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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

(FREE STATE DIVISION, BLOEMFONTEIN)

Case No.: 3412/2020

In the matter between:

R R                                                                                                                     Plaintiff

and

D B                                                                                                                  Defendant

 

JUDGMENT

 

CORAM: RAIKANE, AJ

DATE HEARD: 15 OCTOBER 2020

DATE DELIVERED: 22 OCTOBER 2020

 

INRODUCTION:

1] This is an opposed application for the specific interim reliefs pendent lite in terms of Rule 43 of the Uniforms Rules.

2] The Applicant has instituted divorce action against the Respondent under case number 2949/2020 in this division.

3] The only issue to be determined by this court as the parties have agreed on some of the reliefs prayed for is the issue of spousal maintenance and contribution towards legal costs.

 

FACTS:

4] The parties were married to each other in community of property in 25 March 2008. There are two children born out of this union, one is a major and the other one is a minor.

5.] Both parties are employed in the academic terrain.

6.] The joint estate also has three encumbered immovable properties two of which are rented out and the rental money is paid into the respondent banking account.

7.] Both the income and expenditure of the parties are a matter of the record.

 

THE LAW:

Spousal maintence:

8.] The applicant is entitled to reasonable maintenance pendent lite taking into account the standard of living of the parties during the marriage, the applicant's actual and reasonable requirements and the income of the respondent at times the utilisation of assets is also taken into account.

 

Contribution towards costs:

9.] This claim is sui generis and is based on the duty of support spouses owe each other which may also include the cost of legal proceedings. The applicant must lay before court only such facts as, if proven would entitle her to succeed in the main action Du Plooy v Du Plooy 1953 (3) 848 at 851-852.

9.1] In Griese) v Griesel 1984(4) SA 270 (0) at 277 A it was held that the applicant must also show that she has insufficient means of her own and that an order on the contribution towards cost is justified.

9.2] The quantum to pay of the contribution to costs which a spouse might be ordered to pay lies within the discretion of the presiding officer talcing into account the circumstances of the matter, the financial positions of the parties and other particular issues involved as per Van Rippen v Rippen 1949 (4) SA 632 note 3.

 

APPLICATION OF THE LAW TO THE FACTS

10.] It is prudent to mention from the onset that uppermost in such applications for the court to be able to exercise its discretion: there is a duty on any applicant to act with utmost good faith and to disclose fully all material information regarding their financial affairs as any false or material non-disclosure would mean that he/she is not before the court with ..clean hands" and the court would on that ground be justified in refusing relief sought Du Preez v Du Preez [2008] JOL 22600 Para 16 at 32 H.

11.] One can also not shy away from the principle established in the Nilson v Nilson 1984(2) 294 Cat 295 (F) that Rule 43 was not created to give an interim meal-ticket to an applicant who quite clearly at the trial would not be able to establish a right to maintenance.

12.] However without a proper upfront disclosure, the judicial officers may be compelled to elevate an anomaly in one party's papers to an overall adverse credibility finding which impacts on the maintenance ordered to pay. At times it might be the other party was more adept in juggling income and expenditure figures TS, Rand TS,T(unreported Judgment,case number 28917/2016) GAUTENG,LOCAL DIVISION,JOHANNESBURG(7 AUGUST 2017

13.] Also in either case a respondent may also enjoy an unintended advantage because the applicant does not have an automatic right to reply.

14.] The prominent features in this matter is that the income from the two properties of the joint estate is totally controlled by the respondent. There is also a transfer of huge sums of money out of his banking account reflected in his banking statements.

15.] The justification thereof the applicant cannot reply to due to the nature of the application. This lead to an inference justifiable so that the estate is being depleted.

16.] There are also monies deposited into the respondent's bank account with no corresponding explanation in the replying affidavit, this leaves much to be desired as far as the principle of full disclosure is concerned

17.] The same can be said on the accommodation rental of the respondent in Potchefstroom the rental contract must reflect all the terms of the contract, the attached typed paper with no heading leaves the court with more questions than answers.

18.] The court takes into cognisance the contributions towards the applicant paid so far and is mindful of the overriding principle that the court retains its discretion

19.] Accordingly, the order I make pendent lite is as follows:

19. l The respondent to contribute R10 000.00 towards the legal costs of the applicant

19.2 The respondent to pay R4000.00 spousal maintenance starting the 1^st November 2020 and on or before the 7^th of each subsequent month until finalisation of the main action.

19.3 The costs of this application is cost in the cause.

 

 

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RAIKANE AJ

 

On behalf of the Applicant: Adv. Heymans

Instructed by: De Lange Attorneys

 

On behalf of the Respondent: Adv. Boonzaaier

Instructed by: Kuhn & Kuhn

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