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2024
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[2024] ZAFSHC 333
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F.V.N v J.V.N (5244/2024) [2024] ZAFSHC 333 (25 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 5244/2024
In
the matter between:
F[…]
V[…] N[…]
APPLICANT
And
J[…]
W[…] S[…] V[…] N[…]
RESPONDENT
Neutral
citation:
F[
…
]
V[
…
] N[
…
]
v J[
…
]
W[
…
] V[
…
]
N[
…
]
(5244/2024)
Coram:
MPAMA, AJ
Heard:
17 OCTOBER 2024
Delivered:
25 OCTOBER 2024
ORDER
1.
The respondent is ordered to keep the minor child
as a dependant in his medical aid scheme and to pay in addition all
extra medical
costs of the minor child not covered by the medical aid
scheme.
2.
The respondent is ordered to pay maintenance to
the applicant for the minor child in the sum of two thousand five
hundred rand (R2500.00)
effective from the 31
st
of October 2024 and thereafter on the last day of each and every
succeeding month.
3.
The respondent is to pay all the reasonable costs
relating to the minor child’s day care facility.
4.
The status quo in respect of the rights of care
and contact concerning the minor child shall prevail and the matter
is referred
to the Family Advocate in order for the rights regarding
care and contact of the minor child to be investigated and the report
to be filed in court.
5.
The respondent is to pay all municipal rates and
taxes, water and electricity in respect of the common home.
6.
The application for the maintenance of the
applicant is dismissed.
7.
The application for contribution towards costs is
dismissed.
8.
The costs of this application are reserved for
adjudication during the main trial.
JUDGMENT
Mpama
AJ
INTRODUCTION
[1]
This
is an application for payment of maintenance
pendente
lite,
interim care
and contact of the minor child and contribution towards legal costs
in terms of rule 43 of the Uniform Rules of the
Court (the Rules).
[2]
The applicant and respondent are embroiled in divorce proceedings.
T
hey were married on 20 February 2021 out of community of
property with the application of accrual system and the marriage
still
subsists. The applicant approached the court seeking relief in
respect of her maintenance, the minor child’s maintenance,
rights of care and contact of the minor child and contribution
towards the legal costs.
[3]
In her sworn statement in support of the
application, the applicant averred that she is currently employed
and
earning a monthly salary of a sum of R18153.10 plus R1600.00 as
commission. Before her current employment, she worked for SARS
as a
clerk for the Tax Board. When she left this employment, she received
her pension funds and is in the process of securing an
immovable
property with these funds at Atlantic Waves Estate, Laaiplek,
Velddrift. She has also secured a mortgage loan for this
purpose.
[4]
The applicant currently resides at the common home owned by the
respondent with the children (a
child from a previous relationship
and the two-year old minor she shares with the respondent) at
Bloemfontein whilst the respondent
relocated to Senekal. The
respondent is demanding that she relocates to Senekal with the
children and has put the common home up
for sale.
[5]
She estimated her monthly expenses to be between R24000.00 and
R26000.00, excluding the provisions
for holidays, birthday gifts and
expenses. Appended to her affidavit is a breakdown of her monthly
expenses. These expenses total
an amount of about R33000.00. Her plea
is for the payment of her maintenance by the respondent in the sum of
R6500.00 monthly.
The applicant also requests a contribution of
R50000.00 towards her legal costs in order to enable her to litigate
on an equal
footing with the respondent.
[6]
Regarding their minor child, she is seeking
primary residence and that the respondent be afforded contact
with
the child as follows: to have contact in Bloemfontein every
alternative Saturday between 10:00 and 13:00 and every alternative
Sunday between 10:00 and 13:00. In addition, the respondent is to pay
maintenance in the sum of R3500.00 for the child, to keep
him as a
dependant in his medical aid scheme, to pay all other medical costs
not covered by the medical aid scheme and all the
reasonable costs
relating to the child’s day care and further education. There
was a claim for the child’s school fees,
school uniform,
sporting activities, stationery and extra-mural sporting activities
which was later abandoned by the applicant.
[7]
The respondent is vehemently opposed to the application. In his
opposing affidavit he averred
that he cannot meet the demands of the
applicant due to his dire financial situation. To unpack this, he
stated that his monthly
financial commitments are R54924.54 and his
monthly salary is R28703.00. Every month he suffers a shortfall
of R26 221.54.
He has an amount of R124980.00 in his FNB
money maximiser account and he supplements his income with these
funds. He owns
the communal home and due to his financial
constraints, he is selling the house in order to pay off his debt and
to buy property
at Senekal where he works and currently resides.
[8]
In respect of the child, he averred that the child is a dependant in
his medical aid scheme and
he buys him nappies and milk. He does not
believe that the applicant has the best interest of the child and
this issue should be
investigated by the Office of the Family
Advocate and pending the Family Advocate’s report, he should be
granted contact
with the child as follows: Contact on alternative
weeks. He will collect the child on Saturday at 8:00 and return him
on Sunday
at 18h00, public holidays and short school holidays are to
alternate between them, long holidays to be shared equally and
Christmas
to alternate between them. On the child’s birthday,
he requires at least four hours of contact from 08:00 to 18:00,
contact
on the Father’s Day from 08:00 to 18:00 if this day
does not coincide with a normal access weekend and reasonable
telephone
contact with the child.
[9]
He tendered to pay the following expenses:
rates and taxes for the communal home, garden services,
prepaid
electricity, water and WIFI. For the child he tendered to pay his
aftercare fees, to buy milk and nappies to contribute
towards a
policy for the child’s benefit, to keep the child as a
dependant in his medical aid scheme and to pay 50% of the
child’s
medical costs not covered by the medical aid scheme.
[10]
With regard to the contribution towards costs he
lamented the exorbitant amount claimed by the applicant.
He contended
that the applicant failed to attach an invoice in support of her
claim for costs.
[11]
Rule 43 of the Rules shall apply whenever a spouse seeks relief from
the court in respect of one or more
of the following matters:
a)
Maintenance
pendete lite;
b)
A contribution towards the costs of a pending
matrimonial action; pending or about to be instituted;
c)
Interim care of any child;
d)
Interim contact with any child.
[12]
An invariable consequence of civil marriage is the reciprocal
duty of support between spouses. The general approach
is that the
applicant is entitled to reasonable maintenance pending the
finalisation of divorce. However, the applicant must establish
a need
to be supported. This in turn is dependent upon the marital standard
of living, her actual and reasonable requirements and
the capacity of
the respondent to meet her requirements.
[13]
In
Taute
v Taute
[1]
it was determined that the interim maintenance will be determined
according to the ‘marital standard of living, her actual
and
reasonable requirements and the capacity of her husband to meet such
requirements.’
[2]
[14]
Our courts have always emphasized the need for utmost good faith by
both parties and the need to disclose
fully all material information
regarding their financial affairs in these applications and that
failure to carry out this duty
would justify refusal of the relief
sought.
[3]
[15]
The applicant and the respondent did not come with
clean hands before court. There are discrepancies on
what their
monthly incomes are; the applicant did not give an average amount she
makes from commission. In addition, she did not
disclose the value of
her pension amount. Equally, the respondent did not take this court
into his confidence regarding his earning
capacity. This has left the
court none-wiser regarding his financial position and whether he
could meet the financial obligation
as prayed for by the applicant.
[16]
In order to succeed with a claim for contribution
towards costs the Applicant must establish that she has
insufficient
means of her own to pay legal costs and that the amount sought is
reasonably necessary to enable her to pursue the
matter. There is no
evidence presented by the applicant to support this claim.
[17]
On the issues relating to the child the Family
Advocate, if so requested by any party to divorce proceedings
or
court shall institute an enquiry to enable him to furnish the court
with a report and recommendations on any matter concerning
the
welfare of the children. See: s 4 of Mediation in Certain Divorce
Matters Act of 1987. The parties have made damning accusations
against each other on their suitability to reside with the child. The
rights of contact by the respondent have also been challenged.
Order
[18] In
the result, I make the following order
pendete lite
:
1.
The respondent is ordered to keep the minor child
as a dependant in his medical aid scheme and to pay in addition all
extra medical
costs of the minor child not covered by the medical aid
scheme.
2.
The respondent is ordered to pay maintenance to
the applicant for the minor child in the sum of two thousand five
hundred rand (R2500.00)
effective from the 31
st
of October 2024 and thereafter on the last day of each and every
succeeding month.
3.
The respondent is to pay all the reasonable costs
relating to the minor child’s day care facility.
4.
The status quo in respect of the rights of care
and contact concerning the minor child shall prevail and the matter
is referred
to the Family Advocate in order for the rights regarding
care and contact of the minor child to be investigated and the report
to be filed in court.
5.
The respondent is to pay all municipal rates and
taxes, water and electricity in respect of the common home.
6.
The application for the maintenance of the
applicant is dismissed.
7.
The application for contribution towards costs is
dismissed.
8.
The costs of this application are reserved for
adjudication during the main trial.
L
MPAMA, AJ
APPEARANCES
For the
Applicant:
Advocate
Groenewald
Instructed
by:
Muller
Gonsior Inc.
BLOEMFONTEIN
For the
Respondent:
Advocate
Coetzer
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
[1]
Taute v
Taute
1974 (2) SA 675.
[2]
Ibid at 676D.
[3]
Du
Preez v Du Preez
ZAGPHC 334;
2009 (6) SA 28
(T) para 13.