Theodorellis v Theodorellis (A29/2007) [2007] ZAFSHC 131 (22 November 2007)

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[2007] ZAFSHC 131
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Theodorellis v Theodorellis (A29/2007) [2007] ZAFSHC 131 (22 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A29/2007
In the appeal between:
THEODORUS
THEODORELLIS
Appellant
and
ANASTASIA
THEODORELLIS
Respondent
_____________________________________________________
CORAM:
MALHERBE, JP
et
BECKLEY, J
_____________________________________________________
JUDGMENT:
MALHERBE, JP
HEARD ON:
12 NOVEMBER 2007
_____________________________________________________
DELIVERED ON:
22 NOVEMBER 2007
_____________________________________________________
[1] The parties to this
appeal were formerly married to one another. Their marriage was
dissolved by a decree of divorce on 12 May
1998. A Deed of
Settlement was made an order of Court on the same date. In clause 1
of the Deed of Settlement appellant undertook
to pay maintenance to
the respondent in the amount of R3 800,00 per month until her death
or remarriage, whichever occurs first.
On 2 August 2005 respondent
applied to the Bloemfontein Maintenance Court for the increase of the
amount of maintenance on the grounds
of
“
personal circumstances and
increasing costs of living.”
In the prescribed form
for such an application, she set out her total monthly income as R4
300.00, being the said maintenance of
R3 800.00 plus R500.00 interest
on an investment of R80 000.00. She applied for an increase to the
amount of R9 500.00.
[2] The proceedings in
the Maintenance Court started on 1 December 2005 and was eventually
concluded on 6 October 2006 when the presiding
Magistrate ordered
appellant to pay maintenance to respondent in the amount of R7 055.00
per month from 1 December 2006. It is against
this decision that
appellant now appeals, contending that the Magistrate should not have
granted any increase whatsoever.
[3] Mr. Fischer who
appeared on behalf of appellant, used strong language in his attack
upon the Magistrate’s findings. He said
that the Magistrate had
acted capriciously and that respondent had misled the court
a
quo
by
failing to mention other sources of income which were established
only during cross-examination. I do not think that this criticism
is
warranted: It is true that in her evidence-in-chief respondent
testified that her only income was R4 300.00 per month, but three
weeks before she started her testimony her attorney wrote to
appellant’s attorney that she owned immovable property in Cyprus
worth
approximately 20 000 Cyprus pounds. He also mentioned
respondent’s Super Save savings account, a Money Market bank
account and
a savings account in Cyprus in which respondent deposited
80 Cyprus pounds per month that the immovable property earned as
rental.
In her evidence-in-chief she repeated the contents of this
letter. It is, therefore, not correct that she only disclosed other
sources of income under cross-examination as was submitted by Mr.
Fischer.
[4] If regard is had to
all the evidence, it is readily understood why respondent did not
regard the rental that she earned in Cyprus
as income that she could
use to maintain herself in South Africa. She testified that the
rental was being deposited into an savings
account in Cyprus to
create a fund from which the old house or houses on the property
could be maintained and which she could use
when she visited Cyprus.
She also testified that she never considered investing that money in
South Africa where she could perhaps
earn more interest than in
Cyprus. In any event, according to her the property was not rented
out permanently but only from time
to time.
[5] Mr. Fischer also
submitted that the respondent failed to tell the Maintenance Court
that she earned R1 000.00 per month from the
sale of jewellery and
candles. She makes it abundantly clear in her evidence that she sold
these things
¡°
here
and there ….. here and there …. not every month …. Maybe this
month I will get R1 000.00 out of selling, maybe the next
month I get
nothing”
meaning
that these sales did not constitute a regular income per month.
[6] There
are two factors that made an increase necessary, viz. inflation since
1998 and the cost of a medical aid scheme for respondent
in the
amount of R2 500.00 per month. The Magistrate did not order the
appellant to pay the whole shortfall that she calculated
at R6
510.00. She said the following in her reasons:
“
In fairness to the defendant the
applicant will have to draw from her assets and investments to
contribute to the maintenance of herself.
The court finds that a
legally fair increase in the contribution by the defendant will be
one of R3 255.00 per month. That is half
of the difference referred
to, and reflected in the applicant’s budget.”
It
is common cause that appellant can comfortably afford the increase.
[6] The appellant has not
convinced me that the court
a
quo
erred in its finding.
[7] In
the result the appeal is dismissed with costs.
___________________
J. P. MALHERBE, JP
I
concur.
________________
A. P. BECKLEY, J
Counsel for the
appellant: Adv. P. U. Fischer
Instructed
by:
Messrs
Bezuidenhouts
BLOEMFONTEIN
Counsel for the
respondent: Adv. N. Snellenburg
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
/em