Mthandazo Dhlamini VS Getrude Dhlamini

### Preamble
1
HH296-2012
HC 6608/10
---------




MTHANDAZO DHLAMINI

versus

GETRUDE DHLAMINI

HIGH COURT OF

UCHENA J

18, 20 27 June and

Civil Trial

P. Kawonde for the Plaintiff.

Mrs G .Dhlamini in Person

UCHENA J: The plaintiff and the defendant were married to each other on , in terms of the then Marriage Act [Cap 37, ] now [Cap 5 .11]. Their marriage was blessed with three children. Their first two children have attained the age of majority though the younger one is studying for a degree at  where the plaintiff is employed as an I.T.C manager. The eldest child has already obtained a degree, and is staying with the plaintiff looking for employment in . The parties’ youngest child Farai born on , is the only minor child of the marriage. She is staying with the defendant in .

The parties agreed that their marriage has irretrievably broken down. They have been on separation since 2000 according to the plaintiff. The defendant agrees that they have been on separation but says it was from 2008. The defendant has moved on and married another wife, in spite of the existence of his marriage to the defendant. The defendant reported him to the police who have charged him with bigamy. He is still to stand trial for that offence. There is no doubt that the marriage has irretrievably broken down.

The case was referred to trial on the following issues;

How much maintenance should plaintiff contribute towards the upkeep of the minor children?

Whether or not the plaintiff should be ordered to contribute towards the children’s accommodation and the specifications for the accommodation thereof.

How should the parties’ movable and immovable property be apportioned between them?

Whether the defendant should be maintained and at what rate per month?

When the plaintiff testified in court, he made concessions on issues 1, 2, and 3.

He maintained his position that the defendant should be awarded custody of Farai Dhlamini, their only minor child, born on . He told the court that Nothando Dhlamini who was born on , is no longer a minor. She is now 19 and is studying at the University of Fort Hare where he is employed. He is paying for her fees accommodation and up keep. He at the trial agreed to pay maintenance for Farai at the rate of R1000-00 per month. He agreed to pay for the minor child’s accommodation, at the rate of US$ 150-00 per month. He agreed to pay for utility bills at the rate of R200-00 per month. He agreed to give the defendant all their movable property including the two computers he had not mentioned in his declaration. He agreed to give the defendant the immovable property number 4069 Nharira Hills Norton.

The only disputes which remained to be resolved by the court are issue number four and the adequacy of the amounts the plaintiff offered for rent and utility bills. The defendant was adamant that she required maintenance for herself. Mr Kaonde for the plaintiff pointed out that this issue was not pleaded but he was prepared to consent to an amendment if the defendant applied for it. The defendant applied for the amendment which was not opposed by the plaintiff. I granted the amendment. The issue of the defendant’s maintenance had been raised at the pretrial conference leading to it being referred to trial as issue number 4. Mr Kaonde’s cooperation was therefore well considered in view of the defendant being a self actor who had raised the issue at the pre trial conference.

The plaintiff initially said the defendant is an able bodied qualified primary school teacher who should be able to maintain herself. He conceded that she is currently not employed, and offered to maintain her at the rate of US$ 25-00 per month for a limited period to enable her to look for employment. The defendant argued that the amount of US$ 25-00 is not sufficient for her needs. The plaintiff gave a breakdown of his expenses, out of his salary of R 36012-00 per month, plus allowances which gives him a total monthly earnings of R49827-67.( See Exhibit 2 his pay slip for May 2012.). After deductions for various items which among others includes, insurances, electricity bills, water bills, car hire, medical aid, rent etc he gets a net salary of R20059.69. Most of his living expenses are therefore included in the deductions appearing on his pay slip. He told the court about his unrecorded expenses which includes R1000-00 for his mother and US$150-00 for her workers. This is a generous provision for his mother, which contrasts negatively with what he proposes as maintenance for his wife. He agreed to maintain Farai at R1000-00 per month. His evidence, reveals, a determined resolve, not to maintain his wife in a meaningful way. It is inconceivable how he expects her to survive on US$25-00 per month. The plaintiff was maintained by the defendant when he was studying at the . He however seems not willing to reciprocate by offering the defendant reasonable maintenance.

The defendant told the court that she can survive on US$200-00 per month. She admitted that she is a qualified primary school teacher. She resigned her post with the Ministry of Education when she had found a job at a private school. She however lost that job and has since reapplied for a job to the Ministry of Education without success. She told the court that the process towards reappointment is not an easy one. When it was suggested to her that her prospects of getting a job could be higher if she applied for a teaching post outside big towns, she conceded that she would most likely get a job within a period of about six months or more. She however said it could take longer depending on the Ministry’s ability to timeously process the appointment. She told the court that she suffers from a heart condition which requires the attention of a Doctor within short spaces of time, at times at two weeks intervals.

It was therefore established that the defendant has prospects of being able to contribute towards her own maintenance. She also told the court that she occasionally goes to  to by goods for resale in  from which she raises US$200-00 within a period of three to six months.

In terms of section 7 (1) (b) of the Matrimonial Causes Act [Cap 5.13], here in after called the Act, depending on their incomes, resources, needs etc, spouses have a duty to maintain each other after the dissolution of their marriage. In determining whether or not to grant a maintenance order and the appropriate maintenance the court must be guided by the provisions of section 7 (4) of the Act, which provides as follows;

(4) “In making an order in terms of subsection (1) an appropriate court shall have

regard to all the circumstances of the case, including the following;-

the income-earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future

the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future

the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained

(d)  the age and physical and mental condition of each spouse and child

(e)  the direct or indirect contribution made by each spouse to the family,

including contributions made by looking after the home and caring for the

family and any other domestic duties

(f)   the value to either of the spouses or to any child of any benefit, including a

pension or gratuity, which such spouse or child will lose as a result of the

dissolution of the marriage

(g)  the duration of the marriage”

and in so doing the court shall endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.”

The plaintiff has a good income at his disposal while the defendant has none and was entirely dependant upon the plaintiff for the past six years. The plaintiff is well remunerated while the defendant has no income save that from her cross boarder trading which gives her about US$200-00 in a period of three to six months. This justifies a maintenance order in favour of the defendant.

The circumstances may however change slightly if defendant secures a teaching job. I say slightly in view of the meager salaries paid to teachers. The plaintiff’s own counsel in cross-examining the defendant said it was about US150-00 per month. The plaintiff will thus remain obliged to supplement the defendant’s income to enable her to continue maintaining the standard of living she was used to because of her husband’s income. She has not been employed for six years during which period she and the children where wholly dependant on the plaintiff’s income. She is however expected to work and contribute towards her own sustenance.

The defendant was given all the movable assets the parties acquired during the subsistence of the marriage, including an undeveloped stand in Norton. She has no accommodation of her own where she can stay with the minor child. The vacant stand in Norton is currently occupied by other persons, according to the defendant who had asked for a postponement to enable her to check if the stand had not been sold or repossessed by council. The plaintiff had not even mentioned it in his declaration. In evidence he said he had lost interest in it and was not interested in asserting his rights over it. In the circumstances the court should be guided by the fact that the stand may no longer be available to the parties. The defendant, will therefore only benefit from the movables. The court will however award her the stand as it may enable her to litigate for its recovery.

The defendant will therefore need accommodation. She will until their minor child attains the age of majority, be accommodated through the US$ 150-00 per month the plaintiff offered for the child’s accommodation. Consideration must be given to the defendant’s accommodation after that period. This must have the effect of increasing the defendant’s maintenance.

The plaintiff’s own evidence established the family’s standard of living. He maintains his mother and Farai at the rate of R1000-00 per month. He pays two employees for his mother at the rate of US$150-00 per month. He is also generously providing for his other children in . In terms of section 7 (4) of the Act the court must “endeavour as far as is reasonable and practicable and, having regard to their conduct, is just to do so, to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses.” The offer of a US$25-00 maintenance per month does not place the defendant in the position she would have been in had a normal marriage relationship continued between her and the plaintiff. The fact that the plaintiff earns a total of R49827.67 per month makes his offer to maintain the defendant at US$25-00 per month unreasonable.

The defendant is 47 years old. She was 24 when she married the plaintiff, to whom she has been married for 23 years. She made direct contributions to the family when she was employed, and continued to make indirect contributions after she lost her job. She looked after the children in  while the plaintiff was working in . The plaintiff to his credit took over and looked after their first child through her University education in . He is currently doing the same for their second child. In terms of section 7 (4) (d) and (e) the defendant’s age, physical condition and contributions must be considered. On the granting of a decree of divorce the defendant will loose her right to the plaintiff’s pension. That should be considered in determining the quantum of the maintenance the court should award her.

I am therefore satisfied that the defendant’s claim for maintenance in the sum of US$200-00 per month is justified. It must however be reduced to US$100-00 per month, after the period in which she is expected to have secured employment. In view of her being granted reasonable maintenance she is expected to be able to meet the shortfalls which may arise from the R200-00 the plaintiff offered for utility bills.

It is therefore ordered that;

A decree of divorce be and is hereby granted.

The plaintiff shall maintain the minor child Farai born on  at the rate of R1000-00 per month, until she attains the age of majority or becomes self supporting, whichever, first occurs.

The plaintiff shall provide accommodation for Farai and the defendant at the rate of US$ 150-00 per month and contribute R200-00 per month, for their utility bills, until Farai attains the age of majority or becomes self supporting whichever occurs first.

The plaintiff shall maintain the defendant at the rate of US$ 200-00 per month from the date of this order till the 30th of April 2013, from which date the plaintiff shall maintain the defendant at the rate of US$100-00 per month until she dies or remarries.

The defendant is awarded all the movable property of the marriage and the immovable property Number 4069 Nharira Hills Norton.

Messrs Kaonde & Company, Plaintiff’s Legal Practitioners

Defendant In person.