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[2004] ZAFSHC 75
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D W v D W [2004] ZAFSHC 75 (29 July 2004)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 117/2003
In
the matter between:
M
D
W
............................................................................................
Plaintiff
and
I
DW
...........................................................................................
Defendant
___________________________________________________________
CORAM:
EBRAHIM,
J
___________________________________________________________
DELIVERED
ON:
29 JULY 2004
___________________________________________________________
[1] It is common cause that the parties herein were
married out of community of property and with the exclusion of the
accrual system
on 20 February 2000 at Bloemfontein. At the time the
parties got married, the defendant was a general medical practitioner
and
the plaintiff a medical sales representative. During the
subsistence of the marriage, the plaintiff terminated her employment
and became a housewife for a short period. A child was born from
this marriage, namely M on 24 May 2001.
[2] On 26 April 2001 the plaintiff issued summons
against the defendant for the following relief:
“1. ‘n Bevel van egskeiding;
2. Bewaring
van die minderjarige kind gebore te word;
3. Onderhoud vir die minderjarige kind gebore te word, in die bedrag
van R1 000,00 per maand, die eerste onderhoudbetaling te wees
op die
laaste dag van die maand wat volg na geboorte en daarna voor of op
die 1ste van elke daaropvolgende maand;
4. ‘n
Bevel waarkragtings verweerder aanspreeklik sal wees vir alle
redelike mediese-, tandheelkundige-, en oogkundige koste
van die
gemelde minderjarige kind gebore te word;
5. ‘n
Bevel waarkragtens verweerder aanspreeklik sal wees vir die betaling
van die voorskoolse fooie, bewaringsfooie en skoolfooie
van die
minderjarige kind asook die minderjarige kind se naskoolse
opleidingskoste;
6. Koste van die geding;
7. Verdere
en/of alternatiewe regshulp.”
[3] When the matter came before Court on 17 November
2003 the plaintiff had amended her summons to claim the following
relief:
“1. A decree of divorce;
2. That custody of the minor child be awarded to the plaintiff
subject to the reasonable rights of access of the defendant as
amplified in the Family Advocate’s report of the 18
th
June
2003;
3. Maintenance for the child in the amount of R1 000,00 per month;
4. An
order in terms whereof defendant would be liable for the reasonable
medical, dental and eye costs of the said child;
5. A
further order in terms whereof defendant will be liable for the
school fees of the minor child;
6. Maintenance
for plaintiff in the amount of R2 000,00 per month for a period of
twelve months;
7. Costs of suit.”
[4] The
defendant counter-claimed for an order of:
“1. Divorce;
2. That the custody of the minor child be awarded to plaintiff
subject to certain rights of access to the;
3. That
defendant pays maintenance for the child in the amount of R800,00 per
month;
4. Costs of suit.”
[5] From the aforegoing it is clear that the main areas
of contention between the parties right from inception of the action
was
that relating to custody and access of the minor child,
maintenance for the minor child, maintenance for the plaintiff and
the
question of costs. In this regard it is important to mention
that the Family Advocate, in an endeavour to assist with the issues
relating to custody access of the minor child of the marriage,
prepared two different reports, the first report dated 18 June 2003
and the second report dated 13 November 2003.
[6] It is common cause between the parties that the
reason for the preparation of a second report by the Family Advocate
was that
the first report dated 18 June 2003 was not acceptable to
the plaintiff for certain reasons,
inter alia
, that the Family
Advocate who had prepared the report was married to a medical doctor
and it was feared by the plaintiff that the
defendant might have some
connection with the said doctor. This created the perception in the
mind of the plaintiff that the Family
Advocate concerned would not be
completely unbiased in the matter. At any rate, the Family Advocate
who prepared the second report
dated 13 November 2003 thereafter
prepared further written recommendations at the request of both
parties who were haggling over
the issue of joint supervision which
formed an aspect of the second report.
The second report was acceptable to the defendant but
not to the plaintiff. This caused further haggling between the
parties until,
by agreement, the issue relating to joint decision
making was abandoned by the defendant.
[7] At some point during the trial the defendant
formally handed in a written offer in terms of section 34 of the
Rules of Court
(Exhibit “I”). In terms of this written
settlement the defendant offered to pay an amount of R1 000,00 in
respect
of the maintenance of the minor child and an amount of R1
000,00 maintenance in respect of the plaintiff for a period of six
months.
The first payment to be made on or before the 7
th
of the month following a final order of this Court. The defendant
also undertook to be responsible for the medical costs of the
minor
child by placing her on his medical aid scheme which only covered
hospital expenses. In terms of the settlement it was suggested
that
each party pay his or her own legal costs.
[8] The settlement was not acceptable to the plaintiff
who insisted on maintenance for herself in the amount of R2 000,00
per month
for a period of 12 months and an order in terms of which
the defendant would also be liable for the reasonable medical, dental
and eye costs of the minor child as well as the costs of this entire
action.
[9] An assessment of the dispute in relation to the
Family Advocate’s report between the parties reveals the
following:
9.1 The Plaintiff made all effort to frustrate the
Defendant’s rights to access of M. The Plaintiff further
conceded that
she was not satisfied with the rights of access
recommended by the Family Advocate in the first report and
accordingly requested
a further report. The Family Advocate only
issued the second report after consultation and re-evaluation [of the
parties as well
as M], by herself and a clinical psychologist, Dr
Luttig. This report granted even more access rights to the Defendant
and the
Plaintiff
“felt that this was not right”.
9.2 The Plaintiff testified that the Defendant was a
good father, but the child was in her opinion too young to be left
with him
for weekends or overnight. Apart from the age of the child
the Plaintiff was not able to give any other reason why she was of
the
opinion that the rights of access the Family Advocate recommended
for the Defendant should not be granted. The Plaintiff conceded,
under cross-examination, that the Defendant has the child on
alternative weekends with him and that there was never any need to
worry about the safety or well-being of M. The Plaintiff could not
advance any reason why the situation should not continue after
a
decree of divorce was granted, especially in view of the fact that
the Defendant’s undisputed evidence was that he is properly
trained as a doctor to look after small children.
9.3 In
my view the Plaintiff had no reasonable dispute with the Defendant in
relation to the rights of access he claimed and acceded
to, and her
objections in this regard were based solely on her desire to make
access to M as difficult as possible for the Defendant.
Counsel for the Plaintiff went to great pains in an
endeavour to indicate and/or create the impression that the report of
the family
advocate, as well as that of the clinical psychologist was
vague, because it contained not only recommendations but also
discussions.
9.4 It was only at the penultimate stages of the trial
and during an application for amendment of the Defendant’s
counter-claim,
that it came to light that the Plaintiff’s real
objection against the second report was that it recommended joint
decision
making, which she admitted she foresaw as a major problem.
Solely in an attempt to settle the matter, the moment the Defendant
learned what the Plaintiff’s objection was, he waived his claim
in this regard. Even if I assume in plaintiff’s favour
that
her objections were well-founded, she kept the reason therefore
hidden until such a late stage it resulted in the lengthening
of the
trial unnecessarily and an escalation in the legal costs incurred by
both parties.
[10] On the other hand, the defendant’s attitude
in resisting the amount of the claim for maintenance in respect of
the minor
child by offering a reduced amount and by disputing his
duty to pay the medical, dental, eye costs and school fees of the
minor
child was, in my view, extremely unreasonable. The defendant
is a general practitioner in stable employment and there is no reason
whatsoever why he adopted the stance that he was not under any
obligation to pay the amount claimed by the plaintiff which, all
things considered, was not an exorbitant amount and a certain amount,
if not all, of the medical, dental and eye costs and all
school fees
of the minor child. The defendant’s unreasonable attitude
stretched to the extent that no offer of whatever
nature was
forthcoming in respect of payment of any of the medical, dental, eye
costs and school fees of the minor child. These
expenses were
completely ignored by the defendant in his counter-claim and plea to
the plaintiff’s summons and even at the
very last stages of the
trial when the offer to settle was made.
[11] The question of reasonable access to the minor
child and that of payment of the medical, dental, eye costs and
school fees
of the minor child were the two main issues which bogged
this trial down and turned the trial into a protracted one
unnecessarily.
In the circumstances I am not convinced that either
party is entitled to any payment of any costs.
[12] In regard to the issue of bridging maintenance, the
evidence was that although the plaintiff was a housewife for a
certain
period during the subsistence of the marriage, at the time
she instituted the summons for divorce she was already in stable
employment.
From 28 January 2003 the plaintiff was in full-time
employment as a medical sales representative. She received a certain
income
which included a company car and other fringe benefits.
Although shortly thereafter the plaintiff did terminate this
employment,
it was her evidence that she had thereafter commenced her
own business selling cosmetics, that she was earning an income
sufficient
to look after her needs. However, she required the
financial assistance from the defendant in the sum of R2 000,00 per
month
in order to get herself settled in her business as she had the
additional expense of all the attendant costs of starting a new
venture. Although she earned a sum of money which was on the face of
it sufficient to support herself and take care of her share
of the
minor child’s expenses, this income was not sufficient for use
to set up the new business. I am of the view that
the plaintiff has
not proved that she is in need of maintenance or that she is in any
event entitled to bridging maintenance.
There is no evidence that
she contributed in any manner to the upkeep of the joint household or
to the defendant’s estate,
whilst the contrary is true. The
very fact that the defendant is or must be in a stronger financial
position than plaintiff because
of his professional and academic
qualifications is no basis in law for an order that the defendant pay
to the plaintiff bridging
maintenance as claimed.
[13] In the result I find that neither party has been
substantially successful in the prosecution of their respective
claims. Accordingly
I make the following order:
1. A
decree of divorce is granted.
2. The care and custody of the minor child, M, born from
the marriage relationship between the parties, is awarded to the
plaintiff.
3. The
defendant shall have right of access to the minor child, M, at all
reasonable times, provided reasonable notice is given.
Such right of
access shall include the right to have the said minor child with him
as follows:
(i) The defendant may take the minor child, M, one
afternoon per week with him, from 15h00 – 18h00.
(ii) Every
alternative weekend from 16h00 on a Friday to Sunday 18h00, on
condition that when the defendant takes up residence away
from
Bloemfontein, the minor child will be allowed to travel by airplane
to the defendant, and that the defendant accompany the
said minor
child on the first five flights.
(iii) Once
the child is 4 years of age, the defendant shall be entitled to have
her for half of every holiday, on a yearly rotating
basis and every
alternate Christmas and New Year, with him.
(iv) The
defendant shall be entitled to have the minor child each alternate
Easter and long weekend with him. A long weekend will
commence from
16h00 one day prior to the day the start of the long weekend, and
will terminate at 18h00 on the last day of the
holiday.
(v) The
defendant shall be entitled to take the minor child on the
defendant’s birthday, each Fathers day, and each alternative
birthday of the said child with him.
(vi) Once
the child is 4 years of age, the defendant shall be entitled to
adjust the duration of weekends in accordance with airplane
flight
schedules.
(vii) Once
the child is 6 years of age the defendant will be entitled to provide
the minor child with a cellular telephone and the
expenses in respect
of the maintenance of the said phone and the phone calls the said
child may make shall be for the account of
defendant.
4. The defendant is ordered to pay the amount of R1
000,00 (One Thousand Rand per month) to the plaintiff in respect of
the maintenance
of the minor child, the first payment to be made on
or before the 7
th
day of the month following this Court
Order, and thereafter on or before the 7
th
day of each
consecutive month.
5. The defendant is ordered to maintain the said minor
child as a beneficiary of his medical aid scheme and shall pay half
of all
the reasonable other dental, medical or related expenses, as
well as half of all the primary secondary or tertiary education fees
of the minor child.
6. Each
party is ordered to pay his or her own legal costs.
_______________
S.
EBRAHIM, J
On
behalf of Plaintiff:
Adv. S.J. Reinders
instructed
by
Honey
Attorneys
On
behalf of Defendant:
Adv. J. Strydom
instructed
by
McIntyre
& Van der Post
/scd