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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG  LOCAL DIVISION, JOHANNESBURG

CASE NO: 16158/16

In the matter between:

GB                                                                                                                     APPLICANT

AND

DS                                                                                                                  RESPONDENT

 

JUDGMENT

KEIGHTLEY, J

1. This is an application for relief under Rule 43.  In fact, I am faced with two Rule 43 applications by the applicant, Mr B, against his husband, Mr S.  The first was instituted in October 2017.  In that application, Mr B claimed maintenance pendite lite in the amount of R45 000 per month, and a contribution towards his legal costs in the amount of R50 000.  The second Rule 43 application was instituted in June 2018.  Mr B persisted with his claim for maintenance in the amount of R45 000 per month.  He increased his claim for a contribution to his legal costs to R1,89 million.  The second Rule 43 application was supported by a bill of estimated costs drawn up by a costs consultant on behalf of Mr B.  No estimated bill of costs was provided in the first Rule 43 application.

2. At the time the matter came before me the parties were agreed that at the trial date, set for 28 August 2018, the matter would proceed only on a separated constitutional issue raised by Mr B, viz. the issue of whether s9 of the Divorce Act 70 of 1979, which provides for an order of forfeiture of benefits, is unconstitutional.  This resulted in a reduction of Mr B’s claim for a contribution towards costs.  He now claims some R246 000.  In addition, he claims he requires an amount of R144 856 to cover the costs of a financial expert.

3. Mr S disputes Mr B’s entitlement to maintenance pendite lite, and his entitlement to a contribution towards his legal costs.

4. As far as the personal circumstances of the parties are concerned, they were married in community of property in February 2011.  Mr S instituted divorce proceedings in May 2016. Although there is some dispute about the circumstances, it seems clear that Mr B left the common home in June 2016 and took up residence elsewhere.  He also agreed to an eviction order in October 2016, after there was an attempt by him to return to the common home. It is common cause that the common home falls into the category of being a luxury residence in an upmarket Johannesburg suburb.  It is registered in the name of Mr S, and he continues to live there.

5. Mr B lives in what he describes as a “garden cottage”.  It has two bedrooms, and a small kitchen and lounge.  The garden is approximately 60 square metres.  Mr B complains that his current living circumstances are far more “downmarket” than those Mr S continues to enjoy; the garden is too small for the two dogs that moved out with him; and that he needs to upgrade his accommodation.  This alleged need forms part of his claim for interim maintenance.

6. Both Mr S and Mr B are in stable employment, having worked for their respective employers for a number of years.  By general South African standards, both are upper echelon earners, although Mr S’s earnings far exceed those of Mr B:  Mr S’s monthly income (taking into account bonus payments and share dividends arising from his employment) is in the region of R185 000 net per month, while Mr B’s falls within the region of between R63 000 to R78 000 net per month.[1]

7. It is common cause that when Mr B left the common home he moved in with one Mr DWC.  Mr S claims that this was a romantic relationship.  Mr B does not dispute this, but says that the relationship has since terminated.  I will refer to Mr DWC again later, as there is one aspect of the relationship that is relevant to the present dispute.

8. A further aspect that should be recorded before dealing with the claims is the fact that Mr B has not claimed maintenance from Mr S in the main divorce action.  Although he indicates that he intends to amend the relief he claims in the divorce proceedings to include a claim for maintenance, he has not yet done so.  It is also important to note that a period of at least a year elapsed between the time that the parties separated (at the latest in October 2016) and the institution of the first rule 43 application.  The relevance of this fact will become apparent later.

9. I deal first with Mr B’s claim for interim maintenance.  This claim must be evaluated against the purpose of Rule 43.  That purpose has been stated as follows:

“Primarily Rule 43 was envisaged to provide temporary assistance for women, who had given up their careers or potential careers for the sake of matrimony with or without maternity, until such time as at a trial and after hearing evidence maintenance claims … could be properly determined.  It was not created to give an interim meal-ticket to women who clearly at the trial would not be able to establish a right to maintenance.  The grey area between the two extremes causes problems.”[2]

10. Of course, this principle cannot be applied without taking into account that the law of marriage has undergone profound changes since the time that it was laid down.  Most notably, same sex partners are now free to marry, and the relevant legal principles must be adapted to apply to same sex couples.  It seems to me that the kernel of the principle laid down in the above dictum, which may be applied to marriages regardless of whether they are between husband and wife, or between husband and husband, or between wife and wife, is that the Rule is designed to provide interim cover to the spouse who has been financially dependent on the other spouse, because of their particular marital circumstances, and who thus has a genuine need for such support to continue until the matter is finally dealt with on divorce.

11. This being the case, a claim for interim maintenance would normally be accompanied by a claim for maintenance on divorce.  In the absence of such a claim, the implication is that the critical requirement of financial dependency on the other spouse, which underpins the application for interim maintenance, is missing.  In these circumstances, and unless further facts are placed before the court to explain the discrepancy, it seems to me that a claim for interim maintenance would not be well-founded.

12. My view is supported by the decision in MCE v JE[3], a decision of the North Gauteng High Court.  In that case, Makgoka J refused a claim for interim maintenance under Rule 43 on the basis that the applicant had not shown that she would be entitled to a claim for maintenance on divorce.  The learned Judge took into account the fact that the applicant was working, she was young, and that there were no minor children born of the marriage.  The court concluded that this was fatal to her claim under Rule 43:

“(The applicant) has not alleged any of the jurisdictional facts upon which maintenance, post divorce, could be granted in her favour, in any event, having regard to those jurisdictional facts I am convinced that no court would award rehabilitative maintenance for the applicant.”[4]

13. Mr B does not explain why he has failed to date to claim personal maintenance on divorce.  His stated intention to amend his pleadings to include such a claim have so far come to naught.  Mr B does not place facts before the court to show that he was financially dependent on Mr S during the course of the marriage, and that he will have a claim to maintenance on divorce.  Thus, in my view, Mr B has failed to establish that his claim for interim maintenance meets the basic requirements of Rule 43 in this important respect. His claim for interim maintenance falls to be dismissed on this basis alone.

14. Even if I am wrong in this regard, I am not satisfied that Mr B has established that he has a genuine need for maintenance.  He may want to live in more upmarket accommodation, but this does not amount to a need to do so.  He has lived in his current accommodation for a substantial period of time already.  In fact, he lived there (or in similar accommodation) without complaint from the time he left the common home until now.  He did not immediately institute Rule 43 proceedings, but waited for a period of at least a year before he did so.  The implication must be that his present accommodation is adequate for his needs.

15. In addition, Mr B earns a more than adequate salary.  He came into the marriage being the owner of 3 immovable properties that he rented out, and sold these for a profit during the course of the marriage.  Mr B is not someone without financial resources: he is gainfully and securely employed, and he is relatively young.  He has every expectation that he will continue in his employment for the foreseeable future.  This is not the profile of a spouse who is in need of either interim maintenance, or maintenance on divorce.

16. Mr B attempted to make out a case that his monthly income was inadequate to cover his monthly financial needs.  He provided a list of expenses in his initial Rule 43 application, but did not update these in his second Rule 43 application.  Mr S was able to show, from an analysis of Mr B’s bank statements, what his actual (as opposed to claimed) expenses were.  These were considerable lower than what Mr B claimed.  He claimed expenses (excluding debt repayments) of R53 000 per month, whereas the actual expenses indicated in his bank statements were R39 000 per month.  In addition, Mr B claimed that he was required to make debt repayments in the region of R41 000 per month.  However, Mr S showed, again with reference to Mr B’s bank statements, that Mr B has not made any debt repayments since December 2017 (save for one very minor amount).  Mr B did not explain why he stopped making debt repayments (save for a general claim to being in an increasingly worsening financial situation), nor what he has done with the balance of his income that would otherwise have gone to servicing his debt.

17. It is also significant, in my view, that Mr B’s own accountant disclosed (in one of two analyses of his bank statements provided by her in December 2017) that Mr B had undertaken to pay medical expenses for Mr DWC in the amount of R176 000 after the separation and commencement of divorce proceedings.  In her second analysis of the same date, Mr B’s accountant no longer included reference to this loan, but instead listed more or less the same amount against the description “personal”.  Mr B owed no duty of support to Mr DWC, yet he elected to pay this substantial sum of money for expenses incurred by him.  It is also significant that Mr B did not deal with this matter in his affidavits.  Indeed, the second bank statement analysis implies an attempt to obfuscate the nature of the payment.  It was only when Mr S’s legal representatives applied their minds to the documents discovered that this payment was brought to light.  This is not conduct consistent with a spouse who is playing open cards with the court in making a bona fide claim for maintenance.  If Mr B had the resources to make the gratuitous offer to pay Mr DWC’s medical expenses, it can hardly be said that he has established a need for interim maintenance.

18. For these reasons, I find that Mr S has failed to establish that he is entitled to interim maintenance under Rule 43.

0cm; line-height: 150%">19. I turn now to his claim for a contribution to his costs.

20. As I indicated, his original claim in the second Rule 43 application was for R1, 89 million.  He provided an estimated bill of costs supporting the amount claimed.  It is perhaps no surprise that this followed a disclosure by Mr S in ancillary proceedings that he (Mr S) had paid legal costs of R1,8 million.  Mr B asserts that he is entitled to litigate on this same scale.  Be that as it may, the original claim has now been reduced, as I noted earlier.

21. Is Mr B entitled to a contribution to his costs, and if so, in what amount?

22. The claim for a contribution towards costs is one sui generis deriving originally from Roman Dutch law.  It is based on the duty of support owed by spouses to each other.[5]  The spouse claiming a contribution towards costs is required to show that he or she has inadequate means of his or her own to fund the litigation.[6]

23. Whether or not an applicant is entitled to a contribution towards costs, and if so in what amount, is a matter for the discretion of the court.[7]  The paramount consideration is that the party claiming a contribution should be enabled adequately to place his or her case before the court.[8]  This remains the essence of the claim even though a court may more liberally assess the requirements of a spouse married in community of property as opposed to one married out of community.[9]  The object is not to release the whole half of the joint estate to the applicant, nor is it to require the respondent to make over to the applicant’s legal advisers the sum they would be entitled to receive if the applicant were ultimately to be successful, as this may be to the prejudice of the respondent spouse should the applicant not achieve that success.[10]  This means that an applicant is not entitled to all their costs even if the respondent can afford to pay them.[11]  Attorneys are expected to bear some risk with regard to their fees,[12] although attorney’s fees may be included.[13]

24. The quantum of the contribution will depend on the financial position of the parties, the issues involved in the pending litigation, the scale on which the respondent spouse is litigating, and the disbursements essential to the applicant’s case.  The court must factor into its discretion the constitutional injunction to guarantee the right to equality before the law and the equal protection of the law.[14]

25. Mr B states in his second Rule 43 application that his financial circumstances have changed for the worse (he does not provide details of these circumstances) and if he does not receive a substantial contribution towards his costs he will not be able to prepare for the imminent trial.  He avers that he requires a comprehensive contribution in order to ensure that he has a fair trial, on equal footing with Mr S.  He therefore requests to be granted equal access to the funds and assets of the joint estate for purposes pf his legal costs.  He seeks an order that Mr S pay the full amount of what his costs consultant estimates to be the reasonable costs of the constitutional application which has been separated by agreement between the parties.

26. On his own version, as at January 2018, his legal costs amounted to R422 571, of which an amount of R30 000 was outstanding.  This implies that he had the resources to pay legal costs in the amount of approximately R390 000.  I have already discussed the fact that Mr B earns a substantial net income per month.  He is not in the position of many of the spouses who have successfully applied for contributions towards costs.  In most cases, those applicants were in possession of few assets and were not earning at all, or earning little, and dependent on their spouses for support.  In addition, Mr B has failed to disclose his income since July 2017.  Mr S attached to his Rule 43 reply an analysis of the actual deposits into Mr B’s bank accounts for the period October 2017 to May 2018.  The total of these deposits (including, in addition to his salary, cash deposits and other forms of income) amounted to just over R1 million.  These being Rule 43 proceedings, Mr B did not have the opportunity to respond.  However, it is significant that Mr B did not make full disclosure in the first place.  In fact, he did not even update his salary and work-related income in his second Rule 43 application, let alone make any effort to disclose what other income he may have received.  This was left to Mr S to do, after analyzing Mr B’s bank statements.  This is the same pattern of conduct as his failure to disclose that he had undertaken to pay Mr DWC’s medical expenses, at substantial cost to the joint estate.  In the same vein, Mr B did not update his expenses in his second Rule 43 application, nor did he update his debt status (which essentially also affects the status of the joint estate), nor did he give any indication of what he had spent his income on since July 2017.

27. In these circumstances, I am not satisfied that Mr B has shown the need for a contribution towards his legal costs for the upcoming separated issue.  Even taking into account the principle of equality before the law, Mr B is not excused from making full disclosure of his own contributions to, and disbursement’s from, the joint account.  The constitutional right to equal protection of the law does not absolve a spouse in the position of Mr B, who is gainfully employed in a well-remunerated job, from making full disclosure to the court to establish his need for a contribution towards his costs.

28. It is so that Mr S earns substantially more than Mr B.  However, that does not mean that Mr B is automatically entitled to a contribution from Mr S.  The fact that the parties are married in community of property does not give Mr B automatic access to that portion of the estate currently under Mr S’s control to fund his litigation.  As I have already indicated, our courts have recognised that in circumstances where one party claims forfeiture of benefits (as Mr S has done here) it must be kept in mind that a contribution towards costs from the joint estate at this stage may well result in prejudice to the other spouse should the applicant not succeed in defending Mr S’s claim for forfeiture.  In other words, the court cannot work on the assumption that the applicant spouse will ultimately be successful.  It is for this reason too that an applicant in the position of Mr B must make a substantive motivation, based on full disclosure, for his need for a contribution towards his costs.  As I have indicated, I am not satisfied he has done so.

29. There are two further aspect to consider: the one is that Mr B has instituted a separate counter-application in which he seeks an order under s15(2) for access to certain accounts under Mr S’s control to pay his legal costs.  He did not disclose this in his Rule 43 application.  In fact, in his counter-application, he stated under oath that he was not seeking a contribution towards costs under Rule 43.  This is further evidence of Mr B not playing open cards with either this court, or the court faced with his counter-application.  In light of that application, there is even less case for a contribution towards his costs under Rule 43.

0cm; line-height: 150%">30. The other aspect is that the application before me concerns only Mr B’s costs for the separated issue.  That issue will be by way of application.  Although the legal issues (viz. whether section 9 of the Divorce Act is unconstitutional) might be complex, it is likely to be far less costly than the full trial that was envisaged when the Rule 43 applications were launched.  The parties were agreed that the application would entail a few days preparation, and a day of argument in court.  In my view, there should be no reason why Mr B should not be able to cover the costs of the necessary disbursement’s attendant on the application from his current available resources.  For this reason, too, I find his application should not succeed.

31. Mr S contended for a punitive costs order in light of Mr S’s conduct in not making full disclosure to the court and on the basis of alleged misstatements by him.  I am not inclined to grant such an order.  In my view, the usual order as to costs should be made in this case.

32. I make the following order:

1. The applications are dismissed.

2. The costs of the applications shall be costs in the cause.

 

 

_________________________

RM KEIGHTLEY

JUDGE OF THE HIGH COURT,

GAUTENG LOCAL DIVISION

DATE OF HEARING: 31 JULY 2018

DATE OF JUDGMENT: 16 AUGUST 2018

  

APPEARANCES

APPLICANT’S COUNSEL         : I MOUTON

INSTRUCTED BY                       : MICHAEL KRAWITZ

RESPONDENT’S COUNSEL   : B FOURIE  SC

INSTRUCTED BY                       : INC VERMEULEN ATTORNEYS

 

[1] There was much dispute about Mr B’s income.  This was not helped by the fact that Mr B himself was silent on his income between October 2017 (when the first rule 43 application was instituted) and June 2018 (when the second rule 43 application was instituted).  His basic net salary is in the region of R63 000 per month, but he receives other income, too, including bonuses, tax rebates etc.  There was some dispute about an amount of R350 000 recorded as additional income in an analysis drawn up by Mr B’s accountant.  For present purposes, I have not included this figure in estimating Mr B’s monthly income.  However, it is important to note that there can be no dispute that Mr B’s income is not limited to his monthly net salary.

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