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[2009] ZAGPPHC 342
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P v P (53401/08) [2009] ZAGPPHC 342 (8 June 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COU RT, PRETORIA)
CASE
NO. 53401/08
DATE:
8 JUNE 2009
In
the matter between:
C.
C.
P. APPLICANT
and
P.
J.
P. RESPONDENT
JUDGMENT
MAVUNDLA
J,
[1
] The applicant seeks a pendete lite order against the respondent, in
the following terms:
"1.
Payment of an amount of R11 650. 00 for the maintenance of the
applicant;
2.
Contribution towards cost in the amount of R30 000. 00 payable in
installments of R5000. 00 per month;
3.
the respondent be ordered to pay all applicant's reasonable medical
cost and towards this end to register her as his dependant,
4.
costs of this application are to be costs in the cause,
[2]
The parties were [….] to each other out of community of
property on […..]There is one child, a […..], born
of
the […….], who is now […..] years old.
[3]
The
applicant avers in her affidavit that, for a period of 22 years she
contributed towards the finances of their common house hold
until she
stopped in 2006 at the behest of the respondent. She says that since
2006 the respondent cut her completely off from
accessing funds and
as the result she was obliged to bring this application.
[4]
She says that subsequent to her instituting a divorce action against
the respondent, the latter brought a winding up application
against
CJ Voster Boerdery BK, which both herself and the respondent were
members of. She says that one of her woes, is that Standard
Bank has
summons her for payment of a credit card debt in the amount of R79
579, 52, which amount she is liable for 50% thereof,
in particular an
amount of R39 789. 76, and 50% of the interest and costs. She has
also received a letter of demand from the Standard
Bank's attorneys
in respect of a so-called 'Blue Bean” card. She says further
that she has brought an application for the
appointment of a
liquidator to divide their joint property where she is presently
staying, and to have this sold and divide the
proceeds thereof
between herself and the respondent.
[5]
The applicant further states that her monthly income is an amount of
R400 00 from so called out door horse
rides, a hobby she does on ad hoc basis. She says further that she
derives no income from
horse “telery” as the result of
the economic climate
[6]
The applicant has tabulated her expenses as follows: bond payment for
the residence at Ifafi in Hartbeespoort an amount of R27
000, 00 for
the first 3 (three) months and thereafter R11 700. 00 per month;
water and electricity R1 500: Multi-choice and internet
R800; medical
aid R1 700; food and grocery R2 000; domestic helper R1 400: swimming
pool expenses R400: petrol R1500; cell phone
R500; clothes R500,
personal care and artifacts R300; hair cut R300, magazine and news
papers R200 and relaxation R500, totaling
R39 450. 00 for 3 (three)
months and thereafter R24 150. 00. However, in the notice of motion,
the total amount she claims for
maintenance pendete tite
is R11 650 00
[7]
According to the applicant she receded an amount of R64 000. 00 from
a Sanlam policy in January 2009. From the aforesaid amount,
R45 000.
00 was immediately utilized by Standard Bank to defray her overdrawn
facility. Since then she has been living from the
balance of R19 000.
00 of the aforesaid amount
[8]
She says that the respondent is a successful attorney who derives his
income from:
i.
his [……] legal practice:
ii.
Transport business ‘Iron Horse Trucking (Pty) Ltd";
iii.
Various properties; and
iv.
shares held in a residential golf development in [……..].
[9]
The applicant has attached annexure "CP1" which is headed '
Detailed Income Statement for the Year Ended 28 February
2007"
which is the respondent s legal practice. She says that this
statement reveals that the respondent received as the directors'
allowance from his legal practice an amount of R360 000. 00. She has
also attached annexure CP2 which is the bank statements of
the
respondent's legal practice, from which it is clear that large
deposits of moneys are made. Annexure "CP3" is the
respondent's statement of assets and liabilities as at 31 January
2007. This statement reveals that his net assets are R5, 180
million;
Annexure “CP4" is an Income Statement for the Year Ended
2006/7/8 of the Iron Horse Trucking business, showing
the following
amounts; end year 2007 R2.2 million; end year 2008 R4.8 miilion; end
year 2009 R7.8 million.
[10]
The respondent has filed his answering affidavit in opposing the
application. He says that the applicant has had three adulterous
relationships with three persons whose names he has mentioned, but J
prefer not to repeat these for purposes of this
judgment,
The applicant further says that, friends and neighbours would from
time to time phone him and tell him where the applicant
was seen with
her boyfriends.
[11]
The respondent further states that he left the common home on 12
August 2007 The applicant assaulted him and his son during
12
September 2007. He says that the applicant rammed her car in the back
of his car and proceeded to assault him and his son and
they laid
attempted murder charges against the applicant as the result of this
incident. He further says that he obtained a protection
order against
the applicant. He says that the damage to his car was R98 252. 20.
[12]
The respondent further accuses the applicant of having arranged with
a Mr. N. to assault him. In this regard he has attached
pictures to
show the extent of his injuries. He says that the said N. is the
applicant s [……]. The respondent says
that he and the
applicant subsequently reconciled, but the applicant again resumed
her adulterous relationship with the said N.
in December 2007. He
further accuses the plaintiff of having faked a suicide attempt by
sticking a horse injection in her chest.
[13]
The respondent further accuses the applicant of forgery. He contends
that, because of the applicant’s adulterous, inter
alia conduct
she is not entitled to be granted the relief she seeks.
[14]
The respondent states that during November and December 2007 he paid
an amount of R40 000. 00 towards the applicant's seven
credit cards.
He further the applicant derives income from eight studs, and that
the monthly expense of each horse is R3 000. 00
per month. He says
that he is a partner in the horses and gives his consent to her to
sell the horses, whose fair market value
is between R35 000. 00 and
R30 000. 00.
[15]
The applicant further critic the individual amounts of the alleged
monthly expenses of the applicant. I have no intention of
detailing
these amounts made by the respondent.
[16]
The respondent admits that he has a legal practice. He admits that
some of his expenses are being paid from this business.
He
has however not attached his financial statements relating to his
practice. He says that a moratorium has been placed on the
instructions he used to receive from Ekurhuleni Local Authority, and
that his clientele has dwindled.
[17]
He says that Iron Horse is running at a loss of R225 487. 06. In this
regard he has attached annexure “PP7”which
shows the
aforesaid loss I must immediately comment that this statement is not
prepared by an auditor. The respondent says that
Iron Horse has one
truck in respect of which an amount of R900 000.00 is still owed to
the bank. Because of the poor financial
business of Iron Horse he is
paying an amount of R21 656 52
towards
the installment of this truck as well as its insurance of R6 740. 00
per month.
[18]
The respondent says that over and above the 50% share in the common
home, he owns a 50% share in a [……] property
he co-owns
with his sister. The monthly bond towards this property is R4 480 per
month. He denies that he owns any share in the
development in […….].
The applicant further says that, although he paid an amount of R70
000. 00 towards the said
development, he has not heard anything from
the person he had paid the amount to and suspects that the relevant
individual has
stolen his money.
[19]
The respondent has listed his own monthly expenses, and these total
an amount of R62 676. 11. Included in this total amount,
are two
credit payments of R5 000. 00 and R6 500 00 totaling R11500. 00. The
respondent has, however, not included in his monthly
expenditure list
the amount of R21 656. 52 which he pays towards the installment of
the truck as well as its insurance payment
of R6 740. 00 If regard is
had to these two amounts as well as the amount of R62 676.1, it means
that the respondent's monthly
expenses are by far in excess of the R
62 676. 11. It logically means that the respondent has by far more
resources than what he
has disclosed In fact, the respondent further
says that the directors remuneration of R360 000. 00 equates to R30
000. 00 per month.
Even if I were to accept that he earns R30 000. 00
per month, this amount is by far less than his disclosed expenses. I
therefore
conclude that the respondent's income is by far more than
what he wants this court to believe.
[20]
The respondent contends that the applicant is not entitled to
maintenance pendent lite, because of her alleged adulterous
relationships. In Dodo v Dodo
1990 (2) SA 77
(WLD) at 88 the Court
said:
‘
In
Carstens case supra it was held to be against public policy that a
wife should be entitled to claim maintenance pendente lite
from the husband whilst she is
flagrantly and deliberately living as man and wife with another
man.” At page 89 E-F the
Court proceeded to say;
“
In
Hahlo (ibid
5th
ed at 38) it is stated that clearly there are cases where the conduct
of one of the parties has been so outrageous that to ignore
it would
be repugnant to one’s sense of justice. See the discussion
therein at 359-61 on Swarf v Swart
1980
(4) SA 364
(O) at 368C-D, that adultery may cause the marriage
breakdown in one case: it may, in another case, be merely a symptom
of other
features leading to the breakdown: and in Singh v Singh
1983 (1) SA 781
(C), that misconduct of
a party must be gross’ before it may be taken into account in
order to disentitle that from maintenance.
The misconduct may be
merely one of many features in which both parties contributed to the
breakdown of the marriage: in which
event a fair sum may be
allowed as maintenance.
[21]
The respondent for his contention that the applicant is not entitled
to maintenance pendent lite,
relies
primarily on the alleged adultery of the plaintiff. He has however,
save for hear say evidence, not produced a shred of the
alleged
adulterous relationship. In the absence of admissible evidence
regarding the alleged adultery on the part of the plaintiff,
I
am unable to find that the applicant
committed any adultery.
[22]
According to the respondent during 2007 the parties reconciled after
he forgave her for her adulterous conduct. If indeed there
was such
adultery on the part of the applicant, and he could still find in his
heart, space to forgive the applicant it means that
the respondent
did not find such conduct to be so much reprehensible The alleged
adulterous conduct on the part of the applicant,
at best for the
respondent, can be regarded as symptomatic of other features within
their marriage.
[23]
The respondent has also attached photographs showing his face with
bruises and the right hand in plaster. However, these injuries,
on
his version, were not caused by the applicant, but by one N. On the
evidence which the applicant has placed before me. I am
unable to
find that the applicant has so grossly conducted herself that she
must be disentitled to maintenance pendete lite.
[24]
The parties have been […..] to each other for more than [……]
years. The applicant further avers that she
has contributed
financially towards their joint common household. The fact that the
applicant has contributed as she avers, where
parties have been
married for over […….] years should, in my view, not
brook any argument and can be assumed, as
I do. I am also of the view
that, although it has not been so stated, it can be accepted that the
applicant has contributed in
also bringing emotional stability,
comfort and companionship in the life of the respondent. These
commodities which I have just
mentioned herein above, in my view: are
priceless but certainly have directly or indirectly contributed to
the respondent's
present wealth. When considering whether or not the
applicant and in general women, are entitled to a pendete lite
maintenance
should be taken into consideration.
[25]
The applicant is entitled to a pendente life
order depending on the living standard
of the parties, vide; Grauman v Grauman 1984 {3} SA 447 at 379E. In
applications of this
nature, the applicant must show that she has
insufficient means, vide Greyling v Greyling
1959 (3) SA 967.
She
must also show that the respondent can afford to meet the amounts she
seeks from the respondent.
[26]
The amount the applicant seeks as contribution towards her
maintenance is only R11 650. 00, which is not, in my view, that
much,
considering what the respondent expends per month on himself. The
applicant cannot be called upon to sell whatever she has
in her
possession, and only claim for maintenance after she has exhausted
whatever proceeds she may get, before she can approach
the court for
a pendete lite
maintenance
order. I am of the view that the applicant has demonstrated that she
is in need of and I find as such, that she is entitled
to an order
for maintenance pendete lite.
I
am, however, of the view, that an amount of R10 000. 00 per month
should be adequate for the applicant s maintenance pendete lite.
[27]
With regard to the contribution towards the applicant's legal costs,
she claims an amount of R30 000 In Dodo v Dodo (supra)
at 98 D- E the
court said: “According to the decision of Micklem v Micklem
1988 (3) SA 259(C)
at 262H-263A, she is entitled to be put in the
position of being able ‘adequately to place her case before the
Court’.
See Van Rippen v Van Rippen 1949 (4)SA 634 (C) at 639.
The fact that the respondent may be wealthy does not entitle the wife
to
unlimited spending, there being a difference between what she
wants and what she needs. She is entitled to essential disbursements,
and what are essential is to be adjudged against the background of
the depth of the respondent's purse and is own scale of litigation."
I need mention that the respondent has tendered, inter alia, to
retain the applicant on medical aid.
[28]
The applicant has not shown how she arrives at the amount of R30 000.
00 as contribution towards her cost. With regard to depth
of the
purse of the respondent, as I have indicated herein above. I am of
the view that the respondent's income is much more than
the amount he
has declared. He has cut the applicant completely off of any
financial means. It would be proper that he should be
ordered to make
a contribution towards the cost of the applicant, so as to place her
on almost semi equal financial, position as
himself to litigate in
the divorce proceedings.
[29]
The respondent has suggested that an amount of R5 000. 00 would be
adequate for the plaintiff's legal costs, I am, however,
of the view
that an amount of R5 000. 00 is rather too the low, having regard to
the fact that the applicant will have to investigate
the true
financial position of the respondent. I am of the view that an amount
of R25 000 would be a fair amount in the circumstances
of this case.
[30]
In the result I make the following order:
1.
That the respondent pays pendete lite
towards the maintenance of the applicant
an amount of R10 000.00 per month:
2.
That the respondent pays contribution towards applicant’s cost
in an amount of R25 000,00 which amount is payable in installments
of
R5 000 00 per month;
3.
That the respondent pays all applicant s reasonable medical costs and
towards this end, to register the applicant as his dependent
in his
medical aid;
4.
That the costs of this application shall be costs in the cause.
DATE
OF HEARING
: 29/ 05/2009
DATE
OF JUDGMENT
: 08/06/ 2009
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
APPLICANT’S
ATT : BHM ATTORNYS
APPLICANT
’S ADV ; ADV J GOUWS
RESPONDENT’S
ATT : EUGENE MARAIR ATTORNEYS
RESPONDENT’S
ADV : ADV L FRANK