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NORTH WEST HIGH COURT, MAFIKENG

CASE NO. 628/2010

In the matter between:

PATRICIA FILICITY ROBERTS …..................................................................APPLICANT

and

ANDRÉ ROBERTS …................................................................................RESPONDENT

____________________________________________________________________________

JUDGMENT

____________________________________________________________________________

MPSHE AJ.

A. INTRODUCTION

[1] This is an application pendente lite in terms of Rule 43 of the Uniform Rules of Court. The applicant seeks an order as follows:

“1. Dat die Respondent gelas word om onderhoud aan die Applikant in die bedrag van R9 000.00 (NEGEDUISEND DRIEHONDERD RAND)[sic] per maand te betaal, die eerste betaling om onmiddelik te geskied en daarna voor of op die eerste dag van elke daaropvolgende maand;

2. Dat die Respondent gelas word om onmiddelik na toestaan van hierdie bevel ʼn bedgrag van R7 500.00 tot die Applikant se hervesigingskoste te betaal;

3. Dat die Respondent gelas word om ʼn bydrae van R7 000.00 tot die Applikant regskoste te maak onmiddelik na toestaan van hierdie bevel;

4. Dat die koste van die aansoek koste in die geding sal wees.”

B. BACKGROUND

[2] The applicant, after living together with the respondent since 2004, married each other on 11 October 2008. The marriage still subsists.

[3] The marriage relationship has irretrievably broken down and the parties are no more living together since January 2010. The applicant alleges that the breakdown of the marriage is due to, inter alia, abuse of alcohol and drugs by the respondent, that the respondent used to assault her during the cohabitation. That the respondent assaulted her on 22 January 2010 and that a criminal case is pending against the respondent.

[4] The respondent disputes abuse of alcohol and drugs and states that it is the applicant who is abusing drugs and that she even in the past attended a drug rehabilitation centre. He further stated that the 2004 assaults were self-defence. That he had actually obtained a protection order against the applicant.

[5] The applicant is sickly and suffers from Asthma. She is unemployed and has matric as her highest qualification. She in the past survived by doing jobs that are not well-paying, e.g. working at a bar, being a house-maid.

[6] The current marriage is the applicant’s fourth marriage. It is the respondent’s second marriage.

[7] The Respondent is gainfully employed and earns an amount of R32 330.96.

[8] It is clear that the applicant is impecunious.

[9] It is trite that in awarding maintenance, the standard of living of the parties is to be considered. The items listed to be catered for should respond to the description of actual reasonable requirements. See Nilson v Nilson 1984 (2) SA 294 at 295E (C):

“Primarily Rule 43 was envisaged to provide temporary assistance for women, who had given up careers or potential careers for the sake of matrimony with or without maternity, until such time as at a trial and after hearing evidence maintenance claims and, if children had been born, custody claims could be properly determined. It was not created to give an interim meal-ticket to women who quite clearly at the trial would not be able to establish a right to maintenance.”

[10] I have considered counsel’s arguments and papers before me. It is in general unusual in Rule 43 applications to deal with each and every item listed to justify a maintenance award. I have considered the applicant’s claim and the respondent’s attitude to the same. I have also used my discretion and disallowed and/or adjusted certain items.

[11] Before making the order, I need to address an aspect of costs as raised by the applicant. Mr Wessels, for the applicant, submitted that the respondent should be visited with costs for the postponement granted on 17 June 2010. The picture is that the matter was enrolled for 03 June 2010. It was then postponed to 17 June 2010 for filing of the answering affidavit. Perusing documents, it would seem that the respondent was involved in a motorbike accident during the month of May 2010. This, due to injuries sustained, disabled the respondent from attending to the answering affidavit as he was hospitalised. On 17 June 2010, it was again postponed to 01 July 2010 for the same reason.

[12] Mr Wessels submitted that there is some dishonesty as the respondent was not hospitalised on 17 June 2010. In support hereto Mr Wessels made use of an affidavit by one Jeanné Michelle Coetzee. Attached to this affidavit are two copies of photos, depicting in photo “A” the respondent in the company of two other persons, whilst photo “B” depicts the respondent alone. It is clear from the photos that the respondent had sustained a neck injury.

[13] The importance and relevance of this affidavit is that the photos were taken on 13 June 2010, at a party. The logical conclusion therefore is that the respondent was not in hospital or indisposed on 17 June 2010 and that the matter was therefore unnecessarily postponed to 01 July 2010, attracting costs.

[14] Mr Maree, for the respondent, indicated that he had no mandate about the said affidavit and photos, but leaves all in the discretion of the Court.

[15] What is further disturbing around this issue is the contents of the letter from the firm Combrink Kgatshe Inc, dated 17 June 2010.

[16] It boggles my mind as to why this had to happen. I am consequently in agreement with Mr Wessels’ submission.

[17] I now revert to the relief sought and orders as follows:

a) The respondent is to pay to the applicant an amount of R5 650.00 (Five thousand six hundred and fifty rand) per month towards maintenance;

b) The respondent is to pay to the applicant an amount of R5 000.00 (Five thousand rand) as contribution towards the applicant’s legal costs;

c) The respondent is to pay wasted costs of the postponement on 17 June 2010.

[18] It is undisputed that the respondent is currently not in a position to effect payment as above. I direct that the order be effective from 01 October 2010.

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M.J. MPSHE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 01 JULY 2010

DATE OF JUDGMENT : 02 JULY 2010

COUNSEL FOR APPLICANT : MR M. WESSELS

COUNSEL FOR RESPONDENT : ADV MAREE

ATTORNEYS FOR APPLICANT : VAN ROOYEN TLHAPI WESSELS

(Instructed by WALTER VERMAAK ATTORNEYS)

ATTORNEYS FOR RESPONDENT : GERHARD MAREE ATTORNEYS

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