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[2015] ZAGPJHC 330
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J v J (38460/2010) [2015] ZAGPJHC 330 (4 February 2015)
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REPUBLIC
OF SOUTH AFRICA
I
N
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO: 38460/2010
Not
reportable
Not
of interest to other judges
Revised.
4/2/2015
In
the matter between
J,
M
Applicant
and
J
B
Respondent
JUDGMENT
MADIMA,
AJ
I
n
troduct
i
on
[1].
The Applicant is the Plaintiff in the main action for divorce
scheduled to be heard on 6 February 2015 in the above Honourable
Court. The Respondent is the Defendant in that action. This therefore
makes this application urgent.
[2].
The parties were married in 2003 in Zimbabwe. It is common cause that
their marriage and its patrimonial consequences are governed
in
accordance with the laws of that country. The marriage still
subsists. The parties have an 11 years old daughter.
[3].
It appears that the parties' marriage regime is, according to the
laws of Zimbabwe, one out of community of property. This
is
significant as I allude to below.
[4].
The Applicant initiated divorce proceedings against the Respondent
simultaneously with a Rule 43 application. On 17 November
2010 this
Court granted the Applicant an interim maintenance order. This Order
provided that the Respondent shall pay to the Applicant
R6 000.00 per
month as well as the sum of R4 000.00 as a first contribution towards
her legal costs.
[5].
On 18 July 2011 the Respondent issued a Rule 43(6) application
seeking a variation of the interim order of
17 November 2010
,
because according to him, a material change in circumstances had
arisen as the Applicant had obtained gainful employment with
an
income of her own. This application was dismissed with costs.
[6].
The Respondent issued a second Rule 43(6) application. This however
was settled by the parties before it reached Court. The
terms of the
settlement are not in dispute. The Applicant however claims that the
various applications by the parties have depleted
her finances and
finds herself burdened with legal fees in the amount of more than
R144 000.00.
[7].
It appears that the parties attempted on several occasions to agree
to a settlement without much success. The matter was set
down for a
hearing on 19 October 2013. The trial could not proceed and the
matter was referred to case management for 31 October
2013.
[8].
The matter was obviously not ripe for Court because of the lateness
of the holding of the pre-trial conference and other issues
relating
to discovery of documents.
[9].
On
24 October 2013
the Applicant launched another Rule 43(6)
application in which she sought an increase in the monthly
maintenance and an order that
the Respondent make a contribution of
R286 379.73 towards her legal costs.
[10].
On 4 February 2014 the Rule 43(6) application came before Honourable
Wepener J It was not entertained. The Court ordered that
the matter
be referred to case management. This however never happened.
[11].
The Applicant's Rule 43(6) application was re-enrolled and argued on
24
March 2014
. The Honourable Makume J ordered an increase of
the maintenance payment for the minor daughter from R2 000.00 to R3
000.00. On
refusing a contribution to the Applicant's further legal
costs, the Court held that
"
It
is evident that the only reason why this matter has not become
settled at this stage
,
is because the Applicant only
wants
a
settlement on her own terms
,
namely that
she and the minor child must remain in the matrimonial home
,
for which the Respondent must pay. I have no doubt that the
Applicant is being unreasonable and difficult in insisting on
retaining
the common home without paying for it
....
the issues
in this matter are not
complex and should have been settled
Jong ago
.
...
I am not persuaded that the failure to
either settle this matter or bring the matter to finality through
trial is to be blamed on
the Respondent. It is the Applicant herself
who must shoulder the blame
.
Accordingly
,
I
cannot accede to the request for
a
further contribution to
legal costs
."
[12].
In the instant application, the Applicant seeks a contribution to her
legal costs in respect of the action set down for 6
February 2015.
The Applicant argues that the realization by the parties that their
marriage is out of community of property had
necessitated the
amendment of pleadings as well as the employment of an expert as far
as the laws of Zimbabwe are concerned. I
must state that the
Respondent denies this. He offers as evidence the fact that he has
transacted without the need of the Applicant's
say so and permission.
He submits for example that he purchased the house in which the
Applicant lives in his own name.
[13].
The Applicant argued that section 7(1) of the Matrimonial Causes Act
(Zimbabwe) (Act 5:13) empowers the Court hearing the
divorce action
to make an order for the
"division
,
apportionment
or distribution of the assets of the spouses
,
including
an order that any asset be transferred from one spouse to the other.
"
The above Act provides for other orders that the Court hearing
the divorce would make. I do not get into that.
[14].
The Respondent raised a point in limine asserting that the Applicant
is attempting to use this application as an appeal against
the
previous Order of Honourable Makume J.
[15].
There are numerous decisions of our Courts that deal with Rule 43(6)
applications. [See
Muhlman v Muhlman
1984 (1) SA 413
(W)
,
Du Plooy v Du Plooy
1953 (3) SA 848
(T), Dodo v Dodo
1990 (2)
SA
77
W, Cary v
Cary 1999 (3) 615 (C)
,
Nicholson
v Nicholson 1998 (1) SA (W)
.
]
I again do not deal
with any of these cases specifically with respect to these
proceedings.
[16].
The Applicants argues that she will not be able to present her case
adequately and on the same scale as the Respondent if
not afforded a
contribution of her legal costs.
[17].
Absent such a contribution to the Applicant's legal cost, the
Applicant , so it was argued on her behalf, will have no choice
but
to accept the expert summary filed by the Respondent, the valuation
of the immovable property as claimed by the Respondent,
as well as
what the Respondent claims is the value of his share options in lmara
Capital Holdings Limited.
[18].
I do not believe that the trial Court will not be able to deal with
the issues arising from the matrimonial laws of Zimbabwe.
The expert
evidence, in the event it is required will aid the Court to arrive at
a fair outcome for the parties. The Applicant's
claim that throughout
her marriage she was under the impression that it was under the
regime of community of property until very
late is not honest. The
Applicant is an accountant. She is obviously sophisticated. She wants
this Court to believe that no bells
rang when the Respondent was able
to purchase a property without her involvement. It is at that stage
or in earlier that she knew
that hers was a marriage out of community
of property.
[19].
It is trite that a Court may vary , in terms of Rule 43(6) its order
for maintenance
pendente lite
,
in the event of a
material change of the personal circumstances of either party or
child.
[20].
The Applicant's main contentions are that the Respondent's net
earnings have increased from R66 754.74 to R82 491.00 whilst
hers
increased from R17 893.25 to R19 458.20 . This, according to the
Applicant entitles her to her Rule 43(6) relief.
[21].
In the dismissed Rule 43(6) application of
2 April 2014
, the
Applicant sought a contribution of R286 379 .00. In the instant
application the Applicant requests an amount of R290 000.00.
The
difference between the two amounts is about R4 000.00. Not
significant for the trouble that Applicant has put herself through.
[22].
It is significant to note that the Respondent already supports the
Applicant and their minor child in the amount of R29 150.00
per
month. He pays for the mortgage bond of the property that Applicant
and the minor child resides in. He pays for the Applicant's
motor
vehicle and its maintenance as well as insurance. I must say that he
currently maintains the Applicant and their minor child
very well.
[23].
There is therefore no incentive for the Applicant to conclude the
divorce expeditiously as she is aware that she will be worse
off
financially after the divorce is concluded. The parties as already
stated above, are married out of community of property.
The Applicant
knows that she will have to vacate the property she lives in at the
moment and downscale drastically if she is to
live within her means.
The Applicant will have to forgo a substantial part of the financial
support she currently enjoys aftyer
the divorce is finalised.
[24].
I am in full agreement with the Respondent's submissions that the
Applicant, in launching this application seeks to usurp
the functions
of the trail Court.
[25].
I further agree completely with the finding of Honourable Makume J in
the dismissed application of
2 April 2014
. The so-called
changed circumstances of the Respondent cannot be used by the
Applicant to come before this Court and seek to appeal
the Order of 2
April 2014 via the backdoor.
[26].
The Applicant's renewed Rule 43(6) application is an abuse of the
process.
[27].
I shall not deal with the rest of the issues raised by both the
Applicant and the Respondent. I leave that to the trial Court.
[28].
In the circumstances I am accordingly satisfied that the application
should fail.
[29].
My order is as follows:
29.1.
The Rule 43(6) application is dismissed.
29.2.
The Applicant to pay the cost of the application .
___________________________
TS
MADIMA: AJ
ACTING
JUDGE OF THE HIGH COURT
On
behalf of the Applicant: Adv E R Venter
Instructed
by: C Bekker & Associates
011
781 3009
On
behalf of the First Respondent: Adv Van der Berg
Instructed
by: Clarks Attorneys
011
783 1066
Dates
of Hearing: 2 February 2015
Date
of Judgment: 4 February 2015