T.W.R v A.P.R (2022-15109) [2023] ZAGPJHC 1016 (11 September 2023)
- Citation
- [2023] ZAGPJHC 1016
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 2022-15109
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 2022-15109
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that, pending the Family Advocate's report, the respondent should be granted reasonable access to the child, who resides with the applicant. The respondent is ordered to pay the costs associated with the jointly owned house, including bond instalments, municipal accounts, home repairs, and arrear municipal accounts, as he resides in the property. Regarding maintenance, the court determined that the respondent should pay R3,000 per month for the child, rather than the R5,000 sought by the applicant, and must place the child on his medical aid. The court considered the financial positions of both parties, their respective incomes, debts, and assets, and concluded that the relief granted is fair and reasonable under the circumstances.
Court disposition
Interim maintenance and expense orders granted in favour of the applicant, with referral to the Family Advocate for further investigation.
Orders
- The matter is referred to the Family Advocate for investigation and report.
- Pending the Family Advocate's report, the respondent is granted reasonable access to the child.
- The respondent must pay all bond instalments, municipal accounts, home repairs, and arrear municipal accounts for the jointly owned house in which he resides.
- The respondent must pay R3,000 per month for the child's maintenance.
- The respondent must place the child on his medical aid.
02
Material facts
Parties
T W R
Applicant Counsel: Adv CJ SmithA P R
Respondent Counsel: AdvAmounts and remedies
- Applicant's Net Monthly Income: ZAR 26,000
- Applicant's Thirteenth Cheque (annual): ZAR 26,000
- Applicant's Business Income (august 2022): ZAR 15,000
- Respondent's Net Monthly Income: ZAR 19,000
- Respondent's Thirteenth Cheque (annual, Tax Free): ZAR 27,000
- Child Maintenance Ordered Per Month: ZAR 3,000
- Estimated Net Value of Jointly Owned House: ZAR 130,000
03
Procedural history
Posture
Rule 43 Application / Interlocutory
04
Questions and positions
Legal issues
- 01
Whether interim maintenance and expenses should be ordered pending divorce proceedings.
- 02
Whether the respondent should be granted reasonable access to the child pending the Family Advocate's report.
- 03
Whether the respondent should pay specific household expenses and child-related costs.
Party arguments
- Applicant
- The applicant contends that the respondent has a drinking problem and has endangered the child by driving while intoxicated. She seeks referral to the Family Advocate, interim maintenance of R5,000 per month for the child, payment of bond instalments, municipal accounts, home repairs, and arrear municipal accounts. She asserts that the respondent lives in the jointly owned house while she and the child do not.
- Respondent
- The respondent denies the allegations of alcohol abuse and asserts he can afford only R2,500 per month for the child and R200 per week for school fees. He provides details of his income, including his salary as a policeman and a thirteenth cheque, and claims additional income from deliveries, though the exact amount is unclear.
05
Court’s reasoning
Legal principles
- 01
Rule 43 of the Uniform Rules of Court
In Rule 43 applications, the court must ensure reasonable maintenance and access arrangements for children pending divorce, considering the financial circumstances of both parties.
- 02
Children's Act 38 of 2005
The Family Advocate should investigate and report on matters affecting the best interests of the child before final access arrangements are made.
06
Ratio, limits and disposition
Ratio decidendi
The court found that, pending the Family Advocate's report, the respondent should be granted reasonable access to the child, who resides with the applicant. The respondent is ordered to pay the costs associated with the jointly owned house, including bond instalments, municipal accounts, home repairs, and arrear municipal accounts, as he resides in the property. Regarding maintenance, the court determined that the respondent should pay R3,000 per month for the child, rather than the R5,000 sought by the applicant, and must place the child on his medical aid. The court considered the financial positions of both parties, their respective incomes, debts, and assets, and concluded that the relief granted is fair and reasonable under the circumstances.
Obiter and limits
- Both parties have considerable debt and limited assets, which impacts the quantum of maintenance.
- The respondent's additional income from deliveries is indeterminate and cannot be reliably factored into maintenance calculations.
- Referral to the Family Advocate is necessary to safeguard the child's best interests before finalizing access arrangements.
Court disposition
Interim maintenance and expense orders granted in favour of the applicant, with referral to the Family Advocate for further investigation.
- The matter is referred to the Family Advocate for investigation and report.
- Pending the Family Advocate's report, the respondent is granted reasonable access to the child.
- The respondent must pay all bond instalments, municipal accounts, home repairs, and arrear municipal accounts for the jointly owned house in which he resides.
- The respondent must pay R3,000 per month for the child's maintenance.
- The respondent must place the child on his medical aid.
Source and reliance status
South Gauteng High Court, Johannesburg
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.
South Gauteng High Court, Johannesburg
Judgment
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
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: 2022-15109
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
11/09/23
In the matter between:
T W R (Born N) (IDENTITY NUMBER:[…])
APPLICANT And
A P R (IDENTITY NUMBER:[…])
RESPONDENT
JUDGMENT
WRIGHT J
1. The applicant woman and the respondent man are in the process of divorce. They have a ten year old daughter. The applicant seeks Rule 43 relief pending the divorce.
2. The applicant seeks an order that the matter be referred to the Family Advocate, and that pending the report of the Family Advocate the respondent be allowed reasonable access to the girl who stays with her mother. She alleges that the respondent has a drinking problem and has driven the daughter on occasion while drunk.
3. The respondent denies this.
4. In my view, the Family Advocate should investigate and report.
5. The applicant seeks also that the respondent pays R5 000 pm for the child as well as bond instalments on the jointly owned house in which the respondent lives, municipal accounts, home repairs and arrear municipal accounts. The respondent lives in the house but the applicant and the daughter do not. In my view the respondent should pay these expenses.
6. The applicant is an accountant who earns a net R 26 000 per month. She receives a thirteenth cheque. She has an interest in a business which paid her R15 000 in August 2022.
7. The respondent is a policeman earning a net R19 000 pm. He gets a thirteenth cheque once a year of R27 000 tax free. He supplements his income on off days by delivery items and makes an amount which can’t be determined as there is money which goes into his account sometimes but the papers do not disclose the source.
8. Both parties have considerable debt and little by way of assets. Both drive cars. The jointly owned house is bonded leaving a net value of perhaps R130 000.
9. The respondent says that he can afford R2 500 per month for the child and R200 per week for the child’s school fees.
10. In my view, the respondent should pay, in addition to the costs of the jointly owned house in which he lives, R3000 per month for the child and he should place the child on his medical aid. The applicant has handed up a draft order which sets out the detail of the relief claimed. I agree, save that the R5 000 for the child per month should be R3 000 per month.
ORDER
1. X as amended -
GC Wright
Judge of the High Court
Gauteng Division, Johannesburg
HEARD : 11 September 2023
DELIVERED : 11 September 2023
APPEARANCES :
APPLICANT
Adv CJ Smith
083 309 7487
cjsmith123@gamil.com
Instructed by Yosef Shishler Attorneys
010 599 5950
RESPONDENT
Adv
Instructed by SW Khalishwayo Attorneys
011 845 4777
wiseman@wisemanlaw.co.za
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