South Africa: Free State High Court, Bloemfontein

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[2021] ZAFSHC 293
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A.V v G.J.V (1879/2021) [2021] ZAFSHC 293 (11 November 2021)
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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
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
Case No: 1879/2021
In the matter between: -
A[....] V[….] APPLICANT
and
G....] J[….] V[….] RESPONDENT
JUDGMENT: MOLITSOANE, J
HEARD ON: 11 NOVEMBER 2021
DELIVERED: The judgment was handed down electronically by circulation to the parties’ legal representatives by email and released to SAFLII on 11 November 2021. The date and time for hand down is deemed to be 11 November 2021 at 12:00.
[1] This is an application in terms of Uniform Rule 43(1) for the maintenance of the applicant and her two children pending the hearing of an action for divorce in which the applicant is suing the respondent for divorce and other ancillary relief. The issues regarding parental rights, care and contact, primary residence and specific parental responsibilities and rights in respect of the minor child is not in dispute. The applicant also seeks a contribution towards her legal costs in the amount of R50 000.
[2] The applicant is a business woman conducting a business from home. She resides in Parys. The respondent is an accountant practising as such in Stellenbosch in one of the accounting firms.
[3] The parties are married to each other out of community of property without accrual. Out of the marriage between the parties, two children were born, a daughter born on 6 November 2000 and according to evidence as yet not self-supporting and a son born on 14 May 2004.Both children stay with the applicant. The parties are currently embroiled in a divorce action and same is pending in this court.
[4] The applicant seeks the relief set out in her application because of the reasons that follow. According to her she conducts what she calls a home industry in the form of a rusk baking business known as [….]. Her income is in the region of R5000 per month. She further draws a salary of R11 600 per month on average to cover other expenses. According to her, the expenses relating to the acquisition and baking of the rusks is high on the percentage over the net income derived from the business.
[5] According to her the respondent is currently contributing an amount of R15 000 in respect of the maintenance for herself and the two children on a monthly basis. The respondent further continues to pay for other expenses like, the matrimonial home bond, rates and taxes, vehicle maintenance, policies and annuities, security and alarm systems costs. She also annexed a list of expenses she contends represent the fair, reasonable and necessary monthly expenses and needs for her and the children.
[6] She is of the view that the respondent is in a position to contribute towards the maintenance of herself and the children. According to her the applicant earns in the region of R80 000 per month plus dividends from his employment. She contends that her income falls way short of covering her expenses and asks that the applicant make good the shortfall. During the arguments it was contended that the respondent should make a contribution in the global amount of R30 000 as maintenance for the applicant and the children per month.
[7] The respondent on the other hand alluded to the fact that in January 2017 he and the applicant reached an agreement not to proceed with the divorce and he had been paying an amount of R15 000 per month to the applicant as maintenance for the children since. According to him the applicant and the two minor children are registered as dependants on his medical aid fund and he further pays an amount of R6 056.00 per month as premiums on a monthly basis on the said medical aid fund. He thus currently contributes a total amount of R21 056.00 per month towards the maintenance of the applicant and the two children.
[8] He offers to continue paying the same amount of R21 056.00 per month to cover the expenses of the two children as well as the medical aid cover of both the children and the applicant. He further offers to pay certain expenses pertaining to the applicant and the children if they return to the matrimonial home. These expenses would include the bond, Wi-Fi and internet, household insurance, security system.
[9] In order to succeed in the application for maintenance the applicant must satisfy the court:
a) That she is entitled to be maintained by the respondent and the respondent thus owes her a duty of support for as long as the marriage subsists[1].
b) That there is a need to be maintained by the respondent; and
c) The respondent is financially capable of maintaining her.
[10] There is a reciprocal duty on the parties to support each other according to their respective means. That the applicant is entitled to be maintained by the respondent is not in issue. In my view the applicant has demonstrated that the respondent has the financial capacity to meet her financial obligations and thus to support her. It has, however, to be noted that it is not the case for the applicant that the respondent does not maintain her and the minor children. What she contends is that the maintenance falls short of her needs and those of the children.
[11] In order to adjudicate the maintenance needs of the applicant and the children one also needs to look at the respective earning capacities, the financial needs and obligations of the parties. In my view the applicant has been less than candid with her income. She alleges that she draws a salary of about R11 600 from the home based business. She fails to disclose the financial status of the business. There is no proper explanation as to why she only draws an amount of R11 600 as opposed to any other amount. It appears to me that the decision to draw a particular amount lies squarely upon her own discretion. The difficulty of being less than candid makes it difficult to decide her average shortfall.
[12] A distinction must be made between what the claimant ‘needs’ and what she ‘wants’. If circumstances permit the court would order at this stage contribution or payment of the needs of the complainant as opposed to her wants. Respondent works in Stellenbosch. Common sense dictates that he spends most of his time at the workplace. He offers the applicant the occupation of the matrimonial home. He further offers to vacate the matrimonial home should the applicant take her on his offer. Should the applicant accept the offer, this would address some of her expenses. It will also assist the respondent to avoid making unnecessary double payments instead of one. By way of an illustration, if the applicant occupies the matrimonial home, the respondent will not be forced to pay the bond at the matrimonial home and the rental at the place she currently resides in. He will not be forced to pay for the internet costs on both places.
[13] This offer to occupy the matrimonial home was made before the institution of this application. One would have expected the applicant to deal with this issue so that the court would understand why she cannot take the respondent on her offer and stay at the matrimonial home as opposed to renting. Without her dealing with this issue the court is left in the dark and the only reasonable inference to draw would thus be that the applicant does not necessarily need the accommodation with the children outside of the matrimonial home. Her insistence to stay at the place she rents and expects the respondent to pay for it can only be seen as what she wants as opposed to what she needs.
[14] In my view if she were to return to the matrimonial home she would benefit by not paying an amount of over R6000 which would go a long way of resolving her shortfall. The undisputed evidence is that the respondent earns in the amount of R61 000 on average. Although he holds 4% shareholding in the company he works for, the uncontested evidence is that the dividends have not been paid for the few past years and there is no light at the end of the tunnel that same would be paid in the foreseeable future. The payment of dividends can therefore not be taken into account in the calculation of interim maintenance.
[15] In my view the amount of maintenance the applicant currently pays has to be adjusted to cater for the applicant and the children. The applicant initially sought contribution towards her legal costs in the amount of R50 000. The respondent offered her R15 000 as a contribution towards her legal costs which was accepted. I have no reason not grant the offered contribution. I accordingly make the following order:
ORDER
1. It is ordered that :
1.1 Both parties retain their full responsibilities and rights in terms of Sections 18, 19 and 20 of the Children's Act, Act. 38 of 2005, in respect of the minor child born from the marriage relationship between the parties, subject to an order that;
1.2 The care and primary residence of the minor child born from the marriage relationship between the parties be awarded to the Applicant;
1.3 The specific parental responsibilities and rights with regard to contact to the minor child born between the parties as contemplated in Section 18(2)(b) of the Children's Act, Act. No. 38 of 2005, be awarded to the Respondent on the basis that the Respondent be entitled to exercise reasonable contact to the minor child.
2. That the Respondent shall maintain the minor child, Lourens, as set out below:
2.1 Respondent shall pay to Applicant the sum of R5 500 per month on or before the first day of every month by way of debit order into such bank account as Applicant may nominate in writing from time to time.
2.2 Respondent shall retain the minor child, at his costs, as a dependent on his current medical scheme or a scheme with analogous benefits and shall pay the monthly premium (and any escalations) timeously and on due date. Respondent shall also bear the costs of all reasonable expenditure in respect of medical, dental, surgical, hospital, orthodontic and ophthalmological treatment needed by the minor child and not covered by the medical aid scheme, including any sums payable to a physiotherapist, occupational therapist, speech therapist, psychiatrist, psychologist and chiropractor, the costs of medication and the provision, where necessary, of spectacles and/or contact lenses.
2.3 Respondent shall effect payment of the minor child’s educational costs, such costs to include, without limiting the generality of a foregoing, all school fees (primary and secondary), additional tuition fees, and the costs of all extramural activities in which the minor child participates, as well as the costs of all books, stationery, school uniforms, equipment and attire relating to the minor child’s education and his sporting and/or extramural activities engaged in by him.
3. That Respondent shall maintain the major non-self-supporting child, M[….], as set out below:
3
3.1 Respondent shall pay to Applicant the sum of R5 500 per month on or before the first day of every month by way of debit order into such bank account as Applicant may nominate in writing from time to time.
3.2 Respondent shall retain the major child, at his costs, as a dependent on his current medical scheme or a scheme with analogous benefits and shall pay the monthly premium (and any escalations) timeously and on due date. Respondent shall also bear the costs of all reasonable expenditure in respect of medical, dental, surgical, hospital, orthodontic and ophthalmological treatment needed by the major child and not covered by the medical aid scheme, including any sums payable to a physiotherapist, occupational therapist, speech therapist, psychiatrist, psychologist and chiropractor, the costs of medication and the provision, where necessary, of spectacles and/or contact lenses.
3.3 In the event of the major child exhibiting an aptitude or desire therefore, and for as long as she applies herself with due diligence and continues to make satisfactory progress, Respondent shall effect payment of the costs of the major child’s tertiary education in respect of all university fees and/or fees due to an institution for higher learning attended by her, such costs to include but not be limited to the costs of all books and equipment required for her tertiary education (including the provision and maintenance of computers), reasonable transport and travelling costs.
4. An order directing Respondent to maintain Applicant personally, as set out below:
3
4
4.1 Respondent shall pay maintenance to Applicant for herself in the sum of R7 000 per month on or before the first day of every month by way of debit order into such bank account as Applicant may nominate in writing from time to time.
4.2 Respondent shall retain the Applicant, at his costs, as a dependant on his current medical scheme or a scheme with analogous benefits and shall pay the monthly premiums (and any escalations) timeously and on due date. Respondent shall also bear the costs of all reasonable expenditure in respect of medical, dental, surgical, hospital, orthodontic and ophthalmological treatment needed by the Applicant and not covered by the medical aid scheme, including any sums payable to a physiotherapist, psychiatrist, psychologist and chiropractor, the costs of medication and the provision, where necessary, of spectacles and/or contact lenses.
5. That the Respondent be ordered to make an initial contribution towards the Applicant's legal costs in a sum of R15 000 in equal monthly instalments of R750 per month, on or before the first day of each month with effect from 1 December 2021.
6. That costs hereof be costs in the divorce action.
P.E. MOLITSOANE, J
On behalf of the Applicant: Adv. ML Haskins SC
Instructed by: Webbers Attorneys
BLOEMFONTEIN
On behalf of the Respondent: Adv Ploos Van Amstel
Instructed by: Bokwa Inc
BLOEMFONTEIN
[1] Hamman v Hamman 1949(1) SA 1191(W).