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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO:27304/2007

DATE: 15 /11/ 2007

UNREPORTABLE

IN THE MATTER BETWEEN

SUSANNA JOSINA VAN DER RIET APPLICANT

AND

ANTONIE VAN DER RIET RESPONDENT

J U D G M E N T

MAKGOKA, AJ

[1] This is a Rule 43 application. The parties are married in community of property. There are no minor children born of the marriage between the parties. The Applicant claims maintenance pendente lite in the amount of R4500.00, as well as contribution towards her legal costs in the amount of R2500.00. The Respondent opposes the granting of the relief sought.

[2] It appears from the pleadings in the divorce action, that both parties claim forfeiture of the benefits arising from the joint estate against each other. The Applicant also claims maintenance for herself, from the Respondent. It also appears that the Respondent had made a WITH PREJUDICE offer to the Applicant, wherein the Respondent concedes that the joint estate be divided, and further that a liquidator be appointed to receive and liquidate the joint estate. This offer is not acceptable to the Applicant who asserts that before the liquidator is appointed, certain monies concealed by the Respondent, be disclosed. I doubt whether a trial court would engage in such an exercise, other than to order a division of the joint estate. This would leave the principle of maintenance as the only issue in dispute between the parties, for determination by the trial court.

[3] Mr De Kock, on behalf of the Respondent, argued quite eloquently that by refusing to accept appointment of liquidator for the division of the joint estate, the Applicant abuses the process of Rule 43. He argued further that, the marriage being of a short duration, the trial court is unlikely to order maintenance for the Applicant. That might well be the case, but a determination of that aspect can only be made by the trial court. On the other hand Ms Schreuder, for the Applicant, argues that, at the trial court, the Applicant would demonstrate that the Respondent has other means of income and\or that the Respondent had concealed thereoflarge portion, which could influence the trial court’s position on whether maintenance should be payable to the Applicant.

[4] Regard being had to the above, and the totality of factors in this application, it is clear that the lis between at the trial, would be whether the Applicant would be entitled to maintenance from the Respondent. At this stage I am satisfied that the Applicant has established a need for maintenance pendente lite. The principle of maintenance, is a real dispute, and for that reason I am inclined to grant maintenance pendente lite, as well as contribution towards costs.

[5] From the papers, the parties are not of ample means, and having considered the parties’ respective income and expenditure schedules, I make the following order pendente lite:

[5.1] the Respondent is ordered to pay an amount of R1500.00 to the Applicant per month,

[5.2] the Respondent is ordered to make a contribution towards the Applicant’s legal costs in the amount of R2000.00, payable in monthly payments of R200.00;

[5.3] the above payments shall be made with effect from 3 December 2007;

[5.4] the costs hereof are in the divorce action.

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T M MAKGOKA

ACTING JUDGE OF THE HIGH COURT

HEARD ON: 13 NOVEMBER 2007

FOR THE APPLICANT: Ms. L SCHREUDER

INSTRUCTED BY: TINTINGER ING, PRETORIA

FOR THE RESPONDENTS: Mr DE KOCK

INSTRUCTED BY: SHAPIRO & SHAPIRO INC

DATE OF JUDGMENT: 15 NOVEMBER 2007

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