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[2021] ZAWCHC 80
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S.D.N v M.D.N (19688 / 2016) [2021] ZAWCHC 80 (30 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 19688 / 2016
In
the matter between:
S[…]
D[…] N[…]
Applicant
and
M[…]
D[…]
N[...]
Respondent
Coram:
Wille, J
Heard:
21
st
of April 2021
Delivered:
30
th
of April 2021
JUDGMENT
WILLE,
J
:
INTRODUCTION
[1]
The applicant applies for the variation of an interim maintenance
order
[1]
, granted by agreement
between the parties on the
13th
March 2017. This
pendente
lite
as the trial in the main action has not yet commenced. I was
advised by both counsel that the trial action was due to commence
in
May 2021. I was assured that the trial action will be
postponed. The summons in this matter was issued out during
2016 and it seems to me that these action proceedings have since
progressed with no sense of real urgency. This, in itself
may
constitute a ground for a variation of the interim maintenance order.
[2]
The applicant argues that his total monthly package payment to the
respondent amounts
to the sum about R75 837,94. He further
argues that he can no longer make these payments for reasons beyond
his control,
due mostly to events which followed the Covid-19
pandemic
[2]
, together with a
general downturn in the building industry. In the main, the
applicant seeks to reduce the
R18
000,00 - cash payment - portion of his maintenance obligation and
also to trim certain other expenses he is obligated to pay,
pendente
lite
.
His case is further, that should this occur, the respondent will not
be left without.
[3]
The respondent’s opposing papers were filed out of time and the
respondent also
belatedly filed a supplementary affidavit. The
applicant’s counsel took no issue with the late filing of these
papers
and I condoned the late filing of the respondent’s
opposing affidavit and her supplementary affidavit and admitted this
material
into the record for the purposes of the opposed hearing.
In addition, any bar that may have existed was lifted and set aside.
THE
APPLICANT’S CASE FOR VARIATION
[4]
The applicant contends that prior to the pandemic, he was in advance
of his obligations
in terms of the prior order. As at the end
of March 2020, he had ‘pre-paid’ to the extent of R14
654,72. In
contrast, by the end of August 2020, the applicant
was in arrears to the sum of R47 381,12. This equates to a
shortfall of
about R7896,85 per month. It is the applicant’s
case that his inability to pay is simply as a direct consequence of
the material changes in his financial circumstances, which have taken
place since the prior order was granted in March 2017.
[5]
The applicant contends: that he used his salary and other
monies loaned from
a close corporation
[3]
to
pay his maintenance obligations imposed in terms of the prior order:
that this proved unsustainable: that accordingly
he was obliged
to sell his members interest in and to the said close corporation to
his father as security for this indebtedness:
that he is now
employed by his father’s close corporation and that he is now
no longer receiving his full salary due,
inter
alia
,
to the economic devastation caused by the pandemic.
[6]
Besides, he advances that the close corporation does not have the
necessary empowerment
and transformation status
[4]
,
so as to qualify for the award of any worthwhile building contracts.
In this connection, he has experienced that even low
tenders are
unsuccessful as price alone no longer matters, with the result that
his employer is finding it more difficult to compete
and secure any
building contracts.
[7]
In support of these allegations, the applicant offers up to the court
a detailed letter
by the accounting officer of the close corporation,
exhibiting that in 2017 the close corporation made a profit of R377
000,00.
Whilst in 2019, a loss of R258 788,00 was recorded.
[8]
A further major blow was suffered as a direct result of the then
applicable ‘pandemic
disaster regulations’ which
effectively throttled the already besieged building industry.
Besides, the close corporation
is further suffering financially
as it is unable to collect monies that are due to it. The
applicant stopped receiving his
salary and he has only received a
single payment of R6859,68 in the form of disaster management relief
funding. He is not
possessed of any assets that he can sell or
encumber and does not have any investments. He simply has no
way or generating
sufficient funds to enable him to comply with the
prior order.
[9]
The applicant also strongly relies on the fact that he requested the
respondent to
reduce her expenses in the circumstances. In this
connection, he advances that the parties orally agreed that their
domestic
helper would no longer be paid. This, I must say at
the outset, does not sit well with me. More about this later.
The
applicant
applies for a reduction in the
following respects: that
the cash payment would reduce
from R18,000.00 to R4000,00: that the monthly electricity spend
would be capped at R800,00:
that the water account would be
limited to R200,00: that the monthly petrol spend would be
capped at R1000,00 and that the
DSTV package would be exchanged for a
more affordable Netflix package.
[10]
The argument goes that the respondent will not be left destitute and
she will still be provided with
the following conveniences:
that she will continue to reside in the former matrimonial home
complete with all-expenses paid,
inclusive of rates and taxes,
electricity, water, refuse, sewerage, maintenance, insurance and
security: that she has a monthly
grocery benefit card to the
value of R2000,00: that she will have monthly spending money in
an amount of R4000,00 and that
she has the use of a fully maintained
motor vehicle. This, together with a comprehensive medical aid.
THE RESPONDENT’S
OPPOSITION
[11]
The respondent’s case is this: that the business
structure by the applicant is champetas:
that the applicant did
not have to make any loans and that the surety bonds that were
registered a security for these purported
loans, have simply been
registered to devalue the joint estate. I pause to mention that
the respondent holds the view that
the parties are married in
community of property. In contrast, the applicant relies
heavily on the ante-nuptial contract
entered into between the
parties. The respondent contends that this agreement is invalid
and of no force and effect.
[12]
The respondent also takes the view that very little weight (if any),
may be attached to the (2)
page financial analysis
[5]
,
in connection with the financial status of the close corporation. The
argument is that this constitutes ‘insufficient evidence’
and falls to be ignored for the purposes of the present application.
This despite the fact that the respondent does not materially
engage with this material. There are vast passages in the
applicant’s founding affidavit that are not touched at all
by
the respondent, save in the form of a bald denial of the truth of the
content thereof.
DISCUSSION
[13]
On the material before me, I am inclined to accept that the reasons
for the decline in the business
of the close corporation are left
somewhat unchallenged. I am by no means suggesting that any
onus in this connection rests
of the respondent. The advent
of
the pandemic subsequent to the hearing of the original order, as a
matter of logic, must have posed enormous challenges.
The
respondent herself was unable to work as a photographer for not
insignificant periods of time. This, undoubtedly due to
the
effects and challenges surrounding the financial devastation caused
by the pandemic.
[14]
The applicant requested the respondent to provide him with a revised
budget in an attempt to
cater, so it seems, for the respondent’s
reasonable requirements. I agree that while there existed no
legal obligation
on the respondent to have complied with the
applicant’s request, a comprehensive reply by the respondent,
may very well have
narrowed some of these issues, alternatively, led
to an amicable resolution of the matter sans this court’s
intervention.
[15]
Put in another way, the opposition to the application by the
respondent is largely based on the
premise that the applicant is not
entitled to a variation of the prior order. This is the nub of
the legal argument contended
for by the respondent.
[16]
As alluded to earlier, as at the end of March 2020, the applicant had
‘pre-paid’
his maintenance obligation to the sum of R14
654,72. Thereafter, by the end of August 2020, the applicant
was in arrears
to the sum of R47 381,12. This equates to a
shortfall of about R7896.85 per month. In addition to the cash
component
of the maintenance payment, the respondent is in possession
of a buyer’s card with a grocery store which enables her to
effect
purchases to the value of R2000,00 per month. These
arguments go to the cash component of the maintenance paid by the
applicant.
[17]
The other variations sought are in connection with the respondent’s
monthly electricity
spend, her monthly water bill and her monthly
petrol spend. I do not find favour with these variations
because: the
amounts are not currently excessive: they
are not luxurious and, in any event, these expenses must naturally
have been subjected
to an inflationary increase since the prior order
in 2017. In view of the amounts involved, I also do not find
favour with
the argument that the DSTV package should be swopped out
for the more affordable Netflix package.
[19]
As
far
as
the position of the domestic helper is concerned, the following:
the undertaking to pay for the domestic helper was essentially
to
assist the respondent with the children
[6]
,
so as to enable her to pursue her career as a photographer: the
domestic helper is also now required to assist the respondent
in the
home schooling of the minor children and the applicant contends that
the services of the domestic helper could be dispensed
with as this
was by agreement.
[20]
This agreement as contended for by the applicant was not accepted by
Rogers J, in his judgment
on the contempt proceedings.
[7]
It is argued that this expense is luxurious and is no longer
affordable by the applicant. I disagree. The services
of
the domestic helper and the payments to her are not subject to legal
termination on short notice and without respecting her
rights, her
circumstances and her specific financial position.
[21]
In addition, I hold the view that the respondent has set out
sufficient information in order
to demonstrate that she is in need of
the services of the domestic helper. This, in any event will
assist should she attempt
to supplement her income in her field and
career as a photographer. As a matter of logic, the respondent
must be given an
opportunity to supplement her income in these
circumstances.
[22]
It is now settled law that interim maintenance orders may be
varied
[8]
, in the event that the
party is able to prove that that their circumstances have changed
materially. In my view, the applicant’s
financial
position has changed materially: because he can no longer earn
or borrow sufficient monies to pay the respondent:
because he
no longer owns part of the members interest in and to the close
corporation:
because
he has borrowed funds and he has had to provide security for these
loans
and
because
his employer faces severe financial challenges due to the pandemic
which have been exacerbated by a downturn in a depressed
building
industry.
[23]
I take the view that the applicant has demonstrated that his
circumstances have changed materially
since the prior order and that
he can no longer afford to pay the maintenance which he previously
provided. I also mention
that the respondent’s
application to hold the applicant in contempt for falling into
arrears with his payments in terms of
the prior order was
unsuccessful. A declaration of the amounts due owing and
payable by the applicant to the respondent followed,
presumably
placing the respondent in a position to levy execution. It is
not apparent from the material before me as to what
has transpired in
this connection.
[24]
I take the view that the applicant’s position has materially
changed to at least the extent of
the approximate monthly shortfall
that occurred since March 2020. In the result the following
order is made:
1.
That paragraph 1.1 of the prior order (granted by Justice Meer on 13
March 2017 under case
number 19688/2016), is varied to the extent
that the cash portion of the maintenance in the sum of R18 000,00 is
hereby deleted
and substituted for the sum of R10 000,00 in its
stead, with effect from the 1
st
of October 2020.
2.
That each party shall be liable for their respective costs of and
incidental
to this application.
___________
E.
D. WILLE
(Judge
of the High Court)
[1]
The
previous rule 43 order – the ‘prior order’
[2]
The
‘pandemic’
[3]
De
Nobrega CC
[4]
The
necessary ‘BBBEE’ scores
[5]
Presented
in the form of a ‘letter’ as an attachment to the
applicant’s papers
[6]
There
are (2) minor children of the marriage who are (6) and (7) years old
[7]
The respondent sought to hold the applicant in contempt of
court for non-compliance with the prior order
[8]
In
terms of rule 43(6)