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South Africa Judgment

High Courts - Eastern Cape

Hattingh v Hattingh (6125/07) [2008] ZAECHC 52 (14 February 2008)

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Source document

01

Holding and result

The court found that the applicant's claim for increased maintenance pendente lite was not supported by the facts, as the respondent already pays a substantial portion of his salary towards maintenance and related expenses. The applicant's contention that trust assets should be used was rejected because both parties, as trustees, must act jointly to authorise such use, and no such joint authorisation was provided. The applicant's failure to cooperate in the administration of the trust precluded her from complaining about the respondent's conduct regarding trust assets. Accordingly, the application was dismissed with costs.

Court disposition

Application dismissed with costs.

Orders

  • The application for increased maintenance pendente lite is dismissed.
  • The applicant is ordered to pay the costs of the application.

02

Material facts

Parties

Susan Jane Hattingh

Applicant Counsel: Adv Cole

Michael Gordon Hattingh

Respondent Counsel: Adv Brooks

Amounts and remedies

  • Respondent's Net Monthly Salary: ZAR 15,800
  • Monthly Cash Maintenance Paid: ZAR 8,000
  • Monthly Additional Expenses Paid: ZAR 3,652.47
  • Applicant's Total Maintenance Claim Per Month: ZAR 15,100
  • Umbuthanu Trust Cash Balance: ZAR 1,899,378.56

03

Procedural history

  1. Posture

    Urgent Application / Second Application for Maintenance Pendente Lite

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant claims a total of R15,100.00 per month as maintenance pendente lite, comprising R4,000.00 for herself and R3,700.00 for each of the three minor children. She contends that the respondent cannot pay this amount from his salary alone and argues that the Umbuthanu Trust, of which both parties are trustees, has sufficient funds to supplement her maintenance requirements. She alleges that the respondent treats the trust assets as his personal property and that she is only nominally a trustee.
Respondent
The respondent states he earns a net salary of R15,800.00, from which he already pays the applicant R8,000.00 in cash and R3,652.47 for DSTV, school fees, hospital plan, and insurance, totalling R11,652.47. He asserts that, with the applicant's cooperation, he would have no difficulty in agreeing to utilise trust funds for maintenance, but no such authorisation from the applicant is evident. He maintains that both trustees must act jointly regarding trust assets.

05

Court’s reasoning

  1. 01

    Trust Property Control Act 57 of 1988

    Trust assets are administered by trustees, who must act jointly in all matters affecting the trust.

  2. 02

    Section 6 of the Divorce Act 70 of 1979

    Maintenance pendente lite is intended to provide interim relief pending final determination of maintenance claims.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant's claim for increased maintenance pendente lite was not supported by the facts, as the respondent already pays a substantial portion of his salary towards maintenance and related expenses. The applicant's contention that trust assets should be used was rejected because both parties, as trustees, must act jointly to authorise such use, and no such joint authorisation was provided. The applicant's failure to cooperate in the administration of the trust precluded her from complaining about the respondent's conduct regarding trust assets. Accordingly, the application was dismissed with costs.

Obiter and limits

  • The applicant's allegation that she is only nominally a trustee is unfounded, as she possesses all the rights and responsibilities of a trustee.
  • Reliance on the resolution presented by the applicant was misplaced, as it did not authorise the use of trust funds for maintenance in the manner contended for.

Court disposition

Application dismissed with costs.

  • The application for increased maintenance pendente lite is dismissed.
  • The applicant is ordered to pay the costs of the application.

Source and reliance status

High Courts - Eastern Cape

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Judgment text

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Source document

High Courts - Eastern Cape

Judgment

[2008] ZAECHC 52

NOT

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

In the matter between: Case No: 6125/07

SUSAN

JANE HATTINGH APPLICANT

AND

MICHAEL

GORDON HATTINGH RESPONDENT

_______________

REASONS FOR

JUDGMENT

CHETTY, J

This is a second application for maintenance pendente lite. The first application during October 2007 was, in the nomenclature of the applicant “. . . mero motu . . . ruled . . . premature”. At the conclusion of argument before me, I dismissed the application with costs. Reasons have now been requested and these follow:

It is not in issue that the respondent earns a nett salary of R15 800, 00 out of which he pays the applicant a cash amount of R8000, 00 and an additional amount of R3 652, 47 in respect of the DSTV, school fees, the hospital plan and the insurance premium, in total R11 652, 47. In her notice of motion the applicant claims a cash amount of R4 000, 00 per month and R3 700, 00 per month in respect of each the three minor children as maintenance pendente lite, in total R15 100, 00 per month. Cognisant, no doubt, that the respondent cannot conceivably pay that amount from his salary she nonetheless contends that the Umbuthanu Trust has a cash amount of R1 899 378, 56 standing to its credit which could be utilised to supplement her maintenance requirements.

Although the applicant seems to suggest that she is only “nominally a trustee of the trust” the fact remains that she and the respondent are the trustees. She has all the rights available to a trustee. She has however done nothing being content to allege, unfairly on the papers before me, that the respondent treats the trust assets as his personal fiefdom. In argument before me Mr Cole submitted that as the applicant had given the respondent the requisite authority to utilise the trust money for the purpose which she seeks, there is no impediment preventing the respondent from so agreeing. Reliance on the resolution (page 16 of the papers) is clearly misplaced. The resolution is limited in extent and cannot be construed in the manner contended for. In the opposing affidavit the respondent has pertinently stated that provided he has the co-operation of the applicant he would have no difficulty in agreeing that the trust money be utilised. On the applicant’s papers no such authorisation is evident and it scarcely behoves her to now complain. The assets of the trust rest in the trustees and they must act jointly in all matters affecting the trust.

_____

D. CHETTY

JUDGE

OF THE HIGH COURT

OBO THE APPLICANT: ADV COLE

OBO THE RESPONDENT: ADV BROOKS

DATE HEARD: 14/02/2008

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Trust Property Control Act 57 of 1988

Legislation

Legislation referenced in the available case record.

Divorce Act 70 of 1979

Legislation

Legislation referenced in the available case record.

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