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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)

                       

                  CASE NO.: 3541/2017

 

In the matter between:

 

E L R                                                                                                                  Applicant

 

And

 

W O R                                                                                                                Respondent

 

JUDGMENT

 

AH SHENE AJ:

[1]        This is an application in terms of Rule 43 of the Uniform Rules of this Court. This rule is applicable whenever a spouse seeks relief from the court in respect of matters such as:

            (i) maintenance pendente lite.

            (ii) a contribution towards costs of a pending divorce action.

            (iii) interim custody or access to a child.

 

ISSUES

[2]        The main issue in this Rule 43 is whether the respondent will be able to pay maintenance pendente lite.

[3]        Maintenance pendente lite is intended to be temporary and interim and cannot be determined with the same degree of precision as would be with a trial, where detailed evidence is adduced. The applicant is entitled to reasonable maintenance pendente lite dependent upon the marital standard of living of the parties.

[4]        To determine whether the maintenance sought is reasonable the factors that are taken into account include:

(i)    Applicant’s actual and reasonable requirements.

(ii)  The standard of living of the parties during the marriage.

(iii) Respondent’s ability to pay the maintenance that is required by the applicant.

(iv) In so far as the contribution to costs is concerned, applicant is not entitled to all her anticipated costs but only to a contribution towards such costs and only up to the first day of trial.

[5]        I thus approach this application with these principles in mind.

 

SUBMISSIONS

Applicant

[6]        Mr Barnett, counsel for the applicant made the following submissions:

[6.1]     The respondent was ipso facto barred in that he failed to file any opposing papers. Seemingly he was legally represented at some stage; however the attorney of record withdrew. The application was also set down on 25 September 2018, so as to enable the respondent to file the necessary papers. He failed to do so. It was thus the argument that despite the respondent appearing in person, he was accordingly ipso facto barred from arguing the matter and at best, he could, in line with Rule 43 (3) argue the application on the applicant’s papers.

[6.2]     The parties in this matter were married to each other, in community of property on 23 December 2011. There are no minor children born from this marriage. On 17 October 2017, the applicant instituted divorce action citing that the marriage has broken down irretrievable.

[6.3]     Applicant seeks maintenance pendente lite for herself in the amount of R5 000.00 per month. In addition thereto, she seeks an order directing respondent to pay the costs of this application.

[6.4]     The applicant has detailed what her expenses are under different headings. Most of these appear to be monthly expenses.

[6.5]     The applicant was employed as an admin clerk, earning a gross salary of R8 000.00 and a net of R6 600.00. She was, however, retrenched on 30 June 2018. On 11 July 2018, the applicant was recalled to render assistance to her previous employer for the rest of the month.

Respondent

[7]        The respondent’s gross remuneration amounts to R32 000.00 per month per month. He receives a nett salary of R16 000.00 per month.  The respondent appeared in person and simply stated that the applicant’s expenses are unlikely.

[8]        As highlighted by the applicant’s counsel, the respondent was ipso facto barred and could accordingly only argue on the applicant’s papers. The respondent stated that he could not afford to pay maintenance of R5 000.00 per month, but said that he would try and give the applicant R1 000.00 per month.  The respondent listed various expenses, accounting for the remainder of his nett salary.

 

THE LAW

[9]        In Levin v Levin and Another 1962 (3) SA 330 (W) at 331D the court said that maintenance pendente lite is intended to be temporary and interim and cannot be determined with the same degree of precision, as would be possible in a trial where evidence is adduced.  A claim supported by reasonable and moderate details carries more weight than one which includes extravagant or extortionate demands.  More weight will be attached to the affidavit of a respondent who evinces willingness to implement his lawful obligations than to that of one who is seeking to evade them. (See:            Taute v Taute 1974 (2) SA 675 (E) at 676H.)

APPLICATION OF THE LAW

[10]      In this application the applicant avers that she is unemployed. The respondent does not dispute this. The respondent was of the view that the expenses listed could not amount to all the applicant’s expenses and that he could not afford to pay the applicant R5 000.00 per month.

[11]      There does not seem to be any justification for the assertion that the amounts that are required by the applicant for her monthly expenditure in respect of herself is excessive. In my view they appear to be reasonable and not extravagant demands on her part.

[12]      The respondent is a Captain in the SAPS and earns R32 000.00 per month. After deductions, such as tax, the bond, union subscription and insurance, respondent had a nett income of R16 000.00. Despite this amount, he had various other expenses which left him with nothing.   Despite having appeared previously, the respondent has still not sought advice and filed no affidavits.  As a result, I can only conclude that the respondent’s willingness to implement his obligation is lacking.

[13]      I am also satisfied that the applicant has set out sufficient facts which would justify the court granting her maintenance pendente lite.

 

ORDER:

[14]      In respect of this application, I make the following order:

a)    The respondent is ordered to pay the applicant an amount of R5 000.00 per month in maintenance pendente lite.

b)    The costs of this application are to be costs in the divorce action.

 

 

L. AH SHENE

ACTING JUDGE OF THE HIGH COURT

 

 

APPEARANCES

For Applicant           :          Adv.  Barnett

Instructed by                      Melissa Marais Hoffman Attorneys (MMH)

                                                6 Graham Street

                                                3^rd Floor, Suite 4 Africa House

                                                PORT ELIZABETH

                                                Ref:  M Hoffman/nm/R-14 

 

For Respondent       :           In person                                                      

Instructed by                        

 

Date Reserved         :           9 October 2018       

Date Delivered         :           8 November 2018   

 

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