J.M.B v D.C.J.B (98328/2015) [2018] ZAGPPHC 350 (23 March 2018)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVSION, PRETORIA

(1)

NOT REPORTABLE

(2)

NOT OF INTEREST TO OTHER JUDGES

CASE NO.: 98328/2015

23/3/2018

In the matter between:

J

M B

Applicant

and

D

C J B

Respondent

Date heard: 9 March 2018

Date delivered: 23 March 2018

JUDGMENT

STRIJDOM AJ:

[1] This is an application in terms of rule 43 of the Uniform Rules of Court. The applicant and respondent were married to each other on 31 December 1988, out of community of property with inclusion of the accrual system and they are still married to each other. Two major children (daughters), J C B (22) and H H B (19) were born of the marriage. Although the two children (daughters) have both obtained the age of majority, they are both currently studying and are as such still financially dependent on their parents.

[2] The applicant issued summons for divorce against the respondent. The marriage relationship between the parties has broken down irretrievably and there is no reasonable prospect of the restoration thereof. The trial in the divorce action is pending.

[3] In this application the applicant seeks monthly maintenance for herself and the two major daughters from the respondent in the aggregate

amount of R2l 500 as well as a contribution to her legal costs in the divorce in the amount of R20 000. The applicant alleges that her net salary as a teacher is R14 872.52 per month[1] and her expenditure amounts to R36 365 inclusive of the amounts she has claimed for the mayor children. The applicants expenses are set out in a table and includes expenses that she incur on behalf of their daughters on a monthly basis, either for their use whilst in Potchefstroom where they study or whilst at home during weekends and holidays.[2]

[4] The respondent opposes the application, contending that the applicant claims unnecessary luxuries and he cannot afford to maintain the daughters any longer as he do not have the financial needs to do so.[3] He is also disputing any entitlement on the part of the applicant to claim maintenance for the major children.

[5] According to the respondent his average gross income is R38 000 per month and his monthly expenses amount to R33 348.55 inclusive of expenses relating to the major daughters.[4] However the bank statements submitted by the respondent clearly indicated that his average monthly income is approximately R47 000 per month. The applicant is a teacher and the respondent is self employed. He make and sells polystyrene cornices and recently stated sales in LED lights which is imported from China.

[6] The first issue to be considered is the entitlement of the applicant to claim monthly maintenance pendente lite in respect of expenditure pertaining to the major daughters.

[7] There is no suggestion on the papers that the major daughters have any income or that they are not entirely dependent upon their parents for support.

[8] It was held by the Supreme Court of appeal[5] that the duty of support does not terminate automatically when a child reaches majority and hence that a consent order granted as between the parents on divorce and in respect of a then minor child, could still be enforced by one parent against the other post the attaining of majority by the child.

[9] The entitlement of one parent to claim maintenance pendente lite on behalf of an adult (but dependent) child in rule 43 proceedings has however recently been considered.[6] The court held that in the absence of an enabling statutory provision in the Divorce Act or in the Childrens Act 38 of 2005 a parent of adult children lacks the necessary locus standi in divorce proceedings to claim an order on behalf of such adult children, that the other party pay certain allowances directly to the children or pay certain expenses on their behalf. Only the children themselves have the standing to

pursue such claims.

[10] In JG v CG[7] it was held that where an adult child living with both his parents in a communal household and currently being educated by the parents it seems to be counterproductive and unnecessary to insist that the dependent child in those circumstances bring separate proceedings to have his maintenance rights against one or other parent determined when it is clear that the expenses attributable to him are required to be borne by the parents pending the divorce hearing, and they can be robustly regulated inter se in rule 43 proceedings.

[11] I am of the view taking in consideration the circumstances of this matter the facts justify an order directing payment to be made directly from one spouse to another pendente lite in respect of expenses incurred in regard to the major dependent children.

Quantum of maintenance

[12] The respondent vacated the former common home during July 2017 where the applicant is still residing. The former common home where the applicant still reside is registered in the name of a close corporation, Cathedral Rock investments 159 CC. The respondent and his brother were both members of the close corporation. During May 2017 the applicant was informed that the respondent alienated his members interest in the close corporation to his brother for an amount of R600 000. Applicant was also informed by the brother of the respondent that she must vacate the property. The respondent's workshop is situated on the plot where the former common home is and where his brother also resides.

[13] The applicant purchase groceries on behalf of their daughters for their use whilst in Potchefstroom where they reside during the week. The daughters are also on her medical aid fund.

[14] The respondent submitted that he contribute to the needs of their daughters whilst they are in Potchefstroom. However he informed them that as from 2018 he will no longer be able to assist them as he does not have the financial means to do so. He has applied for a loan of R67 000 to settle their existing University Fees that are in arrears.

[15] Having considered the expenditures of the applicant and her personal circumstances, I am of the view that the applicant has not inflated her expenditures.

[16] In my view the respondent should be contributing to the expenses being born by the applicant for herself and in regard to the maintenance of the dependent children pendente lite. The respondent earns more than the applicant and has more disposable income. The applicant is not in a financial position to pay her legal fees and it would be reasonable under the circumstances to order the respondent to contribute towards legal fees.

[17] In the result the draft order marked annexure "X" is made an order of this court.

J.J.

STRIJDOM

ACTING

OF THE GAUTENG DIVISION

OF

THE HIGH COURT OF SOUTH AFRICA

For the plaintiff: Adv. R Ferreira

Instructed by:

Du Randt & Lauw Inc

For the defendant: Adv. M Fabricius

Instructed by:

Van Zyls Ingelyf

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: 98328/2015

JUDITH

MARGARETHA

BLOEM

Applicant

DIRK

CORNELIUS

BLOEM

Respondent

DRAFT

ORDER

An order is made, pendente lite, as follows:

1. The Respondent is ordered to contribute an amount of R 21 500.00, towards the maintenance of the Applicant and the dependent children on a monthly basis, the first payment to be made on the first of the month following the date of the order and thereafter on or before the seventh day of every month.

2. The Applicant shall be entitled to remain resident at the property situated at Plot [….], Pretoria Gauteng Province pending the finalisation of the divorce action.

3. The Respondent is ordered to continue paying all the expenses that he currently pays in respect of the property where the Applicant resides and in respect of the dependent daughters, included but not limited

to:

3.1 the bond, alternatively rent in respect of the property where the Applicant currently resides.

3.2 the water and electricity in respect of the property where the Applicant currently resides and all expenses in relation to the maintenance of the property;

3.3 the security system in respect of the property where the Applicant currently resides.

4. The Respondent is ordered to contribute an amount of R 20,000.00 towards the legal costs of the Applicant, payable in four monthly instalments of R5,000.00 each, the first instalment to be paid on the first of the month following the date of the order and thereafter on or before the

seventh day of every month until the R20,000.00 has been paid in full.

5. Costs of the application to be costs in the divorce action.

6. The Respondent shall be responsible for the University fees and books of

the parties’ dependent children.

BY

ORDER

THE

REGISTRAR

[1] See annexure "A" p20

[2] See p11-15 applicants sworn statement

[3] Para 27.1p41 respondents opposing affidavit

[4] See annexure "DBS" p55-56 and annexure "DB6" p67 opposing affidavit

[5] Bursey V Bursey and Another 1999(3) SA 33 (SCA)

[6] Butcher v Butcher 2009(2) SA 421 (CC)

[7] 2012(3) SA 103 (GSJ)