Case No:
(2849/09)
Media Neutral Citation:
[2010] SZHC103
Judgment Date:
8 July 2010
IN THE HIGH COURT OF SWAZILAND
HELD AT MBABANE CASE NO. 2849/09
In the matter between:
DUMAPHI PATIENCE DLAMINI
(BORN NXUMALO) APPLICANT
v
MOSES NHLANHLA DLAMINI RESPONDENT
CORAM : Q.M. MABUZA –J
FOR THE APPLICANT : MR. M.S. DLAMINI OF MTHEMBU
ATTORNEYS
FOR THE RESPONDENT : MR. N.G. DLAMINI OF C.Z.
DLAMINI & ASSOCIATES
JUDGMENT 8/7/2010
[1] The Applicant Dumaphi Patience Dlamini (born Nxumalo) is married to the Respondent Moses Nhlanhla Dlamini according to Swazi Law and Custom. The couple have one child Nkosephayo Dlamini who was born on the 13 July, 2009.
[2] At the time the child was born the Applicant was living at her parental home having been chased away by the Respondent from their marital home during February 2009.
[3] In this application the Applicant seeks maintenance from the Respondent in the sum of E3000.00 (Three thousand Emalangeni) per month for the child and herself in the sum of E2000.00 (Two thousand Emalangeni) per month. Such moneys to be paid at the attorneys of the Applicant.
[4] The Respondent opposes this application. He however offered an amount of E500.00 in respect of maintenance of the minor child and nothing in respect of his wife. At the time the application was launched the Applicant was unemployed. She is now employed but earns very little. She is a trainee employee at Uniglobe Seylan Travel and Tours (Pty) Ltd and earns E1500.00 (One thousand five hundred Emalangeni) per month.
[5] The Applicant has set out the expenses of the child and herself as follows:
The Child – Nkosephayo
Items Per month
Food i.e. milk, juices, yoghurts etc. E800.00
Clothing E400.00
Napkins (disposable nappies) E600.00
Maid E650.00
Medical/hospital expenses E550.00
Total E3,000.00
Applicant
Items Per month
Food E500.00
Clothing E450.00
Toiletry E300.00
Medical expenses E350.00
Telephone expenses E150.00
Miscellaneous (including transport) E250.00
Total E2,000.00
[6] On the other hand the Respondent earns a gross amount of E17,935.17 per month (Seventeen thousand nine hundred and thirty five Emalangeni seventeen cents) and a nett amount of E6,054.08 (Six thousand and fifty four Emalangeni eight cents. He has stated that from the amount after deducting E139.00 tax rebate and the Nedbank stop order of E792.65 he has to maintain himself, six children from his first two wives. These two wives are deceased. He also supports two of his brother’s children whose parents are both deceased.
[7] The Applicant denies that some of the children named in paragraph 6 hereof are maintained by the Respondent. This denial obviously raises issues of disputes of fact; which due to the matter having been brought on an urgent basis cannot be resolved on these papers.
[8] The is substance in the Applicants submission that in the Respondent’s salary advice (Annexure “R1”) there are items that can either be removed or reduced to enable the Respondent to carry out his priority obligations that of support for her and their child: for example item “0143 micro provident swaz E3265.00” and item “0120 Hlalawati savings E4407.30”. The Respondent already pays E1165.79 in respect of pension; moneys from the two aforementioned items can be deployed for maintenance of the Applicant and child.
[9] The Applicant filed an affidavit in proof of earnings wherein she states that since October 2009 she is a trainee employee at Uniglobe Seylan Travel and Tours (Pty) Ltd. She currently resides at Mbabane in a relative’s house since she cannot afford her own accommodation. She spends an amount of E17.00 to and from Mbabane to her workplace at Ezulwini.
[10] When she moved this application the Applicant was unemployed. Now she is employed and that means that a sum of E1000.00 falls away from the amount of E2000.00 she has claimed for herself leaving a balance of E500.00. The child is no longer using diapers so that item falls away. The Respondent has medical aid on which both the child and his wife should be. I will allow these items for now until he registers both of them on his medical aid scheme; once he does that this item should also fall away.
[11] I must add that the Respondent is obliged by law to support his wife as they are married according to Swazi law and custom; and to divorce in terms of that regime is very difficult. She is his responsibility. He cannot just put her away and pretend that she does not exist. I shall allow the following items:
For the child
800.00 food
400.00 clothing
650.00 maid
550.00 medical/hospital expenses
2400.00
For the applicant
500.00 food
350.00 medical expenses
850.00
[12] This brings the new total to E3250.00. As mentioned earlier that the item for medical expenses which amounts to E900.00 for both mother and child should fall away as soon as he registers them on his medical aid scheme. The amount thereafter would be further reduced to E2350.00. The Respondent offered the amount of E500.00 as maintenance; but this amount is too little. I therefore suggest that the Respondent terminate or reduce the Hlalawati savings of E4407.00 and use a portion of the money to pay maintenance or even cancel the micro provident swaz scheme in order to support his wife and child.
[13] In the event I order as follows:
(a) The Respondent is ordered to pay to the Applicant the sum of E3250.00 per month in respect of maintenance for Applicant and the minor child.
(b) The said amount to be paid to the Applicants attorneys on or before the last day of each month beginning at the end of July 2010.
(c) The Respondent is ordered to pay the costs of the application.
Q.M. MABUZA
JUDGE OF THE HIGH COURT OF SWAZILAND