SP v HP

• Jurisdiction: South Africa
• Judge: Musi JP
• Judgment Date: 29 May 2008
• Citation: 2009 (5) SA 223 (O)
• Docket Number: 2057/2008
• Hearing Date: 29 May 2008
• Counsel: JC Coetzer for the applicant. GJM Wright for the respondent.
• Court: Orange Free State Provincial Division

Musi JP: C

[1] On 23 May 2008 I granted an order dismissing the application herein and indicated that my reasons would follow. Such reasons follow hereunder.

D [2] This is a rule 43 application brought by the applicant against her husband, the respondent, for maintenance pendente lite for herself only. The parties are no longer staying together as man and wife, the applicant having left the common home on 24 November 2007. She has since instituted an action for divorce which is pending in this court. She says that the marriage relationship between herself and the respondent has E broken down irretrievably and that she has no intention of returning to the common home. I should mention that the parties were married to each other out of community of property on 20 May 1988.

[3] The basis of the claim for maintenance pendente lite is that the applicant is unemployed and has no means of supporting herself. She F says that since her departure from the common home she has been living with friends and such friends have been providing her with her daily needs. She says that she can no longer depend on the goodwill of friends and now wants the respondent to resume maintaining her. She has submitted a statement of her monthly financial requirements, totalling G R4500. She wants the respondent to contribute an amount of R3000 per month towards those needs. She is also claiming a contribution towards the costs of her divorce action in the amount of R5000.

[4] I should mention at this stage that the couple has two minor children, both girls, aged 15 and 14, respectively. It is common cause that these H children have been placed in the care of the respondent's brother in Bela-Bela (formerly Warmbaths), pending a final decision by the children's court. They have been with the respondent's brother since November 2007 to date.

[5] The respondent is opposing the application, essentially on two I grounds. Firstly, he alleges that the applicant was not forced to leave the common home but that she left of her own accord in order to join her extramarital lover, one T. He alleges that the applicant has been conducting an illicit love affair with this man all along and has been living with him since her departure from the common home. He says that T is employed as an electrician and is maintaining the applicant. The second J ground is that the respondent cannot afford to pay the amounts claimed.

Musi JP

He has submitted a list of...