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[2021] ZAWCHC 227
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C.M.S.C v N.C (16742/2021) [2021] ZAWCHC 227 (9 November 2021)
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Certain
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IN THE HIGH COURT OF SOUTH
AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case number:
16742/2021
Before: The Hon. Mr Justice Binns-Ward
Hearing:
3 November 2021
Judgment: 9 November 2021
In the
matter between:
C[....]
M[....] S[....] C[....]
Applicant
and
N[....]
C[....]
Respondent
JUDGMENT
BINNS-WARD J:
[1]
The parties are engaged in action
proceedings in which the applicant has sued for the dissolution of
her marriage to the respondent.
The respondent is defending the
action and has brought a claim in reconvention. This judgment
is concerned with an application
brought by the applicant in terms of
Uniform Rule 43 for maintenance
pendente
lite
for herself and the parties’
three minor and for a contribution towards her costs in the pending
action.
[2]
The parties were married in England, and it
is common cause that English law governs the proprietary consequences
of the marriage.
They are agreed that in consequence an equal
division between of their respective assets should be an incident of
any divorce order
that may be granted in the action proceedings.
The principal issue in contestation at the trial of the pending
action proceedings
will apparently be the applicant’s claim
against the respondent for personal maintenance until her death or
remarriage.
Her claim for a contribution towards her costs
includes provision for the fee of an expert witness to substantiate
her claim that
she will be unable to provide for herself after the
divorce.
[3]
The applicant had been employed during the
marriage, but was retrenched in May 2020, reportedly because of the
financial impact
on her employer of the national lockdown imposed to
deal with the COVID-19 pandemic. The respondent reports that
the applicant’s
net monthly income from employment prior to her
retrenchment was R10 800. She has since established a
home-based business
doing financial administration for private
clients. In the year from August 2020, the business generated a
very modest income,
averaging only R2 250 per month. She
maintains that it is unlikely in the context of the prevailing
economic conditions
that she will be able to re-enter the job market
and contends that it would in any event be in the best interests of
the children
that she works from home. The parties eldest child
is 15 and the other two are twins aged 13.
[4]
The applicant and the children are for the
present continuing to live in the erstwhile common home in
Meadowridge, upon which she
has placed a market value of R4 million,
whereas the respondent currently rents a flat in Heathfield for
R7 200 per month.
Since moving out of the former common
home the respondent has continued to pay the rates on the property.
He has also been
paying for the children’s cell phone expenses,
the provision of Wi-Fi internet to the family household, insurance in
respect
of the applicant’s motor vehicle, a security service to
the property, medical aid contributions and non-covered medical
expenses
in respect of the applicant and the children and all
expenses related to the children’s schooling.
[5]
During May 2021, the applicant’s
erstwhile attorney of record confirmed, in response to a demand from
the applicant’s
attorney, that the applicant was willing to
continue paying for the expenses listed in the preceding paragraph
and, in addition,
pay the applicant a cash amount of R20 750 per
month in respect of maintenance for herself and the children.
The applicant
abided by that undertaking until August 2021, when he
unilaterally reduced the cash payment to R10 000, to which he
added,
apparently under pressure, an additional R10 300 later in
the month. The respondent’s breach of the undertaking
given by his former attorney resulted in the institution of the
current proceedings for interim relief.
[6]
The applicant alleges that the reduced
payment, which was accompanied by demands by the applicant that the
family would have to
implement various cost cutting measures,
including the sale of the family home, was precipitated by the
respondent’s displeasure
at her insistence on an entitlement to
lifelong maintenance after the divorce. The respondent asserts
in response that he
is simply unable to afford a monthly cash
contribution of R20 750 in addition to paying for the other
expenses enumerated
earlier.
[7]
The respondent has testified that his net
income after tax, and excluding the income generated by the letting
of a flatlet at the
family home that currently is rented out for
R5 500, is R39 800. He points out that the total cost
of the maintenance
package claimed by the applicant is over R45 800
per month and that it will increase by approximately R5 000 when
the
twins graduate to high school in 2022. The respondent has
quantified his personal living expenses at about R14 200 per
month and pointed out that in the result he is left with a deficit of
over R20 000 per month.
[8]
The respondent has suggested that the
family’s cash crunch could be alleviated if he were permitted
to move into the flatlet
at the family home, which is being vacated
by the tenant. He says that would free up the greater part of
the rental that
he is having to pay for his accommodation in
Heathfield. In my view, however, the respondent’s
proposal in this regard
seems unrealistic in the context of his
having moved out of the common home almost a year ago. I doubt
whether the family
dynamics would be well served by the parties
living in close proximity to each other during what appear to be
fiercely contested
divorce proceedings. I am not persuaded that
it would be unduly difficult for the respondent to obtain a
replacement tenant
for the flatlet.
[9]
The respondent has also offered to employ
the applicant as a driver in his business at a salary of R7 000
per month.
He testifies that the working demands of the
position would allow the applicant sufficient time to continue with
her home-based
business and that her duties would not necessitate
personal contact with himself.
[10]
The respondent’s evidence concerning
his income and expenditure is quite detailed and there is nothing
about it that strikes
me as improbable or contrived. It clearly
vindicates the respondent’s contention that his income is
insufficient to
sustain his ability to pay maintenance on the scale
that he undertook through his attorneys in May this year. I did
not understand
the applicant’s counsel to quibble with that
assessment. The argument advanced in support of the applicant’s
claim in the face of the established affordability constraints was
that the respondent should be required to draw on his available
capital resources to make up the shortfall to the degree necessary to
maintain his wife and children at the standard of living
to which
they were accustomed when the parties lived in a common household.
These are the resources which in terms of the
parties’ common
understanding fall to be divided equally between them upon their
divorce.
[11]
In support of the argument, the applicant’s
counsel called in aid certain dicta in the judgments in
Taute
v Taute
1974 (2) SA 675
(E) at 676E,
Micklem v Micklem
1988
(3) SA 259
(C) and
Dodo v Dodo
1990 (2) SA 77
(W) at 93H-I, where there is reference, in turn, to
Oberholzer v Oberh
olzer
1947 (3) SA 294
(O) at 298 and
Harwood v
Harwood
1976 (4) SA 586
(C) at
587H-588A. A consideration of those judgments shows that they
do not support, as a statement of generally applicable
principle, the
bald proposition that a spouse who cannot afford from his or her
income to pay the other spouse maintenance in a
given amount is
obliged to draw on any available capital to do so.
[12]
In
Harwood
,
for example, the matter being addressed in the passage referred to by
counsel from Wulfsohn AJ’s judgment in
Dodo
was child maintenance. When Vos J there held that
‘
maintenance
pendente
lite
must even be paid out of
capital if necessary
’, the
learned judge explained that the principle he had in mind in support
of that notion was ‘
the rule that
the estate of a deceased parent is in appropriate circumstances
liable to maintain a child
’.
Only part of the maintenance claim in the current matter is in
respect of the children and, in any event, the idea
that resort may
have to be had to capital when income is insufficient is, in my view,
predicated on the assumption that the income
is insufficient to
provide maintenance in a reasonable sum in the peculiar circumstances
of the case. What might be a reasonable
sum in a given case
depends on the prevailing circumstances.
[13]
In
Oberholzer
,
the claim for maintenance
pendente lite
was by one spouse against the other in a marriage in community of
property. It is clear from Van den Heever J’s judgment
that he considered that it was incumbent on the applicant wife to
establish that the £10 a month that she sought as interim
maintenance was a reasonable amount in the circumstances. He
found her evidence in support of the quantum to be lacking and
therefore approached the question on the basis that she should be
entitled to an equivalent amount to that which the respondent-husband
said that
he
needed to live on, which was £8 10s per month. The
learned judge noted that the evidence showed that the husband had
no
income or ready cash with which to meet his maintenance obligation to
his wife, but that he had an estate ‘conservatively
estimated’
to have a net value of £1 138. Addressing the
respondent husband’s claim that he was unable
from readily
available cash to afford to pay any maintenance, the learned judge
said ‘
Then he must liquidate
assets. His wife is entitled to maintenance while there is a
credit balance at all.
’ The
judge’s remarks must be understood in the context in which they
were made, namely, with reference to the
import of the husband’s
marital power (as it then was) in a marriage in community of property
and the husband’s obligation
under such a regime, as
administrator of the joint estate, to maintain his wife. That
is clear from the judge’s detailed
discussion in the preceding
pages of the reported judgment of the proprietary implications under
Roman-Dutch law of a marriage
in community of property. It
accordingly does not follow that learned judge would have uttered the
quoted remarks in the
quite distinguishable circumstances of the
current application.
[14]
The judgment in
Taute
also does not support the proposition that a claimant for maintenance
pendente lite
in terms of rule 43 is entitled, of right and without more, to
maintenance sufficient to keep him or her in the same lifestyle
as
that enjoyed during the marriage. On the contrary, the learned
judge in
Taute
expressly
acknowledged the axiom that each application falls to be determined
on its own peculiar facts. As to the standard
of living enjoyed
by the parties during the marriage, the judge referred to it as only
one of the factors to which regard should
be had. In the
passage referred to by counsel, at p.676E, Hart AJ expressed himself
as follows: ‘
The applicant spouse
(who is normally the wife) is entitled to reasonable maintenance
pendente lite dependent upon the marital standard
of living of the
parties, her actual and reasonable requirements and the capacity of
her husband to meet such requirements which
are
normally met from income although in
some circumstances inroads on capital may be justified
’.
It hardly needs explanation to recognise that a claimant’s
reasonable requirements depend on the circumstances
prevailing when
those requirements fall to be met. It is, after all, only with
regard to such circumstances that the reasonableness
of the
requirements can be assessed.
[15]
In fairness, counsel’s written
argument did acknowledge that whilst maintenance obligations would
‘
normally
[be]
met from income ... in some
circumstances inroads on capital may be justified
’.
In my judgment, counsel’s written submission gives a reasonably
accurate summation of principle and practice
in this area. The
questions in the current matter are then whether this is a case in
which the respondent should be expected
to liquidate capital and, if
it is, to what extent would it be reasonable to require him to do so.
[16]
When (Leonora) Van den Heever J remarked in
Micklem
,
concerning interim maintenance, that a wife was entitled ‘
to
maintain the standard of living to which she was accustomed
’,
the learned judge was speaking in a case in which the husband had
relatively unlimited means and where the wife’s
claim for
additional maintenance was described as ‘
lavish
’.
The point that the judge was making when she uttered the words relied
upon by the applicant’s counsel before
me was that there is a
limit to what a spouse may claim by way of interim maintenance.
That is plain if the remarks are read
in context. They formed
part of the following statement: ‘
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
59G-H). What she is entitled to, is to maintain the standard of
living to which she was accustomed, not to increase
that.
’
It was clear on the facts of that case that the husband would have no
difficulty financially in maintaining his wife
pendente
lite
at the standard to which she had
been accustomed before the institution of the divorce proceedings.
[17]
I do not think that it would be correct to
construe anything said by the judge in
Micklem
as being intended to detract from the notion that the amount of the
maintenance to which a dependant spouse and their children
can look
for from a provider spouse or parent is informed by the cost of their
reasonable needs measured against the provider’s
reasonably
assessed ability to pay for them. In the context of a claim for
maintenance
pendente lite
,
the parties’ standard of living in the common household is
undoubtedly a relevant consideration, but it would be wrong in
a case
like the current one, where the parties’ means are relatively
modest, to ignore the effect of the loss of economies
of scale by the
division of that household into two households on the providing
spouse’s ability to afford to continue to
maintain it. A
balanced and realistic assessment is required, based on the evidence
concerning the
prevailing
factual situation.
[18]
It makes little sense to grant an interim
maintenance order that will require the provider spouse to draw down
materially on the
available capital in a case in which it is apparent
that the parties are likely to be heavily dependent for their
post-matrimonial
welfare on their joint, or to-be-equally-divided
capital resources, and in which the likelihood is that the dependant
spouse will,
after the divorce, not be able to live in the style to
which he or she was accustomed during the marriage. To do so
would
only redound to the parties common long-term detriment.
[19]
In
Micklem
,
Van den Heever J remarked that rule 43 was directed at being of
assistance to the spousal parties in the lead-up to their divorce.
The learned judge said the rule was ‘
to
assist parties in resolving their differences’
,
and proceeded that ‘
if one makes
of Rule 43 procedure a procedure whereby acrimony is engendered and
further issues are brought forward, which only
complicate the divorce
instead of simplifying it, Rule 43 misses its point
’.
I respectfully agree. Making an interim maintenance order with
exclusive reference to the parties’ standard
of living
stante
matrimonio
, and no regard to the likely
consequences of such an order on their livelihoods post-divorce, if
such are apparent on the evidence,
would, in my view, be likely to
conduce to the acrimonious and complicating repercussions against
which Van den Heever J cautioned,
and give rise to an
inappropriate application of the rule.
[20]
The applicant is not without capital
resources of her own. She has an amount in cash remaining from
the package she received
when she was retrenched, a loan claim
against what appears to be family trust (of which she is also a
beneficiary) and a retirement
annuity investment which she is not
able to access (presumably because she is still under the statutory
age of 55). The net
asset value of the respondent’s
estate has been estimated by the applicant at R5 909 716
and the gross value at
about R7 266 350. The major
part of the value of the respondent’s estate is represented by
the value of the
property that was the former common home
(R4 million) and his recycling business (approx. R1,145 million,
including a bank
balance of just over R98 000 at 21 June 2021).
The respondent’s readily accessible liquid assets, in the form
of bank accounts, appear to be worth about R565 000. He
also has two investments with Momentum, worth about R330 000,
which I suspect may be retirement policies. An amount of
approximately R921 000, being the net proceeds of the sale
by
the respondent of a fixed property at Ascot Towers, is being held in
trust by agreement between the parties pending the determination
of
the principal proceedings.
[21]
The respondent has put up a schedule of
expenses showing that if he were to be required to continue paying
maintenance on the scale
to which he agreed through his then
attorneys in May 2021 he would face a monthly deficit of R20 317.
His calculation
of the deficit makes no provision for the letting of
the flatlet at the former common home to a new tenant, which I
consider is
unrealistically pessimistic. A plausible reason for
the implied inability to find a substitute tenant has not been
provided.
In my view, the postulated deficit is realistically
stated in the region of about R15 000.
[22]
The pending action is not yet under case
management, which implies – using the current state of the
court’s trial roll
as a reference – that if the parties
are not able to reach settlement, it is likely to come to trial only
in late 2023 at
the earliest. If the respondent were required
to service the deficit from capital, it would involve – leaving
aside
the cost of the litigation, which, if it is fought out to the
bitter end, will be considerable – an erosion of the capital
available for eventual division between the parties by between
R360 000 and R400 000. This would clearly be to
their
common detriment in circumstances in which it seems unavoidable that
they will both have to face up to a lifestyle adjustment
because of
the breakup of the former single household into two units, with the
associated adverse effect on the economies of scale
hitherto enjoyed
by the family. I am therefore of the view that interim
maintenance should be fixed in an amount that acknowledges
the
altered circumstances of the parties and limits the erosion of the
available capital on which both of them will probably be
critically
reliant post-divorce.
[23]
I am not persuaded on the papers that the
applicant is unemployable. She was an active participant in the
labour market until
the middle of last year and all the indications
are that she is probably only about 50 years of age. It is
evident to any
reasonably informed South African that whilst the
economic situation remains relatively depressed, the position
generally is visibly
improved from what it was a year ago during and
immediately after the strict COVID-19 related lockdown. The
argument that
it would be in the best interests of the children if
the applicant stays at home is not convincing. The children are
not
of an age where the presence of their mother in the house when
they are not at school would be especially important or desirable.
It is evident that the respondent was a working mother when the
children were younger and in probable greater need of parental
supervision.
[24]
I consider that it would be fair, using the
rough and ready approach that has, of necessity, to be adopted in
this type of application,
to attribute to the applicant a current
earning capacity of approximately R9 250 per month. The
figure is derived from
the R7 000 per month which the respondent
would be willing to pay her to undertake a parttime job in his
business plus the
average of R2 250 that she has been able to
earn from her limited business over the past year. It is
calculated on the
basis that acceptance of the respondent’s
offer would allow her to continue with her home-based business.
The amount
is materially less than she was earning until her
retrenchment in 2020.
[25]
In all the circumstances I have decided
than an award of R13 000 per month in cash maintenance over and
above the items of
expenditure currently provided for by the
respondent (which appear to be valued at about R25 000 per month
– an amount
which will reduce once the current family home is
sold and the family moves into more modest accommodation, which looks
to be unavoidable
in the medium term) would meet the justice of the
case. It is evident that on this basis the respondent will
still be left
with a deficit of income over expenditure, but the
extent to which he will have to draw on capital to finance it will at
least
be reduced.
[26]
The parties agreed that each of them would
be entitled to draw on the proceeds of the fixed property sold by the
respondent at Ascot
Park, which, as mentioned earlier, is being held
in trust, to finance their legal expenses up to and including the
first day of
trial. The maximum amount in which such drawings
can be made by each of them is limited to R230 000, and any
drawing
must be vouched by an invoice from their respective
attorneys.
[27]
Costs of the application shall stand over
for determination at the trial.
[28]
An order will issue in the following terms:
1.
That the respondent shall maintain the
applicant and the parties’ minor children
pendente
lite
as follows:
a)
By paying, with effect from 1 September
2021, a monthly cash amount of R13 000.00 to the applicant,
payable on or before the
first day of each and every month directly
into a bank account to be nominated by the applicant for that
purpose.
b)
By continuing to maintain the applicant and
the minor children as dependents on his current medical aid scheme or
a medical aid
scheme with substantially similar benefits; and
additionally, by bearing the cost of all necessarily and reasonably
incurred medical-related
expenditure in respect of the applicant and
the children not covered by the medical aid scheme.
c)
By, within 10 calendar days of the
applicant having provided him with copies of the relevant invoices,
reimbursing the applicant
for any expenses referred to in paragraph
(b) above incurred by her, or paying the supplier or medical
practitioner directly, whichever
is appropriate.
d)
By paying the reasonably incurred
educational expenses of the minor children, including school fees,
additional tuition fees where
additional tuition is reasonably
required, school outings in which the children participate with the
respondent’s written
permission which shall not be unreasonably
withheld, extracurricular school and sport activities, as well as the
cost of all schoolbooks,
stationery, school uniforms, equipment and
attire related to their schooling.
e)
By, within 10 calendar days of the
applicant having provided him with copies of the relevant invoices
and/or proof of payment by
her thereof, reimbursing the applicant for
any expenses referred to in paragraph (d) above incurred by her or
paying the supplier
directly, whichever is applicable.
f)
By continuing to pay the following expenses
in respect of the applicant and the minor children:
i.
The
rates and services in respect of his property at [….], Cape
Town (‘the property’), where the applicant and
the minor
children currently reside;
ii.
The
minor children’s reasonably incurred cell phone expenses;
iii.
Internet/Wi-Fi
expenses in respect of the property;
iv.
The
insurance premium on the applicant's motor vehicle;
v.
The
monthly fee in respect of the provision of security services to the
property.
2.
Each of the parties shall be entitled to
draw down to the maximum extent of R230 000.00 on the net
proceeds of the sale of
the respondent’s property at Ascot
Towers, which are currently held in trust, for the purpose of funding
their respective
costs in the pending action up to and including the
first day of trial, provided that any such drawing shall be permitted
only
as against production of an invoice in respect of costs incurred
in the amount sought to be drawn down from the party’s attorney
of record or, in the event of the party being self-represented, an
invoice from a relevant service provider.
3.
The costs of the application shall stand
over for determination in the pending action.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s
counsel:
P.F. Cloete SC
Applicant’s
attorneys:
Miller Du Toit Cloete Inc.
Cape Town
Respondent’s
counsel:
L. Bezuidenhout
Respondent’s
attorneys:
Ross McGarrick
Lakeside
Norman Wink & Stephens
Cape Town