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[2016] ZAGPJHC 357
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S v S (2014/04605) [2016] ZAGPJHC 357 (22 February 2016)
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 HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE
NO. 2014/04605
Reportable:
No
Of
interest to other judges: No
Revised.
22/2/2016
In
the matter between:-
S
B T
E
APPLICANT
and
S,
M
L RESPONDENT
JUDGMENT
MAHALELO,
AJ
[1]
This is an application in which the applicant who is the defendant in
the divorce action seeks an order for a further contribution
towards
her legal costs in terms of Rule 43(6) and a departure from the
restrictions in Rule 43 (7) and (8) of the Uniform
Rules of Court.
BACKGROUND
[2]
The parties were married to each other on the 8 October 1995 in
community of property and one (1) child now a major, was born
of the
marriage.
[3]
During 12 February 2014 the respondent instituted divorce proceedings
against the applicant. The action is still pending.
[4]
On 11 April 2014 the applicant launched an application in terms of
Rule 43 for
inter
alia,
maintenance
pendent
lite
for
herself and the child as well as a contribution towards her legal
costs. On 13 November 2014 the parties reached an agreement
which was
later made an order of court wherein, inter alia, the respondent was
ordered to contribute an amount of R30 000.00
towards the
applicant’s legal costs.
[5]
Pursuant to the above, pleadings in the divorce action have closed
and a trial date was allocated. In the meantime the
applicant
amended her plea and counter-claim in terms of which she included a
claim for the appointment of a receiver and liquidator.
[6]
The question involving the matrimonial properties owned, the
equitable division thereof and maintenance of the applicant
post-divorce
appears to be in dispute. Following the agreement
between the parties, on the day of trial the action was postponed
sine die pending
the appointment of a liquidator. Until the
present none has been appointed. There seems to be a dispute
regarding whether
a forensic investigator should be appointed.
[7]
It appears that it will be inevitable that the parties will have to
go to trial on a defended basis in respect of these issues.
This amongst others, has caused the applicant to apply for a very
substantial contribution towards her legal costs in the amount
of
R250 000.00.
It is
of course trite that a party seeking a contribution towards costs in
pending matrimonial litigation must show, in the first
instance that
she / he has a
prima facie
case for the particular
relief sought
and
that she / he has insufficient means with which to prosecute the
matter. In the event that these requisites are established the
court
determines the
quantum
of the contribution to be made having regard to the circumstances of
the case, the financial position of the parties and the issues
to be
determined at trial.
[1]
A party is entitled, in terms
of Rule 43(6) to bring a further application in terms of the Rule in
which he or she seeks an order
varying the order which has already
been granted in terms of the Rule. What must be shown is that a
material change has taken place
in the circumstances of the party
seeking the variation. It is well established that the sub-rule is to
be strictly interpreted.
This is to ensure that the Rule is not
abused and that a party, aggrieved by an order, does not in effect
bring about reconsideration
of an interim order as if on appeal. It
is therefore essential that a party relying upon Rule 43(6) should
set out in detail those
circumstances which it is alleged constitute
a material change warranting the variation of the interim order
already made.
[8]
According to the applicant she has to date incurred legal costs
amounting to R585 501.00.The costs include various applications
to compel against the respondent and preparation for trial.
The applicant does not deal with
how these have been funded to date.
No
accounts were attached and there is no indication as to how the
amounts were arrived at.
[9]
It is common cause that the applicant is not employed. She holds no
tertiary educational qualification. She is financially dependent
on
the respondent. She currently receives inter alia an amount of
R30 000.00 per month (as per the court order) as maintenance
pendente lite
in respect of herself and the child.
According to her she has no other source of income. She avers that as
a result of the
respondent’s stance in the divorce action she
requires sufficient funds to put her case before court as well as to
expend
on experts in order to determine the value of the joint
estate.
Even
if I accept – upon a generous interpretation of the applicant’s
papers – that she has made out a
prima
facie
case entitling her to
substantial success in her claims, and that her papers disclose an
inability to fund her own litigation costs,
I cannot accept that she
has made out a case for the scale of the contribution she seeks. An
applicant seeking a contribution towards
costs must set out the
anticipated reasonable legal expenses with sufficient detail to
enable the court to properly assess what
is reasonably required in
order to do justice between the parties.
[11]
The applicant alleges that the respondent is an extremely wealthy and
a successful businessman. The respondent does not
seriously
dispute the allegation by the application that he holds 50% shares in
a close corporation, JK & M Properties, which
is a property
owning entity, that he has a number of assets, such as the
matrimonial home, sectional unit situated at Freeway Park
in
Johannesburg, valued at approximately R850 000.00 from which he
earns a monthly rental of R6 000.00, a sectional unit
situated
at Ballito in Kwa-Zulu Natal, valued at approximately R2,500,000.00.
All of these properties have been paid for in cash,
2 luxurious motor
vehicles, (one used by the applicant) valued R480 000.00 and
R2 000 000.00 (Lambogini).
The Lambogini was recently
sold for R1 500 000.00. An amount of R514 651.54
is currently held in the respondent’s
current account.
The respondent owns business namely the Star Butchery and Jansens
Meat Market.
[12]
The respondent does not allege the contrary as far as his assets are
concerned. He however alleges that he is currently
in a
negative cash flow position. He was forced to close the Star Butchery
due to criminal activities. The business was his
main source of
income, he is presently merely an employee of Jansens Meat Market as
the business is owned by his brother and he
receives a monthly income
of R44 000.00 per month.
On
a consideration of all the facts it becomes clear that the respondent
is a man of substance. Further that he is the one in control
of the
joint estate.
[15]
The applicant is entitled to a contribution towards her legal costs
which would ensure that she litigates on the same scale
with the
respondent. In the matter of
Cary v Cary 1999(3) SA 615(C)
it was held that:
“
The claim for
contribution towards costs in a matrimonial suit was sui generis.
The basis of such claim was the duty of support
which the spouses
owed to each other. In assessing the quantum of the
contribution to enable the party seeking the contribution
to present
her case adequately before the court, the court had to have regard to
the circumstances of the case, the financial position
of the parties
and the particular issues involved in the pending litigation.
The question of essential disbursements was
a material factor to be
considered, as was the scale on which the party from whom the
contribution was required was litigating.
In the exercising its
discretion in the determination of the quantum towards costs to be
awarded, the court was bound by Section
9(1) of the Constitution of
the Republic of South Africa Act 108 of 1996 to guarantee both
parties the right to equality before
the law and equal protection of
law. This has to be interpreted in context to mean that the
applicant was entitled to a contribution
towards her costs which
would ensure equality or arms in the divorce action against the
respondent. The applicant would not
be able to present her case
fairly unless she was empowered to investigate the respondent’s
financial affairs through forensic
accountant appointed by her
”
[16]
The test to be applied in considering the amount is that the
applicant should be placed in a position adequately to present
her
case. 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. See
Dodo v Dodo
1990 (2) SA 77
(W)
.
What is ‘adequate’ would depend on the nature of the
litigation, the scale on which the husband is litigating and
the
scale upon
which she intends to litigate with due regard being had to the
husband’s financial position.
Dodo,’s
case supra at 98C. The applicant is not entitled to all here
costs of the trial but merely a ‘contribution towards’
her costs up to first day of the trial
.
See Nicholson v Nicholson
1998 (1) SA 48(W)
, Dodo v Dodo supra
[17]
Upon weighing the facts of the present matter, it becomes clear that
the applicant is entitled to a further contribution towards
her costs
which would ensure that she litigates on the same scale with the
respondent in a divorce action. However she is not entitled
to have
her entire legal costsl covered in advance. She is entitled to
a contribution only. It is open for her to approach
the court
for a third and further contribution in due course if need be.
But a substantial contribution is now necessary
to ensure that she is
not disadvantaged as a litigant.
[18]
In Rule 43 applications the parties are discouraged from filling
prolix affidavits. Notwithstanding the submission that
the
applicant’ affidavit is an abuse of process, I have found that
special circumstances exists justifying condonation thereof.
The
applicant was substantially successful, there is no reason why I
should not order costs against the respondent.
[19]
In my view circumstances of this matter justifies a departure from
the provisions of Rule 43 (7) and Rule 43(8)
In
the result I make the following order:
1.
The
respondent is ordered to make a further contribution towards the
applicant’s legal costs in the sum of R90 000.00.
2.
That the
limitation prescribed in Rule 43 (7) and Rule 43 (8) be departed
from.
3.
The
respondent is ordered to pay the costs of this application.
_________________________
M.B.
MAHALELO
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Appearances
Counsel
of the applicant :
Adv. A.E Willcock
Instructing
Attorneys
:
Jurgens
Bekker Attorneys
Counsel
for the respondent:
Mr A. Christophorou
Instructing
Attorneys
:
Biccari
Bollo Mariano Inc.
Date
of hearing
:
1
February 2016
Date
of judgement
:
22
February 2016