---

TM

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 15/02/2008

CASE NO: 52917/07

UNREPORTABLE

In the matter between

CHRISTELLE POWELL APPLICANT

And

PETER GARTH POWELL RESPONDENT

JUDGMENT

MSIMEKI, J

[1] The applicant, Christelle Powell, brought this rule 43 application seeking relief on a number of issues inter alia, parental responsibilities and rights of the minor children D and L as well as her maintenance and that of the two minor children.

[2] Submissions were made by Mr. Smith and Ms Haupt acting on behalf of the respondent and the applicant respectively. The submissions dealt with the ability and capability of each party to look after the two minor children. I was referred to the reports of Herman (CA) Bondenstein, the Educational psychologist, Dr Des Rossouw, the psychiatrist and Professor H. Naude, the psychologist. This was done to help me determine the party that should be with the two minor children.

[3] The employment of experts in the determination of the rightful party clearly demonstrates the sensitivity with which the matter should be handled. This is because the interests of the minor children play a very important role.

[4] It has, during the proceedings, become apparent that the parties were married and divorced. They remarried and are again divorcing. Pendente lite, the two minor children must find a home. Having regard to the interest of the two minor children, arriving at a just decision becomes a little arduous.

[5] From some time last year D has been living with the respondent while L has been living with the applicant. Not exactly knowing what the current position is with regard to the two minor children and their respective parents, it will be prudent, in my view, at least for now, not to disturb such position by maintaining the status quo until the Family Advocate’s report is produced.

[6] I have decided to involve the Family Advocate who must provide the court with a report which, I believe, will assist the court in solving the parties’ disputes.

[7] I hope that the interim order that I am going to make will go a long way towards assisting the parties.

[8] In the result, pendente lite I make the following order:

1. The parental responsibilities and rights with regard to D are awarded to the respondent with primary care and residence remaining with the respondent subject to the applicant’s contact rights hereinafter set out.

2. The parental responsibilities and rights with regard to the minor daughter, L are awarded to the applicant with primary care and residence remaining with the applicant subject to the respondent’s contact rights hereinafter set out.

3. The parties contact rights to the minor children shall be the following:

3.1 D shall visit the applicant on Wednesday afternoons from after school until 17H00 when the respondent shall collect him.

3.2 The parties shall have the children with them every alternative weekend from Friday at 17H00 until the commencement of school/crèche on Monday morning. The weekends shall be arranged in such a way that both children spend their weekends together with the parties.

3.3 The parties shall have reasonable telephonic contact with the children.

3.4 The parties shall have the minor children every alternative short school holidays and one half of each of the long school holidays. The December school holidays shall be divided in such a fashion as to ensure that the children spend alternate Christmas and new year with alternate parents. The minor children shall spend such holidays together.

4. The dispute with regard to the parental responsibilities and rights of the minor children and the parties’ contact rights to them is referred to the Family Advocate’s office, Pretoria, for investigation and the bringing out of a report. The investigation and the report which will pay special attention to the interests of the minor children, shall be concluded as a matter of extreme urgency.

5. The Family Advocate as a matter of extreme urgency is requested to appoint a psychologist who will evaluate the parties and the minor children and bring out a report on his or her findings. The respondent shall pay the account of the psychologist who is also requested by the court to urgently bring out the said report.

6. The respondent shall in respect of the children be responsible for the following expenses:

6.1 D’s school fees, school clothes and extramural activities and all necessary equipment in respect thereof and school excursions;

6.2 To pay L’s play school fees, extramural activities in which she may participate and school excursions;

6.3 Pay for garden services utilised by the applicant and L to a maximum of R400.00 per month;

6.4 Pay for maid services utilised by the applicant and L to a maximum of R1.300.00 per month;

6.4 Pay for L’s reasonable clothing expenses;

6.5 Pay the DSTV subscription utilised by the applicant and L.

7. As contribution to the maintenance requirements of the applicant and L the respondent shall:

7.1 While the applicant occupies the common home at 19 Toupand Road, Brits, be liable to pay all expenses in connection therewith which shall include the bond repayments, water and lights, reasonable maintenance and the security/alarm system currently utilised at the property;

7.2 In the event of the applicant no longer occupying the common home, pay all reasonable accommodation expenses for the applicant and L which shall consist of reasonable monthly rental, water and lights and security;

7.3 Allow the applicant to retain possession of the Hyundai Getz motor vehicle and pay the monthly premium thereon as well as the short term insurance in respect thereof and maintain same;

7.4 Pay to the applicant her monthly nett salary of R8, 801.25.

8. The respondent shall register the applicant and the minor children as beneficiaries on a medical aid and pay all reasonable medical expenses including any shortfall not covered by the medical aid.

9. The respondent shall make a contribution to the applicant’s legal costs in the amount of R3.500.00 payable on or before the end of February 2008.

10. The costs of the application shall be costs in the main divorce action and the provisions of Rule 43(7) and (8) shall not apply.

M. W. MSIMEKI

JUDGE OF THE HIGH COURT

Heard on: 11 February 2008

For the applicant: Adv L. C. Haupt

Instructed by: Weavind and Weavind Attorneys

For the respondent: Adv D. A. Smith (SC)

Instructed by Dreyer and Dreyer Attorneys

---