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[2020] ZAWCHC 83
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A.L.G v L.L.G (9207/2020) [2020] ZAWCHC 83 (25 August 2020)
Republic of South
Africa
IN THE HIGH COURT OF
SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
Case number: 9207/2020
Before: The Hon. Mr
Justice Binns-Ward
Hearing:
19 August 2020
Judgment: 25 August
2020
In
the matter between:
ALG
Applicant
and
LLG
Respondent
JUDGMENT
(Delivered by email to
the parties and release to SAFLII.)
BINNS-WARD J:
[1]
The applicant, who is the defendant in the
principal proceedings in which her husband, the respondent in these
proceedings, has
sued for the dissolution of their marriage by
divorce, claims interim relief
pendente
lite
in terms of rule 43.
[2]
The parties were married in 2000 out of
community property and subject to the accrual system. They have
a daughter, who is
15. They no longer live together. The
applicant and the parties’ daughter live in the erstwhile
common home in
Noordhoek. The respondent rents an apartment in
Doha, where he is based for work purposes. When he is in South
Africa,
he lives with his girlfriend in a rented property at
Stonehaven in Fish Hoek.
[3]
The respondent is a 49-year-old
professional pilot, currently employed by Qatar Airways as a
transport pilot in the position of
‘Captain A330’ (I
infer that the ‘A330’ refers to the type of aircraft that
he is engaged to fly for the
airline.) The applicant is not
employed, and it would seem that this has been the case for most of
the marriage. The
respondent states that the applicant held a
position as sales manager at a suburban branch of a new car sales
enterprise before
the parties moved to Hong Kong when the respondent
took up employment with Cathay Pacific, but I gather from his
reference in another
context to the parties having attended marriage
guidance counselling in Hong Kong as long ago as 2008 that the
applicant’s
employment in that position must have been very
early in the marriage. It is also suggested that the applicant
may have generated
some income at some stage as a qualified
horse-riding trainer. I accept, however, for present purposes
that the respondent
has essentially been the sole breadwinner during
the marriage, and that on an interim basis at least - which is all
that the court
is concerned with at this stage - it would not be
reasonable to expect the applicant to seek employment in order to
sustain herself
or contribute towards the maintenance of the parties’
daughter.
[4]
It is common ground that the parties
maintained a comfortable lifestyle during the marriage. The
property in Noordhoek is
valued at R5,8 million, with an unencumbered
margin of approximately R2 million. It also serves as a
home for the applicant’s
father, who lives rent-free in a
cottage on the property. The parties’ daughter attends a
private school in the southern
suburbs. The applicant and the
daughter are keen horse riders. They currently keep three
horses between them.
One of these horses is said to be worth at
least R650 000. The respondent is the joint owner of a
light acrobatic aircraft
valued at R3 million and drives an
F-type Jaguar that is subject of an instalment sale agreement.
The current market
value of the vehicle is less than the balance
outstanding on the sale agreement, so it is more of a liability than
an asset.
Its significance is that it is a luxury vehicle.
The applicant drives a Ford Ranger. The family regularly
travelled
abroad for leisure purposes, although it must be said that
the cost of these excursions were heavily subsidised by the perks of
the respondent’s employment as an international airline pilot.
[5]
The respondent used to enjoy a generous
tax-free income prior to the effective closure of the airline
industry from March this year
brought about by the international
imposition of strict limitations on travel because of the Covid-19
pandemic. A copy of
the respondent’s payslip for the
month of January 2020 was handed up by the applicant’s counsel
during argument, without
objection. It shows that his total
earnings before deductions in that month was nearly QR103 000
(Qatari Riyal), which
approximated R400 000 at the time.
Most of that amount constituted various allowances, including a
housing allowance
of QR15 000, of which the applicant is able to
apply approximately QR7 000 for general purposes because the
rental on
his Doha apartment is only about QR8 000 per month.
His basic pay was reflected as QR34 532. His total
remuneration
in January 2020 considerably exceeded that paid in
February 2020. It would appear that the difference is mainly
accounted
for by the fact that his January payslip reflected a
‘school fees reimbursement’ in the sum of approximately
QR35 000,
which I infer was an annual once off allowance.
It related to the annual fees paid by the respondent in advance in
respect
of the parties’ daughter’s schooling in 2020.
[6]
The figures in respect of the respondent’s
net pay for June and July 2020 reflect a considerable drop in his
monthly income.
It has come down to an amount of approximately
QR28 000. This is the result of pay cuts imposed by the
airline consequent
upon the financial effects on the airline of the
severe cutback in global air travel. This has also meant that
for the time
being the respondent is also not able to put in flying
hours, for which he was paid an amount of approximately QR5 500
as
part of his January income. The drop in the respondent’s
income has to some extent been ameliorated, insofar as his
South
African liabilities are concerned, by a fall in the exchange rate
value of the South African currency, which is currently
trading in a
range of approximately R4,50 to R4,70 the Qatar Riyal.
[7]
It seems to me that if one takes the
respondent’s July 2020 income as a measure to go by, his
disposable monthly income is
currently approximately QR20 000
(i.e QR28 000 less the QR8 000 that goes for paying the
rental for his Doha apartment).
The applicant has suggested
that the respondent should give up his apartment in Doha as he
currently stranded in South Africa.
I think that the
respondent has effectively rebutted that contention by pointing out
that should he give up his Doha accommodation,
he will forfeit his
QR15 000 per month housing allowance, which, for the reason
explained earlier, would result in the effective
reduction in his
expendable monthly income by QR7 000. It would leave him
with only about QR13 000 per month.
[8]
Much of the relief sought by the applicant
in the current proceedings was already being provided by the
respondent, and its continued
provision pending the finalisation of
the principal proceedings had been tendered. The tender made
earlier in the year has,
however, been pruned significantly because
of the change in the respondent’s circumstances since the
Covid-19 lockdowns.
The main issues in contention that arise
for determination at this stage are (i) the amount that the
respondent should pay
towards the applicant and the parties’
minor child’s monthly living expenses over and above the items
for which the
respondent undertakes direct responsibility and
(ii) the applicant’s claim for a contribution towards her
costs in the
principal proceedings.
[9]
In her notice of motion, the applicant has
claimed the following relief
pendente
lite
:
1.
Payment of R53 600 per month in
respect of her and the daughter's expenses, effective as of 1 July
2020;
2.
Retention as beneficiaries on the
respondent’s current medical aid scheme, and payment of all
medical expenses not covered
by the scheme;
3.
Payment of the daughter’s educational
expenses, including additional tuition and the cost of all extramural
and holiday activities;
4.
The right to the continued use of her card
in respect of the respondent’s Doha credit card account to pay
for her and the
daughter's medical expenses not covered by the
medical aid and to make payment of the school fees and further
educational expenses
in respect of the daughter;
5.
Payment all of the expenses incurred in
respect of the three horses kept by the applicant and the daughter,
including livery costs,
veterinarian and grooming costs, and the
costs of annual membership for the applicant and the daughter of
various equestrian organisations
or societies;
6.
The reasonable costs relating to the
applicant’s and the daughter’s horse riding, including
lessons and shows , the
costs relating to admission fees to
championships and events, equipment, travel and subsistence costs
relating to all championships
and events entered by the applicant and
the daughter;
7.
Payment of the following expenses in
respect of the applicant's residence (at the Noordhoek property) and
related expenditure:
i.
The monthly bond instalments
ii.
Rates and services due to the relevant
municipality
iii.
Electricity costs
iv.
The premiums in respect of the current
comprehensive homeowners’ household contents and all risk
insurance, including any
excess
v.
The cost of telephone landline rental and
calls and fibre internet;
vi.
The premiums in respect of the full bouquet
DSTV - PVR subscription;
vii.
The cost of maintaining the burglar alarm
and security;
viii.
The reasonable costs of repairs and
maintenance to any household equipment or appliances and the
improvements to the property, including
the swimming pool and
irrigation system and any electrical or plumbing work.
8.
Payment of the wages of the domestic
employee three times per week and gardener once per week as well as
the annual bonus payable
to the domestic staff;
9.
Payment of the veterinarian costs in
respect of the family’s pets, including annual vaccinations and
de-fleaing and de-worming
treatment;
10.
Payment of the applicant’s and the
daughter’s gym membership contracts;
11.
Payment of the applicant’s retirement
annuity contribution;
12.
Payment of a monthly allowance of R500 to
the daughter;
13.
Payment of the following costs in respect
of the applicant's motor vehicle
i.
the applicant and the daughter
comprehensive vehicle insurance
ii.
the costs of the tracker, licensing,
maintenance, repairs and servicing, including replacement of tires
and wheel balancing when
necessary and the costs of a higher car when
the vehicle is being serviced or repaired
14.
An annual payment of R120 000 on
1 December each year, effective as of December 2020, without
deduction or set off, as
a contribution towards the costs of annual
holidays for the applicant and the daughter
15.
A contribution towards the applicant’s
legal costs in the amount of R650 000;
16.
The costs of the rule 43 application,
including the costs of senior counsel.
[10]
The relief described in subparagraph 4 of
the preceding paragraph is nothing more than a mode of performance of
that sought as described
in subparagraph 3. The respondent has
tendered the relief sought in subparagraphs 2, 3, 7, 11, 12 and 13,
either substantially
or in full. He tenders R2 000 per
month in respect of actually incurred electricity costs, and to pay
the wages of the
indoor domestic worker once a week and the gardener
once a month. He also tenders to arrange and pay for the costs
of maintenance
and repairs to the former common home and its
accoutrements upon being informed of what might need to be done in
those respects.
The respondent tenders payment of monthly
living expenses for the applicant and their daughter in the sum of
R13 000 per month
and has openly offered an amount of R25 000
in respect of a contribution towards costs.
[11]
The tender that the respondent has made
will permit the applicant and the parties’ daughter to continue
living at the family
home on substantially the same basis they did
during the marriage. I think it would be reasonable for the
domestic staff
to remain engaged as they were before, that is three
times a week for indoor domestic worker and once a week for the
gardener.
I also consider that it would be reasonable for the
respondent to continue paying the DSTV subscription, provided that
the applicant
provides him in writing with the account details which
were previously requested for this purpose, but allegedly not
provided.
[12]
It is clear, however, that the change in
the respondent’s employment situation necessitates a
substantial degree of belt tightening
for the foreseeable future and
that the applicant and her daughter must reduce their expectations
accordingly. In the context
of the evident importance of an
equestrian element in their lives on an ongoing basis, I think it
reasonable that provision be
made that they be able to keep one horse
each. A third horse seems to be an unaffordable luxury in
current circumstances.
Even the upkeep for two horses amounts
to an appreciable expense, apparently in excess of R10 000 per
month. I also
consider that any provision for holidays as a
special item of expenditure is unwarranted having regard to the
intended interim
nature of rule 43 relief. The parties should
rather focus on bringing the principal proceedings to judgment or
resolution
as soon as possible. Most people in the world will
in any event be foregoing their annual vacations away from home for
the
foreseeable short-term future.
[13]
Having regard to the items that the
respondent has tendered to pay for in respect of special items of
household expenditure referred
to above, I consider that a monthly
allowance of R20 000 for non-specified or general living
expenses will be adequate to
allow the applicant and the parties’
daughter to maintain a lifestyle commensurate with what they might
reasonably expect
in circumstances in which the respondent’s
income has been significantly reduced and in which both parties are
currently
incurring extraordinary expenses in relation to the pending
litigation.
[14]
The
applicant’s claim for a contribution towards her legal expenses
in the amount of R650 000 has not been supported
with a detailed
breakdown of expenses incurred this far. Only broad-brush
description has been given of the type of attendances
involved and
anticipated instead of an itemised list of expenditure.
[1]
With little to go on, the claim strikes me as being markedly on the
extravagant side. I am also mindful, however, that
the
respondent, while protesting that the applicant’s alleged legal
fees far exceed those that he has incurred, has been
equally
unforthcoming with detail.
[15]
Nearly two thirds of the applicant’s
claim for a contribution towards her costs relates to costs that she
says that she has
already incurred. The applicant’s
counsel referred me to the judgment of Davis AJ in
AF
v MF
2019 (6) SA 422
(WCC);
[2020] 1
All SA 79
(WCC), which supports the court granting a cost
contribution for legal expenses already incurred, and which, with
reference to
the judgment of Donen AJ in
Cary
v Cary
1999 (3) SA 615
(C), emphasised
the importance of the court’s duty in such matters ‘to
promote the constitutional rights to equal protection
and benefit of
the law, and access to courts [and] requires that courts come to the
aid of spouses who are without means to ensure
that they are equipped
with the necessary resources to come to court to fight for what is
rightfully theirs’. As observed
in those judgments, the
authorities are far from unanimous on whether a contribution towards
costs in terms of rule 43 should cover
costs already incurred.
There are many judgments suggesting they should not. I am in
respectful agreement with the
observation by Davis AJ that in
the main they are conspicuous in their lack of persuasive reasoning
in support of the proposition.
[16]
My
own time-limited, and therefore superficial, enquiry into the basis
for that approach suggests that the reason might have been
founded in
the view that it would be contrary to the Roman Dutch law principles
concerning the marital power to hold that the wife,
apart from any
order of court, could render the husband liable for costs incurred by
her without his authority; cf. the judgment
of Wessels J in
Van
Gorkum and Noonan v Davies
1914 TPD 572
at 577.
[2]
That may have informed the established practice in Natal reported in
Lourens
v Lourens
(1928) 49 NPD 412
that an application should be made
in
advance
of the principal litigation for a contribution toward costs.
Times and
mores
have
changed, however, and the marital power has been abolished.
[3]
Whilst rule 43 predates the abolition of the marital power, it falls
to be construed and applied in the context of the modern
legal
environment. I cannot conceive in the circumstances why there
should be any obstacle to the making of an order for
a contribution
towards costs that includes costs already incurred. On the
contrary, allowing for the interim payment of accrued,
as well as
anticipated, costs in the principal proceedings would better promote
achieving the relevant objects of the rule 43 procedure.
[17]
The
purpose of the remedy has consistently been recognised as being to
enable the party in the principal litigation who is comparatively
financially disadvantaged in relation to the other side to
‘adequately place [his or her] case before the Court’.
[4]
Devising the measures necessary to achieve that object have long
since been recognised as ‘the paramount consideration’
in
such matters.
[5]
Describing the rationale for the remedy in terms of ‘constitutional
imperative’ does not, in my view, really
add anything of
substance to its historical character in the Roman Dutch common law;
cf. the references to Merula,
Manier
van Procedeeren
,
Wassenaar,
Practyk
Judiciëel
and Leyser,
Meditationes
ad Pandectas
in
Van
Gorkum and Noonan
supra,
at p. 575, and in
Boezaart
& Potgieter v Wenke
1931 TPD 70
at 84-85. There is indeed much in the Bill of
Rights that is essentially a codification and entrenchment of the
common law
and the rules of natural justice. The significance
of their constitutional entrenchment is to preclude any law or
conduct
inconsistent with them
[6]
and to impose an obligation on the state (including, of course, the
courts) to respect, protect, promote and fulfil the rights
conferred
thereby,
[7]
including by
interpreting any legislation mindful of those obligations,
[8]
and to constrain Parliament’s powers of amendment.
[9]
[18]
The
proper approach to the determination of such applications is well
established. Ogilvie Thompson J described it in
the
following terms in
Van
Rippen
[10]
at p. 639: ‘... the quantum which an applicant for a
contribution towards costs should be given is something which is to
be determined in the discretion of the Court. In the exercise
of that discretion the Court should, I think, have the dominant
object in view that, having regard to the circumstances of the case,
the financial position of the parties, and the particular
issues
involved in the pending litigation, the wife [or husband, as the case
might be] must be enabled to present her [or his]
case adequately
before the Court.’ The essence of the approach
encapsulated in those words has been reiterated in countless
other
reported cases.
[19]
It
is an approach that recognises that a contribution towards costs is
not the same as a warrant to litigate at any scale of the
applicant’s
choosing if that is disproportionate to the apparent reasonable
requirements of the case or the means of the
parties and the scale
upon which the respondent is litigating. An entitlement to a
contribution towards costs should also
not be seen as equating to a
licence to risk-free litigation. To quote once again from
Van
Rippen
:
‘By ordering a contribution the Court does provide the sinews
of war; but, so far as I am aware, the Court has never under
the
contribution procedure provided the applicant’s attorney with
complete advance cover for all his fees.’
[11]
That the provision of an equality of arms be balanced with
maintaining an equitable exposure of both of the adversaries to
the
risks of the chilly consequences of the ill considered incurrence of
costs is a factor to be borne in mind in the exercise
of the court’s
discretion. It will encourage a realistic approach by both
parties to the litigation and incentivise
them to focus on reaching
early and mutually beneficial settlements where that is reasonably
possible.
[20]
The current matter does not strike me as
one of particular complexity. The respondent’s source of
income is identified.
His local and foreign assets appear to be
known, or readily identifiable. Whether or not the applicant
would be able, or
might reasonably be expected to obtain employment
after the dissolution of the marriage can hardly be described as an
arcane or
especially difficult issue. The question of whether
or not the trust to which the respondent donated his pension money
pay-out
when he left Cathay Pacific should be treated as his alter
ego, or as a fund effectively under his control, for the purposes of
determining the proprietary consequences of the marriage, more
especially the terms of any order that might fall to be made in
terms
of
s 7(3)
of the
Divorce Act 70 of 1979
, also does not strike me
as a matter that is likely to give rise to particular difficulty in
this case should the action have to
go trial. The respondent is
availing of the services of a silk in the litigation, while the
respondent is represented by
a senior junior counsel. My own
assessment is that the case looks to be well within the competence of
a middle to senior
ranking junior counsel experienced in matrimonial
work.
[21]
In the circumstances I consider that an
order directing the respondent to contribute R200 000 towards
the applicant’s
costs in the principal case would meet the
justice of the case, as far as I am able to determine it on the
rather opaque information
that the parties have made available.
[22]
The
applicant’s counsel drew attention to a suggestion made in
passing by Rogers J in
CT
v MT
and
Others
2020 (3) SA 409 (WCC)
[12]
that
consideration might be given to putting a time limit on
rule 43
orders so as to avoid the obligated spouse who might be advantaged by
‘an unduly parsimonious’ interim order being
tempted to
abuse the resultant situation by improperly dragging out the
litigation.
[13]
Counsel
appeared to suggest that such a time limit might come to be regarded
as a standard feature of orders made in terms
of
rule 43.
I do
not understand the learned judge to have intended to go that far in
his obiter remarks. While I agree that there
is nothing to
preclude courts incorporating such a provision where thought
appropriate, caution should be exercised in attaching
conditions that
could bring the parties back to court for further interim
determinations irrespective of whether the prevailing
circumstances
warranted or necessitated that. In my opinion,
rule 43(6)
would
adequately avail a party able to demonstrate that he or she was being
disadvantaged by a demonstrably abusive protraction
of the main
proceedings to approach the court for amended interim relief.
As noted by Rogers J, the scope for such abuse
should in any
event be limited in the ordinary course by proper judicial case
management. I am not persuaded that there is
any reason to
attach a time limit to the order to be made in the current matter.
[23]
Lastly, there is an application by the
applicant for the striking out of certain averments in the
respondent’s opposing affidavit.
The basis of the
application is that the respondent’s averments are in breach of
the prohibition in
rule 41A(6)
against disclosure of all
communications and disclosures made at mediation proceedings.
The averments in question were made
in response to averments made by
the applicant in her supporting affidavit with reference to the
mediation by Ms Diane Davis
SC in the parties’ dispute.
The applicant alleged that the disclosures, limited and
unilluminating as they were, were
‘alarming’. That
was hyperbole. It was permissible for the respondent to testify
in general terms as to
the circumstances in which the mediation
process came to be suspended and to the fact that there was very
little remaining to be
determined in respect of a parenting plan.
I am nevertheless persuaded that the following passages in the
opposing affidavit
are technically objectionable and fall to be
struck out, together with the annexures therein referred to:
1.
That part of paragraph 57 following after
the words ‘minor issues’;
2.
The last sentence of paragraph 94; and
3.
Paragraph 183.
[24]
The striking out application does not merit
a separate costs order. The costs of it fall to be treated as
costs in the
rule 43
application.
[25]
The applicant has achieved substantial
success in the
rule 43
application and is entitled to her costs.
For the reasons mentioned earlier, I am not disposed, however, to
make a special
order, as prayed, that her costs should include
counsel’s fees charged at the rates allowed on taxation for
senior counsel.
[26]
The following order is made:
1.
Pending the determination of the divorce action between the parties,
the respondent
shall maintain the applicant and the minor child born
of the parties’ marriage, as follows:
1.1
by payment to the applicant of an amount of R20 000 per month,
in respect of the applicant’s
and minor child’s general
living expenses not otherwise specifically provided for below,
effective as of 1 July 2020, without
deduction or set off on the
first day of every month, by way of electronic funds transfer or
debit order, into such bank account
as the applicant may nominate
from time to time;
1.2
by bearing the costs of retaining the applicant and the minor child
as dependant members
of the current medical aid scheme and by bearing
the costs of all reasonably incurred medical expenses in private
health care which
are not covered by the medical aid scheme,
including but not limited to, medical, dental, surgical,
pharmaceutical (including levies
and all required supplements)
hospital, orthodontic and ophthalmic (including spectacles and
contact lenses) expenses, any sums
payable to a
physiotherapist/chiropractor, psychiatrist, therapist (including
psychotherapist or occupational therapist), practitioner
of holistic
medicine, and other medical expenses including vitamins and
supplements which are not covered by the aforesaid medical
scheme.
The respondent shall reimburse the applicant for any such costs
incurred by her or pay the relevant service provider within
5 days of
receipt of the relevant invoice or receipt;
1.3
by bearing all the costs incurred in respect of the minor child’s
education, such
costs to include all secondary education fees,
including school fees (in private education), additional tuition and
tutor fees
and the cost of all extra mural activities in which she
may participate, including coaching, camps, tours and outings, as
well
as the costs of all books, stationery, uniforms, equipment
(including computer hardware, tablets and software and printing
consumables),
attire relating to her education and the sporting
and/or extra mural activities engaged in by her;
1.4
by bearing the costs incurred in respect of two horses to be kept by
the applicant and the
minor child, including livery costs,
veterinarian fees, insurance, food and supplements, tack and
grooming, farrier fees, and the
costs of licensing, maintaining and
insuring the horse box;
1.5
by bearing, with effect from the time that he is able to return to
fulltime employment with
Qatar Airways, the reasonable additional
costs relating to the applicant’s and the minor child’s
horse-riding, including:
lessons and shows, the costs relating to
admission fees to championships and events, equipment, travel and
subsistence costs relating
to all championships and events entered by
the applicant and the minor child and the costs of annual CVRC, SASJ,
SAEF and ESA memberships
for them;
1.6
by payment of the following expenses in respect of the applicant’s
residence (currently
the Noordhoek property) and related expenditure:
1.6.1 the
monthly bond instalments;
1.6.2 rates
and services due to the relevant municipality (including water,
refuse removal and sewage);
1.6.3
electricity costs to a maximum of R2 000,00 per month which shall be
paid monthly, upon submission by the applicant
to the respondent of
the relevant invoices;
1.6.4 the
premiums in respect of the current comprehensive homeowners,
household contents and all risk insurance, and
the excess on any
claims that fall to be made in terms of such insurance;
1.6.5 the
cost of telephone landline rental and calls and fibre internet;
1.6.6 the
premiums in respect of the full bouquet DSTV-PVR subscription, which
shall become payable once the applicant
has provided the respondent
in writing with the details of the relevant account;
1.6.7 the
cost of maintaining the burglar alarm and security, including ADT
armed response security and CMR medical
response;
1.6.8 the
reasonable costs of repairs and maintenance to any household
equipment or appliances and the improvements
to the property,
including the swimming pool and irrigation system and any electrical
or plumbing work, which shall be arranged
by the respondent promptly
upon being advised by the applicant of the need therefor;
1.7
by payment of the wages of the domestic employee, three times per
week, and the gardener,
once per week, as well as the annual bonus
payable to the domestic staff;
1.8
by payment of the applicant’s and the minor child’s
cellular telephone contracts
and call costs;
1.9
by payment of the applicant’s Momentum retirement annuity
contribution;
1.10 by
payment of the amount of R500.00 (five hundred Rand) per month to the
minor child in respect of her allowance,
without deduction or set
off, on or before the first day of the month;
1.11 by
payment of the following costs in respect of the applicant’s
Ford Ranger motor vehicle:
1.11.1 comprehensive
vehicle insurance (including excess);
1.11.2 the costs of the
tracker, licensing, maintenance, repairs and servicing, including
replacement of tyres and wheel balancing
when necessary;
2.
The amounts referred to in paragraphs 1.1, and 1.10 above shall be
adjusted annually
in July of each year in accordance with the
percentage adjustment in the headline inflation of the Consumer Price
Index as published
by Statistics South Africa during the preceding
year, the first such adjustment to be effective as of 1 July 2021;
3.
The respondent shall pay to the applicant’s attorneys of record
a contribution
towards the applicant’s legal costs in the
amount of R200 000 (two hundred thousand Rand) on or before
30 September
2020;
4.
The following passages in the respondent’s opposing affidavit,
jurat
30 July 2020, including the annexures therein
referred to, are struck out:
4.1
That part of paragraph 57 following after the words ‘minor
issues’;
4.2
The last sentence of paragraph 94; and
4.3
Paragraph 183.
5.
The respondent shall pay the applicant’s costs of suit in the
rule 43
application.
A.G. BINNS-WARD
Judge of the High
Court
APPEARANCES
Applicant’s
counsel:
L.
Buikman SC
Applicant’s
attorneys:
Catto
Neethling Wiid Inc.
Cape
Town
Respondent’s
counsel:
T.
Smit
Respondent’s
attorneys:
A.
Curran Attorney
Claremont
[1]
Cf.
MCE
v JE
[2011] ZAGPPHC 193 (14 September 2011) at para 12, where Makgoka J
(as he then was) noted ‘
There
can be no better manner of placing such information
[ie costs already incurred and anticipated to be incurred]
before
court than a draft bill of costs, or at the very least, a summary of
fees schedule. This is how courts considering applications
for
contribution towards costs have, over the years, approached the
matter
’;
Cary v
Cary
1999 (3) SA 615
(C) at 618C and
P-R
v R
2017 JDR 1252 (GP) at para 18. In my view, these
observations are especially pertinent in respect of any part of
a
claim for a contribution towards costs that relates to costs already
incurred.
[2]
But,
as observed by Mason J in the opening paragraph of the reported
section of the judgment, even a century ago, ‘
The
exact liability of the husband for costs which his wife
has
incurred
or may incur in instituting matrimonial proceedings against him is a
matter of controversy and difficulty.
’
(My underlining.)
[3]
In
terms of Chapter II
(ss 11
and
12
) of the
Matrimonial Property Act
88 of 1984
.
[4]
Van
Rippen v Van Rippen
1949 (4) SA 634
(C) at 639 fin – 640.
[5]
Id.
[6]
Section
2 of the Constitution.
[7]
Section
7 of the Constitution.
[8]
Section
39 of the Constitution.
[9]
Section
74 of the Constitution.
[10]
Note
2
above.
[11]
Supra,
at pp. 638-639.
[12]
The
case involved a challenge to the constitutionality of the rule 43
procedure because it precluded appeals against and limited
the
revisitation of orders made
pendente
lite
in terms thereof. For pertinent related jurisprudence on that
issue
see
also
S
v S and Another
2019 (6) SA 1 (CC).
[13]
At
para 33-36.