KOK v MAXWELL 2014 (1) ZLR 578 (H)
Citation | 2014 (1) ZLR 578 (H) |
Case No | Judgment No. HH-236-14 |
Court | High Court, Harare |
Judge | Tsanga J |
Heard | 13 January & 19 March 2014; CAV |
Judgment | 21 May 2014 |
Counsel | R Stewart, for the applicant |
Case Type | Civil application |
Annotations | No case annotations to date |
Flynote
Family law – husband and wife – maintenance order – variation – good cause for variation – what constitutes – maintenance of children – subsequent re-marriage of person paying maintenance – whether priority should be given to children of first marriage – tertiary education – whether should be included in maintenance order even though child above age of majority
An appropriate court may on good cause shown vary suspend or rescind an order for maintenance made in terms of s 7 of the Matrimonial Causes Act [Chapter 5:13]. As to what constitutes "good cause", the two cardinal points which must guide courts in dealing with applications for alterations of maintenance are (a) a change in financial circumstances and (b) the ability of the person being ordered to provide maintenance to pay the increment sought. A change in needs and obligations brought on by a spouse's remarriage amounts to good cause. Where a divorced man with maintenance obligations towards his first family remarries, it is superficial and unrealistic to suggest that the first family must continue to be maintained at the same standard regardless of her former husband's subsequent commitments. The obligations owed to the first wife and children are properly regarded as a first charge, but subsequent commitments will possibly reduce the husband's capacity to maintain the first wife to the extent originally decreed. In order to accommodate both needs, the standards of living of all parties may possibly have to be reduced, with the second family playing a subordinate role to the first. In assessing the needs of all concerned, a variety of considerations would obviously have to be examined, and the ultimate decision would be based on an evaluation of all these considerations.
Tsanga J
The 2013 Constitution appears to lend interpretative support in favour of an "equalisation" as opposed to a "first family" approach in assessing any child's needs. Non-discrimination in general is the ethos underlying the Constitution. Section 81(1), which deals with the rights of children, accords rights equally to every child.
With regard to tertiary education, although child support can be terminated on grounds such as majority status or emancipation, among others, it is now generally the reality that parents can reasonably expect that their obligations towards their child support will go beyond the children's majority status. Where parties have express agreements in their divorce orders, such an obligation would at most extend up to the first degree. In an increasingly competitive world, college education is frequently an indispensable stepping stone.
Cases referred to
Chizengeni v Chizengeni 1988 (1) ZLR 286
Crone v Crone 2000 (1) ZLR 367 (S)
Hingeston v Lightfoot 2000 (2) ZLR 247 (S)
Rabvukwa v Rabvukwa 2004 (1) ZLR 530 (H)
Chiomba v Chiomba 1992 (2) ZLR 197 (S)
Legislation considered
Constitution of Zimbabwe 2013, s 81(1)(d)(f), (2) & (3)
Matrimonial Causes Act [Chapter 5:13], s 8(2) & (3), 9 & 11
Case information
R Stewart, for the applicant
Mrs Munangati Manongwa, for the respondent
Judgment
Tsanga J: This is an application for modification/variation of a consent paper entered into by the applicant and the respondent in 1999 as part of their divorce settlement and upon which they obtained a consent order incorporating the terms of their agreement. Judicial action is called for because the parties are not in agreement regarding the modifications/variations sought. The respondent, who is the applicant's former wife, not only challenges some of the proposed modifications but has also put in her own counter-application with her set of proposals. What this court has to decide is which of the modifications and variations sought are justified by the circumstances. Below I detail the issues and the nature of the modifications/variations sought, in light of their factual context and grounding in the consent paper.
Tsanga J
The facts
The parties were married in 1994 and divorced in 1999. One child, A, was born of the marriage on 15 of January 1998 making him now 16 years old. As part of their divorce which was granted in November 1999, the parties had entered into a consent paper, which according to the decree of divorce, was to govern issues relating to the custody, maintenance, propriety and other ancillary matters between the parties.
The applicant, who has since moved to South Africa, brought this application prior to his move, desirous of formalising various aspects of the consent which he says have been brought on by changed circumstances. For one, the consent paper contains a fixed monthly payment for child support that remains couched in Zimbabwean dollar terms despite the adoption of multi-currency, the US dollar in particular, since 2009. An amount of Z$10 000 in Zimbabwean currency at the time was to be paid as monthly maintenance until the child attained the age of 18. With the demise of the Zimbabwean dollar, the applicant says he has been paying a sum of US$550 per month for the minor child. It is this amount which he wishes the court to endorse as appropriate. This is also in the context that he has since remarried and therefore has assumed added obligations The respondent, on the other hand, counter-claims for US$1 000 per month which she says would meet the child's needs and allow the minor child to lead the life style he would have led had the parties not divorced. This amount would also in her view, be more in line with the Z$10 000 that was agreed to at the time of the signing of the consent paper in 1999. She lists the child's expenses as amounting to $1 160 per month. Among major expenditures in her tabulation is a sum of $320 as fuel expenses for the child; a monthly clothing allowance of $100; a budget for school tuck, groceries and incidentals amounting to $345 every month. The respondent argues that the sum of US$550 per month is a complete mockery of the standard of life the parties had and that is being led by the applicant.
Besides the monthly sum, a second issue in dispute pertains to costs related to the child's schooling. In the consent paper the applicant agreed to take responsibility for all school fees and costs relating to the education of the minor child, including costs for reasonable sporting equipment, school uniforms, books and costs of extramural activities. The consent paper also stated that to the extent that the respondent was able to afford it, she would come in with her assistance. As regards payment of fees, the child attends a private school. Being gifted in sports, the child's gift has resulted in some monetary relief for his parents since he has a scholarship which meets part of his school fees. The applicant has been responsible for paying the balance of
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whatever is owing in fees that is not being met by the bursary. This amounts to US$$7 027.50 per year. It is with regard to the payment for extras such as sporting equipment, school uniforms, and extramural activities that the parties are not in agreement. The applicant says that the cost of these is adequately covered by the monthly payment of US$550 per month. This is given that the minor child is at boarding school while the US$550 is paid per month regardless. His annual contribution for maintenance amounts to US$6 600. His reasoning is that the minor child is only in the physical custody of the respondent for three to four months of the year. As such, he argues that the respondent receives an ample amount to meet all expenses from this amount including those for sports, school uniforms and extramural activities. The respondent disagrees on the basis that these are entirely separate expenses as per the consent paper, which are to be paid separately. She also claims an amount of US$3 300 owing that has been advanced by her for these expenses between August 2010 and September 2013. At issue, therefore, is whether the applicant should also pay this amount separately as arrears for school trips and related expenses for extra mural activities in addition to these items clearly remaining the applicant's responsibility.
The third issue relates to the futuristic clause on tertiary education. In addition to the child's fundamental education is a clause in the consent paper on tertiary education whereby 'subject to his means at the relevant time, and subject to discussion between the parties as to the type of tertiary education,' the applicant may meet the child's needs in this regard. The applicant's request is to have the clause deleted on the grounds that as the child will be a major, he will liaise directly with the child due to the embittered relationship between him and the respondent. It is the respondent's position that the clause remains as is.
The fourth contested issue relates to the payment of the respondent's medical aid. A related issue under medical expenses is the respondent's claim that the applicant should pay for all the minor child's medical aid shortfalls. In the consent paper is an agreement to retain the minor child and respondent on the applicant's medical scheme described therein as his "current Medical and Dental Aid Scheme and pay all reasonably and necessarily incurred shortfalls in regard thereto". The applicant was also to reimburse the respondent upon production of invoices any monies expended by her for prescription medicines for herself and the minor child. With reference to the medical aid provision, the applicant pays for the child's medical aid under a private medical scheme to the tune of US$2 200 per year. However, since 2003 he has not been paying the respondent's medical aid. The applicant also says the clause in the consent paper was specifically linked to the medical aid
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scheme which he had with his former employer. The contributions were paid for by the employer. He has long since left that job. He also asserts that the parties have been divorced for the last 14 years and the fact that the respondent has managed to pay for herself over the last nine to ten years for the highest available package under her own chosen medical scheme is, in his view, indicative of her ability to pay. He also avers that she acquiesced to this new arrangement. Besides, he says he pays the lion's share of the child's maintenance thereby relieving her to meet her own expenses. In light of the fact that he has since remarried, he also considers payment of medical aid for a former spouse an unfair burden. The applicant would therefore like to amend the consent order to reflect the fact that he is not obliged to pay her medical aid from 2003 when he claims they acquiesced to this current arrangement. He would also want her to take responsibility for any shortfalls on the minor child's medical expenses using the monthly maintenance which she receives.
The respondent on the other hand, insists that it is the applicant's obligation to pay her medical expenses as per the consent order. She counterclaims a sum of US$5 5781, being the amount that she has paid for her subscriptions from 2009 to date. She says that she suffered from breast cancer in 2003 and struggles to meet her medical expenses.
The fifth issue for modification relates to access to the minor child. In terms of the consent paper, the respondent retained custody of the minor child. Access to the child by the applicant was, rather loosely, to be agreed to from time to time. Such clause, when so laxly worded, more often than not attracts a return to the courts in quest of amendment with more specific detail. The applicant now wishes to formalise his access rights in more specific terms. He seeks to exercise his access rights, at his expense, every alternate school holiday and every alternate Christian holiday without interfering with any of the child's school programmes. The parties are not in dispute in this regard save that the respondent has utilised the opportunity to ventilate her displeasure at what she perceives to have been neglect of duty on the applicant's part when it came to access. He attributes his distance to an endeavour to keep the peace given their constant disagreements. Suffice it to state that the only intervention deemed necessary for the court is to endorse this agreed new arrangement regarding more defined access rights.
The guiding legal principles
The provisions of the Matrimonial Causes Act [Chapter 5: 13] that are of relevance to this application are s 9 on variation; s 11 on arrear maintenance and s 8, subss (2) and (3), on the duration and extension of maintenance orders.
Tsanga J
Section 9 on variation states as follows:
"Without prejudice to the Maintenance Act [Chapter 5:09] an appropriate court may on good cause shown vary suspend or rescind an order made in terms of section seven ..." (my emphasis).
Of significance therefore in any given case is what constitutes good cause. In Crone v Crone 2000 (1) ZLR 367 (S) at 371 Ebrahim JA captured the two cardinal points which must guide courts in dealing with applications for alterations of maintenance. The first is a change in financial circumstances. The second is the ability of the person being ordered to provide maintenance to pay the increment sought.
Section 11(1) on arrear maintenance is couched as follows:
"Where a spouse has provided for the maintenance of any children of the marriage or a former marriage of one or other of the spouses, that spouse shall be entitled to recover from the other spouse such maintenance or such portion of such maintenance as an appropriate court may consider just and equitable in the circumstances" (my emphasis).
Of significance is that in making any decision regarding arrear maintenance the court is enjoined to look at the circumstances holistically in arriving at its conclusion as to what is just and equitable.
Subsections (2) and (3) of s 8, on the duration of a maintenance order, are relevant to the analysis of the issue as to whether the clause on tertiary education should be dispensed with. Section 8(2) states as follows:
"Subject to subsection (3), an order for the periodic payment of maintenance in respect of a child shall cease
(a) when the child dies or marries
(b) when the child is adopted
(c) when the child attains the age of eighteen years; or
(d) when the child becomes self-supporting
whichever occurs earlier."
Section 8(3) reads as follows:
"(3) An appropriate court may direct that the maintenance order referred to in subsection (2) shall extend beyond the date when the child attains the age of eighteen years –
(a) if the child is or will be receiving education or training beyond attaining that age; or
(b) if there are special circumstances which justify such direction"
In the event that a consent paper does not incorporate any arrangements on tertiary education, it is these clauses that kick into play. An appropriate court would have to order the extension of the continued payment of maintenance.
Tsanga J
Below I analyse each of the issues raised by the parties in the application and the counter-application against the applicable legal framework.
Factual and legal analysis of the core disputes
The monthly child support payable
I will start by addressing the first issue which is that of changed financial circumstances in relation to the monthly sum payable. In casu the changes in financial circumstances are at two levels. At one level is the formalisation of the US dollar as the currency of operation from 2009. Since dollarization, the applicant, as stated, has been paying US$550 as a monthly sum which he has no objection to continuing to pay. The respondent's averment that this amount is grossly inadequate needs to be viewed against the value of what was ordered at the time the consent paper was entered into in US dollars. Also the agreement was made when the child was one year old. No doubt a child's needs increase as the child gets older, due to schooling needs in particular.
I have found some guidance from the Crone case supra at 370F as to what the Z$10 000 was equivalent to in US dollar terms at the time the consent paper was entered into. An amount of Z$10 000 was calculated to be equivalent to US$270 as at December 1998. This figure was deemed acceptable by all parties in that case as representative of actual values at the time. It was calculated using the Quarterly Digest of Statistics. In casu the parties' consent paper was entered into in 1999. No doubt the value of Z$10 000 by November 1999 would have represented somewhat less than the US$270 of December 1998 due to the inflationary tendencies already in flow at that time. Nonetheless, I will use US$270 as a yardstick for the value of maintenance ordered at that time in its Zimbabwean dollar terms. This is primarily to assess how much of an increase the sum of US$550 per month represents in comparison to the value of the amount ordered at the time.
It is clear that in US dollar terms the amount of US$550 is at least twice the value of the amount that informed the consent paper. The respondent's request for US$1000 per month is informed by her standpoint that over and above any actual needs, her minor child is entitled to enjoy a lifestyle that he would have enjoyed if the marriage had not broken down. The sum of $1 000 a month is one that she insists the applicant is well able to afford. The applicant's position is that the total economic package for his son, which amounts to US$15827.50 a year inclusive of school fees and medical expenses, more than meets his son's support needs.
The applicant was indeed already financially encumbered by existing obligations towards his child at the time of his remarriage. However, the context in which he has approached the court needs mention. In bringing
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forth the reality of additional dependants, the applicant is not doing so from the perspective of seeking a downward variation to what he has been paying. According to him, his school-related expenditures on his son are already significantly higher than what he expends on his daughters, since his son is attending a private school. Nonetheless he is prepared to continue with his level of payment. He thus mentions the reality that he has two other children to support, to "defensively" avoid an upward variation as opposed to him raising the issue to "offensively" seek a downward variation.
The change in needs and obligations brought on by a spouse's remarriage amounts to 'good cause' as required by s 9 of the Matrimonial Causes Act. As Reynolds J put it in Chizengeni v Chizengeni 1988 (1) ZLR 286 (H) at 288:
"Where a divorced man with maintenance obligations towards his first family remarries, it is superficial and unrealistic to suggest that the first family must continue to be maintained at the same standard regardless of her former husband's subsequent commitments."
He further elaborated on this at 289
"I believe that the apparently conflicting judicial views on the position of the first wife vis-à-vis a husband's new family are capable of reconciliation. I would suggest with due deference, that the true position is that the obligations owed to the first wife and children are properly regarded as a first charge, but subsequent commitments will possibly reduce the husband's capacity to maintain the first wife to the extent originally decreed. In order to accommodate both needs, the standards of living of all parties may possibly have to be reduced, with the second family playing a subordinate role to the first. In assessing the needs of all concerned, a variety of considerations would obviously have to be examined, and the ultimate decision would be based on an evaluation of all these considerations."
I would venture to add that our new Constitution appears to lend interpretive support in favour of an "equalisation approach" as opposed to a "first family approach" in assessing any child's needs. Non-discrimination in general is the ethos underlying the Constitution. Section 81(1) which deals with the rights of children accords rights equally to every child. Of relevance are paras (d) and (f) of s 81(1) which are couched as follows:
"Every child, that is to say every boy and girl under the age of eighteen years, has the right –
(a) ...
(b) ...
(c) ...
(d) to family or parental care, or to appropriate care when removed from the family environment;
(e) ...
(f) to education, health care services, nutrition and shelter."
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In addition, the child's best interests are paramount when deciding a matter. It is also the duty of the High Court to ensure that all children are adequately protected. (See s 81 subss (2) and (3), in this regard.
This court cannot ign,ore the fact that the applicant's circumstances have changed as he has since remarried. His exercise of his right and freedom to found a new family must be respected and recognised. He has equal obligations to the offspring that have been sired prior to the divorce and after. His own needs must also be taken into account. To permit an upward variation as requested by the respondent oblivious of these changed circumstances and increased obligations inevitably brought on by a new family would, in my view, not serve the best interests of any of the children.
With reference to the second guiding principle which is whether or not he can afford to pay, the applicant's sworn statement is that he is a self-employed man whose move to South Africa is for economic reasons. The respondent's request for US$1 000 per month as being more indicative of the standard of life they had and that is being led by the applicant, has to be examined against the evidence that was placed before the court regarding his earnings.
He states that he sold his house here and moved to South Africa. From December 2012 to about April 2013 he relied on the proceeds from the sale of his house to meet all his obligations. It was from May 2013 that his newly registered company began to generate income. This he put at R65 000 for the month of May 2013 which approximates to US$6 500. He further states in his sworn statement that this has been the average income at least between May and July 2013 as his affidavit was sworn to in August 2013. The amount takes care of all his obligations including contributions towards renting his office space for business. His rentals are R22 000 a month (US$2 200 at current rate), inclusive of home and office rental. He approximates the rest of his expenses to R42 991.42 a month (US$4299 at the current rate). A breakdown of expenses was provided. I had no difficulties with the evidence he placed before the court which I found credible as every effort seemed to have been made to put his financial picture before the court for its consideration.
Due to his higher income earning capacity, he meets most of the minor child's financial needs whilst the respondent has largely played an important custodial role in addition to keeping a job. A custodial role, despite its ceaseless demands, is one that has no monetary value and that is considerably undervalued in terms of its contribution to a child's life. In assessing child support, it is vital as such that the custodial parent who may have a lower income than the noncustodial parent as in this case, does not find herself in
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addition to her demanding role, saddled with extra financial costs that she can ill afford. With already such a demanding role to play, it is significant that the respondent should not be left impoverished by additionally having to subsidise the child's upkeep from her own inadequate resources. It is therefore within this framework that I cast an eye on what is being availed as child support.
The respondent, who is in formal employment, states that she earns $1 500. Albeit formally employed, no firm proof of her earnings was provided in her papers to the court. The itemised monthly expenses by the respondent for the minor child which amount to $1 160 per month exclusive of school fees and medical expenses are grossly exaggerated. A monthly expenditure totalling US$345 on food items alone for a minor child who attends boarding school for almost nine months of the year where meals are provided, is clearly not realistic. The expenditure on fuel amounting to US$320 every month is again inflated. Even factoring the occasional requisite school visits, this figure would amount to the respondent needing at least six full tanks of fuel a month to a school no more than 100 km out of Harare.
Significant in my view is that the US$550 per month represents more than double the value of the figure that was reflected in the consent paper in terms of US dollar value at the time. Put against realistic expenditures this amount is in my view more than adequate as monthly maintenance. Also the figure of US$ 550 is more in line with the lifestyle that they were leading if the value of the original sum is taken into account.
Costs for school trips and other related expenses
The next issue is whether this amount covers or should cover incidentals such as sporting school trips and other related school expenditures which the applicant agreed to pay under the consent paper. A concomitant issue is whether the applicant is liable for example for the US$ 3 300 that the respondent says she has expended on the child's school trips from 2010. The consent paper indeed dealt with these as a separate item from the monthly payments. However, the applicant has indeed been paying a significantly higher value as monthly maintenance compared to the US dollar value at the time of the consent paper. While it is indeed useful and necessary in consent agreements to categorise the items that will be catered for as part of the overall package for child support, ultimately one has to look at the payments as a total economic package. This is more so when items such as sporting equipment or extra-mural activities, that are not expressed in exact monetary terms at the time of the agreement, take on their monetary value depending on the school that the child ultimately attends. In my view, looking at the
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contributions and financial situation of the parties, the monthly payments of US$550 are adequate to cover the costs of these additional expenses, given that the monthly sum is payable even when the minor child is at school. There is no justification for ordering that the applicant pays $3 300 as arrears for this category of costs. The applicant meets most of the minor child's financial needs, but this does not mean that the respondent is totally absolved from contributing anything. It is perhaps in this regard that she too can make some contribution if the monthly payments amounting to US$6 600 a year are inadequate as she claims. Her own estimate is that the amount needed for sporting gear and trips outside the country is about US$1 600 a year. This can be her contribution to his maintenance, given that the applicant's net contribution as his total package of support is US$15 827.50. This is broken down as US$6 600 in monthly payments, $7057.50 as school fees and $2 200 for medical aid.
The clause on tertiary education
Although child support can be terminated on grounds such as majority status or emancipation among others, it is now generally the reality that parents can reasonably expect that their obligations towards their child support obligations will go beyond the children's majority status. Where parties have express agreements in their divorce orders, from our court's point of view such an obligation would at most extend up to the first degree. See Hingeston v Lightfoot 2000 (2) ZLR 247 (S) at 253. In an increasingly competitive world, college education is frequently an indispensable stepping stone. The applicant is not averse to paying subject to his means. His desire is to remove the clause so that he communicates directly with his son at the given time to avoid what he sees as an acidic relationship with the respondent.
In my view, this is not an adequate justification for the removal of the clause. If the child is aware that tertiary education is within the realm of possibilities of support by the applicant as stipulated in the consent paper, the chances are that he is likely to pursue it in the comfort of that knowledge. Whilst it is true that legally the child will be a major and would be able from a legal standpoint to represent his own interest, I agree with Ms Munangati, counsel for respondent, that there is no need to burden the child with unnecessary worries. I do not see how the respondent can be totally out of the picture when the child stays with her and will most likely still do so from time to time when he is at college. Besides, what values would the court be sanctioning were it to permit the removal of the clause primarily so that the parents do not have to talk directly with each other concerning their child? In my opinion, the parties have at least two years to learn to "sheath their swords".
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Success at this would be a far better value to instil than imbuing their son with notions that it is fine for offspring to stand in and act as protective shields against the poor communication skills of their parents. The removal of this clause would in my view send the message that tertiary education is now a combat ground that he will have to traverse on his own. This is not what the applicant intends. The court's dominant concern cannot be about putting in place measures that would relieve the parents from having to have dialogue directly with each other. It is always about what works best in the interests of the child. The clause will therefore remain as is in the consent paper.
Contribution towards the respondent's medical expenses
Turning to the issue of the applicant's contribution towards the respondent's medical aid, the argument by counsel for the applicant, Mr Stewart that the respondent acquiesced to the current arrangement where she has been paying for her own medical aid is highly unlikely. Given that their relationship appears to have been anything but cordial over the years, an agreement is less likely to have been reached. More significantly however, is that there are generally two factors that courts take into account in deciding on spousal support. These are the inability of the spouse to support herself, and secondly, whether the other party is reasonably able to provide support. Such inability must be due to factors such as age, and physical or mental incapacity. She was 28 when they divorced in 1999. She admits that she has always worked. She has been paying for her own medical aid since the applicant ceased to do so. The applicant has since remarried and has taken on added responsibilities. As has also been highlighted, he bears virtually all the financial responsibilities for the child's upkeep. Therefore, while the respondent says that she has suffered in the past from breast cancer and therefore has added medical bills, cognisance must be had to the fact that a very significant portion, if not all, of the minor child's financial upkeep is met by the applicant.
Furthermore, spousal support for life is not the norm in our case or elsewhere in the world for that matter. It has been highlighted in various cases in our courts that the expectation of a former spouse cannot be that of a bread ticket for life. See, for example, Rabvukwa v Rabvukwa 2004 (1) ZLR 530 (H); Chiomba v Chiomba 1992 (2) ZLR 197 (S). The length of the marriage is a determining factor regarding the length of support for a former spouse. In Chiomba supra at 199B the court cited with approval the following excerpt from Hahlo South African Law of Husband and Wife 5 ed at 363-4 regarding spousal maintenance:
"... Today, the courts are no longer prepared to award maintenance to a young woman who has been working before marriage, and can be expected to work again after divorce, at least if there are no young children of the marriage. At
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most, if she has given up her job, she will be given a few months' maintenance to tide her over until she finds a new one. Middle aged women who have for years devoted themselves full time to the management of the household and care of children of the marriage, are awarded 'rehabilitative maintenance' for a period sufficient to enable them to be trained or retrained for a job or profession. 'Permanent maintenance' is reserved for the elderly wife who has been married to her husband for a long time and is too old to earn her own living and is unlikely to marry" (my emphasis).
An order for spousal support should not be punitive in its quest. Orders for spousal support are essentially either rehabilitative, or compensatory as in the case of more lengthy marriages. The respondent enjoyed the benefit of the applicant's medical aid benefit until sometime in 2003, which was more than an adequate time span to adjust to her new reality of no longer being his spouse. It could not reasonably have been expected, given the factual realities which include the short duration of their marriage, that he would continue to shoulder the burden of her medical aid even after he had left the employer and even after he had remarried. The amount of US$5 781 that the respondent seeks to reclaim from the applicant for her subscriptions is not justified and is denied.
The child's medical aid shortfalls
There was no evidence placed before the court as to the extent of the nature of the shortfalls which she expects the applicant to meet on behalf of the child. Shortfalls can be very basic or if they involve a major procedure, they can be substantial. Since the child's medical aid is paid for by the applicant, I assume that he receives any necessary statements pertaining to the account and would be better placed to reconcile any shortfalls should the need arise. At the same time, I appreciate that it would also be highly inconvenient for him to address each and every expenditure on medicines. As such, it seems logical to me that only shortfalls above $100 are to be sent to the applicant. Those below that can easily be met from the monthly payment for maintenance as they are unlikely to be a monthly occurrence.
In the result, it is ordered as follows:
1. The applicant shall pay all school fees at [the private school] incurred in respect of the minor child A.
2. The applicant shall pay all contributions to maintain the minor child on his existing medical aid scheme and all shortfalls that are above $100 at any given time.
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3. The applicant shall pay to the respondent as maintenance for the child, an amount of US$550 per month until the child completes his secondary education or becomes self-supporting whichever occurs later.
4. The applicant shall cease to make any contributions towards the respondent's medical aid scheme or insurance, the effective date being from 2003 and henceforth.
5. The applicant shall have access to the minor child at his expense in South Africa every alternate school holiday and every alternate Christian Holiday and shall be entitled to have the child with him in South Africa.
6. The consent paper entered into between the applicant (as defendant) and the respondent (as plaintiff) in case HC 14110/99 be and is hereby amended by the inclusion of paragraphs 1-5 of this order and to the extent that anything in this order is contrary to the terms of the said consent paper, the terms of this order shall prevail.
Each party to pay their own costs.
Wintertons, applicant's legal practitioners
Munangati & Associates, respondent's legal practitioners {/mprestriction}