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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

EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH

 

                                                                                                NOT REPORTABLE

CASE NO:  74/2014

                                                                                                DATE HEARD:  27.5.2014

                                                                                                DATE DELIVERED: 3.6.2014

In the matter between:

K. C.                                                                                                                            Applicant

vs

M. P. C.                                                                                                                   Respondent

                                                            JUDGMENT

TSHIKI  J:

[1] This is an application for by plaintiff against defendant for maintenance pendente lite in terms of Rule 43 of the Uniform Rules of this Court.  Applicant has filed for divorce against her husband, the respondent.  She now seeks maintenance for herself in the sum of R25 000.00 per month as well as a contribution towards costs in the sum of R40 000.00.  There are no children born of the marriage.

[2] According to the applicant, the parties were married to each other on 3^rd February 2001 out of community of property, and of profit and loss and subject to the accrual system.

[3] Respondent has opposed the application.

[4] In her affidavit, applicant contends that the respondent, as an attorney,  is a man of means and is therefore able to afford the amount claimed.  It is also her contention that respondent has failed to maintain her properly in that he chose to rather spend his money on himself, his family and the woman he had an adulterous affair with.  He practises as an attorney mainly in Johannesburg, with a satellite office in Port Elizabeth, practising under the name and style M. C. Inc.  During the last seven months, applicant was an office manager of both offices but resigned on the 28^th February 2014 for the reason that her continued employment with the respondent became intolerable.  The reasons she has proffered for the irretrievable break down of the marriage being the respondent’s continuous adulterous affair, his emotional and psychological abuse of herself, him being in a position of power in his capacity as employer vis-a-vis herself and her suffering as a result of his conduct and abuse.  She resigned from the respondent’s office for the above reasons coupled with the stress caused by the breakdown of marriage.  She had also undergone medical treatment for depression and severe nervous breakdown.  Since February 2014 she has been looking for alternative employment and her current and only monthly income is R5 000.00 rental from her sectional title unit in Gauteng and R3 000.00 from her bookkeeping work which she does for Bokkveld Besproeing CC.  She has recently been informed that Bokkveld Besproeing is seriously considering closure due to losses incurred. 

[5] Applicant’s further complaint is that, although respondent’s son is self-supporting, respondent continues to support him, a state of affairs she refuses to accept and the parties cannot reach agreement on this issue.

[6] Respondent’s response to applicant’s contentions against him is that he denies that applicant is entitled to maintenance in her personal capacity, either interim or on divorce.  In saying so respondent cites, inter alia, the following reasons:

[6.1]     that applicant is 50 years old and is in good health;

[6.2]     that applicant is able to fully support herself even after the marriage;

[6.3]     that applicant relies on exorbitant and extravagant expenses which she is well able to afford and is earning a substantial income; and

[6.4]     that applicant was employed by respondent but decided to unilaterally resign from her employment where she was earning a salary and benefits amounting to about R25 000.00 per month.

[7] According to respondent, applicant is employable and can get employment with a salary of the amount she seeks from the respondent.

[8] According to respondent the expenses of his attorney’s practice amount to R207 585.50 and that his monthly take over is R250 000.00.

[9] During argument of this application, Mr J. who appeared for the applicant submitted that applicant had no option but to resign from the employ of her estranged husband for the reasons she has already explained.  She could not remain employed by her husband in the circumstances.

[10] I agree with Mr J. that applicant could not endure the torture of having been employed by her husband in the circumstances she had described which respondent does not entirely dispute especially that they are estranged.  Any reasonable wife in the shoes of the applicant would have to resign and correctly so in my view.  It, therefore, does not assist the respondent to boldly suggest that applicant has herself to blame for her resignation.

[11] If she resigned for the reasons explained above which forced her to resign she cannot be blamed for doing so and therefore, would be entitled to be maintained by her estranged husband.  The most important question is how much should she be paid for maintenance?

[12] It does not impress this Court for the respondent to suggest that he was able to pay his wife R25 000.00 as her salary but now about four months after the divorce proceedings commenced he is not in a position to maintain her at all.  This cannot be accepted given all the circumstances which prevailed at the time of institution of the divorce or at least shortly before divorce summons.

[13] I will, however, and in fairness to the respondent, assume that as a result of the resignation of the applicant he was not able to get the same profit he was earning when applicant was still employed by his firm.  In any event maintenance pendente lite is intended to be interim, and temporary and cannot be determined with the same degree of precision as would be possible in a trial where detailed evidence is adduced.  The applicant is and should be entitled to reasonable maintenance pendente lite, depending upon the marital standard of living of the parties.  The Court in such circumstances has to take into account the applicant’s actual and reasonable requirements and the capacity of the respondent to meet such requirements which are normally met from income.  Respondent’s income could not have dropped to the extent that he could not afford the same standard which prevailed at the time of their marriage just before the divorce action was instituted.  In my view, respondent can be able to afford an amount of about R15 000.00 as maintenance pendente lite of his wife, the applicant.

[14] In so far as the contribution towards costs is concerned the amount sought by applicant borders on being on a higher scale.  In my view a sum not in excess of R20 000.00 would be reasonable in the circumstances.

[15] In the result, I make the following order:

[15.1]  The respondent is ordered to pay maintenance to the applicant in the sum of R15 000.00.

[15.2]  The respondent is ordered to pay a contribution of R20 000.00 towards the applicant’s legal costs.

[15.3]  The costs of this application shall be costs in the divorce action.

_________________________

P.W. TSHIKI

JUDGE OF THE HIGH COURT

For the applicant                              :           Adv P Jooste

Instructed by                                   :           Jacques Du Preez Attorneys

                                                                            PORT ELIZABETH

For the respondent                          :           Adv K Williams

Instructed by                                   :           Mark-Anthony Beyl Attorneys

                                                                            PORT ELIZABETH

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