About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2024
>>
[2024] ZAECQBHC 58
|
|
J.D.K v J.K (584/2022) [2024] ZAECQBHC 58 (10 October 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 584/2022
Date
Heard: 12 September 2024
Date
Delivered: 10 October 2024
In
the matter between:
J[...]
D[...]
K[...]
APPLICANT
and
J[...]
K[...]
RESPONDENT
JUDGMENT
MULLINS
AJ:
[1]
The Applicant and the Respondent are engaged in an opposed divorce
action. Pursuant
thereto the Respondent brought a Rule 43
application, which was opposed. On 30 August 2023 Potgieter J
gave an order, the
relevant portions of which (for the purposes of
this application) read as follows (the “Rule 43 Order”):
“
1.
The Respondent shall maintain the major dependent child, A[...],
until she has completed
her tertiary education by payment of her
monthly rental, groceries, fuel, vehicle insurance, cellular phone
expenses, cell phone
data expenses and other ancillary expenses as
agreed, the total cost of which equates to R15,500.00 per month,
payable on the first
day of each month, free of exchange, and without
any deduction.
2.
The Respondent shall cover A[...] at his cost, on his current medical
air scheme,
or any scheme with similar benefits and the Respondent
shall pay the monthly premium (and escalations) timeously together
with
payment of the costs of all reasonable and necessary expenses in
respect of the medical; dental; surgical; hospital; orthodontic
and
ophthalmological treatment required by A[...], including any sums
payable to a physiotherapist; occupational therapist; speech
therapist; dermatologist; psychiatrist / psychologist and
chiropractor, the costs of medications and the provision where
necessary
of spectacles and/or contact lenses if not covered by the
Respondent’s medical aid scheme.
3.
Respondent shall bear the costs in respect of A[...]’s tertiary
expenses
including the costs of fees, textbooks and stationary
requirements, which cost shall be paid by the Respondent for as long
as A[...]
applies herself to her studies with due diligence and makes
satisfactory progress.”
[2]
For reasons which will be dealt with below the Applicant failed to
comply with the
terms of the court order quoted above, as a result of
which the Respondent launched an application on an urgent basis to
have him
committed for contempt of court. The application was
unopposed and on 4 April 2023 Potgieter J made the following order
(the
“Contempt Order”):
“
2.
The Respondent be found to be in contempt of the Order of the
Honourable Mr Justice
Potgieter dated 30 August 2022 (“the
Order”) and that Respondent be sentenced to a consecutive
period of three months’
imprisonment, which period of
imprisonment is to be suspended for the duration of the order
provided that:
2.1.
The Respondent complies fully with the terms of the Order by payment
of R15,000.00 per month
as and for maintenance of the major dependent
child, A[…] K[...], payable on the first day of each month,
free of exchange
and without set off or deduction.
3.
In the event that the Respondent fails and/or refuses and/or neglects
to purge
his contempt set out in paragraph 2 above within 5 (five)
court days from the date on which a Court Order is granted herein,
the
Applicant may set the matter down upon notice as a matter of
urgency, with or without further amplification of the papers, calling
upon the Respondent to show cause why:
a)
a further order should not issue in terms of which the Respondent
should not
immediately be imprisoned for a period of three
consecutive months;
b)
he should not pay the costs of any further proceedings on an attorney
and client
scale; and
c)
further sanctions to ensure purging of the contempt should not be
imposed against
him.
4.
The Respondent pay the costs of this Application on and attorney and
client scale.”
[3]
On 18 June 2024 the Applicant launched this application for the
variation of the Rule
43 Order by the deletion of paragraphs 1, 2 and
3 thereof (the “Variation Application”). Although
not specifically
stated, the application was obviously premised on
Rule 43(6), which provides that in the event of changed circumstances
a party
may approach the court for a variation.
[4]
The Respondent opposed the Variation Application.
[5]
The Applicant’s case can be summarized as follows: Due to
her poor academic
performance A[...] is no longer pursuing her
studies at North West University in Potchefstroom (“NWU”),
has moved back
to Gqeberha and is working as a waitress at a
restaurant. Therefore, the argument goes, the purpose of
paragraphs 1, 2 and
3 of the Rule 43 Order are no longer applicable.
He also alleges, without providing any proof thereof, that he is
financially
distressed.
[6]
In the result he states that with effect from May 2023 he
unilaterally reduced the
monthly payment to R7,000.00.
[7]
In her opposition to the application the Respondent admits that
A[...] has given up
her studies at NWU but this is because of the
sustained emotional abuse and manipulation which the Applicant
subjected her to,
which appears to have been motivated by the fact
that A[...] has a boyfriend who belongs to another ethnic group.
[8]
In support of this allegation the Respondent attached to her
affidavit a string of
WhatsApp messages from the Applicant to A[…],
which I do not intend to deal with in detail. Suffice it to
state that
the Applicant’s racist and bigoted views are
unacceptable by any measure and are disgraceful. The fact that
they are
directed at his own daughter compounds the issue.
[9]
The upshot of the Respondent’s opposition is that due to his
behaviour the Applicant
caused A[...] to give up her studies and he
should not be allowed to benefit from his reprehensible behaviour.
[10]
That the Applicant’s behaviour towards his daughter was (and
remains in this application)
reprehensible and that she is suffering
from anxiety as a result thereof, for which she is on medication, is
quite clear.
But on the papers before me I cannot conclude that
this is the reason she is no longer pursuing her studies at NWU.
[11]
However, the bottom line is that A[...] is no longer at university
and although she intends to
enrol at Unisa (or may have already done
so) there have been changed circumstances. They are:
(a)
She is no longer studying at NWU;
(b)
She is employed and earning an income.
[12]
With regard to A[...]’s income, the Applicant attaches her bank
statement for the months
April to the middle of July 2024. They
indicates that she is earning an average of R2,304.00 per month from
waitressing.
[13]
Paragraph 1 of the Rule 43 Order compels the Applicant to pay to
A[...] R15,500.00 per month
towards her living expenses “until
she has completed her tertiary studies…”. That is
no longer applicable,
but that does not mean that she no longer has
living expenses. Thus, while the Applicant is entitled to a
reduction in the
monetary amount payable, he is not entitled to the
deletion thereof.
[14]
Paragraph 2 deals with medical and related expenses. There is
no reason to interfere with
this part of the maintenance order.
[15]
Paragraph 3 deals with the cost of fees, textbooks, stationery, and
the like. This form
of maintenance is no longer relevant.
[16]
Which brings me to costs. Although the Applicant has been
partially successful, he has
also been partially unsuccessful.
I have already dealt with his unacceptable behaviour, which is
deserving of censure.
In addition, he comes to court with dirty
hands. Despite being found guilty of being in contempt of court
(on 4 April 2023)
he states in his affidavit that from May 2023 he
unilaterally reduced the maintenance payable to A[...] to R7,000.00.
The
costs order I intend to make is, hopefully, an indication of the
Court’s displeasure of his behaviour towards his daughter.
[17]
Why the Respondent has not pursued the contempt application is
baffling, but that issue was not
before me.
[18]
In the circumstances I make the following order:
1.
Paragraph 1 of the Rule 43 Order, dated 30 August 2022, is hereby
varied by the
deletion of the figure “R15,000.00” and the
replacement thereof with the figure “R11,000.00”;
2.
The Applicant (the respondent in the Rule 43 application) is to pay
the sum of
R11,000.00 per month back-dated to 1 July 2024.
3.
Paragraph 3 of the Rule 43 Order, dated 30 August 2022, is hereby
deleted.
4.
The Applicant is ordered to pay the costs of this application on an
attorney
and client scale.
NJ
MULLINS
(ACTING
JUDGE OF THE HIGH COURT)
REPRESENTATION
:
Obo
the Applicant:
Adv. G. Joubert
Instructed
by:
VAN STADEN TERBLANCHE INC.
3 Sunninghill Park
Moregrove Road
Westering
GQEBERHA
Obo
the Respondent:
Adv. L. Windvogel
Instructed
by:
ABRIE LANDMAN INC.
12 Buckingham Road
Mount Croix
GQEBERHA