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[2009] ZAGPPHC 113
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S v S (30112/09) [2009] ZAGPPHC 113 (10 September 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
HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA)
CASE NO. 30112/09
In the matter between:
D O S APPLICANT
And
J S 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 R10, 000. 00 for the maintenance of
the applicant; 2. Contribution towards cost in the amount
of R10,
000. 00 payable in installments of R1000. 00 per month;
[2] The parties were married to each other out of community of
property with inclusion of accrual of benefits on 23 January 1993.
[3] The applicant states that he has no assets in his estate. The
twincab Isuzu 1998 vehicle he is driving is registered in
the name of
the respondent. His estate had no growth during the marriage. On the
other hand, according to the applicant, the estate
of the respondent
appreciated in value to an extent of R5, 000, 000. 00.
[4] The applicant further avers that the respondent has the
following businesses: a guest house Palm Bed & Breakfast CC
since
2008; Beads for You Trading CC since 2006.
[5] According to the applicant, he worked as an equal partner in
both the aforesaid businesses. He helped with the management
and the
keeping of books. The beads shop had its own account and does only
cash business. They drew from time to time as needs
dictated cash
from petty cash of the guest house.
[6] The applicant further avers that they had an FNB business
account into which he estimates that about 40% of their clients
paid
deposits whilst 60% paid cash, which cash amounts was kept in a small
cash box. He says that the beads shop generated R18
000. 00 per month
and the guest house R22, 000. 00 per month. The total expenses of the
guest house are about R9 000. 00 per month
and of the beads shop is
R13 000. 00 per month. They took money from these amounts as and when
the needs arose. They also let out
to the respondent's daughter a
room in the guest house for an amount of R2000. 00.
[7] According to the applicant, the estate of the respondent
consists of, inter alia, the following, namely: properties that
are
registered in her name, namely (a) property at [ …. ]
Rietfontein, Pretoria, estimated in the amount of R780 000, 00
with
an outstanding bond of R350 000, 00; (b) property at [ …. ]
Rietfontein Pretoria, estimated at R780 000, 00 with an
outstanding
bond in the amount of R350 000, 00; (c) property at [ …. ],
the guest house, its estimated value of R2, 000,
000 with an
outstanding bond of R720, 000. 00.
(d) The beads shop with estimated value of R432, 000. 00;
(e) the property where the guest house business is conducted from its
estimated value is R2, 000, 000. 00. The estimated potential
per
month of the guest business is R45, 000, 00 per month and the
business itself is estimated at R1, 000, 000. 00.
[7] According to the applicant, he received a severance package
from SADF in 1999 in the amount of R630 000, 00, which money
was paid
into the respondent's personal account and utilized towards improving
the businesses and the properties.
[8] The applicant has detailed his monthly expenses which consists
of, inter alia, R3500. 00 for accommodation; grocery of R1750,
00 etc
totaling an amount of R10, 375, 00. In respect of contribution
towards legal costs , the applicant claims an amount of R10,
000, 00
per month, payable in installments of R1000. 00.
[9] The applicant further avers that he is unemployed and is
without any income.
[10] The respondent in her opposing affidavit stated, inter alia,
that the applicant is aware that the first National Bank has
instituted an action against both the applicant and herself under
case number 16784/2009 claiming payment of R354, 886. 28 in respect
of [ …. ] Rietfontein, Pretoria . In this regard she has
attached a copy of the relevant summons as annexure A.
[11] The respondent further avers that first National Bank has
instituted another action against both the applicant and herself
under case number 16783/2009, claiming payment of R352,028. 253. In
this regard, she has attached a copy of the relevant summons
as
annexure B. She further avers that summons have also been issued by
Sanlam Life Insurance against Beads 4 U Trading CC for an
amount of
R28, 090. 07 plus rent and costs.
[12] The respondent further avers that the applicant accompanied
her to a credit adviser to discuss rescheduling their financial
commitments although the process was not successful as the result of
the applicant having misrepresented that they owed the respondent's
mother an amount of R125 00, 00.
[13] The respondent disputes that she is this successful business
woman the applicant portrays her to be. She denies that her
estate is
worth R5 million as alleged by the applicant. She however concedes
that she is a member of the Beads For U Trading CC
which conducts its
business at corner of [ …. and …. ] streets, Pretoria.
She denies that this business is generating
an a mount of R18, 000.
00 per month. SH also denies that the guest house is generating an
amount of R22, 000, 00 per month. She
has attached annexure C which
she avers that is the income statement of this business for May
month. Has further attached annexure
D which she says that it is a
statement prepared by the applicant showing that the budget and
expenses for the February 2009 month
for Palm View Bed &
Breakfast CC is a loss in the amount of -R4107.59
[14] The respondent has further attached annexure E, which is a list
of her outstanding accounts amounting to R166 000 in January
and R162
279. 63 in February 2009.
[15] The respondent further avers that the expenses and income of the
closes corporations trading in the beads shop and the guest
house are
not her personal income and expenses but those of the respective
close corporations. She has also detailed monthly expenses
of the
guest house totaling an amount of R14 886, 00, which includes a house
loan in the amount of R3107, 33, an amount of R1900,
00 for business
cell phone, ect.
[16] The respondent has detailed a list of her other financial
commitments totaling an amount of R144, 069. 95. Some of these
amounts are R6,804, 65 for Edgars, R7342, 10 for Woolworths, R58,
108. 00 for ABSA with an outstanding arrears of R11, 617. 41,
R10,
723, 07 FNB credit card, to mention just a few.
[17] The respondent further denies that the profit of the guest
house is R13, 000. 00 per month. She further denies that the estimate
value of property situated at [ ….. ] Capital Park is R2
million, she also denies that that the beads shop is worth R432,
000.
00. She further contends that the applicant wants her to pay for him
a two room apartment while she stays in a single apartment
of
R1500.00.
[18] I do not intend to repeat the submissions made on behalf of
the respective parties. However that does not mean that I have
closed
an ear thereto. It suffices to state that each respective counsel
gallantly tried to pursued me to find for their respective
clients.
[19] It needs mention that maintenance pendete lite is intended to
be a temporal relief. For that reason, the determination of
whether
or not maintenance pendent lite must be ordered cannot be determined
in the same degree as the court would in a trial matter,
vide Taute v
Taute
1974 (2) SA 675
(E) at 676E. The Court will look at the
financial means of the parties, and the needs of the party who seeks
such an order.
[20] Both spouses in a marriage have a duty to wards each other to
maintain one another, depending of their respective means.
In casu,
it is not disputed that the applicant is unemployed. On the other
hand the respondent has some commercial businesses from
which she
sustains herself.
[21] The respondent also pleads financial woes and has attached
copies of summons that have been issued against both parties.
She
further says that her other financial commitments amount to R144 069,
96, but what is significant is she spends R68, 731.07
on credit cards
and R32,194.59 on the four clothing stores, Foschini, Truworths,
Woolworths and Edgars. The inference to be made
is that she has been
less than candid about her financial means.
[22] The respondent does not dispute that the applicant took a
severance package from SADF in 1999 in the amount of R630 000, 00.
She denies that this amount was utilized towards the purchase and
improvement of the business and the properties. She says that
the
applicant misused this money in cash loan business which he
mismanaged. What she fails to disclose, however, is how she begot
her
businesses and properties. I am of the view that the probabilities
are that the severance package money of the applicant was
utilized in
procuring her businesses and the properties.
[23] In view of the fact that she has properties, while the
applicant, it would seem from the papers before me, has virtually
nothing, it is just and fair that the respondent should be ordered to
contribute towards the maintenance of the applicant from
her estate.
In the matter of Harwood v Harwood
1976 (4) SA 586
at 587H the court
held that maintenance must be paid out of capital.
[24] I am of the view that the respondent should be ordered to pay
maintenance for her poor husband, although she need not pay
every
amount claimed by the applicant. I am of the view that an amount of
R7,000. 00 per month would suffice to provide some modicum
of comfort
to the applicant.
[25] With regard to contribution towards legal costs of the
applicant, I am of the view that an amount of R3000, 00 will suffice.
This amount should be paid in installments of R500. 00 per month.
[26] The respondent has stated in her papers that she is on the
applicant's Military One medical fund and she request that the
applicant be ordered to keep her on this medical fund. She is 49
years old. I find no reason why such an order should not be made,
but
besides there was no submission to the contrary made on behalf of the
applicant.
[27] In the result I make the following order:
1. That the respondent pays pendete lite towards the maintenance of
the applicant in an amount of R17000.00 per month;
2. That the respondent pays contribution towards applicant's cost in
an amount of R3 000.00 which amount is payable in installments
of R5
00. 00 per month;
3. That the applicant keeps the respondent as his dependent on his
Military One medical fund for her reasonable medical costs.
4. That the costs of this application shall be costs in the cause.
DATE OF HEARING : 09/09/2009
DATE OF JUDGMENT: 10/09/2009
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
APPLICANT'S ATT : SILVA D, ALMEIDA ATTORNEYS
APPLICANT'S ADV : ADV D. KEET
RESPONDENT'S ATT : MASHOBANE KRIEL INC
RESPONDENT'S ADV : ADV CA. KRIEL