Hattingh v Hattingh (6125/07) [2008] ZAECHC 52 (14 February 2008)
- Citation
- [2008] ZAECHC 52
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- High Courts - Eastern Cape
- Panel
- D Chetty
- Case number
- 6125/07
More details
- Court
- High Courts - Eastern Cape
- Panel
- D Chetty
- Case number
- 6125/07
On this page
Professional case brief
Research organized from the available case record
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 ColeMichael Gordon Hattingh
Respondent Counsel: Adv BrooksAmounts 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
Posture
Urgent Application / Second Application for Maintenance Pendente Lite
04
Questions and positions
Legal issues
- 01
Whether the applicant is entitled to increased maintenance pendente lite from the respondent.
- 02
Whether trust assets may be utilised to supplement maintenance payments.
- 03
Whether the trustees, being both parties, must act jointly in authorising use of trust funds.
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
Legal principles
- 01
Trust Property Control Act 57 of 1988
Trust assets are administered by trustees, who must act jointly in all matters affecting the trust.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Courts - Eastern Cape
Judgment
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 â. . . mero motu . . . ruled . . . prematureâ. 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 ânominally a trustee of the trustâ 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 applicantâs 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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