;
13.2.4 the respondent
shall, furthermore, exercise his right of contact with the minor
child personally and shall not leave the
minor child with any other
person;
13.3 The respondent shall
pay R4 000,00 per month towards the maintenance of the minor child
commencing on or before the 7
th
July 2011 and continuing
monthly thereafter on or before the 7
th
day of each
succeeding month until the divorce matter has been finalised;
13.4 The respondent,
shall, further pay those medical and associated costs of the
applicant and the minor child that are not covered
by the medical
aid;
13.5 Costs of the
application shall be costs in the divorce action.
_______________
L. J. LEKALE, AJ
On behalf of the
applicant: Adv. Heymans
Instructed by:
E G Cooper Majiedt Inc
BLOEMFONTEIN
On behalf of the
respondent: Adv. Pienaar
Instructed by:
Maree & Ferreira
BLOEMFONTEIN
/eb