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IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION

CA NO.: 1800/07

In the matter between:

IMMELMAN SANDRA RIANA 1^ST APPLICANT

and

IMMELMAN RIEK RESPONDENT

APPLICATION

MMABATHO

GURA J

DATE OF HEARING : 22 November 2007

DATE OF JUDGMENT : 06 March 2008

FOR THE APPLICANT : Advocate G. Ackerman

FOR THE RESPONDENT : Advocate C. Zwiegelaar

JUDGMENT

GURA J:

Introduction

[1] This is an application in terms of Rule 43 of the Uniform Rules of Court in terms whereof applicant seeked the following relief:

“1. Dat die tussentydse beheer en toesig van die minderjarige kind genaamd Andria aan my toegeken word, ondergewig aan die Respondent se reg van redelike toegang.

2. Daar onderhoud pendente lite in die som van R12 000.00 per maand aan Applikant en minderjarige kind betaal word.

3. Die Respondent as verdere onderhoud ń eenmalige herverstigingsbedrag in die som van R3 000.00 aan Applikant betaal;

4. Die Respondent gelas word om ń motorvoertuig gelykwaardig aan ń Mercedes Benz C240 tot Applikant se beskikking stel met omvattende maandelike versekering pendent lite;

5. Die Respondent gelas word om twee beddens, ń yskas, wasmesjien, televisie, mikrogolf, potte en panne, kombuisware, sit an eetkamerstel, gordyne en matte vanaf die eertydse gemenskaplike woning aan die Applikant te lewer;

6. ń Tussentydse bydrae in die som van R25 000.00 tot Applikant se regskostes, en

7. Dat die koste van die aansoek koste van die egskeidingsaksie sal wees.”

[2] After listening to argument, the following order was issued:

“ 1. Custody of the minor child is awarded to the applicant subject to the respondent’s right of reasonable access which includes access to the child on:-

1. Every Wednesday from 14h00 to 17h00, and

2. One Saturday and its Sunday in every fortnight from 13h00 to 17h00.

2. Respondent to contribute R6000-00 per month towards the maintenance of applicant

3. Respondent to contribute R3500.00 per month towards the maintenance of the child – with effect from today (22/11/07).

3. Respondent is ordered to make a once off payment of R3 000,00 for the applicant’s settlement.

3. Respondent is ordered to provide applicant with a road worthy sedan motor car of the level of not less than that of a Ford Fiesta.

3. Applicant shall have the following from the common home for her use at her new residence:- one double bed; one single or ¾ bed; one fridge; one washing machine; one Tv set; one micro-oven and a dining room suite. Respondent shall convey all these items to the applicant’s new residence on his own cost.

3. Respondent shall contribute R25 000,00 towards applicants legal costs.

3. Costs of the interlocutory applications as well as costs of this Rule 43 application will be decided by the Divorce action trial court

3. Any party desiring the reason for judgment, shall direct a request in writing to the Registrar within thirty days from date hereof.

3. The absence or not of reasons for judgment shall not suspend or be construed as suspending the operation of this Court Order.

Factual Background

[3] The following facts are either common cause between the parties, are admitted or are not denied:- The applicant and the respondent are husband and wife and they were married to each other in March 2005. A daughter, Adria, was born out of this marriage relationship on 3 August 2006. On 12 May 2007 applicant and Adria left the common home to stay at her parental home. This she did, because of irreconcilable differences with her husband. Divorce proceedings are presently pending between the parties. I deal first with the version of the applicant.

[4] The Applicant is unemployed although she is a qualified psychologist. She is acting as a hair dresser in order to earn a living and her average income is R300,00 per month. Since 12 May 2007 the Respondent paid only R3 300,00 for the maintenance of Adria.

[5] At the time of the conclusion of the marriage, respondent’s assets were worth R2.95 million. Part of these assets consisted of 2 600 tons of mielies which was valued at R500,00 per ton. Since March 2005, the price of mielies has escalated with 350%. Applicant does not know whether or not the respondent is still keeping this mielies. When peace still reigned in their marriage, the parties enjoyed a luxurious lifestyle.

[6] The Respondent is a successful business man. He is a director of Autumn Star Trading 64 (Edms) Beperk (Autumn Star). He has a business interest in Poriko Verspreiders Bk (Poriko). He is a trustee of Arico Trust. He is also managing his engineering business and a sand business from 89 Scholtz Street, Lichtenburg. He has extensive farming business interests with his father and he gets an attractive income which is unknown to the Applicant.

[7] The following are some of his immovable properties: The common home, portion 1 of stand No. 707. Its value was R275 000,00 on 4 February 2004. Its present value could be between R300 000,00 and R400 000,00 due to improvements. A property on portion 2 of Stand 119, which was valued at R600 000,00 on 17 September 2004. The last one is a property situated on stand No. 923 which was also registered on 17 September 2004. Its value was also R600 000,00 at registration. The last two immovable properties have been developed by Respondent into business premises and they are worth more than their actual purchase price.

[8] The following are some of his vehicles through which he conducts business:- A big “Man” truck, registration No. FKN 682 NW together with its trailer; a big “Scania” truck, registration No. FNW 895 NW together with its trailer; a “Case” “Laaigraaf” and several other assets.

[9] Applicant is in need of a two roomed town house where she can settle, pending the outcome of the divorce action. She used to enjoy the use of a Mercedes Benz C240 which Respondent had bought for her. Now of late, he avers that he has sold it. She estimates her monthly financial needs at R12 092,00 and she has set out a detailed list of how the money will be spent. What follows is the version of the Respondent.

[10] The maintenance issue was settled between the parties where it was agreed that Respondent would pay R3 500,00 for applicant and R2 500,00 for Adria, per month pedente lite.

[11] Applicant was working at Chrismar Metale but she resigned despite that she is in need of money. She is actually, refusing to work. For instance, she was offered a post at Lichtenburg holiday resort with effect from 1 September 2007 but she rejected the offer. In June 2007 a post was advertised at Western Ford. This is the post which she occupied previously. Her father also works there for the past twenty five years. In fact, before the post was advertised, Western Ford approached her and offered her the post. She refused to accept it or to apply for it.

[12] She conducts business as a psychologist at her parental home. She has a special office on the premises which was built for that purpose. She also conducts a hair salon there. Her combined monthly income is about R5000,00.

[13] The applicant is not fit to look after the child for three reasons:- There is a criminal case of drunken driving which is pending against her; she is using intoxicating liquor excessively and she is emotionally and psychologically unstable.

[14] Every time that applicant approaches a court of law with an application for maintenance, the amount which she claims increases. In the Central Divorce Court she claimed R3500,00 for herself and R2500,00 for the child. In the Magistrates Court she claimed R1 500,00 for the child. In our divorce case which is pending before this court she claims R5000,00 for herself and R3500,00 for the child. In the present application, she now claims R12 000,00.

[15] Autumn Star is not the Respondent’s business but is a family engineering business. The Respondent is a mere manager who earns a monthly nett salary of R8 581,28. In fact, the Respondent owns no business. He is not conducting any other engineering or sand business at 89 Scholtz Street apart from Autumn Star. Porico is not Respondent’s business. However, Autumn Star, supplies Porico with services on contractual basis. He is not a trustee of Arico Trust. He does not even have any financial interest therein. His father runs that business.

[16] Respondent admits that his assets were valued at R2.95 m at the time of the conclusion of the marriage and that he owns the immovable property as described by applicant. Portion 2 of Stand 119 and Stand 923 were bought for R600 000,00 through a loan from Standard Bank. He services this bond at the rate of R5 000,00 per month. The present bond amount over these two properties is R800 000,00. These two sites have been leased out at a monthly rental of R6 840-00.

[17] The “Man” truck and the trailer belong to Autumn Star. The same applies to the “Scania” truck and its trailer. The “Case” loader belongs to the sand business, Porico. The 2 600 tons of mielies which he owned at the conclusion of the marriage is no longer there. He did some cattle farming with his father, on the latter’s farm, but the farm has been sold.

Interlocutory Application in terms of Rule 6(15)

[18] The Applicant lodged an interlocutory application for striking out certain paragraphs of the Respondent’s answering affidavit. All the information which applicant seeks to expunge from the papers relates to her character – that she is a drunkard and suffers some major ailment of depression. Applicant avers that these averments are designed to degrade her, to assassinate her character and are malicious.

[19] I am of the view that there is no substance in this complaint. Where custody of a minor child is in issue, the overriding question is whether it would be in the best interest of the child to be in the custody of the Applicant or the Respondent. If it is shown that one of these parents, because of his/her defective character, is not a fit and proper person to look after the child, the Court will not lightly award custody to him/her. Of course the Court must be satisfied, that because of his/her character, he/she has been deprived of his/her parenting ability. In my view, this information (complained of) was relevant to shed light to this Court about the person of the Applicant.

[20] The interlocutory application therefore fails, costs shall be costs in the main application. (Rule 43)

Interlocutory application in terms of Rule 43(5)

[21] The Applicant lodged another interlocutory application to introduce further essential evidence in response to the alleged defamatory averments by the respondent. Although the present application is not worded as an alternative to the Rule 6(15) interlocutory application, it is clear that if the application under Rule 6(15) were to be upheld, the present application (Rule 43(5) ) would automatically fall off.

[22] The Respondent has questioned the capacity of the Applicant to act as an interim custodian of Adria. He has made serious allegations about her alleged poor personality.

[23] In my view, if justice is to prevail between man and man, Applicant should not be judged unheard on this aspect. It is essential that she should shed some light on her alleged defective character.

[24] The interlocutory application is therefore upheld, costs shall be costs in the main application (Rule 43).

The issues (Rule 43 application)

[25] The following questions call for decision in this application:-

25.1 Is applicant a fit and proper parent to be awarded interim custody of Adria, a 15 months old child?

25.2 To what extent should Respondent contribute towards his wife’s and daughter’s financial needs?

The Courts’ approach to Rule 43 applications

[26] 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 entitled to reasonable maintenance pendente lite dependent on the marital standards of living of the parties. More weight will be attached to the respondent’s affidavit who evinces a willingness to implement his lawful obligations than that of the one who is seeking to evade them (Taute v Taute 1974 (2) SA 675 (E) )

[27] The Court will generally be reluctant to upset the status quo concerning the custody of minor children. The paramount interest of the child must however prevail (Madden v Madden 1962 (4) SA 654 (T) ). Normally, young children should go to their mother (Du Plooy v Du Plooy 1953 (3) SA 848 (T) ).

The suitability of Applicant as an interim custodian

[28] Medical evidence before this Court constitutes satisfactory proof that after birth, Applicant suffered from a major post natal depression. She was placed on continuous medication for that condition. The effect of two glasses of wine, together with this medication, could have led to her supposed drunken driving charge. In any case, the said case has been withdrawn.

[29] Before the present application was instituted, Respondent never complained about the suitability of his wife to be an interim custodian of the child. He never even mentioned that she was a drunkard who was unable to manage her own affairs. Applicant moved out of the common home on 12 May 2007. There were negotiations between the parties (through their attorneys) to settle the impasse. In a letter dated 12 July 2007 from his attorney, addressed to Applicant’s attorney, he agreed that his wife should have interim custody of Adria, subject to his visitation rights. Above that, as at the date of hearing of this matter, there was not a single suggestion from him that since 12 May 2007, Adria was not well cared for.

[30] In my view therefore, it is possible that Applicant is a drunkard, and it is also possible that she is not a drunkard. The Court is however satisfied that, taking into account the age of the child, (15 months), it would be in the best interest of her (Adria) to remain with her mother. It is interesting to note that respondent attacks the character of Applicant only in relation to her suitability as custodian parent. However, he avers that she is pursuing her daily business as psychologist and hair dresser normally and therefore making more than R5000,00 per month. Indeed, this should be a very smart drunkard!

What should Respondent contribute towards his wife and Adria?

[31] The Court is satisfied that this family’s standard of living was high when they were still living together. The assets which he had at the conclusion of the marriage is evidence which goes a long way to confirm this. I cannot find any improbability in the evidence of Applicant that she has no visible financial means of survival. From a middle class lifestyle she seems to have dived to a lower class lifestyle. The same cannot be said about her husband.

[32] Respondent does not strike the Court as a man who feels financially obligated towards his daughter and his wife. His approach throughout is to resist parting with any reasonable amount of money in favour of them. Previously, they agreed that he would pay maintenance for Applicant and Adria at the rate of R3 500,00 and R2 500,00 per month, respectively. He never complied with the alleged settlement agreement. He does not say why he did not pay as agreed. He is silent on that point. Instead, now he offers only R1 500,00 per month for both of them. If he has no financial means now, as he avers, why did he agree to a settlement of R6 000,00 (R3 500 + R2 500) in July 2007?

[33] The approach which the Respondent has adopted in the present application is that whatever assets he owns or owned, is not relevant in this matter. This is a very unfortunate attitude. He has confirmed that he had 2 600 tons of mielies at the conclusion of the marriage. There is evidence before this Court, which he never challenged, that the price of mielies has escalated with 350% from 2005 to 2007. All the explanation he gives about this valuable asset is that it is no longer in his possession. He does not say when or how he disposed of it. He did not state what he did with the proceeds of the mielies (if any) . He may have sold it at an attractive profit or he may have donated it to charity. There is no explanation. The only explanation is that he can only afford to pay an amount of R1 500,00 per month.

[34] He admits that he was involved in a farming venture involving cattle, with his father. He does not deny that he owned cattle. The only explanation which he gives is that his father sold the farm. He avers that he disposed of the cattle. The manner of disposal, again, has been kept away from this Court. He does not even state the number of cattle which he owned. There is no doubt that this Court is dealing here with a man who is not open and honest to the Court. He carefully plays his cards beneath the table.

[35] The last point is whether or not he owns any business. Respondent denied that he owns any business. His version, initially, as regards Autumn Star was that it is a family business and that he has a business interest in it. Next, he stated that he has no business interest in it but was only receiving a monthly salary as its manager. Next, his version was that he is a co-director of this business. Next, he said that he is one of the share holders therein. Later, however, he changed his version again. This time, he reiterated that he has no business interest in this business. His mother contradicted him on this very last aspect and stated that he has a business interest in this business. She further stated that profit is not shared on adhoc basis by the share holders. In my view, the truth has been deliberately concealed here. There is a dark cloud hanging over this business in relation to who the real owner(s) thereof is/are. The amount of the last dividend has not been disclosed – nor any previous dividend. The latest financial statement was not attached. The Respondent seems to be very economic with information.

[36] In relation to his other immovable properties, his version is that he has leased them out and he receives monthly rental thereof. No copy of the lease agreement was attached. The amount of the rental which he allegedly gets cannot be verified by either the Applicant or the Court. He was very careful as to which documents to attach and which not to attach to his papers, eg. his salary advice and proof of bond are before Court. Why leave out the lease agreement?

[37] It is abundantly clear to this Court that the Respondent is a skilful liar. All his attempts in this application were aimed at proving that he is a man of straw. Unfortunately, however, he is not. He must have spent a lot of money to defend this application. That is why his papers are so bulky, covering up to 168 pages. He should thank his stars that this Court did not penalise him for filing 168 pages in a simple Rule 43 application.

SAMKELO GURA

JUDGE OF THE HIGH COURT

Attorneys for the Applicant : Nienaber & Wissing

6B DADA Complex

Aerodrome Crescent

MAFIKENG

2745

Attorneys for the Respondent : Smit Stanton

Warrenstraat 29

MAFIKENG

2745

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