Nagel v Nagel

• Jurisdiction: South Africa
• Judge: TA Maumela J
• Judgment Date: 18 December 2019
• Docket Number: 60169/2018
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 18 December 2019
• Citation: 2020 JDR 0168 (GP)

Maumela J:

1.

This is an application in terms of Rule 43 of the Uniform Rules. The applicant is Erika Nagel. The respondent is Tymen Nagel. The Applicant seeks an order in terms of which the Respondent is ordered to pay a contribution at an amount of R50 000,00 per

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month. The applicant charges that the Respondent did not disclose his monthly expenses but only indicated his monthly to be R95 000.00. She states that the Respondent makes no offer towards her upkeep. She makes the point that the Respondent failed to comply with the provisions of Rule 43(3).

2.

Rule 43(3) provides as follows: "The Respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred." Applicant makes the point that as a result of the Respondent's failure to deliver a sworn reply, the court lacks the wherewithal with which to make a proper comparison on the basis of which to make an informed ruling. In his own version, the Respondent states an amount of R30 000.00 per month would be contributed to the joint household expenses and currently, the Respondent contributes nothing.

3.

In the case of TS v TS [1] ; Spilg J expressed the view that a duty of frank disclosure of each party's financial position is implicit within the context of a contested divorce. There is a dispute between the parties regarding whether the Respondent should or should not contribute towards the Applicant's maintenance. Were the court to decide that Respondent must make monthly contributions towards the Applicant's maintenance, it also has to determine the amount at which he should do so.

4.

The Respondent states that he never threatened to remove the Applicant from the medical aid. The purpose of Rule 43 is to deal with applications of this nature as inexpensively and expeditiously as possible. The Rule is not designed to provide an interim meal-ticket to any of the parties unless he or she establishes a right to maintenance at the trial. See Nilsson v Nilsson [2] . Rule 43 caters for four types of relief pendente lite

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namely:

(a).

Maintenance;

(b).

A contribution towards cost;

(c).

Interim custody of a minor child and

(d).

Interim access to a minor child.

5.

Our law provides that applicants in terms of Rule 43 are entitled to reasonable maintenance, pending the outcome and finalisation of the divorce matter. For this purpose, the court has to take the following into consideration:

5.1.

The standard of living of the parties during the subsistence of the marriage;

5.2.

The Applicant's actual and reasonable requirements and

5.3.

The income of the Respondent.

6.

In the case of Taute v Taute [3] , the court stated that it was found that a Court will be far more inclined to allow an application made on reasonable grounds than one that contains extravagant amounts and that a Respondent who shows a willingness to maintain his spouse and/or children will be heeded with greater sympathy than one who is shown as avoiding his obligations.

7.

It has to be heeded that the Applicant brings this application for interim maintenance. In this application, to the best possible extent, she clearly and concisely sets out her income and expenditure. The Applicant charges that the Respondent failed to set out his income and expenditure and that he has also proved to be reluctant to maintain his spouse despite the fact that the law enjoins him to do so.

8.

The Respondent submits the following:

8.1.

That he earns a basic salary of R45 000.00.

8.2.

That he receives a further R 50 000.00 on a monthly basis

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form investments. Therefore, his total income is R 95 000.00 per month;

8.3.

That he has four immovable properties and no outstanding bonds;

8.4.

During the subsistence of the marriage, the parties went on holiday in Thailand, Germany; Victoria Falls; they also went on boat cruises.

8.5.

That during the subsistence of the marriage, the respondent used to contribute an amount of R 20 000.00 per month to the joint house-hold expenses. He submits this was merely a temporary agreement.

9.

The Applicant submits that in May 2019, she was retrenched in the Respondent's company. She used to fund some of her needs herself. The Respondent charges that the applicant was not sufficiently frank in disclosing her needs. In the case of Du Preez v Du Preez [4] ; at paragraphs [15]-[16], the court stated...