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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: NO/YES

(2)    OF INTEREST TO OTHER JUDGES: NO/YES

(3)     REVISED.

CASE NO: 77535/18

HOD: 7 AUGUST 2019

20/8/2019

 

In the matter of:

 

D[….] B[….]                                                                                                  APPLICANT

(ID NUMBER: [….]

 

and

 

V[….] B[….]

(ID NUMBER: [….])                                                                                     RESPONDENT

JUDGMENT

Bam AJ

1.         On 23 October 2018, the applicant launched an urgent rule 43 application wherein she sought, inter alia, interim maintenance for herself in the amount of R20 080 and contribution towards legal costs in the amount of R15 000. The latter amount was to be paid by way of 5 monthly installments of R3 000. Subsequent thereto and on 6 November 2018, the parties agreed and the agreement was made an order of court. In terms of the order, the respondent pays maintenance pendent lite, in the amount of R9 500. The first amount of R8 500, payable pro rata, had to be paid on the last court day of the month in which the applicant vacated the marital home. Thereafter, the same amount had to be paid on or before the last day of each consecutive month. The amount of R1 000 is payable on or before the last court day of each consecutive month and the first payment had to be made on or before the last court day in November 2018, bringing the total amount payable monthly by the respondent to R9 500.

2.         The respondent was further ordered to pay the applicant's mobile phone bill and motor vehicle insurance premiums as provided for in the order. Costs were ordered to be costs in the cause.

3.         On 19 May 2019, applicant launched a Rule 43 (6) application, on the grounds that there had been a material change to her circumstances, in which she sought the relief in the following terms; (a) payment of the amount of R21 000 per month for her maintenance, pendente lite; R20 150, being expenses incurred in relocation; and R40 000 contribution towards legal costs. She further asked for costs against the respondent in the event of opposition.

4.         In justifying the orders sought in this application, applicant averred that since moving out of the marital home, it transpired that her expenses were much higher than had originally been anticipated during the time of the rule 43 application. Through her counsel, she submitted that whilst residing in the matrimonial home, the respondent would pay all their monthly expenses through the business. From what I understood from counsel for the applicant, virtually all the couple's monthly expenses were paid through their business. Now that she resides on her own, she does not have the benefit of that assistance.

5.         Her case was made in her papers as follows: Applicant receives a monthly income of R10 000 from her employer, the respondent. She listed her expenses and noted a total of R31 566. After adding the monthly amount the respondent pays in terms of the court order, applicant noted a deficit of R12 065.

6.         Of the expenses listed in her affidavit, four items are new, namely, pet costs, in the amount of R730, legal costs, R5 000, personal loan, R727 and relocation costs of R18 500. The remaining items were part of the initial rule 43 application.

7.         For the purposes of dealing with this application, I disregard irrelevant accusations and counter accusations made by both parties, which in my view, do not assist in resolving the dispute. The purpose of Rule 43 proceedings is to assist the parties with their differences (see in this regard Micklem v Micklem[1]).

8.         The respondent is opposing the application. In his opposing affidavit, he raised a point in limine, namely, that the applicant had failed to fully disclose her financial circumstances. Attaching several annexures to establish that the applicant, contrary to her first rule 43 application wherein she stated that she will no longer receive the additional income of R3 800 (post November 2018) from her employment with a firm of attorneys, he had confirmed, through the assistance of a tracing agency, that she is still employed. He further stated that his own attorney had made calls to the firm of attorneys where the applicant is employed and had confirmed applicant's employment. I have carefully read both annexures in support of this averment and noted that the attorney had called and asked to speak to the applicant. She was advised by the person she spoke to, a receptionist, that the applicant was not in on that day and upon her return the message would be conveyed. As for the trace report, it merely states that the applicant does office work at the relevant firm of attorneys and it notes the date as January 2019. The applicant explained in her replying affidavit that she does temporary work for the firm, as and when the firm requires her to do so. Sometimes she receives R3 700 and at other times, R4 000. Neither the attorneys' affidavit nor the trace report contradicts her averment in that both documents do not deal with her status as a worker.

9.         In the second instance, respondent pointed out that applicant had made no attempt to substantiate any of the figures listed in her affidavit and had failed to attach her bank statements. He suggested that on the basis of the non-disclosure of her full financial position alone, the application falls to be dismissed. Finally, respondent suggested that the applicant receives a contribution from their daughter who lives with the applicant. He charged that the applicant had failed to disclose the contribution from the daughter.

10.       In order to reply to the aforementioned attacks, applicant filed a replying affidavit wherein she conceded that their daughter contributed towards groceries, lights and water, and rentals. Her total contribution amounts to about R6 500 per month. Counsel for the applicant submitted that the daughter has no duty to support her mother. In so far as the income which the applicant draws from the firm of attorneys where she is employed, as the respondent claims, counsel submitted that the applicant has no other employment other than that of the respondent and that the firm of attorneys calls her as and when they need her services. As such, she does not count the income she receives when she does work for the firm as it is temporary in nature.

11.        The respondent then turned to deal with the individual items and attacked almost every item on the list on the basis that nothing was new and that the applicant's single motive in filing the rule 43 (6) application was to appeal the original order, which is not permissible. Counsel emphasized that at the time of concluding the November 2018 agreement, the parties had taken into account that the applicant was to vacate the matrimonial home. She argued that nothing in the applicant's affidavit demonstrated a material change in her circumstances - in the sense of a negative change - and that the applicant is simply abusing the court process. In that regard, respondent implored the court to show its disapproval by visiting the applicant with an appropriate costs order.

12.        Counsel further submitted that she held instructions to seek yet another costs order against the applicant for enrolling the same application in early June 2019 only to withdraw it a couple of days later. If I understood the submissions by counsel properly, it was stated on behalf of the applicant that the application was set down and subsequently withdrawn just a few days later and the respondent would in all likelihood not have incurred any costs at that stage. In fact, counsel suggested that the respondent had provided no evidence to that effect.

13.        Respondent spent energy dealing with the history of the applicant's employment during the couple's early life and how the applicant had handled petty cash funds in the business, all being matters that have nothing to do with the present application.

14.        On the question of accommodation for the applicant, the respondent argued that the applicant requires no more than a two bedroom flat and her choice of a three bedroom unit was extravagant. On this basis, it was submitted that there are units which applicant could have rented for R5 000 as opposed to R8 500. I take the suggestion though as just that, as it is a known fact that comparing any two things on the basis of price, can be misleading. Elements such as the quality of accommodation, security and type of accommodation also matter when it comes to price.

15.        Against the comments regarding accommodation, it was submitted on behalf of the applicant that the respondent remains in the matrimonial home, which property is owned by the applicant. He not only resides there but his parents also do; and, he conducts his business from home. Applicant further submitted that the present market related rental for the home, as she had established, was in the region of R12 000 yet respondent pays R5 500 which all goes towards the mortgage repayments. I diligently enquired from respondent's counsel whether the statements made about the arrangement regarding respondent's accommodation could be taken as a fact and counsel reluctantly submitted, although she did not have direct instructions in this regard, that the current situation regarding respondent's residence was as a result of the parties' agreement.

16.        On the question of legal costs, the respondent noted that if this court were to allow all the legal costs the applicant is asking for, there is a threat that she may stretch out the divorce. He cited that their divorce was simple. There was therefore no outright denial that the applicant is entitled to a contribution towards costs.

17.        In Micklem v Micklem[2], the court cited the applicable principles to these type of proceedings as follows:

(i)        Wealth is an undoubted advantage in litigating, in that a litigant with means can obtain the services of experts which may not be available to someone with a more modest purse. .....

(ii)       ..........

(iii)     Rule 43 (6) prescribes the same procedure in a second or third application as in a first one, and moreover prescribes when more than one application is permissible: 'The court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party or child, or the contribution towards costs proving inadequate.'

(iv)     Rule 43 does not provide for a re-hearing of a former application based on new evidence- Grauman v Grauman 1984 (3) SA 477 (W) @4791-480C.

(v)      The court went on to state that, the court is not to be faced with virtually a review of a previous decision which was based on the facts as they existed at that time, with new information based on current circumstances that attempts to put a different slant on those original facts. After all, this is merely to assist parties in resolving their differences, and if one makes Rule 43 a procedure whereby acrimony Is engendered and further issues are brought forward, which only complicates the divorce instead of simplifying it, Rule 43 misses its point. In my view, Rule 43 (6) should be strictly interpreted to deal with matters which it says has to be dealt with, that is, a material change taking place in the circumstances of either party or child that relates to a change subsequent to the hearing of the original application.'

(vi)     The fact that a husband has unlimited means does not, in our law, entitle his wife to unlimited spending. There is a difference between her wants and her needs. (Grasso v Grasso 1987 (1) SA 48 C at 59 G-H). What she is entitled to, is to maintain the standard of living to which she was accustomed, not to increase that.

(vii)    A wife seeking a contribution towards costs is not entitled to payment in full of the costs she avers will be incurred in presenting her case to the Court, nor all costs incurred to date. In a matter such as the present, this may clash with the paramount consideration that she should be enabled to adequately place her case before the Court (Van Rippen v Van Rippen 1949 (4) SA 634 C 638 -9) in which the question of essential disbursements is a material factor. And what are essential disbursements is adjusted against the background of (a) the depth of his purse, and (b) his own scale of litigation. (Glazer v Glazer 1959 (3) SA 928 (W))

(viii)  The costs of the interim application are excluded from costs to which the respondent is obliged to contribute.

 

Evaluation

17.        The manner in which the case has been put together is not at all satisfactory. Certainly, she could have indicated that the daughter still resides with her and that she plays a role in contributing to the household expenses. I do not fault her for not including the income she may make when she is called up for temporary employment but her failure to attach necessary information such as how she had arrived at the amount claimed for relocation expenses is unexplained. Even in her replying affidavit she still failed to attach evidence of the relocation expenses. I pay no attention to the matters which were presented before the parties agreed to the initial settlement which was made an order of court. I have reflected on the submissions by both parties and have completely disregarded what I believe applicant does not need. I have exercised my discretion which, naturally, is not premised on any scientific methodology. In coming to the conclusion, I have taken note of the financial statements annexed by respondent in support of his averments. I do note, however, that the respondent, just as the applicant had done, had failed to attach his personal bank statements. This is despite conceding that his salary is much lower than that earned by the applicant from the business. This concession can only support applicant's case that the respondent pays virtually all his expenses through the business, hence the size of his salary is of no moment.

 

Conclusion

18.        In order to do justice, I conclude that the respondent must be called upon to make a contribution to the applicant's legal costs to enable her to adequately place her case before the court. The following then is the order:

 

Order:

19.        (i)         The application by the applicant partially succeeds.

(iii)     The order made by this court on 6 November 2018 is varied only in one respect in that, in addition to the order as it stands, respondent is to pay a contribution towards applicant's legal costs in the amount of R5 000 per month pendente lite. The first installment is to be paid on or before 1 September 2019.

(ii)      The costs of this application will stand over for determination in the final divorce action.

 

 

 

N N BAM

ACTING JUDGE OF THE HIGH COURT,

PRETORIA

 

 

DATE OF HEARING:                                  7 August 2019

DATE OF JUDGMENT:                             20 August 2019

 

 

APPEARANCES

APPICANT'S ATTORNEYS            : ML SCHOEMAN

CIRRUS ECO PARK,

ESCALLONIA, MONTANA PARK,

PRETORIA

 

RESPONDENT'S ATTORNEYS                 : F VANWYK INC.

105 CLUC AVENUE

WATERKLOOF HEIGHTS

PRETORIA

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