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[2013] ZAGPJHC 262
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E v E (2013/27961) [2013] ZAGPJHC 262 (24 October 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE GAUTENG HIGH
COURT OF SOUTH AFRICA
JOHANNESBURG
LOCAL
DIVISION
CASE NO: 2013/27961
In the matter between:
E,
C L
Applicant
and
E,
V G
Respondent
JUDGMENT
MUDAU AJ:
[1] This is
an opposed application in terms of Rule 43 of the Uniform Rules of
Court. Pending a divorce action, the
applicant seeks an order
granting to her:
1.1
maintenance for herself in the amount of
R20 000,00;
1.2
that the respondent continue to pay
maintenance expenses relating to two children studying at a
university; and
1.3
a contribution of R10 000, 00 towards
her legal costs.
[2] The
parties were married in community of property on 25 January 1991.
There are two daughters born of this marriage.
They are O, born on
January 1991, currently 22 years old and M, born on 11 August 1993,
currently 19 years old. Both are students
at the University of
Pretoria.
[3] The
parties and their daughters lived in the United Kingdom from 1999 to
2006 when the applicant and their daughters
returned to South Africa
in March 2006. The respondent joined his family in February 2010 on a
work visa. The intention, however,
was to make South Africa their
permanent home. It is common cause that the respondent bought a house
for his family and paid R1 100 000,
00 in cash.
[4] Both
parties are employed. The applicant is employed by Christian Art (Cum
Books) as a graphic designer. She earns
a nett monthly income of
R16 697.52. The applicant alleges that the respondent is
employed by a private company, Solifio Tanker
Equipment (Pty) Ltd in
the position of General Manager. The respondent, however, denies this
and states in his opposing papers
that he is a businessman trading as
a Total Quantifying Consultant earning approximately R15 350.00
before tax deductions
per month.
[5] The
points of dispute between the parties that falls to be decided by
this court remain:
5.1
maintenance
pendente lite
;
and
5.2
contribution towards the applicant’s costs.
It has been contended and
agreed to by the parties that the respondent is willing and continues
to bear the expenses of their daughters’
university studies.
[6] In support of her
claim for maintenance pending divorce, the applicant proceeded to
itemise her monthly financial requirements
totalling R24 601.89.
[7] The respondent is
essentially opposing the application on two grounds. Firstly, he
alleges that the applicant’s monthly
financial requirements are
excessive and should reasonably be R19 404.08 which can be
covered by her earnings. Secondly, he
claims that he cannot afford to
pay the amount claimed as he too has expenses totalling R17 858.00
per month.
[8] From the papers, the
respondent can hardly be described as a man of straw. Significantly,
the respondent has not placed evidence
reflecting his true financial
means. It is not in dispute that he has a standard lifetime allowance
pension plan which as at 17/10/2011
was worth £1 800 000.00
from which he withdrew £2 839.53. It is common cause that
he had bought the
family house for R1 100 000.00 in cash
and also gave his wife R600 000.00 to furnish it .As recent as
February 2013,
he issued a cheque of R100 000.00 which he claims
is in settlement of a debt. In November of 2012, a similar amount had
been
drawn in favour of the same entity. In an email addressed to his
financial broker motivating cancellation of a new policy with Sanlam
as well as ‘‘future payments into the existing Sanlam
funds” the respondent writes that he will no longer be
investing any money in South Africa as SARS is going through his
financial affairs.
[9]
The respondent, it seems to me, has not fully, frankly and clearly
disclosed his financial affairs. In dealing
with the aspect of
disclosing financial information in divorce matters, Lopes J in the
matter of
M
G B v D E B
[1]
,
relied in an English Court decision of J v J
[2]
wherein
Sachs J said:
“
In cases of
this kind; where the duty of disclosure comes to lie on a husband;
where a husband has – and his wife has not
– detailed
knowledge of his complex affairs; where a husband is fully capable of
explaining and has had the opportunity to
explain, those affairs, and
where he seeks to minimise the wife's claim, that the husband can
hardly complain if, when he leaves
gaps in the court's knowledge, the
court does not draw inferences in his favour. On the contrary, when
he leaves a gap in such
a state that two alternative inferences may
be drawn, the court will normally draw the less favourable inference
– especially
where it seems likely that his able legal advisers
would have hastened to put forward affirmatively any facts, had they
existed,
establishing the more favourable alternative…Any
shortcomings of the husband from the requisite standard can and
normally
should be visited at least by the court drawing inferences
against the husband on matters the subject of the shortcomings –
in so far as such inferences can properly be drawn.”
[10] In this case
the respondent’s total monthly expenses far exceed his monthly
salary which can render the estate
technically insolvent if his
version is accepted as correct. I have no difficulty in finding that
the respondent is not candid
with this court with regard to his
financial affairs. It can easily be inferred from the above facts
that the respondent is financially
stable.
[11]
Depending on the living standard of the parties
[3]
,
the applicant may be entitled to maintenance provided she shows that
she has insufficient means in addition she must show that
her husband
is able to make the required contribution.
[4]
In
this matter it is admitted that the applicant and the children live a
comfortable lifestyle.
[12]
In
Dodo
v Dodo
[5]
,
it was stated that:
“
the
fact that the respondent may be wealthy does not entitle the wife to
unlimited spending, there being a difference between what
she wants
and what she needs
.”
[13] The following
expenses by the applicant are in my view, non-essentials:
i)
R1100.00 as payment for the domestic worker’s salary as the
applicant has left the common house.
ii)
the store card expenses can be reduced by an amount of R1000.00.
iii) stationary and
printing for their daughters R400.00 (It was conceded that the
respondent is responsible for their educational
expenses).
iv) home maintenance
equipments etc. for R300.00.
v) the respondent’s
insurance contribution of R450.00.
v) petrol expenses for
their daughters can be reduced by R500-00.
It is a total of
R3750.00.
[14] However, I am
satisfied that the applicant has made out a case which
entitles her to maintenance
pendente lite
. An appropriate
order in accordance with this finding will be made below.
[15]
It remains to deal with the application for contribution towards
costs. It is trite law that the husband’s duty of support
includes supporting his wife with costs for her litigation against
him. Before trial, the applicant is ordinarily entitled to be
awarded
a contribution only up to and including the first day of trial.
[6]
The
rationale being that the case may be settled. It was argued on behalf
of the applicant that R10 000.00 contributions towards
costs is
justified for purposes for investigating the respondent’s
financial affairs. In my view however, R10 000.00 as contribution
is
excessive.
[16] In the result I make
the following order:
1.
That the respondent pays maintenance
pendete lite
an amount of R15 000.00 per month in favour of the applicant.
2.
That the respondent pays R3000.00 towards
the applicant’s costs.
3.
The costs of this application are costs in
the divorce action.
MUDAU AJ
Acting Judge of the
Gauteng High Court of South Africa
Johannesburg
Local Division
Date of Hearing:
14 October 2013
Date of Judgment:
24 October 2013
For Applicant: Adv.
Tessa Halgryn
Instructed By: Esthe
Muller Inc
Applicant’s
Attorneys
1
st
Floor, Rosebank Corner
191
Jan Smarts Avenue, Cr. 7
th
Avenue
Rosebank,
Johannesburg
For Respondent:
Adv. E. Liebenberg
Judgment noted by:
Mr. B. Coetzee
Instructed by: D &
K Attorneys
Respondent’s
Attorneys
218
Barkston Drive, Blairgowrie,
Randburg
[1]
M G B V
D E B [2013] 4 All SA 99 (KZD).
[2]
J v J
[1955] P 215
at 227.
[3]
See
Grauman v Grauman
1984 (3) SA 447
(W) at page 379E.
[4]
Greyling
v Greyling 1959 (3) SA 967 (W).
[5]
1990
(2) SA 77
(W) at page 98 D – E
.
[6]
See
Dodo
supra
at page 98 para F.