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South Africa Judgment

North West High Court, Mafikeng

J.S.R v S.C.R (M473/15) [2016] ZANWHC 12 (29 March 2016)

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Source document

01

Holding and result

The court found that the respondent has no income or means to pay maintenance or contribute to the applicant's costs. Her financial situation is supported by her daughter and son-in-law, who also pay the bond and insurance and have retained the applicant on the respondent's medical aid. Therefore, the applicant's claims for maintenance and contribution to costs cannot succeed. The costs of the application are to be costs in the cause, payable from the joint estate, and the usual scale applies.

Court disposition

Application dismissed.

Orders

  • The application is dismissed.
  • The costs of the application shall be costs in the cause and the usual scale shall apply.

02

Material facts

Parties

J.S.R

Applicant Counsel: Ms Shepstone

S.C.R

Respondent Counsel: Adv Maree

Amounts and remedies

  • Applicant's Monthly Pension: ZAR 7,220.2
  • Bond and Insurance Paid Monthly: ZAR 1,770

03

Procedural history

  1. Posture

    Divorce Application / Final Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that his monthly pension is insufficient to cover his expenses and sought maintenance from the respondent, retention on her medical aid, and a contribution to his legal costs.
Respondent
The respondent contended that she has no income or means to pay maintenance or contribute to costs, as evidenced by her bank statements and the financial state of her steel business. Her daughter and son-in-law support her and pay the bond and insurance, and have retained the applicant on her medical aid.

05

Court’s reasoning

  1. 01

    South African common law on maintenance in divorce

    A spouse cannot be ordered to pay maintenance or contribute to costs where they have no means to do so.

  2. 02

    Practice in matrimonial litigation

    Costs in matrimonial matters may be ordered to be costs in the cause, especially where the estate is joint.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the respondent has no income or means to pay maintenance or contribute to the applicant's costs. Her financial situation is supported by her daughter and son-in-law, who also pay the bond and insurance and have retained the applicant on the respondent's medical aid. Therefore, the applicant's claims for maintenance and contribution to costs cannot succeed. The costs of the application are to be costs in the cause, payable from the joint estate, and the usual scale applies.

Obiter and limits

  • The applicant may be able to save on expenses since the bond and insurance are being paid by the respondent's daughter and son-in-law.
  • The steel business operated by the respondent's family is running at a loss and does not provide income for the respondent.

Court disposition

Application dismissed.

  • The application is dismissed.
  • The costs of the application shall be costs in the cause and the usual scale shall apply.

Source and reliance status

North West High Court, Mafikeng

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Judgment text

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Source document

North West High Court, Mafikeng

Judgment

[2016] ZANWHC 12

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

(NORTH WEST DIVISION, MAHIKENG)

CASE NO.: M473/15

DATE: 29 MARCH 2016

In the matter between:

[J.......] [S.......] [R.................................................................................................................APPLICANT

And

[S........] [C........] [R.......].................................................................................................RESPONDENT

JUDGMENT

Landman J:

[1] [J........] S [R.......], the applicant, and [S..........] C [R......], the respondent, are married in community of property. The applicant left the common home and resides on his nieces’ farm. He is suing for a decree of divorce. He receives a pension of R7 220.20 per month. His expenses exceed his income. He seeks maintenance, an order that the respondent retain him on her medical aid and a contribution to his costs.

[2] The respondent resides on the property, the former common home, with her daughter and son-in-law and her son. She has no income. Her bank statements and those of her children demonstrate this. Her daughter and her husband take care of her in exchange for taking over the steel business. The steel business has been making a loss. Her daughter and her husband pay the bond and property insurance amounting to about R1 770 and have retained the applicant as a dependent on the respondent’s medical aid.

[3] The respondent cannot be ordered to pay maintenance or make a contribution towards the applicant’s costs where she has no means. The applicant may be able to save about R1 770 since the bond and insurance is being paid by the respondent’s daughter and son in law. They take care of the respondent’s medical aid and the applicant is retained on the medical aid.

[4] It follows that the application falls to be dismissed. Mr Maree, who appeared on behalf of the respondent, sought an order for costs on a higher scale. However, I am of the opinion that the costs should come out of the joint estate and for this reasons I intend to order that the costs of this application shall be costs in the cause and the usual scale shall apply.

Order

[5] In the premises I make the following order:

1. The application is dismissed.

2. The costs of the application shall be costs in the cause and the usual scale shall apply.

AA Landman

Judge of the High court

APPEARANCES:

Date of hearing: 24 March 2016

Date of Judgment: 29 March 2016

Counsel for the Applicant: Ms Shepstone

Instructed by Van Rooyen Tlhapi Wessels

Counsel for the Respondent: Adv Maree

Instructed by Maree & Maree Attorneys

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