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[2012] ZAWCHC 138
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C.S (nee S) v M.G.M.S (8897/2011) [2012] ZAWCHC 138 (27 March 2012)
Republic of South Africa
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
Case Number: 8897/2011
In the matter of:
C S (nee
S)
…................................................................................................................
Applicant
versus
M G M S
…................................................................................................................
Respondent
Judgment: 27 March 2012
MOSES, AJ:
Introduction.
[1] This is an opposed Rule 43
application, in which the applicant, Ms C S (nee S), asks for an
order against the respondent, Mr
M G M S, in the following terms:
1. That the
respondent be ordered to pay maintenance to the applicant in the
amount of
R52,
930.00
per
month
pendente
lite.
2. That the
respondent be ordered to maintain applicant as a beneficiary on his
medical aid
pendente
lite.
3. That the
respondent be ordered to pay a contribution to applicant's legal
costs in the amount of
R100,
000.00.
4. Costs of the application only
if opposed.
[2] The papers are voluminous
covering in excess of 120 pages, consisting of a founding affidavit
with annexures, by the applicant
(62 pages), respondent's sworn reply
(42 pages), an affidavit by the respondent's attorney, Mr Peter
Seymour, stating basically
that the respondent suffered a severe
stroke on 25 June 2011, the effect of which has been debilitating,
with medical reports confirming
same (12 pages) and subsequently, the
respondent's supplementary sworn reply (12 pages). This latter
affidavit by the respondent,
which is dated 19 March 2012, was only
handed up by the respondent's counsel at the hearing of this matter
on 20 March 2012. There
being no objection from the applicant, it was
received as evidence. This matter was adjourned after counsel on
behalf of both the
applicant and respondent have addressed me, and
judgment reserved to enable the court to consider those submissions,
and study
the contents of the latter supplementary sworn reply of and
by the respondent, which was done.
[3] The import of the said
supplementary sworn reply in essence is that, given the severe stroke
suffered by the respondent, he
has become unable to practice his
profession as a professional pilot. As a result hereof his employment
with Comair has been terminated
as he was advised by a letter dated
30 November 2011. This in turn has had a serious impact on his
financial situation, causing
it to be radically different from what
he had set out in his first affidavit - the sworn reply referred to
above.
[4] The net
result of this was that whereas he has formerly received a net income
of R63 676, 29
after
deduction of
his medical aid pension contributions, he presently receives a net
salary of R51 478, 20, and, in addition, must pay
his medical aid
contribution himself from his net income. The respondent also
received disability payouts pursuant to the aforesaid
stroke he
suffered and his subsequent medical condition, totaling Rl,45
million. This was not disputed by and on behalf of the
respondent.
[5] This court has listened
carefully to the submissions made by counsel on behalf of the
parties, and has given it very careful
consideration. This court has
also carefully and thoroughly considered all the information placed
at its disposal by and on behalf
of the parties, as set out in their
respective affidavits and annexures, referred to above. In the
circumstances, this court does
not deem it necessary to give a full
judgment, dealing with all the above stated information and
submissions, safe to state that
reasons will follow, if and when it
is deemed necessary. In the circumstances, this court considers the
following order to be appropriate.
1. The
respondent shall support the applicant
pendente
lite
by
paying:
1.1. the monthly premium due to
Standard Bank in respect of the mortgage bond registered against the
former common home as well
as the home owner's insurance premium;
1.2. the household content
insurance premiums;
1.3. the monthly DSTV
subscription;
1.4. the security fees;
1.5. the municipal accounts in
respect of the former common home (which include rates, taxes, water,
electricity and other charges)
as well as the rates and water bill in
respect of the business premises;
1.6. the home Telkom landline
(limited to R300 per month);
1.7. the applicant's cell phone
(limited to R300 per month);
1.8. the reasonable maintenance
expenses of the property, provided that the respondent shall contract
directly with the supplier;
1.9. the applicant's vehicle's
short term insurance premiums (by paying the applicant the amount of
R500 per month) and the cost
of reasonable and necessary services and
repairs of the vehicle, provided that she uses the family mechanic
and the respondent
has provided his prior written consent, which
shall not be withheld unreasonably.
2. The respondent shall maintain
the applicant as a dependent on his current medical aid and shall pay
her reasonable and necessary
medical expenses (provided that she has
first obtained his prior written consent, save in real emergencies,
which consent shall
not be withheld unreasonably, for a total expense
that exceeds R500 per month).
[6] The respondent is ordered to
pay a contribution towards the applicant's legal cost in the amount
of R50 000.00 which amount
is to be deducted from the applicant's
share of the accrued estate as determined by a court pursuant to the
divorce proceedings
pending between the parties.
[7] Costs to stand over for
later determination.
MOSES, AJ