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[2018] ZAGPJHC 93
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W v W (26912/2017) [2018] ZAGPJHC 93 (8 March 2018)
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THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case
number: 26912/2017
Not
reportable
Not
of interest to other judges
Revised.
8
March 2018
In
the matter between:
W
E
Applicant
and
W
S
Respondent
JUDGMENT
Molahlehi,
J
[1]
The applicant in
this matter seeks an order for interim maintenance by her husband
pending the finalisation of the divorce in their
short-lived
marriage. The marriage which is out of community of property has a
lifespan of only for two years and is childless.
The applicant seeks
monthly maintenance of R37 500.00 and contribution to the costs of
litigation in the sum of R100 000.00.
[2]
The respondent
opposed the application, contending that the applicant has not made
out a case for the relief sought. The respondent
has also applied to
have certain averments relied on by the applicant struck-out on the
bases those were proposals made during
the settlement negotiations.
[3]
It
is trite that as a matter of public policy the courts always
encourage parties to engage in settlement negotiations as a means
of
resolving their disputes amicably and avoiding litigation, if at all
possible. In
Naidoo
v Marine and Trade Insurance Co. LTD
[1]
Trollip JA
in dealing with the issue involving correspondence exchanged between
the parties on a “without prejudice” basis during
the
negotiation said:
“
It
appears from the above letters that all the correspondence starting
with and subsequent to appellant's letter of 25 June 1973,
RSC, 8,
was conducted "without prejudice" in the
bona
fide
efforts by both parties
to settle the appellant's claim for compensation. The
bona
fides
of the parties in that regard
was not the questioned. At the first blush, therefore, it would
appear that, in accordance
with the general "without prejudice"
rule, such correspondence, once the respondent objected to its [sic]
been adduced
in evidence, was wholly inequitable. The rationale of
the rule is public policy: parties to disputes are to be encouraged
to avoid
litigation and all the expenses. "(nowadays very
high"), delays, hostility, and inconvenience, it usually
entails, by
resolving their differences amicably in full and frank
discussion without the fear that, if the negotiations failed, any
admissions
made by them during such discussions will be used against
them in their ensuing litigation.”
[4]
I do not deem it
necessary to analyse in any detail the statements and documents which
the respondent contended should be struck-out
for being privileged. I
do however agree with him that the statements and most of the
annexures relied on by the applicant are
based on statements made in
the course of the
bona
fide
and genuine
attempt at resolving the dispute without resort to litigation. In
this context, allowing the use of the same would
fly in the face of
the very policy which the court seeks to promote which is a process
of open and frank discussions, between the
parties without fear that
whatever is said during the negotiations cannot later be held against
any one of them.
[5]
I agree with the
respondent that it is inappropriate for the applicant to seek to make
a case based on statements made and documents
generated in the course
of a
bona fide
attempt at settling the dispute.
[6]
In my view, putting
aside the technical point about the admissibility of privileged
information, the key issue that needs to be
determined is whether the
applicant has made out a case for the relief sought.
[7]
It is trite that the
onus in a claim for maintenance
pendente
lite
is on the
applicant to show that he or she is entitled to maintenance.
Furthermore, the applicant has to prove the quantum for
the
maintenance.
[8]
The
purpose of rule 43 of the Uniform Rules of the High Court (the Rules)
was stated in Nilsson v Nilsson
[2]
,
in the following terms:
“
Primarily
Rule 43 was envisaged to provide temporary assistance for women, who
had given up careers or potential careers for the
sake of matrimony
with or without maternity, until such time as at a trial, and after
hearing evidence, maintenance claim and,
if children had been born,
custody claims could be properly determined. It was not created to
give an interim meal – ticket
to women who quite clearly at the
trial would not be able to establish a right to maintenance."
[9]
In
Kroon v Kroon,
[3]
although
dealing with the issue of maintenance post-divorce, the court held
that it could not award maintenance to a woman who
can support
herself. To succeed in an application such as the present one the
applicant would have to be open and transparent with
the court as
concerning her income, investments, and the bank statements. It is
not a matter of mentioning these matters in passing.
The
applicant is required to take the court into his or her confidence so
that it can assess in a fair manner and balancing the
interest of
both parties, whether indeed the relief sought should be granted.
[10]
The applicant in her
founding affidavit stated that she sold her property at Chaka’s
Rock for R529 003.26. The one at Namotoni
for the sum of R863,
738.90. The funds were placed in a money market account.
[11]
The applicant has
not indicated in her papers whether there is any interest accrued
from that investment. There is thus no information
concerning the
interest that may or may not have accrued from the capital and why
she could not use that to support herself. There
is no explanation as
to why this was not disclosed in the founding affidavit.
[12]
It is apparent that
for three months after the separation with her husband, the applicant
continued to support herself. She has
not disclosed how she managed
that, and what her source of income was.
[13]
Contrary to her
version that she is unable to maintain himself there is evidence that
indicates that during January 2017 she renovated
the kitchen and
upgraded the driveway at a significant cost. The only reasonable
inference to draw from these facts taken together
with those
discussed earlier is that it cannot be said that the applicant cannot
afford to support herself.
[14]
I was informed
during the argument that pleadings in this matter have closed and
what remains is to set the matter down for trial.
It follows
therefore that it should not be too long before the matter serve
before the court for a determination.
[15]
In light of the
above, I am of the view that the applicant has failed to make out a
case deserving of the relief she sought. Accordingly,
the application
stands to fail.
Contribution
to costs.
[16]
The applicant has
again failed to be transparent with the court about the relief for
the contribution of costs for the litigation.
She has not disclosed
as to how the litigation was funded before 29 September 2017.
Order
[17]
In the premises, the
applicant's application is dismissed with costs.
E
Molahlehi
Judge
of the High Court, Johannesburg.
Representation:
For
the Applicant: Adv. N Strathern
Instructed
by: Richardson Attorney Inc
For
the Respondent: B.A Fourie SC
Instructed
by: Ellis Coll Attorneys
Heard
on: 22 February 2018
Delivered
on: 08 March 2018
[1]
1978 [3] SA 666 [8]
[2]
1984 [2] SA 294 at 295F
[3]
1986. [4] SA 616 (E),