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[2023] ZAGPJHC 191
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K.M.N v K.A.H (8958/2022) [2023] ZAGPJHC 191 (21 February 2023)
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Certain
personal/private details of parties or witnesses have been redacted
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 8958/2022
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED.
DATE:
21/02/2023
In
the matter between:
K[....]1
M[....]
N[....]
Applicant
And
K[....]2
A[....]
H[....]
Respondent
JUDGMENT
MAKUME
J
:
[1]
This is an application in terms of Rule 43 in which the Applicant
seeks the following relief:
a)
That
pendente
lite
the Respondent
pays to her maintenance in the amount of R45 000.00 per month.
b)
That pending the outcome
of the divorce action the Respondent shall continue to make payment
of the following expenses:
-
RSA Web internet service
provider
-
The Applicants Vodacom
contract
-
DSTV and TV Licence
-
11 Monte levies, water and
upkeep
-
Tabren Close-water,
electricity and upkeep
-
That Respondent retain the
Applicant on his medical aid
-
That Respondent be ordered
to return the BMW coupe motor vehicle to her and pay for its
maintenance including comprehensive insurance
-
A contribution to legal
costs in the sum of R75 000.00.
[2]
The parties have been living apart since 2020. The Applicant lives in
Cape Town at premises that belongs to
the Respondent. The Respondent
lives in Johannesburg in a house that belongs to the Applicant.
[3]
The Applicant is unemployed whilst the Respondent is self-employed as
an insurance broker.
[4]
In his Answering Affidavit the Respondent says that since 2020 he has
been paying the Applicant R20 000.00
per month and also pays for
all the item mentioned in paragraph 1 above.
[5]
The Applicant has not filed a Replying Affidavit disputing what the
Respondent has answered.
COMMON
CAUSE ISSUES
[6]
When the Applicant relocated to Cape Town in the year 2020 to live
with the couples unemployed daughter the
Respondent had since that
period till now been paying R20 000.00 directly to the
Applicant.
[7]
That amount was sufficient for the maintenance requirements of both
the Applicant and the parties’ daughter.
The parties’
daughter moved out in December 2021. The Respondent continued paying
R20 000.00.
[8]
Besides payment of the R20 000.00 the Respondent also pays the
following in respect of the premises occupied
by the Applicant:
i)
Rates and taxes
ii)
Water levies
iii)
Insurance
iv)
Maintenance expenses
v)
DSTV
vi)
TV Licence
vii)
Cell phone expenses
[9]
Over and above this the Applicant enjoys membership of the
Respondent’s medical Aid 100%.
IS
A CLAIM FOR R45 000.00 MAINTENANCE PER MONTH PENDENTE LITE
JUSTIFIABLE?
[10]
In order to succeed with this claim the Applicant must prove a change
of circumstances to justify an almost 100% jump
from what she has
been receiving during the time she stayed with Kaylie their daughter
and now 18 months later.
[11]
The R20 000.00 was sufficient for the 2 of them it goes without
saying that she should now be spending less since
she is all by
herself. She is still living in the same premises which are being
fully paid for by the Respondent. This claim falls
to be dismissed
there are no changed circumstance.
PAYMENTS
IN RESPECT OF: RSA WEB INTERNET, VODACOM CONTRACT; DSTV & TV
LICENSE 11 MONTE LEVIES, WATER & ELECTRICITY, MEDICAL
AID PLUS
THE RETURN OF THE BMW MOTOR VEHICLE
[12]
The claim in respect of the BMW motor vehicle is not competent in
Rule 43 application and should be pursued elsewhere
as there is also
a dispute of facts in connection therewith.
[13]
As far as it concerns the rest of the claim it is so that the
Respondent has been taking care of that since 2020 and
has undertaken
to do all that. What the Applicant seeks is now confirmed in a court
order for continuation of payment.
THE
APPLICANTS CLAIM FOR LEGAL COSTS CONTRIBUTION OF R75 000.00
[14]
A party seeking a contribution to legal costs in terms of Rule 43
must prove that he or she is unable to finance her
own legal costs.
Secondly he or she must provide a detailed account from the attorneys
or a quotation supporting the basis of a
claim for the R75 000.00.
[15]
In this matter there is nothing in the Applicant’s affidavit
setting out how the amount of R75 000.00 is arrived
at whether
it is past expenses or future expenses. The amount of R75 000.00
is a thumbsuck.
CONCLUSION
[16]
The Applicant has in my view failed to make a case for relief in
terms of Rule 43 in the result I make the following
order:
ORDER
1.
The application is
dismissed.
2.
The Applicant is ordered
to pay the Respondent’s taxed party and party costs.
DATED
at JOHANNESBURG this the day of FEBRUARY 2023.
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Appearances:
DATE
OF HEARING:
25 JANUARY 2023
DATE
OF JUDGMENT: 21
FEBRUARY 2023
FOR
APPLICANT:
ADV NATHAN SC
FOR
RESPONDENT:
ADV TANYA
EICHNEN VISSER