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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

NORTHWEST DIVISION - MAHIKENG

Case No DIV120/2021

In the matter between:
A DB (nee G) […]   and	Applicant/Plaintiff
M A DB	Respondent/Defendant

 

ORDER

In the result the following order is made:

1. The application in terms of Rule 43 is dismissed with costs.

2. The counter application is granted.

3. The applicant shall pay the costs of the counter application.

Pendente lite:

4. Both parties shall retain full parental rights and responsibilities in respect of the four minor children as envisaged in sections 18, 19 and 20 of the Children's Act, 38 of 2005.

5. The primary care and residence of the minor children shall vest with the applicant.

6. The respondent is awarded specific rights of contact with the minor children at all reasonable times subject to the following:

a. On every alternate weekend from after school on a Friday to 17h00 on a Sunday.

b. On Father's Day from 09h00 to 17h00 with the understanding that the minor children shall be with the applicant on Mother's Day.

c. For 3 hours on each of the children's birthdays and on the respondent's birthday, with the understanding that the minor children shall be with the applicant on her birthday.

d. On every alternate public holiday from 09h00 to 17h00.

e. On every alternate long weekend from 17h00 on the day preceding the long weekend with the understanding that a public holiday adjoining a weekend shall be viewed as part and parcel of a long weekend and signed out as such and not a public holiday.

f.  On every alternate short school holiday and half of every long school holiday with the understanding that the Christmas and

Easter portion shall be alternated between the parties.

g. Reasonable telephonic and electronic contact with the minor children.

h. In the event of either party not being able to care for the children in the time awarded to that party, the other party shall be approached first for alternative care.

7. The Office of the Family Advocate shall investigate the best interests of the minor children pertaining to care and contact and all matters ancillary thereto and provide its report and findings to this Court.

8. Dr Lynette Roux (Dr Roux) shall continue with her investigations in respect of the best interests of the minor children pertaining to their care, primary residence and contact. The costs of the services provided by Dr Roux shall be borne by the parties in equal shares.

9. The respondent shall continue to contribute to the minor children's maintenance as follows:

a. By making payment of the minor children's school fees directly to the school.

b. By retaining the minor children on his Profmed medical aid or any comprehensive medical aid and paying the contributions in respect thereof.

c. By paying for [BdB]'s hearing aid expenses as may be recommended by his audiologist, directly to the relevant audiologist or service provider.

d. By paying an amount of R5 000.00 per month per child on or before the first day of each month following the date of this order.

e. By paying an amount of R4 000.00 per month in respect of the minor children's extramural activities directly to the service providers.

f. By making payment in respect of the applicant's motor vehicle directly to the service provider.

g. By making payment of the insurance premium in respect of the applicant's motor vehicle and motor vehicle licensing fees directly to the service providers.

h. By retaining the applicant on his Profmed medical aid or any comprehensive medical aid and pay the contributions in respect thereof.

By paying the salaries in respect of the domestic worker and gardener for the applicant and the minor children for a period of 3 days per week.

j. By making payment of the security services in respect of the applicant and the minor children to the maximum amount of R600.00 per month directly to the service provider.

JUDGEMENT

MFENYANA AJ

Introduction

The parties are referred to as in the Rule 43 application. The respondent is also the applicant in the counter application.

[1]In this application the applicant seeks relief pendente lite from the respondent in respect of the maintenance of the four minor children born of their marriage (the minor children) as well as for herself. She also seeks an order that the respondent contributes towards her legal costs. The application follows on the provisions of Rule 43 of the Uniform Rules of this Court.

[2] The relief sought by the applicant is set out in the applicant's notice in terms of Rule 43 and can be summarised as follows:

(a) Care and residence of the minor children.

(b) Maintenance in respect of the minor children.

(c) The respondent's contact with the minor children.

(d) That the Family Advocate be instructed to investigate and report on the phasing in of unsupervised contact for the respondent alternatively that the parties appoint an independent psychologist in this regard, the costs of which should be paid by the respondent.

(e)  that the parties be ordered to adhere to the recommendations of the Family Advocate / independent psychologist.

(f) A contribution towards the costs of the divorce action.

(g)  Costs of application.

[3] The application is opposed by the respondent.

Issues for determination

[4] This court must determine whether, pending finalisation of the divorce action, the applicant is entitled to maintenance both in respect of the minor children and herself. The court must also determine whether the applicant is entitled to a contribution towards her legal costs.

Factual background

[5]  The relevant facts leading to the application are that the parties were married to each other on 8 December 2001, out of community of property, with the inclusion of the accrual system. Four children were born of the marriage, all of whom are still minors at different stages of development, aged 16, 12, 8 and 6 years.

[6]  On 24 April 2021 the applicant vacated the matrimonial home taking the minor children with her. She moved into another property which is also owned by the parties, adjacent to the respondent's place of employment. Since then, the minor children have been residing primarily with the applicant.

[7]  On 20 August 2021 the applicant instituted divorce proceedings against the respondent. The respondent has entered appearance to defend the action which remains pending before this court.

Applicant's case

[8]  In her sworn statement the applicant states that she and the respondent are trustees of the M en A DB Trust (The Trust) which is a member of BEI CC (the Close Corporation/ CC). The beneficiaries of the Trust are the parties' four minor children and 'blood descendants', presumably, of the parties.

The CC in turn owns a property at B[...]Drive (The Practice), in which the respondent carries on his medical practice business and a fractional ownership in LPR. The respondent is a physiotherapist by trade. Adjacent to the Practice is the property (the BN[...] property) to which the applicant relocated with the minor children.

[9]  The applicant avers that the close corporation is effectively the respondent's alter ego and should be taken into account when determining his (financial) means and the amount of interim maintenance he should pay. The applicant further avers that the respondent uses the close corporation to conduct 'some of his financial affairs' and conceal finances meant for the applicant and the minor children. She further states that the CC receives rental income from the respondent's practice as well as from another tenant housed at the Practice. From this rental income the parties make bond repayments in respect of both properties.

[10] The applicant further states that she is permanently employed as a financial manager. She earns a gross salary of R21 000.00 and receives a nett amount of R 18 000.00 per month. She further avers that the basic monthly maintenance needs for herself and the minor children amount to R55 128.00 excluding groceries, cleaning products and house maintenance. These other household needs amount to a further R74 850.00, all adding up to a total of R 129 978.00 per month. Individualised, the applicant's specific maintenance and household needs account for a total of R27 022.00 per month with the children taking up the remaining amount of RI 02 956.00, including special care requirements for one of the minor children who has a hearing disability. The applicant has particularised in succinct detail the monthly expenses required, from their accommodation needs, school fees for the children, groceries and household supplies, municipal account, insurance, medical expenses, clothing, gardening services and plants, personal care items, fuel, parking and toll fees, entertainment, household repairs and pets. She avers that the BN[...] property is old and expensive to maintain and therefore would not be suitable for habitation in the long run.

[11] In the Financial Disclosure Form she submitted the applicant stipulates her basic maintenance needs as toiletries, cell phones, clothing and shoes, haircare, cosmetics and make up, medical aid, medical expenses, life insurance and retirement annuity, holidays and birthdays, gifts and television licence. In respect of the minor children what she considers as their basic maintenance needs are similar requirements as hers, including lunches, school uniforms, sports clothes, school fees and related expenses, extra murals, counselling, pocket money and hearing aids, excluding the life policy and the retirement annuity.

[12] The applicant contends that she was forced to seek gainful employment after vacating the matrimonial home, as the respondent made limited contribution towards her maintenance as well as the maintenance of the minor children, and to take care of the maintenance of the BN[...] property to make it habitable and safe for the minor children. She states that she incurred expenses in excess of R23 000.00 in the maintenance of the BN[...] property. She further states that she was previously employed by the respondent, earning a gross salary of R30 000.00 per month. She resigned in August 2021. She does not state the reasons or the circumstances leading to her resignation.

The applicant further states that in March 2022 she took out a loan in the amount of R250 000.00 from her family's trust in order to cover some of her financial requirements as the respondent failed to adequately maintain her and the minor children. According to the applicant, during the subsistence of the marriage, she and the respondent shared some financial responsibilities for the household. She describes their lifestyle as comfortable and able to afford some luxuries. Whilst she concedes that there are now two households to be maintained, the plaintiff however, contends that she cannot be required to lower the standard of living she and the children have become accustomed to and that the respondent is obliged to continue providing this support which she and the minor children are genuinely in need of.

[14] The applicant admits that the respondent is currently providing for the maintenance needs of the minor children in the total amount of R20 000.00 per month which he reduced from R40 000.00 since February 2022, additional financial expenses he has to meet. She further admits that the respondent is providing for the minor children's school fees, medical aid for herself and the minor children, short-term car insurance, domestic worker and gardener, car repayment instalments for the applicant's car and security services. These add up to an amount of R30 573.00 per month over and above the children's maintenance amount. In total the respondent currently contributes an amount of R50 573.00 per month.

[15] The applicant further prays for maintenance in the total amount of RI 15 500.00 per month (R23 400 for the applicant, and R23 025.00 for each of the minor children), that the respondent pays for all educational and medical expenses of the minor children and retain her and the minor children as dependants on his medical aid.

[16] As far as contact with the minor children goes, the applicant contends that the relationship between the respondent and the two older minor children became strained to such an extent that when the applicant and the children relocated to the BN[...] property, the children expressed that they did not want to have any contact with the respondent even though they live adjacent to his workplace. As a result of this, the applicant sought professional advice from Dr L Roux who interviewed the minor children and the parties even though the respondent reluctantly agreed to cooperate with Dr Roux. According to the applicant, they have not yet received a report of the assessment from Dr Roux and the two older children have not had contact with the respondent since 24 April 2021.

[17] The applicant goes further to state that the minor children have also been attending play therapy for the past 10 years with Dr Grobler. This presumably pertains to the two older children as the younger two are below the age of 10. She states that Dr Grobler's final report would be filed upon the hearing of the matter. However, the applicant avers that in November 2021 Dr Grobler issued a report as a result of which "supervised contact was implemented with a qualified social worker." The reasons cited by the applicant for the respondent's supervised contact with the minor children are the following:

94.1  The Respondent is mentally, verbally and physically abusive towards the minor children and me;

94.2  The Respondent demonstrates escalating characteristics of being selfcentred, arrogant thinking, lacking empathy and consideration for other people, and having an excessive need for admiration; process of this court. Alongside this contention, the respondent further states that the annexures contemplated by the applicant, namely, expert reports, are not permitted in terms of Rule 43 and that the application should be struck from the roll with costs.

[20] In my view, should state that there is merit to the respondent's above contention. A trend is developing where applications which do not conform to the stringent requirements of Rule 43 are brought before the courts. The volumes do very little in demonstrating what is at the heart of the Rule, that being, an expeditious interim relief pending finalisation of the divorce proceedings. They also add very little, if any at all, in assisting the court, where minor children are involved, as in the present case, to determine expeditiously, what is in their best interests. Often, the additional volumes simply add to the plight of the minor children, and in some instances, the parties themselves as they have an effect of escalating the costs. Most importantly, this malpractice has a negative bearing on the administration of justice as the court tasked with what should have ordinarily been an expedited application, has to navigate through reams of submissions most of which are issues to be ventilated at trial. In my view litigants should desist from overburdening the record of the court with irrelevant material for what should have been a simple Rule 43 application.

[21] Despite agreeing with the respondent as I do on this aspect, I am, however of the view that the interests of justice would be better served if the application is entertained, albeit not as expeditiously as it could have been, had the applicant complied with the peremptory provisions of Rule 43. I am constrained by the interest of justice not to go as far as striking the entire application from the roll as contended by the respondent. The best interests of the minor children far outweigh any other consideration. In my view, it will be in the best interests of the minor children that issues pertaining to their wellbeing be dealt with regardless.

[22] On the merits, the respondent contends that the applicant has inflated her expenses and has not honestly disclosed her financial information, In that regard, so the respondent says, the applicant is not entitled to maintenance. He contends that as a family, they lead a normal lifestyle contrary to what is portrayed as a luxurious lifestyle by the applicant. He further denies that the applicant received a loan from the PAH Grobler Trust, which she has failed to prove and disclose to the court that the said amount of R250 000.00 was payment received by the applicant as a beneficiary of the said Trust. The respondent contends thus, that the applicant is well able to pay for her own expenses and has already paid for her legal fees which he adds, are exorbitant. He adds that the applicant is not entitled to a cost contribution as she has sufficient means to pay for her own expenses and contribute to the minor children's expenses. On these bases, the respondent concludes that the application is frivolous, is without substance and should be struck off the roll. Consequently, he seeks a punitive cost order against the applicant.

[23] The respondent avers that for the sake of the present application, he has accepted that the minor children primarily reside with the applicant as this has been the case since she unilaterally vacated the matrimonial home with the minor children. He contends that the primary residence of the minor children is with the applicant only as a result of the applicant's 'manoeuvres' and 'alienation tactics' which he will challenge in the divorce action. He denies the allegations of abuse and infidelity against him and avers that the applicant has failed to provide any proof therefor. The respondent further denies the allegations made by the applicant on his character and contends that the applicant is not qualified to make an assessment on his character.

[24] With regard to the report of Dr Grobler which allegedly forms the basis of the respondent's supervised contact the respondent avers that Dr Grobler was initially appointed by the applicant to provide play therapy to the children some 10 years ago. He further states that Dr Grobler is a pastoral and spiritual counsellor who is not registered with the HPCSA and thus not registered to make assessments on the care and contact of minor children. Thus, the respondent avers that any assessment, evaluation or report made by Dr Grobler is irregular and has no legal standing in any court.

[25] The respondent further submits that in December 2021 Dr Roux, a clinical psychologist, was appointed by the parties to conduct an investigation into the best interests of the minor children which Dr Grobler was not, and cannot be appointed to do, as he is not registered to conduct such investigations. I must interpose here that save for some cursory reference to it, and in response to a question by the court during the hearing of the matter, no report has been submitted from Dr Grobler as part of the application.

[26] The respondent refutes the applicant's contention that the minor children are confused because the parties are in the process of divorce, and contends that what creates confusion is the applicant's relationship with Mr V whom she has exposed to the minor children.

[27] The respondent submits that the last time he saw his two older daughters was in May 2021. He states that he had sleepover contact with the two younger children until September 2021 after applicant obtained knowledge that the respondent went to the movies with the minor children, his female friend and her daughter. Since then the applicant, restricted his contact and unilaterally decided on supervised contact, apparently on Dr Grobler's recommendation. He says he was forced to pay for the services of a social worker to facilitate contact with the two younger minor children.

[28] The respondent casts aspersions on the applicant's parenting skills and contends that she tries to be the minor children's friend instead of their mother, and uses them against him in respect of his alleged infidelity.

[29] As far as the applicant's claim for maintenance for herself goes, the respondent contends that the applicant is relatively young, well qualified, healthy and has always been employed even though she has recently opted to resign from full-time employment and take a half-day job at a lower salary even though she could easily earn between R30 000 and R35 000 for a full day. Thus the respondent contends that the applicant is not entitled to maintenance and that the application is an abuse of the process of the court and that it is in the minor children's best interests that his full rights of contact be restored. To bolster his above contentions, the respondent also filed a counter-application.

[30] The respondent further avers that the applicant earns an income of approximately R 16 000.00 from her family trust and an unspecified additional pro rata payment from a property related to the family trust, as well as an amount of R2 000.00 and an additional R5 000.00, which together with her salary comes up to a total of R41 252.38. He contends that he has always contributed to the maintenance of the minor children whereas the applicant believes that she has no duty to do so, which amount stands at R60 256.00 per month, inclusive of a tender of R4 000.00 for their extra murals. He denies that he has an obligation to pay any maintenance for the applicant but avers that he has continued to make payments for her motor vehicle repayments, car insurance, annual car licensing fees and medical aid expenses all of which come to approximately R17 800.00.

[31] In his financial disclosure the respondent reflects his monthly expenditure as R 199 535.00. This is inclusive of amounts payable in respect of the minor children and the applicant's maintenance.

[32] The respondent denies that the close corporation is his alter ergo or that he uses it to conceal his financial affairs. He submits that the applicant had previously managed his financial affairs and those of the close of the close corporation but has failed to produce any evidence for her 'false' allegations. According to the applicant, he

pays funds to the close corporation from the income he drives from working in his practice, to pay for the applicant and the minor children's accommodation. This is confirmed by the applicant in her sworn statement. He avers that the applicant does not contribute towards the payment of the properties in which she is a co-owner. He further avers that the close corporation and consequently the applicant owe him for the amounts he has paid into the close corporation from his practice to service the properties co-owned with the applicant.

[33] In respect of the bond repayments, the respondent admits that these are paid from the rental income of R 18 227.00 received from the tenant, supplemented with income from his practice as the rental payments are not enough to cover the repayments. In this regard he submits that he pays an amount of R21 987.00 in respect of the BN[...] property where the applicant and the minor children reside and RI 1 646.00 for the Practice. In addition, the respondent submits that he also pays for the utilities, rates and taxes and operational costs for the Practice and bond instalments for the matrimonial home and associated expenses.

Respondent's counter-application

[34] In his counter-application the respondent seeks an order that:

the primary care and residence of the minor children be awarded to the applicant with him to exercise specific rights of contact:

a.  On every alternate weekend from after school on a Friday until 17h00 on a Sunday.

b. On Father's Day from 09h00 to 17h00 with the understanding that the minor children shall be with the applicant on Mother's Day.

c.  On each of the children's birthdays and on the respondent's birthday for a period of at least 3 hours with the understanding that the children shall be with the applicant on her birthday.

d. On every alternate public holiday from 09h00 to 17h00.

e.  On every alternate long weekend from 17h00 on the day preceding the long weekend until 17h00 on the last day of the long weekend with the understanding that a public holiday directly abutting a weekend shall be viewed as part and parcel of a long weekend and shall not be signed out as a public holiday.

f. On every alternate short school holiday and half of every long school holiday, with Christmas and Easter to alternate between the parties annually.

g. Reasonable telephone contact and electronic contact with the minor children.

h. Should either party not be available to care for the minor children in a time slot awarded to such party, the other party shall be the first to be approached for alternative care.

That Dr Lynette Roux shall continue with her investigations in respect of the best interests of the minor children, especially in respect of primary care and residence, care, and contact.

(iii)  That the Office of the Family Advocate shall investigate the best interests of the minor children pertaining to care and contact and shall report to the Court on its findings.

(iv)  That the respondent shall contribute to the minor children's maintenance as follows:

(a)By paying minor children's school fees directly to the school (b)By keeping the minor children registered in his medical aid and paying the contributions in respect thereof.

(c) Payment in the amount of R5 000.00 per month per child payable on or before the first day of each month following the granting of the order pendete lite.

(d)By paying for the hearing aid in respect of [BDB] directly to his audiologist when necessary and on advice of his audiologist.

(e)By paying an amount of R4 000.00 per month in respect of the minor children's extramural activities, directly to the service providers.

(v)  By paying the applicant's vehicle, vehicle insurance and vehicle licensing fees directly to the relevant service providers.

(vi)  By paying the gardener and domestic helper directly to them whereby the respondent can utilise the services of the help for 3 days a week during weekdays.

(viii) By paying for the respondent's security services to a maximum amount of R600.00 per month directly to the service provider. (ix) By keeping the applicant registered in his medical aid and paying the contributions in respect thereof.

(x) That the applicant pays the costs of the counter application in the event of opposition.

[35]  In opposing the counter application the applicant avers that it is not in the minor children's best interests and that their best interests would be better served if the respondent has supervised contact with the minor children as set out in her main Rule 43 application.

[36]  With regard to the remainder of the relief sought by the respondent, the applicant contends that the services of Dr Roux, the independent psychologist should be procured as an alternative to the appointment of the family advocate and such costs should be borne by the respondent.

[37]  She further seeks an order that the parties should be ordered to adhere to the recommendations of the family advocate or the independent psychologist.

[38]  The applicant rejects the respondent's offer of the cash component of the maintenance in respect of the minor children and his contribution towards the minor children's extra mural activities. In this regard the applicant avers that she has already incurred some expenses in respect of the minor children's extra mural activities. She further denies any liability for the costs of the counter application.

Discussion

[39]  Rule 43 provides:

(1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:

(a) Maintenance pendente lite;

(b) A contribution towards the costs of a matrimonial action, pending or about to be instituted; (c) Interim care of any child;

(d)  Interim contact with any child.

[40]  The purpose of the rule is self-evident from the rule itself, and is interlocutory in nature.

[41]It is not in dispute that the respondent is already providing for the basic maintenance and living expenses of the applicant and the minor children. This much is contained in the applicant's own submissions. In paragraphs 63, 73 to 77 the applicant sets out the expenses which were provided for by the respondent during the subsistence of their marriage, inclusive of bond instalments for the marital home, maintenance of the marital home, car instalments and car maintenance, insurance, municipal account payments, medical aid, school fees, security costs, salaries for the domestic worker and gardener, internet and counselling. It is not in dispute that following the parties' separation, the respondent has continued to pay these expenses. What the applicant contends is that the respondent reduced his contribution towards the cash component of the minor children's maintenance from RIO 000.00 per month per child to R5 000.00 for each child in February 2022. The applicant further contends that even the initial amount of RIO 000.00 which was agreed upon following mediation negotiations in June 2021 was not sufficient for the minor children's needs and hers and that she only accepted the offer out of desperation. The respondent is also not contributing any cash amount towards the applicant.

[42] According to the applicant, the minor children's expenses amount to R 102 956.00 to which the respondent contributes R50 573.00 and has not accounted for the costs of vehicle licences, petrol, municipal account for the BN[...] property and the maintenance thereof, pets, school extras, and uniforms, clothing, sports equipment, extra murals, stationery, gym membership, gifts for friends and family, pocket money, medical expenses not covered by medical aid, counseling, food and cleaning products, personal care, cell phones, internet, DSTV, life insurance and annuities, vacations and entertainment. What the applicant does not say is that the respondent also pays for her motor vehicle instalments, car insurance and medical aid, and remains responsible for all expenses associated with the parties' two immovable properties.

[43] By their very nature, Rule 43 proceedings are provisional, and are aimed at providing 'on the spot' relief and avoid a situation where one party, usually the wife, is left destitute. The question that arises is whether it can be said that the applicant is destitute, or whether in the absence of the amount she seeks from the respondent she would be left destitute. I do not think so. The applicant is not and has not in the past been entirely dependent on the respondent for her maintenance. From the evidence presented before this court, it is undeniable that she has been in gainful employment throughout the course of their marriage, and has access to other streams of income. She continues to enjoy a fairly comfortable lifestyle to which the respondent contributes. The respondent's contribution is not in dispute. According to the applicant, it is simply not enough. She requires the respondent to pay maintenance he is already paying for, only on terms stipulated by the her. This, in my view, is not the purpose of Rule 43.

[44] Even if it were to be said that the applicant is entitled to the maintenance she claims on her behalf and on behalf of the minor children, she would have to overcome another hurdle and prove that her maintenance requirements, not only the amounts, but also the nature thereof, are reasonable. She contends that an amount of R 129 978.00 per month is reasonable for her and the children's maintenance needs. There can be no doubt that this scenario paints a picture of someone who lives in opulence. While this determination differs from one person to the other, luxury maintenance is not the object of Rule 43. It may also be necessary to take a cursory look at the circumstances of the parties, particularly the applicant. She is qualified in accounting science. She is employed on a half-day basis and earns a nett salary of R 18 000.00 from her employment. She does not deny that she earns further income of approximately R 16 000.00 from her family trust, or that she earns other ad hoc amounts from the family trust. Even without considering other amounts a monthly income of at least R34 000.00 is by no means a meagre income to cater for the basic maintenance needs of the applicant, moreso if the bulk of the expenses are provided for by the respondent. Had the applicant been in dire financial straits, she would work on a full day basis to eke out what could have been a meagre living. Unfortunately, this is not the situation.

[45] Apart from amounts for groceries, school fees and related expenses, the remainder of the expenses relate to insurances, plants, swimming pool, clothing, haircare, cosmetics and make-up, cell phones, pets, entertainment, vacations, gifts, TV and vehicle licences for both herself and the minor children. These are not dire maintenance needs. They are not necessary for the applicant's or the minor children's subsistence.

[46] I do not intend dealing with each and every one of the applicant's expenses, but it bears mentioning that expenses such as holidays and birthdays, gifts for friends and family, entertainment, household appliances, kitchenware, shoes on a monthly basis, make-up and cosmetics, psychologists' fees (apart from what is already covered by the medical aid) are nothing short of luxury, particularly in the circumstances of the applicant and if one cannot afford them. This goes for other expenses such as the DSTV, pet food and the like which are specified by the applicant, which she herself is not able to meet. These items add up to the maintenance requirements of the applicant and account for approximately R25 350.00. In addition, the applicant requires payment for a life policy and retirement annuity in the total amount of R4 500.00.

[47] The fact that the applicant earns less than she used to, does not mean that she requires maintenance from the respondent. The evidence indicates that she has sufficient means to cater for her own basic needs including life insurance and retirement requirements if she wishes to acquire them. She may do this by reducing some of the luxury items which she considers to be basic maintenance

[48] The respondent is a self- employed orthopaedic surgeon. From his income, he pays money into the close corporation and from there pays for his expenses, including the minor children's expenses, bond repayments and other expenses. He earns a monthly salary of approximately R 107 000.00 from which he pays monthly maintenance needs towards the minor children and the applicant in the amount of R76 030.00.

[49] At the hearing of this matter much was made of the lifestyle the applicant has become accustomed to at the behest of the respondent. The fact of the matter is that the parties' circumstances have changed following their separation in April 2021. The applicant in her sworn statement alludes to this and the fact that there are now "two households with financial needs". She, however, suggests that the respondent cannot expect her and the children to lower their standard of living and that in terms of Rule 43 he has to continue providing that support until the matter is finally dealt with on trial, come whatever may. This may not be correct. The whole purpose of maintenance is to provide for basic needs such as food and shelter. In the case of the minor children, schooling and associated expenses may be considered basic for their wellbeing and development. All these are already provided for by the respondent.

[50] The next part of the enquiry is whether the respondent has the capacity to meet the respondent's maintenance needs. His submission is that he cannot. This is further supported by such evidence as his financial disclosure as well as the applicant's own submissions in respect of what the respondent is currently contributing to her and the minor children.

[51] In Taute v Taute[1] the court had the following to say in relation to a party's entitlement to maintenance pending divorce:

"The applicant is entitled to reasonable maintenance pendente lite dependent upon the applicant's actual and reasonable requirements and the capacity of the respondent to meet such requirements... "[2]

[52] I have already found that the applicant's maintenance requirements as set out in her application are not reasonable and that the respondent has no capacity to meet them. I cannot see how it would be just to order the kind of relief sought by the applicant.

[53] As far as the applicant's contention that the respondent should exercise supervised contact with the minor children, this is untenable. There is no order issued by this court or any other court restricting the respondent's contact with the minor children. There is no evidence of any sort for the contention that it would be in the best interests of the minor children to not have contact with the respondent or for the two younger children to have supervised contact with him. The status quo which has prevailed for the past number of months was unilaterally imposed by the applicant ostensibly on the recommendation of Dr Grobler. Unfortunately, Dr Grobler's report has not been made available to this court. His/her recommendations have not been presented and do not form part of the record of this court. Dr Grobler has not been admitted as an expert by this court nor were his/her qualifications provided. The whole issue of the purported report is shrouded in secrecy and ambiguity and calls for the court cannot speculate on its merits or demerits in the absence of evidence before it. This cannot be.

[54]  I must further state that I take a dim view of the submissions made by Ms Carstens, counsel on behalf of the applicant, that this court would be guilty of failing to protect the minor children if an order is not granted in favour of the applicant. This submission is, in my view, as contemptuous as it is bizarre. The court cannot be called upon to endorse the seemingly unlawful conduct of the applicant under the pretext that the best interests of the minor children demand it. This is a contradiction in terms.

[55]  The applicant has not provided a shred of evidence why it is in the best interests of the minor children to have restricted contact with their father/ the respondent. Evidence of danger posed by the respondent and abuse meted out to the minor children by their father has not been presented, beyond mere allegations. There is not even a suggestion from the applicant's version that such was ever reported to the authorities. In contradiction, the respondent has adduced photographic evidence to the effect that prior to applicant's decision to unilaterally alter his contact with the minor children, he exercised unsupervised contact with the minor children. This has not been disputed by the applicant. This is hardly surprising. A picture is worth a thousand words.

[56]  The reasons provided by the applicant belie this contention and rather suggest that the issues are between the parties themselves as opposed to the minor children, and capture the applicant's assessment of the respondent's character and ability to comprehend what is in the best interests of the minor children.

Cost contribution

[57]  The applicant seeks a cost contribution against the respondent in the amount of R50 000.00. No basis has been set for this or any evidence of what the applicant's legal costs amount to. The concept of a contribution towards the costs of a divorce action emanates from the duty of support that spouses owe each other. This accords with the right to equality in terms of the Constitution [3] , in that the divorcing spouse who has no source of income (usually the wife) is entitled to a contribution towards her legal costs to ensure she has an equal opportunity to defend and present her case. This has been followed in various decisions of our courts and has become established.

[58]  In Carv v Carv[4] the court concluded that the applicant was entitled to a contribution towards the costs which would ensure equality of arms in the divorce action against her husband. The court held:

"...applicant will not enjoy equal protection unless she is equally empowered with the sinews of war'. The question of protecting applicant's right to and respect for and protection of her dignity also arises in the present situation, where a wife has to approach her husband for the means to divorce him. "

[59] I must say that this does not apply to the applicant. She is selfreliant and financially independent and in a position to 'adequately to place her case before the Court'. It was argued on behalf of the respondent that the applicant has chosen to litigate at a higher scale and had already paid exorbitant legal fees. The consideration for a contribution towards a party's costs of litigation "must be based on a contextualisation and balancing of all those factors considered to be relevant in such a manner as to do justice to both parties "[5]

[60] In this case the applicant has not made out a case for a cost contribution of any amount.

Conclusion

[61]It seems to me that maintenance sought by the applicant in respect of the minor children is already provided by the respondent. As far as maintenance for the applicant is concerned, the applicant has failed to prove that the respondent owes her a duty of support, that she has a need to be maintained, and that the respondent has adequate resources to discharge this duty. The applicant has also failed to adduce any evidence why the respondent's contact with the minor children should be restricted and supervised. Having said that, and on the strength of the available evidence, it follows that the counter application must succeed.

Costs

[62] It is trite that costs are within the discretion of the court. The general rule is that costs follow the result. I cannot find any reason for a deviation from this established principle in this regard.

Order

[63] In the result, the following order is made:

1.  The application in terms of Rule 43 is dismissed with costs.

2.  The counter application is granted.

3.  The applicant shall pay the costs of the counter application.

Pendente lite:

4.  Both parties shall retain full parental rights and responsibilities in respect of the four minor children as envisaged in sections 18, 19 and 20 of the Children's Act, 38 of 2005.

5.  The primary care and residence of the minor children shall vest with the applicant.

6.  The respondent is awarded specific rights of contact with the minor children at all reasonable times subject to the following:

a. On every alternate weekend from after school on a Friday to 17h00 on a Sunday.

b. On Father's Day from 09h00 to 17h00 with the understanding that the minor children shall be with the applicant on Mother's Day.

c. For 3 hours on each of the children's birthdays and on the respondent's birthday, with the understanding that the minor children shall be with the applicant on her birthday.

d. On every alternate public holiday from 09h00 to 17h00.

e. On every alternate long weekend from 17h00 on the day preceding the long weekend with the understanding that a public holiday adjoining a weekend shall be viewed as part and parcel of a long weekend and signed out as such and not a public holiday.

f.  On every alternate short school holiday and half of every long school holiday with the understanding that the Christmas and Easter portion shall be alternated between the parties.

g. Reasonable telephonic and electronic contact with the minor children.

h. In the event of either party not being able to care for the children in the time awarded to that party, the other party shall be approached first for alternative care.

7. The Office of the Family Advocate shall investigate the best interests of the minor children pertaining to care and contact and all matters ancillary thereto and provide its report and findings to this Court.

8. Dr Lynette Roux (Dr Roux) shall continue with her investigations in respect of the best interests of the minor children pertaining to their care, primary residence and contact. The costs of the services provided by Dr Roux shall be borne by the parties in equal shares.

9. The respondent shall continue to contribute to the minor children's maintenance as follows:

a. By making payment of the minor children's school fees directly to the school.

b. By retaining the minor children on his Profmed medical aid or any comprehensive medical aid and paying the contributions in respect thereof.

c. By paying for [BdBl's hearing aid expenses as may be recommended by his audiologist, directly to the relevant audiologist or service provider.

d. By paying an amount of R5 000.00 per month per child on or before the first day of each month following the date of this order.

e. By paying an amount of R4 000.00 per month in respect of the minor children's extramural activities directly to the service providers.

f. By making payment in respect of the applicant's motor vehicle directly to the service provider.

g. By making payment of the insurance premium in respect of the applicant's vehicle and vehicle licensing fees directly to the service providers.

h. By retaining the applicant on his Profmed medical aid or any comprehensive medical aid and pay the contributions in respect thereof.

i.By paying the salaries in respect of the domestic worker and gardener for the applicant and the minor children for a period of three days per week.

j. By making payment of the security services in respect of the applicant and the minor children to a maximum amount of R600.00 per month directly to the service provider.

S MFENYANA

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING	: 24 NOVEMBER 2022
JUDGMENT RESERVED	: 24 NOVEMBER 2022
DATE OF JUDGMENT	: 17 February 2023
For the Applicant	: Adv. T Carstens
Instructed by	: AJ Van Rensburg Attorneys
C/O	: Minchin & Kelly Incorporated
Email	:ai@vrblaw.co.za & wendy@vrblaw.co.za
For the Respondent	: Adv. ASL van Wyk
Instructed by	: LM Pretorius Attorneys
C/O	: Maree & Maree Attorneys
Email	: litigationl@lmplaw.co.za
	lit2@maree-mareeattorneys.co.za

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