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[2010] ZAFSHC 107
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Qonqo v Qonqo (763/2010) [2010] ZAFSHC 107 (11 March 2010)
FREE
STATE HIGH COURT. BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 763/2010
In
the case between:
NYEFOLO
DAPHNEY QONQO
….................................................
Applicant
and
ELIEA
JAN QONQO
…..................................................................
Respondent
CORAM:
LEKALE,
AJ
JUDGMENT:
LEKALE,
AJ
HEARD
ON:
4
MARCH 2010
DELIVERED
ON:
11
MARCH 2010
[1]
This is an application in terms of Rule 43 of the Uniform Rules of
Court for:
[1.1]
maintenance, inclusive of the use of a motor vehicle, pendente lite
in favour of the applicant;
[1.2]
contribution towards the costs of the divorce action between the
parties which is pending before this court.
[2]
The parties have not been living together since the 29
th
December
2009 with the respondent husband remaining at the common house.
[3]
Prior to the 29
th
December
2009 the applicant wife had the use of an Isuzu motor vehicle and was
somewhat involved in the administrative side of the
family security
business which is being conducted through a close corporation of
which she is a member. Her monthly income from
the said business was
R5 000,00.
[4]
The Isuzu motor vehicle has since been seized and returned to the
respondent on the strength of a spoliation order issued by
the
magistrate's court. The relevant spoliation proceedings were still
pending in the said court as at the date of hearing this
application
viz. the 4
th
March
2010.
[5]
The parties are in agreement that the respondent was responsible for
the monthly expenses of the common home inclusive of the
applicant's
expenses while the latter was allowed to use her income of R5 000,00
for herself.
[6]
The motivation for the application is that the applicant is currently
without income and is, further, without the means of transport.
[7]
The thrust of the respondent's opposition is that the applicant
presently cohabits with her boyfriend who, most probably, assists
her
financially.
[8]
In support of the respondent's contention that the applicant's
boyfriend should attend to her financial needs
Advocate
Wright,
appearing
for the respondent, relies mainly on the decision of this court in
SP
v HP
2009
(5) SA 223(0)
where
it was held, per Musi JP endorsing the decision in
Carstens
v Carstens
1985
(2) SA 351
(SE)
at
paragraph [10], that
"It
has been laid down that it is contrary to justice and equity that a
person in the applicant's position should at the same
time collect
support from her husband as well as from her 'putative' second
husband (Carstens at 3531, citing Hahlo)."
[9]
The duty of support existing between married couples is reciprocal
and flows from the marital relationship which
"creates
a physical, moral and spiritual community of life, a consortium omnis
vitae."
(see
Sinclair
on
The
Law of Marriage Voi.1 Juta & Co 1996 @ 422
and
Peter
v Minister
of
Law
and Order
1990(4)
SA 6(E) @ 9)
[10]
The decision in
SP
v HP
(supra)
is, however, no authority for the proposition that cohabitation with
a spouse's paramour relieves the spouse's lawfully
wedded partner of
the duty of support vis-a-vis the spouse and saddles the paramour
with such a duty. The court in that decision
held that:-
"The
objection is not so much about the moral turpitude attaching to the
illicit cohabitation, but more about the notion of
a woman being
supported by two men at the same time..." (see paragraph [10] in
SP v HP (supra))
[11]
It follows from the said decision, which I may emphasise is not
inconsistent with the consortium created by marriage, that
for the
respondent to be relieved of his duty of support towards the
applicant as his wedded wife, it should be clear, on the balance
of
probabilities, that the applicant's boyfriend gives her financial
support. The mere fact that they cohabit is, in my view, insufficient
for that purpose.
[12]
In my view the principle is that, even where the applicant does not
cohabit with her paramour, if the evidence proves that
she receives
support from her boyfriend, the respondent is thereby relieved of his
duty of support towards her in an appropriate
case.
[13]
The present matter is distinguishable on the facts from
SP
v HP
(supra)
and
Carstens
v Carstens
(supra)
insofar as:
[13.1]
in Carstens it was common cause between the parties that the
applicant had a common budget with her paramour whose name was
also
apparent from the papers before the court;
[13.2]
in
SP
v HP
the
name of the live-in boyfriend was disclosed as well as his occupation
which was given as being an electrician. The issue of
support to the
applicant in that matter was stated as a fact insofar as the
respondent deposed that the paramour was employed and
maintaining the
applicant;
[13.3]
in the present matter neither the name nor the occupation of the
boyfriend is apparent ex facie the material properly before
the
court. The inference that the applicant receives financial support
from her paramour is drawn by the respondent from the fact
that the
two cohabit and that
"no
proof of the details pertaining to obtaining employment are made"
by
the applicant in her supporting affidavit.
[14]
There is, with respect, no basis whatsoever before the court from
which an inference that the applicant receives support from
her
boyfriend can be drawn. Such a conclusion is a matter of speculation
and conjecture and is, apparently, nurtured by suspicion
on the part
of the respondent.
[15]
The respondent, further, maintains that he is financially unable to
meet the applicant's needs. I am, however, not persuaded
by this
argument because, in his papers, he gives the reason for stopping to
support the applicant as being the fact that the parties
are not
staying
together
and the extra-marital affair in which the applicant is engaged as
well as the fact that the applicant no longer assists
him in the
business.
[16]
A further bone of contention between the parties is the applicant's
real or actual needs. I am, however, prepared to accept
that her
needs amounted to at least R5 000,00 per month as at the 29
th
December
2009 insofar as the parties are ad idem that that was the amount
which the respondent allowed her to use exclusively
for her
maintenance while he attended to her other monthly expenses.
[17]
The parties are, further, in agreement that it is not appropriate
for this court to decide on the issue of the motor vehicle
with
Advocate
Reinders,
for
the applicant, opining that it would, probably, have been advisable
for the present application to have stood down until the
spoliation
application has been determined by the Magistrate's Court. I am in
agreement with the parties in this regard.
[18]
There is, effectively, no dispute between the parties over the need
for as well as an appropriate contribution towards costs.
In this
regard the respondent party requested that the contribution in
question be directed to be made by way of monthly instalments
while
the applicant, on her part, effectively acquiesced to the proposal
through her counsel.
ORDER:
[19]
When all is said and done I am satisfied that the following is an
appropriate order:
[19.1]
the respondent is directed to pay R5 000,00 to the applicant pending
finalisation of the divorce action with effect from
the 1
st
April
2010 and monthly thereafter on or before the 7
th
day
of each succeeding month;
[19.2]
the respondent is, further, directed to pay R3 500,00 to the
applicant as contribution towards the costs of the divorce
action at
the rate of R500,00 commencing on the 1
st
April
2010 and monthly thereafter on or before the 7
th
day
of each succeeding month;
[19.3]
the costs of the application shall be costs in the divorce action.
L. J. LEKALE, AJ
On
behalf of applicant:
Adv
Reinders
In
instructed by: Hill.Mchardy & Herbst
On
behalf of respondent:
Adv
Wright
Instructed
by: Mcintyre & Van Der Post