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[2021] ZAGPJHC 721
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Kivetts v Brugmans (04853/2020) [2021] ZAGPJHC 721 (21 May 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 04853/2020
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
21 MAY 2021
This
matter was heard virtually on the Microsoft teams platform
In the matter between:
MAJEDA
KIVETTS APPLICANT
and
WERNER ALFRED JOHAN
BRUGMANS RESPONDENT
Coram:
Majavu
AJ
Heard
: 20
May 2021
Delivered:
21
May 2021 – This judgment was handed down electronically by
circulation to the parties' representatives by email, by being
uploaded to the
CaseLines
digital system of the GLD and by
release to SAFLII. The date and time for hand-down is deemed to be
14h30 on 21 May 2021
Summary:
This is an application in terms of rule 43 of the Uniform rules of
Court for certain relief
pendent lite, for inter alia,
interim
maintenance, payment of certain loans, litigation costs unrelated to
the pending divorce,
declarators
, issue whether some costs
prayed for are competent in rule 43, applicant contends the law has
developed to accommodate all costs
as a species of maintenance,
respondent contends otherwise- relief granted
only
in respect
interim maintenance and related expenses, costs to be determined in
the main action
ORDER
(a)
The
respondent is ordered to pay,
pendente lite,
an amount of
R65,000.00 per month with effect from
28 May 2021
, and
thereafter by no later than the last working day of each succeeding
month, such payment to be made into the applicant’s
nominated
banking account. This amount shall increase annually on the
anniversary of this order and in accordance with the percentage
increase in the headline inflation of the consumer price index, as
published by statistics South Africa during the preceding year,
the
first such increase to be effected on 21 May 2022;
(b) The
respondent will continue to retain the applicant on the Discovery
Classic Plan (“the
Plan”), as well as pay any necessary
and reasonable excess, not covered by the plan, including the cost of
hospitalisation,
treatment and/or medical expenses and medication as
a result of the applicant’s prevailing health and related
conditions;
(c) The
respondent shall hand over to the applicant’s attorneys the
current licence disc in respect
of the posh Panamera within 48 hours
of this order.
(d) Over
and above (c) above, the respondent shall continue to pay the monthly
instalments, as well
as the requisite insurance premium in respect of
the Porsche Panamera.
(e) The
respondent is ordered to pay an amount of R250,000 as part of the
contribution towards the applicant’s
costs within 7 (seven)
days of this order.
(f) The
costs shall stand over for determination in the main divorce trial.
Majavu AJ
Introduction
Let me start off by
expressing my gratitude to counsels for the detailed heads of
argument, which I found very helpful. I also noted
that the papers
filed by both parties were unnecessarily prolix and voluminous,
mindful of the specific ambit of rule 43 applications.
In fact, more
than three quarters of the founding affidavit and similarly that of
the answering affidavit, concerned matters which,
self-evidently, do
not fall for determination in the rule 43 proceedings. I will deal
with that later. In the interest of fairness,
and to the extent that
condonation might be required, I accordingly grant same in respect of
both sets of affidavit.
This,
should by no means be
misconstrued as the court’s preparedness to entertain
unnecessarily prolix papers, while at the same
time, one recognises
the need to afford parties an opportunity to fully ventilate their
case. There is a delicate balance to be
struck, otherwise, the very
purpose for which an expedient procedure such as rule 43 applications
was intended, might be rendered
impractical and inexpeditious.
[1] In
the application before me, the applicant seeks the following relief,
which I elect to restate. This is so
because, after my prompting, the
parties sought an opportunity to re-engage, with a view to “narrow
down issues” resulting
in some of the relief not persisted
with, correctly so in my view, even though the ambit of those not
persisted with, could have
been further extended. Be that as it may,
I am grateful to counsels for their attempt, mindful that they are
creatures of their
respective clients’ instructions.
Initial relief
[2] The
applicant sought an order in the following terms:
“
1. Condonation
insofar as the strictures of Rule 43 might not be compliant in
respect of the length
of the founding affidavit and the late bringing
of the application.
2. That
the respondent retains alternatively places the applicant on the
Discovery Classic Care
Plan.
3. That
the respondent be ordered to pay any reasonable and necessary access
medical expenses
incurred in connection with the applicant and not
paid by the medical aid scheme, including the cost of
hospitalisation, treatment
and/or medication as a result of the
applicants prevailing health and related complications.
4. Directing,
that pending the determination of the divorce action between the
parties, the respondent
shall maintain the applicant as follows:-
5. An
amount of R 337, 000.00 in respect of loans which the applicant had
to obtain and to which
the applicant shall utilise in reduction of
the debt owing in respect of the said loans being due within 5 days
of the granting
of the order which payments are to be made into the
applicant’s designated banking account.
6. An
amount of R 35, 000.00 per month, which the applicant shall utilise
in the reduction of
the debt owing to those creditors referred to in
annexures “FDF1 and FDF 4” in the financial disclosure
form, the payment
being due within 5 days of the granting of the
order or before the first day of each succeeding month, which
payments are to be
made into the applicant’s designated bank
account.
7. Directing
the respondent to pay a contribution towards the applicant’s
current legal
costs in the amount of R 540 972.18 which payment is to
be made into the applicant’s designated bank account.
8. Payment
of arrears rental in the sum of R 39 000.00.
9. Payment
of Uber costs in the amount of R7 200.00
10. Payment
of the amount of R930, 000.00 with reference to annexure “FA11”
attached to the founding
affidavit.
11. The
return of 2 bull mastiff dogs.
12. The
immediate return of those assets described in paragraph “FDF
3.1” of the financial disclosure
form alternatively the
monetary value thereof.
13. By
payment to the applicant of an amount of R 129, 292.00 per month, in
respect of the applicant’s
expenses, effective as of 1 January
2020, without deduction or set of on the first day of every month by
way of electronic funds
transfer or debit order, into such bank
account as the applicant may nominate from time to time.
14. The
amounts payable as referred to in player 13 above shall be in respect
of the following expenses as
set out in the financial disclosure
form:-
14.1
accommodation;
14.2
food and groceries;
14.3
toiletries and cosmetics;
14.4
water and electricity;
14.5
rates and/or levies;
14.6
cell phone;
14.7
domestic worker and gardener;
14.8
clothing;
14.9
life-insurance;
14.10
the costs of the applicants flights, accommodation, vehicle rental,
public transport, food, entertainment, travel insurance
and visa
costs in respect of the holiday locally or abroad;
14.11
dog food;
14.12
house maintenance;
14.13
household appliances and maintenance;
14.14
M-Net/DStv
14.15
In respect of the Porsche Panamera motor vehicle currently in
possession of the applicant that the respondent be directed
to:
14.15.1 transfer
the Porsche Panamera into the name of the applicant within 21 days of
the granting
of this order and that the eNatis documents be
immediately delivered to the applicant’s attorney;
14.15.2 pay
the insurance premiums and access on the Panamera;
14.15.3 pay
the cost of repairs, service, tire replacement and maintenance of the
Panamera;
14.15.4 pay
the vehicle license fees of the Panamera;
14.15.5 pay
e-toll fees of the Panamera;
14.15.6 immediate
delivery of the relevant licence disc.
15. Directing
that the amounts referred to in player 6, 13 and 14 above shall
increase annually in April
of each year in accordance with the
percentage increase in the headline inflation of the consumer price
index is published by statistics
South Africa during the preceding
year, the first of such increased to be effected as at 1 April 2021;
16. Directing
that the respondent shall bear the costs of this application.
Amended relief
after
re engagement
[3] The
parties subsequently informed me that relief sought in paragraphs
2,3,9,10,11,12 and 14.15.7 were no longer
persisted with, as parties
found
each other. With specific reference to 10 and 12, the
parties recognise that there exists material dispute of fact in
relation
thereto and thus agreed that the matters will be resolved in
trial.
[4] From
my distillation of the issues left for determination, which was
confirmed by counsels, it would appear
that broadly speaking, there
are two (2) categories of amounts persisted with. For ease of
reference, the first category, and about
which there
is no
dispute regarding the jurisdiction of the rule 43 court in respect
thereof, namely cash maintenance, which currently the applicant
pegs
at R 129, 292.00 and the respondent on the other hand concedes an
amount of R 34 045.00 (but not tendered). I hasten
to add that
the respondent acknowledges in his papers that to date he has spent
an amount of R 534 588.00 in respect of legal
fees to date.
These amounts are in respect all litigation to date, not necessarily
the pending divorce matter. His monthly expenses
are approximately R
149 000.00, not far apart from what is alleged by the applicant.
The 2
nd
category relates to amounts mentioned in 5 (loan
for R337, 000.00), 6 (R 35 000.00) 7 (R540 972.18), and 8
(arrear rental
R 39 000,00).
[5] It
is quite clear that parties are alive to the fact that a significant
portion of the relief sought in truth,
does not belong to rule 43
proceedings, hence the agreement to refer such to trial. What I am
called upon to determine is whether
or not the 2
nd
category is competent, within the ambit of rule 43 proceedings.
Depending on what my determination on that aspect would be, parties
have accepted the correctness of the figures related thereto.
[6] With
regard to the
cash
component, the parties accept the need for
some form of financial assistance for the applicant. It is for that
reason that I propose
to dispose of that category first. Having
carefully considered the list of expenses and FDF forms, as debated
and in some instances,
agreed upon by the parties’ counsels, I
determine that an all-inclusive cash component
in lieu
of
monthly maintenance to be awarded to the applicant is R65,000.00
[7] Over
and above that the respondent will continue to pay the monthly
instalment, as well as insurance premium
in respect of the Porsche
Panamera.
[8] The
respondent will continue to retain the applicant on the Discovery
Classic Plan (“the plan”),
as well as any necessary and
reasonable access medical expenses, not covered by the plan,
including the cost of hospitalisation,
treatment and or medication as
a result of the applicants prevailing health and related
complications.
[9] The
respondent shall hand over to the applicant’s attorneys the
current licence disc in respect of the
Porsche Panamera within 48
hours of this order. I was informed that the said disc is readily
available and could easily be handed
over.
[10] The
amount referred to above shall increase annually on the anniversary
of this order and in accordance with
the percentage increase in the
headline inflation of the consumer price index, as published by
statistics South Africa during the
preceding year, the first such
increased to be effected on 21 May 2022.
[11] I
now turn to the 2
nd
category, which is hotly contested. A
useful starting point would be, what rule 43 prescribes.
[12] “Rule
43(1) this rule shall apply whenever a spouse seeks relief from the
court in respect of
one or more
of the following matters:
(emphasis)
(a) maintenance
pendente lite,
(b)
a
contribution towards the costs
of
a
pending matrimonial action,
(emphasis)
(c) interim
custody of any child,
(d) interim
access to any child.
[13] The
rule is very specific as to the kind of relief that may be sought by
way of such an application. For present
purposes, I need only concern
myself with the first two.
[14] The
applicant contends that the law has evolved to include what his
counsel referred to as “a species
of maintenance” with a
view to bringing other types of expenses and litigation costs within
the ambit of rule 43, presumably
subsections (a) and (b). This is a
tacit acknowledgement by the applicant’s counsel that, but for
such evolution or jurisprudential
development of the law, as he puts
it, such claims are not justiciable in the rule 43 proceedings.
[15] The
applicant’s counsel places reliance on the judgement of my
brother Davis J in the Western Cape Local
Division, in the matter of
AFv MF
[1]
. This case does not
provide authority for the proposition as contended by the applicant’s
counsel. In this case, the applicant
(wife) sought a contribution of
R750,000 towards her
costs
in the divorce action,
inter
alia
.
This was not a claim for general litigation costs, including for
litigious matters unconnected to the pending divorce. This is
clearly
distinguishable from the current case. I am further fortified in my
view with reference to what is contained in paragraph
31 of that
judgement, where, my brother quite aptly restates the correct legal
approach (and I am in full alignment there with)
“
in
answering the question whether a court may order a contribution to
legal costs which have already been incurred, it is helpful,
as a
starting point, to consider the position regarding retrospective
orders for the payment of spousal maintenance, for legal
costs in a
matrimonial
action
are a species of support and the same rules should logically apply
”.
Once again, that judgement places emphasis on the costs related to
the
matrimonial
action
and not any other litigious disputes. He confirms that in paragraph 4
of the order he ultimately makes.
[16] Of
course, recognition of the fact that spousal maintenance should
include contribution towards legal costs
is generally accepted. What
was in issue before Davis J was the retrospectivity of such an order
of contribution. In any event,
the respondent in
casu
does not
contend that spousal maintenance of proper should include
contribution towards costs. In this case, the respondent clearly
recognises that fact and to that extent tenders an amount of R10,000.
Barring the fact that the parties are poles apart with regard
to the
quantum, there seems to be no challenge to the acceptance of that
“species of maintenance”.
I therefore find that there
can be no challenge to eligibility of the claim for contribution
towards costs, especially where it
can be demonstrated that an
impecunious spouse incurred debts to enable it to fund the pending
divorce litigation. The reasonableness
or otherwise of the amount so
client is a different matter. In this case, the respondent has
himself spent significant amount of
money on the divorce litigation
thus far, far in excess of what he tenders (R10,000). Having
considered the nature of the litigation,
in the absence of actual or
estimated
pro forma
invoices, in the exercise of my discretion
I find that an amount of R 250,000.00 would be fair and reasonable
under the circumstances.
This amount to be paid as a lump sum within
7 days of this order.
[17] Now
turning to other loans and debts, these are clearly on a different
footing to cost contributions. They
cannot in all seriousness, be
contended to come anywhere close to being a species of maintenance,
even if one were to accept the
correctness of the Davies judgement.
In fact, some of his brothers in the same division have adopted a
different approach. As I
have already indicated, I align myself fully
with his reasoning. I believe that brings about the equality of arms.
Such an approach
is also in line with the constitutional imperatives
which have, at the heart, equality and the right to dignity. Most
importantly
in my view, such an approach is aimed at levelling in the
playing fields to a significant extent and to ensure that an
impecunious
spouse (male-female) is empowered to adequately present
its case before the courts, as opposed to being left at the mercy of
the
one with the wherewithal.
[18] Even
if one were to be inclined to approach this matter benevolently in
favour of the impecunious spouse,
it would be far-fetched to include,
within the ambit of rule 43, matters about which there are obvious
dispute of facts, as well
as those that fall for determination in
other courts and/or tribunals. In this case, it is clear that some of
the disputes are
pending before the courts. It may well be that
significant amount of monies have been expended or accounts have been
accumulated
in respect thereof, however, the fact that those disputes
are between spouses and/or other juristic entities, does not
necessarily
bring them within the ambit of a specific purpose vehicle
(“the rule 43 procedure”). If that were to be the case,
the
very noble objective of what was supposed to be a prompt,
efficient and relatively uncomplicated process could be laden with
never
ending ancillary litigation. This is precisely why, in my view,
orders flowing from rule 43 applications are not appealable. It
does
not take rocket science to appreciate why not. Similarly, if other
unrelated disputes to what is contemplated in the wording
of the
rule, were to be accommodated, this would result in an obvious
absurdity, in that people would seek to achieve in the rule
43
proceedings, what strictly speaking, belongs to a trial court. This
may also further disincentivize litigants in divorce proceedings
to
use their best endeavours to
finalise
the divorce, attain
certainty and a clean break, so to speak. It could also encourage a
situation where spouses are content with
what ought to have been an
interim and stopgap measure, and prolong what ought to have been a
divorce, that
should
be finalised with the necessary
promptness.
[19] Even
if I am wrong in my view, the acceptance of the parties to refer
significant portion of the relief sought
to trial and abandoning some
portions, seems to be an unambiguous acknowledgement that most of
these issues do not belong to the
rule 43 proceedings. The court
should not hesitate to stay within the strict confines of what is
contemplated in the rule, whose
clarity and intentions are
self-evident. Failure to do so, will open the floodgates of
unnecessary detours of litigation and obviate
taking matters to trial
courts for
finality.
[20] In
this case, and in fairness to the respondent, one cannot, in good
conscience describe him as a spouse who
is unduly parsimonious or who
seeks to avoid taking responsibility in respect of his spouse,
flowing from the reciprocal duty of
support which rests on both of
them. He has and continues to take care of quite a significant
portion of the applicant’s
expenses. It is unfortunate that
they sought to conflate what is self-evidently, a very acrimonious
past and to some extent the
present, with what ought to have been a
simple application for interim maintenance and assistance
pending
the finalisation of the divorce. The fact that they continue to
litigate against each other, even on matters that they ought to
resolve amicably and reasonably between the two of them, cannot and
should not find application in the rule 43 proceedings. In
any event,
even without their belated recognition of the error of their ways, I
was
not
inclined to consider the ambit of the rule 43
expansively, as implored by the applicant. Similarly, where
objectively, it is clear
that the respondent has the
means and
ability
to pay for the
reasonable expenses
of the
applicant, as well as the
reasonable contribution towards
the
applicant’s costs related to the
pending
divorce action,
I was not going to hesitate to make an order that seeks to attain
fairness and justice.
[21] In
the light of the foregoing, it remains my considered view and I
accordingly find as such, that the expenses
contained in the 2
nd
category
cannot be competently claimed in the rule 43 proceedings
.
I have not been provided with, nor have I found any authority for
that proposition.
[22] In
the result the following order is made:
(a) The
respondent is ordered to pay,
pendente lite,
an amount of
R65,000.00 per month with effect from
28 May 2021
, and
thereafter by no later than the last working day of each succeeding
month, such payment to be made into the applicant’s
nominated
banking account. This amount shall increase annually on the
anniversary of this order and in accordance with the percentage
increase in the headline inflation of the consumer price index, as
published by statistics South Africa during the preceding year,
the
first such increase to be effected on 21 May 2022;
(b) The
respondent will continue to retain the applicant on the Discovery
Classic Plan (“the Plan”),
as well as pay any necessary
and reasonable excess, not covered by the plan, including the cost of
hospitalisation, treatment and/or
medical expenses and medication as
a result of the applicant’s prevailing health and related
conditions;
(c) The
respondent shall hand over to the applicant’s attorneys the
current licence disc in respect
of the posh Panamera within 48 hours
of this order.
(d) Over
and above (c), the respondent shall continue to pay the monthly
instalments, as well as the requisite
insurance premium in respect of
the Porsche Panamera.
(e) The
respondent is ordered to pay an amount of R250,000 as part of the
contribution towards the applicant’s
costs within 7 (seven)
days of this order.
(f) The
costs shall stand over for determination in the main divorce trial.
Z M
P MAJAVU
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
HEARD
ON: 20
May 2021
JUDGMENT
DATE: 21
May 2021
FOR THE
APPLICANT: Adv
CJC Nel
INSTRUCTED
BY: AF
Coetzee Attorneys
FOR THE
RESPONDENT: Adv H J
Basson
INSTRUCTED
BY: Van
Andel- Brink Attorneys
[1]
case
number 6664/19, judgement delivered on 28 August 2019