About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 445
|
|
H v H (2014/06944) [2014] ZAGPJHC 445 (28 November 2014)
Links to summary
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2014/ 06944
Not reportable
Not of interest to other
judges
Revised.
28 November 2014
In
the matter between:
CH,
ICFS
Applicant
And
CH,
SJH
Respondent
JUDGMENT
SPILG,
J:
THE
DISPUTES
1.
This is an
application under 43 (6) to vary an order granted in August last
year. The applicant seeks to vary the maintenance order
and also to
change the primary residence of B who is one of the two children born
of the marriage. He is 14 years old. The other
child, C, is 12 years
old. The respondent’s counter-application relates to the
residence and contact rights in respect
of B as well as an
order that the applicant pays R5 000 maintenance.
2.
In terms of
the previous order both minor children would reside with the
applicant. She was also ordered to pay spousal maintenance
for her
husband in an amount of R10 000 per month.
3.
The parties
are agreed that B resides with his father and that the applicant has
reasonable contact rights. There is however no
report by the family
advocates. This is a concern as the interests of both minor
children is of paramount importance and
the effect that splitting
them may have on each, both in the short and long term, has not been
dealt with.
4.
The dispute
regarding whether the applicant should continue paying
maintenance for the respondent turns on whether he is earning
a
significantly greater income than at the time of the original rule 43
hearing (whether due to a change in his fortunes or due
to material
non-disclosure at the time of that hearing) , whether he has actually
disclosed his true income, whether the applicant
has accurately
disclosed her income and whether there has been a relevant change in
either parties’ expenditure.
5.
If the
applicant’s income is insufficient to cover both her and the
children’s needs as well as the respondent’s
then the
question arises whether either of the parties should be obliged to
dip into their capital or other investments.
6.
The
respondent has also raised a number of preliminary issues which will
be considered first.
POINTS
IN LIMINE
7.
The
respondent complains that the papers are unduly lengthy. The
applicant’s papers are three pages longer than the respondent’s
(if the counter-application is excluded). It accordingly does not lie
in the respondent’s mouth to complain.
8.
The
respondent also contends that the application is an abuse. The
parties have fought maintenance issues in the previous High Court
application and also subsequently before the Maintenance Court. The
focus however should be on whether the present application
can be
justified on its own merits as being initiated due to changed
circumstances. Of course the fact that the applicant has also
sought
to use the maintenance courts might be evidence demonstrating a lack
of
bona
fides
in
bringing the present application.
9.
The
applicant claims that circumstances have materially changed. Firstly
she has moved out the matrimonial home which is registered
in the
respondent’s name while B has in fact been living with the
respondent since the beginning of June 2014.
10.
I might
have been disposed to consider the application as opportunistic.
Realistically there was no need for the applicant to approach
the
court in order to deal with B’s change of residence. Moreover
the applicant moving house, without some explanation, might
suggest a
contrived situation. However the respondent then returned to live in
the matrimonial home with B. The change in residence
by both spouses
must materially impact on their respective needs in relation to the
cost of accommodation, which is one of the
key expenses whether in
the form of paying rental or servicing a bond. In the present case
the matrimonial home is fully paid up
which means that there is a
full saving of rental (barring utility bills) for the respondent
while the applicant must now start
paying rent.
11.
In my view
the extent to which the overall circumstances of both parties have
changed since the previous rule 43, and the need for
the court to
address the concerns regarding the splitting of siblings, brings the
applicant within the ambit of rule 43(6).
SON
B
12.
It is
always of concern when siblings are separated. In the present case
the parties acceded to B’s wish to reside with his
father and
he has done so since 1 June. C wishes to remain with his mother.
13.
The issue
should have been taken up with the family advocate since C’s
views regarding being split from his brother have not
been dealt with
in the papers, nor the longer term effect the split might have.
However at the time of the hearing the position
had endured and it is
unwise to continually chop and change the children’s place of
residence, particularly as the trial
is due to be heard in April
2015.
14.
Nonetheless
I will order that a family advocate’s report be obtained with
regard to the question of primary residence, which
is to include a
report on the advisability of splitting the siblings. It is also
necessary to make provision in the order that
contact rights have due
regard to the desirability of maintaining a sound sibling
relationship between B and C.
THE
PARTIES’ S CHANGED FINANCIAL POSITION
15.
The
applicant claims that the respondent’s financial circumstances
have improved since the previous rule 43 hearing. Since
July 2013 the respondent has received income from four sources,
whereas only one significant source was disclosed when he brought
the
rule 43 application in April 2013. This related to the payments
received working part-time for PM Engineering as a truck driver
which
since the rule 43 hearing last year and over the 11 month period from
July 2013 to May 2014 has amounted to R87 200.
16.
The
documents discovered in the main action reveal that the respondent
also received sporadic payments for architectural services
over the
same period from Double S Engineering totalling R53 920. It paid the
applicant three amounts, one in August of R36 420,
another in
September of R7500 and the last payment was in December for
R10 000.
17.
The
respondent was paid architectural fees of R43 000 during the
same eleven month period from Notorious House Design. They
comprise
five separate payments in amounts ranging from R7 000 to R15 000
per month.
18.
Finally the
respondent also received during this period R7 800 from Mr H S.
HS is a friend who occupies the respondent’s
house at the Vaal.
The amount is made up of six individual payments ranging from R800 to
R1800.
19.
The total
of all these amounts received over the eleven month period since the
last rule 43 hearing is R191 920. It translates
into an average
monthly income of some R17 447, if the month of January 2014 is
taken into the reckoning. The respondent however
did not work for
part of that month as he was travelling in Cambodia with B.
20.
There are a
number of troubling features. Firstly the respondent received at
least one amount in cash of R10 000 which was
not deposited into
his bank account.
21.
However the
most disconcerting feature of the respondent’s case is that in
the original rule 43 proceedings the respondent
claimed that his
income was R 5 500 whereas shortly after that hearing there was
a massive injection of R36 420. The
respondent failed to
disclose in the earlier proceedings that there was architectural work
that he was in fact performing although
payment was not yet due.
The effect was that for the month of July 2014 the respondent
received income of R16 000 while
in August the amount was
R48 420.
There
has been no satisfactory explanation for the sudden rise in income.
The uncharacteristically large deposit made in August
2013 of R36 420
may also suggest that the respondent had the ability to delay the
receipt of income.
22.
The
respondent however claimed in the present proceedings that he earns
R10 590.91per month. This is not borne out by the discovered
bank statements.
It
is therefore clear that the respondent suppressed the full extent of
his income not only at the time of the original rule 43
application
but also in the present proceedings.
23.
Of further
significance is that the difference between the monthly income
allegedly earned when the court ordered the applicant
to pay the
respondent spousal maintenance of R10 000 per month and the
amount now earned over the eleven month period since
the original
rule 43 order is just short of R12 000.
24.
If only the
income component in the equation is taken into account then the
respondent’s earnings have increased by more than
the amount of
maintenance which the court hearing the original rule 43 application
considered was needed to bridge the shortfall
in the respondent’s
monthly expenses. If this was the only consideration then the
respondent cannot continue to legitimately
claim any entitlement to
being maintained financially at the applicant’s expense.
I
proceed to consider the expenditure element in the equation.
25.
The first
consideration is that the respondent, by returning to the matrimonial
home, is saving R4 800 per month which was
the rental he had
previously been paying. He has sought to build in a claim of
expenditure for B of R5000 per month. Even if he
was to be
responsible for the full amount it will still only result in a net
increase in expenditure of R200 per month which is
insignificant when
considered against the increase in the respondent’s income of
some R12 000.
26.
The
respondent has sought to meet this by now claiming that his overall
monthly expenses are R44 700. This amount is some R9 000
per month greater than the amount he had disclosed not less than two
months earlier in June 2014. The latter figures had been submitted
for purposes of responding to the applicant’s enquiry launched
before the maintenance court under
section 10
of the
Maintenance Act
99 of 1998
. The application was unsuccessful. Save for
referring to increases in expenditure as a result of B living with
him no other
explanation was offered in the opposing affidavit for
this significant increase. However B’s additional expenses
cannot account
for such a dramatic increase.
27.
The
respondent’s unaccounted for increase in expenditure and
material increase in income can only be rationally explained
on the
basis that he has not been frank with the court. If regard is had to
the nature of
rule 43
applications then in my respectful view the
court must come down hard on a party that has failed to take the
court into his or
her confidence because there has been either a
material non-disclosure of income or a material inflating of
expenditure. Both occurred
in the present case.
28.
It is
necessary that there be consequences to a litigant who takes
advantage of the
rule 43
procedures by not making frank disclosures
of income and expenditure. While in most cases the parties have not
reached the stage
of discovery where such allegations can be tested,
in the present case discovery was made which affords the court
greater insight.
The discovered documents indicate that the broad
canvas painted by the respondent does not reveal the true picture and
cannot be
relied upon. Since the foundation upon which the figures
are provided is unreliable it becomes a pointless exercise to
meticulously
go through each item. A more robust approach is required
where there is a discernable lack of frankness in
rule 43
proceedings.
29.
The
applicant claims that as a result of leaving the matrimonial home
and renting accommodation for herself and C her monthly
expenses have
increased by R8 000 which represents the rent she now has to
pay. There is however a potential saving as a result
of B now living
with his father and an added financial burden placed on him.
30.
Since the
respondent’s own assessment of B’s monthly requirements
(as against the former’s savings in rental and
even taking into
account municipal utility charges) does not outstrip his current
monthly earning capacity, there appears no reason
why the respondent
should continue to be maintained by the applicant. Even if I am
wrong, the respondent has assets that can be
considered as luxurious
in the form of a house at the Vaal and he appears to have resources
which he can dip into so as to be able
to afford an oversees’
trip with B to Cambodia. It is also significant that during the month
in which he was away the respondent
was still able to maintain his
salary from trucking.
31.
In broader
terms the respondent is a qualified architect who claims that
effectively he can find little work and must resort to
trucking. He
however admits to owning property aside from the residential home in
Emmarentia where he now lives. I have mentioned
the holiday home on
the Vaal River. There are a number of motor vehicles, a motor cycle,
a speed boat and jet-ski. Irrespective
of their relative age they
reflect a lifestyle which is unlikely to be supportable if the
respondent did not access other resources.
He has capital and liquid
investments abroad and in South Africa of over R1million. The
respondent claims that he has had to liquidate
some of his
investments to fund his monthly shortfall. As pointed out by Ms De
Wet on behalf of the applicant, this would mean
that over the past 14
month period prior to the present hearing the respondent was
able to access just short of R200 000.
32.
The
applicant also earns income abroad and dividend income she used to
obtain is no longer being received. It appears that she too
is either
able delay the timing of the receipts or the amounts have been
ploughed back. Nonetheless having regard to the view I
take of the
respondent’s financial circumstances and his material
non-disclosure regarding the true state of his affairs,
the applicant
cannot be expected to liquidate any of her own capital assets and in
any event her own financial position will
not affect the
outcome since I find that the respondent is able to meet his own
needs, even if he continues to work at his current
reduced pace in
part-time employment, irrespective of whether this is due to the
economic climate or otherwise.
33.
I should
add that at the court’s request further financial records were
provided and have been considered in reaching the
conclusion I have.
B’S
MAINTENANCE
34.
Historically
the applicant assumed responsibility for both children’s needs
save for an insignificant contribution from the
respondent. She
effectively paid R9 379 monthly for both children which she
claims has increased to some R13 400 per
month.
35.
The
applicant initially sought an order that the respondent contribute
50% for their support. In the draft order subsequently presented
this
was not persisted with, but in the draft provided yesterday this
claim was re-instated. The respondent contends that he should
receive
maintenance for B in an amount of R5 000 per month. This is
persisted with.
36.
I have
already dealt with the disposable income available to the respondent
and that his lifestyle indicates that he continues to
draw on other
sources of income.
37.
The main
trial is not too distant. This court is reluctant to impose on the
applicant at this stage the full burden of both children’s
support. Since the respondent returned to his Emmarentia
residence at the beginning of September the extra costs relating
to B
would be in respect of food. The applicant continues to pay for
schooling, clothing and the like.
38.
Realistically
the extra costs that the respondent may now incur in respect of B are
not significant. Moreover the respondent did
not launch an
application or seek an increase in maintenance despite Brenan
residing with him since June 2014. The claim only arose
by way of the
counter-application after the present application had been launched.
39.
The failure
to take the court into his confidence regarding actual income,
earning ability and expenditure also makes it unwise
to undertake
what must be a pure thumb suck. The trial court will be in a
better position to assess if the applicant should
bear all but a
minor portion of the children’s maintenance or whether it
should be apportioned on a more balanced basis if
the parties do not
settle.
COSTS
40.
The court
is most concerned about what appears to be a chopping and changing of
income and expenditure by the respondent to suit
the contingencies.
There was a material failure to disclose to the court hearing the
first
rule 43
application, which he had brought, that he had in fact
been able to procure certain architectural work, even if he had
not
yet completed it or been paid in part.
41.
However the
court cannot conclude that the applicant has not also been reticent
about her own deferral of sources of income.
42.
Overall,
the need to bring the present application arises from the documents
discovered by the respondent which demonstrate
that there
had not been a frank disclosure to the initial court of income or the
ability to earn income. It had clearly affected
the court’s
decision.
43.
I believe
that the appropriate order regarding costs is that the
respondent bears half the taxed or agreed party and
party costs of
the application and the full costs of the counter-application, to be
paid when the order of divorce is granted.
ORDER
44.
I
accordingly make the following order:
1. Paragraphs 1 and 2
of the order of the above Honourable Court dated 5 August 2013 are
deleted;
2. Pending
finalisation of the divorce action:
2.1.
B LN CH (hereinafter referred to as “B”) shall primarily
reside with the Respondent;
2.2.
the Applicant shall have the right of reasonable contact with B,
which shall include but not be limited to the under mentioned
and
which contact times shall coincide with the times that C JL CH
(hereinafter referred to as “C”) is in the Applicant’s
care:
2.2.1. alternate
weekends from Friday 17h30 to Monday when the Applicant shall drop
him off at school;
2.2.2. alternate
Wednesdays (during the week that the Applicant does not have contact
to him on the weekend) from 17h30, to
Thursday morning when the
Applicant shall drop him off at school;
2.2.3. on his
birthday in alternate years;
2.2.4. alternate
public holidays;
2.2.5. alternate
short school holidays;
2.2.6. Mother’s
Day;
2.2.7. half of
long school holidays which are to alternate in such a manner that
Christmas, New Year and the Easter periods
alternate between the
parties;
2.2.8.
reasonable telephone contact;
2.3. C shall primarily
reside with the Applicant subject to the Respondent’s rights of
reasonable contact to C, which shall
include but not be limited to
the under mentioned and which contact times shall coincide with the
times that B is in the Respondent’s
care:
2.3.1. alternate
weekends from Friday 17h30 to Monday when the Respondent shall drop
him off at school;
2.3.2. alternate
Wednesdays (during the week that the Respondent does not have contact
with him on the weekend) from 17h30
to Thursday morning when the
Respondent shall drop him off at school;
2.3.3. on his
birthday in alternate years;
2.3.4. alternate
public holidays;
2.3.5. alternate
short school holidays;
2.3.6. Father’s
Day;
2.3.7. half of
long school holidays which are to alternate in such a manner that
Christmas, New Year and the Easter periods
alternate between the
parties;
2.3.8.
reasonable telephone contact;
2.4.
The Applicant shall not pay to the Respondent any amount for the
maintenance of B nor shall the Respondent pay any amount to
the
Applicant for the maintenance of either child.
3. The family advocate
is to prepare a report with regard to the question of B’s
primary residence, which is to include a
report on the advisability
of separating the siblings.
4. The
counter-application is dismissed.
5. The Respondent
shall pay half of the taxed or agreed costs of the application and
all the costs of the counter-application on
the party and party
scale.
_____________________________________________________
DATES
OF HEARING: 1 October and 6 October 2014
DATE
OF JUDGMENT: 28 November 2014
LEGAL
REPRESENTATIVES;
FOR
APPLICANT: Adv Adele De Wet SC
Allan
Levin & Associates
FOR
RESPONDENT: Adv Amandalee De Wet
Matthew
Kerr-Phillips