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[2021] ZAWCHC 148
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A.F v M.I.F (6664/2019) [2021] ZAWCHC 148 (19 July 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No:6664/2019
In
the matter between:
A
F[....] (BORN M[....])
Applicant
and
M
I F[....]
Respondent
JUDGMENT
DELIVERED ELECTRONICALLY: MONDAY, 19 JULY 2021
NZIWENI AJ
Introduction
[1]
There is a divorce action pending between the parties, instituted by
the wife on 9
February 2016, under case number 1893/2016. The
marriage between the parties was concluded out of community of
property and
by antenuptial contract, with the inclusion of the
accrual system.
[2]
In this matter there are essentially two applications. The
first one, which
is the main one, was launched by the wife, and the
second one is a counter-claim lodged by the husband. For easy
reference
the parties will be referred to as per the main
application.
[3]
Davis AJ granted an order (“the rule 43 order”) on 28
August 2019, the
salient terms of which, as far as they are relevant
to this application, are that:
1.1
The respondent was to pay the applicant an amount of R38
500 per month in respect of the applicant’s and N[....]’s
(their
child) expenses (including household and further expenses she
incurs when R[....] (their daughter) visits her).
1.2
The respondent would also pay the following expenses in
respect of the applicant’s residence, and related expenses.
2.
The respondent would pay the applicant R6000 per month, with effect
from 1 May 2019, without deduction
or set off . . . as a contribution
towards the costs of annual holidays for the applicant and N[....].
4.
The respondent was directed to pay, on or before 30 September 2019, a
contribution of R750 000
towards the legal costs incurred by the
applicant to date in the divorce action.
[4]
Considering the cost order granted already by Davis AJ, it is evident
that the legal
costs involved in this matter can easily run into
millions of rands. There is no doubt that the respondent’s
net worth
is significant. Consequently, this matter concerns a
high net worth individual.
[5]
Gleaning from the papers it is very apparent that there is a
disparity in financial
resources between the parties. It
is thus palpable that the applicant, compared to the respondent, is
not as financially
resourced.
[6]
Our law is replete with authorities that recognise that, in cases
where the financial
positions of the spouses in a divorce action are
not on an equal footing, the economically disadvantaged spouse should
be helped
in securing a contribution for legal costs from the spouse
who has greater means.
[7]
It is so that the existence of
heightened or intense hostilities in a divorce action often leads to
the escalation of legal costs
. It is
important that legal costs be contained. I am quite alive to
the fact that legal costs vary from case to case.
[8]
Equally important is that once the marriage has broken down, parties
who have decided
to go their separate ways should do so and should be
allowed to do so as soon as possible.
[9]
The applicant instituted the divorce proceedings on 9 February 2016.
Quite clearly,
this divorce is taking very long to finalise and
it promises to be still a long and complicated journey. The
unfortunate
corollary of this is that the legal fees are also running
up. As already alluded to herein above, the respondent has
already
been ordered to contribute towards the applicant’s
legal costs.
[10]
The cost of litigation between the parties thus far has been high
conflict. In such matters
where parties are warring, it is very
easy for the entire estate to be consumed by legal costs.
Legal position
[11]
Beyond the general issue of maintenance, it is trite that the court,
in a proper case, can exercise
its discretion and award an interim
order for the payment of legal costs as it deems fit. The
interim costs act as a vehicle
which helps the spouse to protect her
or his rights pending the hearing of the divorce action. The
order can be varied from
time to time, if necessary.
[12]
It is settled that the interim legal costs order may be awarded at
any juncture before the hearing
of the trial, and up to any point of
the proceedings. The awarding of an interim order in terms of
rule 43, pending a divorce
action, is in the discretion of the court.
Proper exercise of judicial discretion is important.
[13]
Because these proceedings are not appealable, it is thus critical
that the virtually unfettered
discretion of the court be exercised
judicially, and in such a fashion that the order awarded be just and
equitable in all spheres.
The order should not induce shock to
the community’s sense of justice. Court’s should
also be weary of,
and alive to, disguised premature attempts at the
distribution of assets.
The applicant’s
case
[14]
In these present proceedings, the applicant staunchly maintains that
the rule 43 order did not
cater for her future legal costs. Thus
the applicant currently seeks a variation of the rule 43 order, in
order to obtain
a further contribution towards costs.
[15]
According to the applicant, the rule 43 order did not cater for her
future legal costs. The applicant
currently seeks variation of the
rule 43 order, she is seeking a further costs contribution.
[16]
The applicant alleges that as of 15 December 2020, she has incurred
legal fees to the amount
of R781 031,55. She additionally owes
Mrs S[....] an amount of R409 217, which she advanced to her for
legal costs. According
to the applicant, the total amount she
currently owes for her legal costs is R1 190 248.
[17]
The applicant is also requesting the court to award her such
costs
as, according to projections, she will
incur
until the day preceding the first day of trial of the separated
hearing. It is further asserted by the applicant that
by 27
March 2020, she owed her attorney an amount of R362 057 in respect of
fees and disbursements. She further contends
that it was
anticipated at that particular time, that the legal costs she would
incur until the day preceding the first day of
trial, would be an
amount of R375 0000.
[18]
At this juncture the applicant seeks, in total, an amount of R1 450
000 as a further contribution
towards her legal costs. This
amount, according to the applicant, will be used to settle the amount
due to her attorney,
to pay her debt to Mrs. S[....], and to attend
to the further steps that remain in respect of the trial
preparations. She
maintains that notwithstanding the amount she
is requesting, she will still be left with a deficit and that she
will use some of
her own funds to defray same.
[19]
It is the applicant’s contention that, in order to curtail her
legal costs, she has had
to abandon her junior advocate. According
to her the respondent has the wherewithal to make the requested
contribution to
her costs. The applicant asserts that the
respondent has spent R1 235 556, between July 2016 and 15 February
2019, on his
own legal fees. She further alleges that, since
the Rule 43 application, the respondent has paid a further R1
247173,16 for
legal costs.
The respondent’s
case
[20]
On the other hand, the respondent vehemently opposes the application.
In addition to his
opposition, the respondent has filed a
counter-claim for an order
pendente lite
in the following
terms:
‘
1.1 by
deleting subparagraph 1.1 and substituting therefore the following:
“
by payment to
the applicant of an amount of R28 500 (twenty eight thousand five
hundred Rand) per month in respect of the Applicant’s
expenses
(including household and further expenses she incurs when N[....] and
R[....] visit her), with effect from 1 March 2021,
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 deleting
sub-paragraphs 1.5.1 and 1.5.2 and substituting therefore the
following:
“
1.5.1
by payment to the applicant of an amount of R20 000 (twenty
thousand Rand) per month towards the monthly rental
of the
applicant’s accommodation, with effect from 1 May 2021;
1.5.2 in
the event of the applicant being required to move to alternative
rental accommodation, payment of the rental
deposit required in terms
of the lease agreement and the costs of moving the household contents
and her and the children’s
personal possessions to the
alternative accommodation, including insurance payable in respect
thereof;”
2.
directing the Applicant to pay the costs of the application, in the
event of Applicant opposing
same.’
[21]
In support of the counter-claim, the respondent avers that three
material changes in circumstances
have occurred since the Rule 43
order was granted, namely:
(a)
His income has substantially decreased;
(b)
The applicant’s savings have increased;
(c)
From March 2021 N[....]
has
been living
in
a university residence on campus.
[22]
Regarding the applicant’s application, the respondent contends
that since the separation
order was granted on 3 November 2019, the
parties have only been required to prepare for trial on the separated
issue. The
respondent maintains that, given the fact that the
separated issue involves only the determination of whether the
parties had settled
the divorce action, the amount
of
R1 450 000
claimed by the applicant is
excessive and wholly unwarranted.
[23]
The respondent further avers that the applicant has already received
a sizeable amount towards
her legal costs, in the sum of R825 000.
He does not believe that the applicant requires a further
contribution.
[24]
The respondent also asserts that it is premature for this court to
grant the relief sought by
the applicant. According to the
respondent, this is so because the court which is seized with the
separated issue, may grant
an order to the effect that each party is
to pay its own costs. The argument continues that if the court
seized with the
separated issue makes such an order, he will not be
able to reclaim the R1 450 000, should this court be inclined to
grant the
relief sought by the applicant.
[25]
The respondent is also of the view that it is inappropriate for the
applicant to receive further
legal assistance, since this will amount
to a donation, as she has already received contributions towards her
legal costs, and
also the fact that she is about to receive ‘an
extremely large capital amount’ in terms of the settlement
agreement.
[26]
It is further alleged in the respondent’s answering affidavit
that the applicant failed
to disclose in her founding affidavit that,
since the rule 43 order, she managed to save approximately R250 000.
According
to the respondent, the applicant also did not reveal
in her founding affidavit that since their son commenced his studies
at university,
the applicant’s expenses have decreased, while
his have increased.
[27]
The respondent does not believe that the facts of this matter require
him to make a further contribution
until the trial commences. It
is further contended that it will be a travesty of justice to award
the applicant a contribution
towards her costs, in respect of a
matter where the trial Court may eventually find that the action was
settled.
Issues
[28]
The first issue to be determined by this court is whether the
applicant is entitled to the relief
she seeks and, if so, in what
amount. The second issue is whether the relief sought in the
counter-claim should be granted.
Evaluation
The main
application
Legal costs
[29]
A bare perusal of the respondent’s papers reveal averments
along the lines that the applicant
would be unjustly enriched if the
court is inclined to grant the relief she is seeking.
Fundamentally,
the respondent’s assertions characterise the relief sought by
the applicant as being unfair towards him. The
respondent also
asserts that his net value,
as
a result of the effects of the Covid 19 pandemic and the national
lockdown,
has decreased.
[30]
It was also vehemently argued that some of the disbursements for
which an advance payment is
sought, are not necessary and reasonable;
for instance, the attendance of experts. It was also asserted
on behalf of the
respondent that the respondent is already
paying substantial amounts towards the maintenance of his family.
[31]
It is noticeable in these proceedings that the respondent has two
counsels, whereas the applicant
has only one counsel and an attorney.
This is a stark reflection of the inequality between the
parties caused by means, or
lack thereof, to finance the litigation.
[32]
It is of critical importance to keep in mind that the exercise of the
discretion in awarding
the interim costs order, has nothing to do
with the fact that the applicant may finally lose the impending
divorce action, or the
separated issue. Instead, it has
everything to do with attaining the ends of justice and offering
constitutional protection
to a spouse who requires it.
[33]
Equally, the fact that the applicant is awarded an interim costs
order does not necessarily shield
her or him from having costs
ordered against him or her, when the matter is finally heard.
[34]
As it is with all interim orders pending the trial of the divorce
action, their objectives, amongst
others, are to relieve the
economically disadvantaged spouse from economic hardship. More
so in litigation involving spouses
who don’t have the same
financial means.
[35]
The interim orders are meant, amongst others, to address the
inequality in the spouses’
financial positions and unevenness
in divorce litigation.
They
are meant to level the playing field,
so
that both parties are equally able to make well informed decisions
regarding settlements or to progress to trial.
Therefore,
i
nterim proceedings are not
supposed to become stuck or burdened with the merits and demerits of
the main action. Thus, the
contention by the respondent that
the applicant stands to receive a sizeable amount when the matter is
finalised, is currently
irrelevant.
[36]
It is vitally important to keep in mind that the applicant seeking an
order in terms rule 43,
is not entitled to all her costs, but to a
contribution towards the costs. Although it is undeniable in
this matter that
the respondent has much greater financial means, it
is nonetheless clear from the founding affidavit that the applicant
also has
an ability to make some savings and that she manages
her finances well.
Mrs S[....]’s
refinancing
[37]
Insofar as the debt owed to Mrs S[....] is concerned, it has
been asserted that the applicant
had to incur debt from Mrs S[....]
to fund her legal costs. During the hearing of this
application, the refinancing of the
applicant’s debt to Mrs
S[....] was a contentious issue. Essentially, it was contended
on behalf of the respondent
that there is insufficient evidence for
the court to make a finding that the monies were indeed given to the
applicant to refinance
her legal fees.
[38]
At the outset I must make it very clear that, although I do not doubt
the bona fides of the applicant
when it comes to the debt owed to Mrs
S[....], it is significant to note that, apart from the applicant
alleging that the debt
to Mrs S[....] exists, there is no evidence to
support this claim, save for an averment that there is a written
agreement between
them.
[39]
Ex facie the founding affidavit, what appears regarding this amount
is simply an averment that
it was used to refinance legal fees. No
clarity is provided as to which legal costs were defrayed by the R409
271 refinancing
and when. Currently there is no documentation
to substantiate the existence of the debt to Mrs. S[....], in order
to guide
this court. Consequently, this debt is not easily
ascertainable.
[40]
It is my view that it is simply not enough for the applicant to state
that the R409 217 of Mrs
S[....] was used to refinance her for legal
costs. Though I appreciate that the papers in this application
should not be
unduly prolix, it is nevertheless important that there
should be some paper trail to confirm same and show how, when and
where
the money was received and spent.
[41]
It is important that the court should be satisfied that the debt was
incurred, and the money
was expended. In instances such as the
present one, failure to place such proof before the court may prove
to be a fatal
flaw. Particularly if the expense is disputed and
Mrs S[....] was previously paid by the Respondent.
[42]
In the absence of such documentation, I have not been persuaded that
this court should make an
order that Mrs S[....]’s refinancing
should be repaid now.
Anticipated costs
preceding first day of the trial on separated issues
[43]
A review of the authorities demonstrates that the courts have
recognised that issues like an
interim contribution towards legal
costs, cannot linger on until a final order is made
at trial, or when
the parties conclude a settlement
agreement. They need to be dealt with straightaway.
[44]
There is no doubt that this matter is still going to accumulate
further legal costs. Davis
AJ foresaw that the separation of
issues would necessitate another trip to the court for the applicant
to bring this application.
The applicant requests that this
court should award her the costs she is anticipated to incur until
the day preceding the
first day of the trial on the separated issue,
to the amount of R375 000.
[45]
Annexure “AF5”, a letter written by the applicant’s
legal representative on
27 March 2020, plainly reflects the claimed
anticipated amount.
[46]
Though it is difficult to predict the precise costs to the day
preceding the first day
of trial, in this matter it is common cause
that the parties still have to litigate the settlement issue. As
matters stand
currently, it is not far-fetched to think that these
anticipated costs will eventually materialise.
[47]
I am thus inclined, in the context of this matter, to grant
anticipated costs, as they cannot
wait until the separated issue is
determined as they are currently justified.
Accrued legal
costs
[48]
According to the applicant, these are the costs owed as of 15
December 2020. These costs
are supposed to be the easiest costs
to determine. However, in this matter they prove to be the most
difficult to ascertain.
AF5 quantified legal costs which were
owed by the applicant, as of the end February 2020, to be an amount
of R362 057. The
applicant claims that she currently owes her
attorney R781 031,55 as of 15 December 2020.
[49]
The separation of issues order was granted on 3 November 2019.
On 27 March 2020, the applicant’s
attorney had already made an
estimation regarding the costs required to litigate the separated
issue, and had also specified the
amount owed by the applicant in
legal costs as at end of February 2020.
[50]
Given the fact that the estimated costs and fees owed as at end of
February 2020 were established
by 27 March 2020, the question which
begs to be answered is how was the figure of R781 031,55 arrived at.
[51]
As far as the amount of R781 031,55 is concerned, there is a glaring
anomaly in that the estimated
costs had already been determined, as
well as the amount of costs owed up until the end of February 2020.
The difficulty
is that this court is asked to award costs in
the amount of R781 031,55; however, when the amount is viewed
against the backdrop
of both the estimated amount and the amount owed
as at the end of February 2020, the numbers just do not add up.
[52]
When one considers the figure of R781 031,55 a person is left
wondering when and how did the
other costs accrue, within the space
of about 10 months. Even on a close reading of annexures “AF7”
to “AF9”
to the founding affidavit, they do not explain
how the costs escalated to R781 031,55 from the end of February 2020
to 15 December
2020. Little wonder the respondent also queries
the rapid escalation of this amount.
[53]
Before me I do not have sufficient evidence to determine that the
amount of R781 031,55 relates
to costs which were necessary and
reasonable in litigation.
Put
differently, there is not enough before me to make an informed
decision regarding the justification for this claimed amount.
[54]
The invariable consequence of this is that, having regard to what was
placed before me, I am
currently only able to award the following
costs: anticipated costs until the day preceding the first day of
trial to the amount
of R300 000 and costs incurred as at the end of
February 2020, to the amount of R362 057.
[55]
As the order can be varied from time to time, the applicant can still
claim those accrued costs
as from the beginning of March 2020, when
she has the necessary proof thereof. This brings me to the
respondent’s counter-claim.
Counter-Claim
[56]
This court has to consider both the applicant’s needs and the
respondent’s ability
to pay.
[57]
As already alluded to, merely by gleaning from the papers it is
evident that there is a disparity
in financial resources between
the parties. It is evident that the applicant, as compared to
the respondent, is not
as financially resourced.
[58]
It is common knowledge that the applicant has some money in the form
of savings. The applicant
was able to save some funds, amongst
others, by saving some of the amounts paid to her by the respondent
for holiday trips. Clearly,
the amounts are meant to be used
for a specific purpose. The applicant also said she will use
the funds also to defray some
of her legal costs.
[59]
The parties are accustomed to a certain lifestyle, which involves
holidaying. It appears
that the respondent seeks to reduce the
applicant’s standard of living.
[60]
Just because a child lives at a university residence, does not
necessarily mean he will never
be going home again. After all,
children need the stability of home. Undeniably, the house
where the applicant is currently
staying is also in keeping with the
status of the parties, and the capacity of the respondent to pay.
[61]
It is an essential fact that the respondent never asserted that, due
to the reduction in his
net income, he is unable to satisfy the rule
43 order. Even if this court was disposed to accept that there
has been a reduction
in the respondent’s net income, that does
not necessarily mean there is a material change in circumstances. A
reduction
in net income does not imply undue hardship to the
respondent and inability to satisfy the order.
[62]
It is so that a court can, in the exercise of its discretion, vary an
order for interim maintenance
if there is such a change in
the circumstances of the parties as to justify a variation. In
consideration of all the circumstances
mentioned by the respondent, I
am compelled to find that there are no material changes that warrant
a variation of the order.
Conclusion
[63]
The award of the relief sought by the applicant will not prevent the
respondent from continuing
with this matter. It will not
deplete his funds; such was not argued. The
respondent has significantly greater financial
muscle than the applicant, notwithstanding the fact that
the applicant managed to save some monies, or the fact that
the
respondent’s income has decreased.
[64]
In this matter it is common cause that the parties are not in an
equal financial position. Clearly,
in this matter a great
injustice will occur if some of the amount sought by the applicant is
not granted to her.
[65]
Importantly, the applicant, as the respondent’s wife, is still
entitled to the assets and
earning capacity of her husband. For
that matter, as already alluded to, the issue in this matter is not
about affordability.
[66]
Certainly, it cannot be said that the applicant’s approved
legal costs are outrageous.
The applicant’s affidavit and
her annexures, in my view, do justify the granting of the costs which
this court is about
to award to the applicant.
[67]
I am alive to the fact that applications that seek to vary an interim
order should not be granted
lightly. However, in this matter,
even the relief sought currently by the applicant cannot wait for the
hearing of the divorce
action, or the hearing of the separated issue.
[68]
The applicant in this matter has succeeded in showing that her
financial position, compared to
that of the respondent, is
sufficiently meritorious to warrant the grant of this particular an
order. When it come to the
costs currently under consideration,
the circumstances of this matter do justify the variation of the rule
43 order.
Costs
[70]
Basically, these costs are costs incurred and to be incurred in the
preparation mainly for the
hearing of the separated issue. In
my mind, ordering that these costs, together with the costs
occasioned by the hearing
on 21 May 2021, be costs in the hearing of
the separated issue, seems to be the most sensible thing to do.
[71]
In the result, I make the following order:
(a)
The respondent is directed to pay the applicant, on or
before 30 July 2021, a contribution of R662 100 (rounded) towards her
legal
costs.
(b)
Respondent’s counter claim is dismissed.
(c)
Costs to be costs in the hearing of the separated issue.
CN NZIWENI
Acting
Judge of the High Court
Appearances
Counsel
for the Applicant:
Adv L Buikman SC
Counsel
for the Respondent: Adv B
Pincus SC
Adv C Small