Van de Pol v Van De Pol (2057/2008) [2008] ZAFSHC 43; 2009 (5) SA 223 (O) (29 May 2008)

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[2008] ZAFSHC 43
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Van de Pol v Van De Pol (2057/2008) [2008] ZAFSHC 43; 2009 (5) SA 223 (O) (29 May 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 2057/2008
In the case between:
SUSARA
JOHANNA VAN DE POL
Applicant
and
HENDRIK
VAN DE POL
Respondent
JUDGMENT:
H.M. MUSI, JP
_____________________________________________________
DELIVERED ON:
29 MAY 2008
_____________________________________________________
[1] On 23 May 2008 I
granted an order dismissing the application herein and indicated that
my reasons would follow. Such reasons
follow hereunder.
[2] This is a Rule 43
application brought by the applicant against her husband, the
respondent, for maintenance
pendent
elite
for herself only. The parties are no longer staying together as man
and wife, the applicant having left the common home on 24 November
2007. She has since instituted an action for divorce which is
pending in this court. She says that the marriage relationship
between
herself and the respondent has broken down retrievably and
that she has no intention of returning to the common home. I should
mention
that the parties were married to each other out of community
of property on 20 May 1988.
[3] The basis of the
claim for maintenance
pedente
lite
is
that the applicant is unemployed and has no means of supporting
herself. She says that since her departure from the common home
she
has been living with friends and such friends have been providing her
with her daily needs. She says that she can no longer
depend on the
goodwill of friends and now wants the respondent to resume
maintaining her. She has submitted a statement of her monthly
financial requirements totalling R4 500,00. She wants the respondent
to contribute an amount of R3 000,00 per month towards those
needs.
She is also claiming a contribution towards the costs of her divorce
action in the amount of R5 000,00.
[4] I should mention at
this stage that the couple have two minor children, both girls age 15
and 14 respectively. It is common cause
that these children have
been placed in the care of the respondent’s brother in Bela Bela
(formerly Warmbaths) pending a final
decision by the Children’s
Court. They have been with the respondent’s brother since November
2007 to date.
[5] The respondent is
opposing the application, essentially on two grounds. Firstly, he
alleges that the applicant was not forced
to leave the common home
but that she left of her own accord in order to join her extra
marital lover, one Thys de Villiers. He
alleges that the applicant
has been conducting a illicit love affair with this man all along and
has been living with him since her
departure from the common home.
He says that Thys de Villiers is employed as an electrician and is
maintaining the applicant. The
second ground is that the respondent
cannot afford to pay the amounts claimed. He has submitted a list of
his monthly expenditure
which shows that his total expenditure
exceeds his monthly income of R8 000,00. The statement shows that
he contributes an amount
of R2 000,00 per month towards maintenance
of the two minor children.
[6] The cardinal question
is whether the respondent is exonerated from contributing towards the
applicant’s maintenance by virtue
of the applicant’s alleged
cohabitation with another man. In support of this allegation of an
illicit love affair, the respondent
has annexed to his answering
affidavit, marked “A”, a report compiled for the Children’s
Court by a Social Worker attached
to a welfare organisation called
Free State Care in Action on 27 November 2007. It is apparently on
the basis of this report that
the parties’ two minor children were
placed in the custody of the respondent’s brother. The report
narrates a sad history of
“ernstige huweliksprobleme met
gepaardgaande drankmisbruik, aanranding en buitegtelike verhoudings
deur Mev. Van de Pole.” It
points out that the respondent is a
truck driver whose work takes him away from home during the week and
that in his absence the
applicant would leave the children alone to
visit her boyfriend. The theme that the applicant conducted an extra
marital affair
permeates the whole report alongside allegations that
she abused alcohol and of assaults on her allegedly perpetrated by
the respondent.
[7] In a nutshell, the
report supports the respondent’s allegation that the applicant
conducted an illicit love affair. In her
founding affidavit, the
applicant mentions that the minor children were placed in the care of
the respondent’s brother by the Social
Workers at Bothaville but
does not allude to the reasons for their removal nor does she allude
to the welfare report at all. In
oral argument in this court, her
counsel did not challenge the authenticity of such report.
[8] In applications of
this nature it is not always possible to establish the true facts or
make any definite findings of fact precisely
because of the nature of
the proceedings. The pleadings are by way of affidavits where only
a founding affidavit and an answering
affidavit are normally filed.
However, where a respondent raises in the answering affidavit a
serious, contentious issue, the applicant
can apply for permission to
respond by way of a replying affidavit. In this case no attempt was
made to respond to the serious allegations
made in the answering
affidavit that the applicant is living with another man who
apparently supports her. And, as I have said,
such allegations find
support in the report of the social worker. I must decide the matter
on the basis of the papers before me
and on such papers there is
nothing to gainsay the respondent’s version on the point in issue
and I accordingly accept it for purpose
of this judgement.
[9] Ms. Wright, for the
respondent, referred to the case of
CARSTENS
v CARSTENS
1985 (2) SA 351
(SECLD) and urged me to refuse the application on the
authority thereof. The following was stated in this case at 353 F:
¡°
It
is in my view against public policy that a woman should be entitled
to claim maintenance
pendente
lite
from
her husband when she is fragrantly and deliberately living as man and
wife with another man.”
The question is whether
this dictum is applicable to the instant case. Mr. Coetzer, for the
applicant, submitted that the facts
of the instant case are
distinguishable. He said that in
CARSTENS
the applicant had not only been living with another man but had also
committed adultery as a result of which a child was born and
that she
and her lover lived together as man and wife. In effect counsel
suggested that the applicant is less morally culpable and
for that
reason the dictum should not apply.
[10] With respect, I do
not see what is the difference between a woman who has given birth to
a child by her extra marital lover with
whom she lives and one who
has simply moved in with her lover and is living him. They are both
cohabiting with their lovers and
it matters not whether or not a
child has been born out of the illicit love affair. 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 353i, citing Hahlo). 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. I
hold therefore that the dictum in
Cartens
is applicable to the instant case.
[11] In
Carstens
a contribution towards costs was awarded in spite of the fact that
maintenance
pendent
elite
had been refused. The rationale for this was that the parties were
married in community of property and as such the applicant had
a
share in the assets of joint estate. It was held that she was
entitled to claim such share through the divorce action and for
that
reason she was entitled to a contribution towards the costs to enable
her to pursue her claim. In
casu,
the parties are married out of community of property and there is no
indication on the papers that she is making any claim against
the
estate of the respondent.
[12] I accordingly
declined to order contribution as well and dismissed the application.
_____________
H.M.
MUSI, JP
On behalf of the
applicant: Adv. J. C. Coetser
Instructed by:
Horn
Van Rensburg
BLOEMFONTEIN
On
behalf of the respondent: Adv. G. J. M. Wright
Instructed
by:
Hill,
McHardy & Herbst
BLOEMFONTEIN
/em