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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 REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 21703/2020

25/7/2020

 

N[….] P[….] A[….] M[….]                                                                                                                         APPLICANT

 

and

 

P[….] C[….]                                                                                                                                               RESPONDENT

 

JUDGMENT

N V KHUMALO J

 

Introduction

 

[1]        This is an Application launched by the Applicant by way of urgency seeking an order that the Application against the Respondent be treated as one of urgency and that the court dispenses with the provisions of Rule 6 (12). The Application is in terms of Rule 43 of the Uniform Rules of Court with Applicant seeking an order in the following terms:

[1.1]     Pendente lite an order in the following terms be made`

[1.1.1] the Applicant be awarded interim primary residence the right to care in respect of their two minor children and that reasonable right of contact “pendete lite” be awarded to the Respondent.

[1.1.2] the Respondent be directed to pay maintenance in respect of the two children at the rate of R5 000 per child monthly, commencing from the 25 July 2020 and thereafter on or before the 25 of each succeeding months .

[1.1.3] That the Respondent be directed to pay a contribution towards the Applicant’s costs for the divorce action in the amount of R50 000.00.

[1.1.4] the costs of this application be costs in the cause of the pending divorce action.

[2]         The Applicant is an attorney, a director of a firm of attorneys in Sandton. The Respondent is an Engineer also employed in Sandton. The couple who had married on 20 December 2014 and stayed together until 17 December 2019 when the Applicant left the matrimonial home, are in the process of a divorce.

[3]         It is the Applicant’s allegation that since the separation the Respondent has not paid any maintenance for the minor children, except for irregular payments of an amount of +- R8 500.00 for the children’s school fees.

[4]         She alleges that since she is renting an apartment, her expenses together with the children exceeds her affordability. Whilst the Respondent has been left in the matrimonial common home with all the furniture therefore does not have an expense relating to accommodation. She however concedes that the Respondent pays the bond for the matrimonial common home. According to her the Respondent earns enough to be able to pay the maintenance she is seeking. She has indicated Respondent’s salary to be a gross amount of R110 000.00 whilst she only earns a net amount of R45 600.00.

[5]         She alleges that she had hoped that the issues between them will be sorted amicably whilst negotiating a settlement for the divorce. The negotiations have instead collapsed on 12 June 2020, when it became clear that that they might end up with a protracted divorce. The normal set down of this Application might also be at the end of September or early October. Moreover that the dates might also be influenced by the backlog caused by the national lockdown following the declaration of a state of national disaster because of the COVID-19 pandemic. In the meanwhile the continued resistance by the Respondent is to the prejudice of the children whose right to maintenance is being violated.

[6]          In the divorce action the Applicant seeks an amount of R7 000 for maintenance of both children.

[7]         The Applicant has between the period 2019 and 2020 cashed out two old mutual policies whose amounts she has indicated to have used for the furniture or décor at the new accommodation plus legal fees. She also cashed a Sanlam policy and used the funds for household necessities.

[8]         She has indicated that on the Respondent’s side she is aware of him being a founder of the company called [….] that provides engineering consulting services although not aware of its financial status.

[9]         The Respondent has access to a credit card loaded with an amount of R20 0000 per month. He has shares in a company called MNC (Pty) Ltd and received lump sums between 2018 and 2020 in dividends. In May 2014, that is before their marriage, he purchased a new vehicle that caused nearly R800 000.00, the monthly repayments being +- R9 000.00.

[10]         During the marriage the Respondent has always paid for the school fees and for the Bond for the common home and the Applicant had continued to pay for the rest being groceries, electricity and domestic worker and transport. The Applicant would spend a total average of R25 000.00 on all those expenses. Applicant alleges that she previously stayed with her parents but now that she is on her own she is not coping.

[11]      the Applicant has indicated that her current needs are: [11.1] Domestic worker,

[11.2] accommodation

[11.3] Transport

[11.4] Medical Aid

[11.5] Food.

[12]         She alleges to be left with a deficit of R30 000 after all the expenses have been paid. On the list of income and expenses there is a shortfall of R415.00 indicated. On further clarity being sought, Applicant indicated that the deficit amount is for the payment of the Standard Bank overdraft.

[13]        On the other hand the Applicant alleges that the Respondent is left with an excess or surplus of an amount of R20 000 after the deduction of his expenses from his income. The Applicant therefore is claiming from the excess amount a maintenance amount of R5 000 for each child and a contribution towards her legal costs in the amount of R50 000, since she will need Counsel when the matter proceeds in this court.

[14]        The Respondent on the other hand insists that he has continued to pay the amount of R8 500.00 for the minor children’s school fees as usual. He has offered to register one of the children’s in his medical aid whilst the other remains with the Applicant.

[15]         The joint estate comprises of two immovable properties from which he is liable to pay the monthly bonds that average an amount of R27 000 monthly including municipality services, security and water. His net salary is R61 475.00, R16 000 above the net salary of the Applicant. He also has got two other minor children he is supporting from his previous marriage.

[16]         He pointed out that the Applicant did take most of the assets from the matrimonial home after she moved out. He even assisted her to carry them to the hired bakkie, hers and her mother’s car. The Applicant even indicated to him that she will come back later for the other items as her place is small. He therefore disputes that there is any need for the Applicant to purchase furniture arguing that he is the one that needs to do so.

[17]         He alleges to have been fairly contributing towards the maintenance of the children and that the Applicant earns enough to be equally liable for the children’s maintenance as well, even to sustain herself and to pay her legal fees. He argues that he continues to be liable for the expenses of the matrimonial common home and property.

[18]          Regarding [….], he points out that the Applicant has not mentioned that she is the co- director of the company and that Applicant is aware that no work was ever done by the company. It was formed intended as a side business which never materialised.

[19]         He confirms to have a personal credit card not provided by the company. He indicates to have only one source of income which is his salary. From his list of expenditure it shows that his liabilities exceed his income by R13 000.00. He points out that he therefore uses the overdraft to pay for food and other necessities.

[20]         According to Respondent he also paid for utility bills of the properties, that is for water and security and denies that Applicant spends an amount of R7 000.00 for groceries which he says she never spent even when they were staying together.

[21]        He points out that the Applicant also owns a fully paid “BMW” for which he paid a deposit. Without paying anything towards their joint estate property for which he is solely liable, the Applicant has her whole salary to herself.

[22]         He has no policies except for the car insurance and against any personal injury.

[23]          He has attached his bank statement to prove his salary and a list of income and expenditure. The payments for the bonds, to the municipality, for insurance, school fees, medical aid, alleged maintenance and more are reflected. The list  indicate a shortfall  of  R16 000.

[24]        The urgency as alleged by the Applicant is denied and Respondent points out that Applicant has failed to prove any urgency or any need of any further payment of maintenance.

[25]      He confirms that he requires reasonable access to the minor children.

[26]      The following points have been clarified that the discrepant amount of groceries that is reflected as R25 000 on the practice note and heads of argument has been indicated to be an error. The amount has been indicated by the Applicant to have been the full amount of her contribution towards expenses when she resided at the matrimonial common home. Which she is still pretty much responsible for, except that now that she has moved out she has to pay for accommodation and property related expenses. It is indicated to be the major expense that the Applicant has got to pay for.

[27]     The Applicant has also had a benefit of receiving dividends in the year 2019 and 2020, although she has indicated that the amounts are discretionary. In addition an amount for payment towards the overdraft is catered for in the Applicant’s list of expenses.

[25]   The Respondents’ liabilities have not changed. He still has to pay for the expenses of the joint estates plus the amount of R8 500 that he has been paying for school fees. His expenditure list indicates a shortfall of R16 000. He has not mentioned anything about the dividends from NMC that he supposedly got paid in the year 2018 to 2020.

Consideration of the issue of Urgency

[26]    Matters that involve the protection of the interest of a child, specifically maintenance or care of a child remains urgent. I however do not believe that the matter of contribution towards costs is urgent. It will however be heard simultaneously to avoid the hearing of the issues in the Application in piecemeal.

Maintenance of the children

[27]   The amount for groceries that the Applicant is supposed to be liable for would have been lessened as they no longer reside with the Respondent, the amount can go towards Applicant’s new expense for accommodation. The Applicant is seeking an amount of R7 000 for maintenance of the children in the divorce action and there has been no explanation why the amount required pending the divorce action would be different and higher. I have considered the parties’ present financial circumstance and would seem that a fair amount to be paid by the Respondent would be contribution of an amount of R4500.00 for both children’s maintenance over and above the R8500.00 that the Respondent is paying towards school  fees.  Therefore  the  total  contribution  by  the  Respondent  is  supposed  to  be R13 000.00. The Respondent has also indicated his willingness to pay for the medical aid for one child.

Interim care of the children

[27]  There seems not to be an issue with the interim primary residence that is sought by  the Applicant. The children have been staying with the Applicant since the parties’ separation. The Respondent concedes that he is entitled to be awarded reasonable access to the minor children pending finalisation of the divorce action.

Contribution towards costs

[27]   The Applicant has not indicated why an amount of R50 000.00 would be a fair and necessary amount to be payable by the Respondent as contribution towards her legal costs, except for stating that she needs to pay Counsel. That cannot be sufficient to justify such a high amount of contribution. The court has to determine whether in view of her circumstances she would need assistance with the litigation costs she might incur if it has an idea of how much the costs are likely to be and why they should go beyond the costs of the 1st day of trial. The Applicant has not stated how the amount is constituted. The Applicant is a practising attorney and it would have been possible to indicate how such contributions would be constituted. She has also failed to show that the Respondent can afford to pay such an amount, considering his financial circumstances.

[28]    Under the circumstances, I make the following order:

Pendente lite

1.         The Applicant is awarded interim primary residence, the right to care in respect of the parties’ two minor children and that reasonable right of contact every alternative week “pendente lite” be awarded to the Respondent.

2.          In addition to the monthly amount of R8 500.00 payable by the Respondent for the school fees of the minor children, the Respondent is to pay to the Applicant maintenance in respect of the two children in the amount of R4 500.00 monthly, commencing from the 30 July 2020 and thereafter on or before the 25 of each succeeding months;

3.         The Respondent is directed to pay a contribution towards the Applicant’s costs for the divorce action in the amount of R5000.00 to be paid in monthly instalments of R1 500.00 starting from 25 of August 2020 until final payment of an amount of R1000 on 25 October 2020.

4.         The Respondent is to immediately register the one minor child on his medical aid to be effected on or before 30 July 2020.

5.         The costs of this application be costs in the cause of the pending divorce action.

 

 

 

N V KHUMALO J

 

JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA

 

 

 

On behalf of Applicant:         Z Ndlokovane

Instructed by:                         Werksmans Attorneys

Tel: 011 535 8119

Fax: 011 535 8619

spassmoor@werksmans.com

C/O DPP Attorneys danielle@ddpa.co.za

 

On behalf of Respondent:     Mr Pieter Coetzee

Instructed by:                         Pieter Coetzee Attorneys

pieter@pcattorneys.co.za REF: PC/AW/0017

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