PT v WT

• Jurisdiction: South Africa
• Judge: B R Tokota J
• Judgment Date: 17 May 2018
• Docket Number: ECD 2182/17
• Hearing Date: 03 May 2018
• Court: East London Local Division

Tokota J:

[1]

On 19 October 1990 the applicant and the respondent were married to each other out of community of property in terms of the provisions of

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the Transkei Marriage Act No. 21 of 1978 and such marriage still subsists. Three sons were born out of the marriage, namely; Siviwe Vuyolwethu born on 27 April 1992, Lonwabo Mbutho born on 28 October 1994 and Onele Masibulele born on 15 December 1998. All of them are no longer minors, the eldest being 26 years old and the youngest 19 years old. Siviwe and Lonwabo have completed their tertiary education and are queuing in the open labour market looking for employment. Onele is still pursuing his studies at the University of the Western Cape.

[2]

During 2009 the respondent instituted divorce proceedings against the applicant but later withdrew the action. Again during March 2016 the respondent instituted the present pending divorce proceedings against the applicant. It is common cause between the parties that the marriage has irretrievably broken down and that there are no reasonable prospects of a restoration of a normal marriage. The parties have not lived together as husband and wife for approximately more than ten years. The divorce action is pending before this Court.

[3]

The applicant has now brought an application in terms of Rule 43 of the Uniform Rules of Court seeking an interim order, pendente lite, for the following relief:

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"(a)

That the Respondent effect the payment of maintenance pendente lite for the Applicant in the sum of R10 000.00 per month;

(b)

That the Respondent retain the children on his medical aid, attend to the payment of the premiums payable in respect of their membership on his medical aid and all reasonable and necessary medical expenses incurred which are not covered by the Respondent 's medical aid;

(c)

That the Respondent effect payment of Onele's tertiary fees and related expenses at the University of the Western Cape;

(d)

That the Respondent effect payment of the bond, rates and services in Ripplemead Road, Nahoon Valley Park, East London;

(e)

That the Respondent effect a contribution of R14 850.00 to the Applicant towards the repairs to the Corsa motor vehicle, within a period of 5 days of this order being made;

(f)

That the Respondent effect a contribution towards the Applicant's legal costs in the sum of R70 000 (SEVENTY THOUSAND RAND)

(g)

Costs in the cause."

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Pursuant to the debate we had with Counsel representing the applicant during the hearing of the matter prayers (b) to (e) were abandoned.

I am now only required to determine the issues relating to prayers (a) and (f).

[4]

In order to put matters in proper perspective and to determine whether the remaining relief sought is justifiable in the circumstances of this case it is necessary to give a brief historical background relating to personal circumstances of each party as appears from the papers.

[5]

The applicant is gainfully employed by the Department of Education in the Eastern Cape Province and occupies a position of a Principal at JJ Njeza High School, Centane district. Her basic salary is R35 580.50 and receives a net salary of R22 794.62. The respondent is a Judge in this Division and earns a gross salary of R153 339.32 and receives a net salary of R72 522.41.

[6]

The respondent owns two properties. One is situated at Ripplemead Road, Nahoon Valley Park, East London and the other is at Unit 7 Kew Gardens, Port Elizabeth. Both properties are burdened with mortgage

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bonds which are serviced by the respondent. The respondent is living in the property situated in Port Elizabeth.

[7]

The applicant lives in a flat which she is renting in Butterworth where she stays during the week and commutes everyday to school. She pays a rent of R2 500 per month. In the papers she avers that during the week-ends and holidays she stays at the house in Nahoon Park, East London. Although the respondent is not in a position to dispute this he alleges that the applicant has left the common household and has been staying away for approximately ten years. It is not clear from the papers as to when she started staying at this house, regard being had to the fact that for ten years she has not been staying there.

[8]

The respondent is responsible for and is paying the mortgage bonds on the properties. Siviwe and Lonwabo are staying in the property in East London. When they were studying at Nelson Mandela University they were staying with the respondent.

[9]

During the hearing of this matter I asked Mr Wood, who appears for the applicant, whether these children cannot ask for maintenance

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themselves from the respondent. He quite correctly conceded that it was not necessary for the applicant to make an application on their behalf and that it is not necessary to maintain them via the applicant. He submitted that the applicant only seeks maintenance for herself and contribution for costs in the main action, hence the other prayers were abandoned.

[10]

The purpose of Rule 43 is to relieve, temporarily, the applicant spouse who feels the pinch of maintaining the children alone and, if she unable to do so, for the maintenance of herself as well whilst the divorce proceedings are still pending. The basis of the order for contribution on costs emanates from the duty of support which the spouses owe each other.

[11]

The Rule was designed to protect the innocent spouse who has been neglected by the guilty spouse who is not willing to fulfil his legal obligations to maintain the family. The applicant must show that she is in need of reasonable maintenance and is unable to maintain herself. Where the wife seeks maintenance for herself she must demonstrate further that it is just and equitable to make such an order. The ordinary grammatical meaning of 'just' is, inter alia, appropriate, fair-minded, sound, deserved

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or appropriate in the circumstances, fitting, reasonable, justified, and 'equitable' means, inter alia, fair and impartial, reasonable and right.

Where the children, as in this case, are grown up adults they are free to seek maintenance for themselves from the spouse who neglects them.

Section 28 of the Constitution of the Republic of South Africa Act, 1996 and section 1 of the Children's Act No. 38 of 2005 define a child as "...a person under the age of 18 years".

[12]

Section 7(2) of the Divorce Act No. 70 of 1979 provides that when making an order with regard to the maintenance of one spouse by the other regard must be had to the existing or prospective means of each of the parties, their various respective earning capacities, financial needs and obligations, the age of each of the...