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[2010] ZAWCHC 162
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J.S v J.L.O.S (7392/2010) [2010] ZAWCHC 162 (24 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
7392/2010
DATE: 24
JUNE 2010
In
the matter between:
J
S
Applicant
and
J
L O S
Respondent
JUDGMENT
DAVIS.
J
:
This
is an application which was brought in terms of Rule 43 of the
Consolidated Rules of the High Court, directing respondent
to
maintain the applicant,
inter
alia:
(a)
Paying an amount of maintenance of R136 000 per month to her.
(b)
Bearing all her medical expenses.
Bearing
the costs in respect of the former common home which was registered
in both parties' names (Owl's Rest).
Bearing
the cost of motor vehicle expenses in respect of applicant's
motorcar.
Funding
an overseas vacation for applicant (indistinct) business class, air
tickets, the cost of a car hire and accommodation
in a five star
hotel for a three week period.
In
addition application is sought for a contribution towards
applicant's costs in the divorce action which is pending, for an
amount of R300 000 towards legal costs. It appears that there is
also a further request for R150 000 in respect of an investigation
by Mazars Moore Roland Forensic Services (Pty) Limited and R10
000,00 in respect of the costs of an industrial psychologist.
The
case was argued comprehensively by Ms
Gassner
.
who appeared together with Ms
Anderson
on behalf of the applicant and Ms
McCurdie
.
who appeared on behalf of the respondent. Given the urgency of the
matter, I do not intend to deliver a comprehensive judgment,
but
will provide brief reasons for the order which I propose to make and
if necessary, to amplify upon such reasons if the parties
so
request.
The
very nature of the application which was stoutly resisted by
respondent, is unusual to say the least. Courts, in dealing with
Rule 43 applications, are not generally accustomed to ordering
maintenance payments
pendente
lite
in
the large amounts which
I
have
already indicated, let alone legal costs in the amount of R300 000,
together with further costs to be incurred insofar as
expert
evidence is concerned. However, Ms
Gassner
submitted that it is proper for a Court, when determining a claim
for maintenance
pendente
lite,
to
take the same factors into account which have to be considered in
terms of
section 7(2)
of the
Divorce Act 70 of 1979
, when awarding a
spouse or maintenance in divorce. In this connection she referred to
the decision in
Carstens
v Carstens
1985(2)
SA 351 (W) 354A-D, where the principle was approved insofar as this
submission was concerned.
Further
Ms
Gassner
referred to an English decision in
F
v F
(ancillary
relief) [1995]2 FLR48, where the court said the following:
"So
what considerations bear upon the exercise of any discretion? I
think that it is very important to recognise that
in
measuring affluence, extravagance and reasonable needs, there
are no absolutes. All these concepts are comparative...
Thus, in
determining the wife's reasonable needs on an interim basis, it is
important as a matter of principle that the court
should endeavour
to determine reasonableness according to standards of the ultra rich
and to avoid the risk of confining them
by the application of scales
that would seem generous to ordinary people. Thus I conclude it
would be wrong in principle to determine
the application and on some
broad conclusion that if a wife cannot manage at the rate of a
quarter of a million, she ought to
be able to do so. I think that it
is necessary to establish a yardstick that more nearly reflects the
standard of living which
has been the norm for the wife ever since
marriage and for the husband for considerably longer."
I
have some doubts as to whether this
dictum
is equally applicable to
Rule 43
cases. This is not to suggest that
courts should not take account of the standard of living to which a
spouse has become accustomed
during the course of the marriage in
considering the award of maintenance
pendente
lite,
but
the object of
Rule 43
is that it is of a interim nature, pending the
dissolution of the marriage by way of a divorce.
Clearly
some recognition of the interim nature of the award needs to be
taken into account by the Court in coming to its determination.
For
example, extravagant holidays upon which at least one of the
applicant's prayers is predicated may not be justifiable,
particularly if it requires the other party to utilise capital as
opposed to income to finance such a manifest luxury.
In
this case, there is a further consideration, of which account needs
to be taken and which lies at the heart of this dispute.
Whatever
the disputes on the papers as to the wealth of respondent, it is
clear that he is a man of considerable means. It is
also, however,
clear that he funded, what can only be considered to be an
extraordinarily lavish lifestyle enjoyed by the smallest
percentage
of the extravagantly
bourgeoisie
in
our society, out of capital as opposed to income. There is no
suggestion, on the papers, that respondent is involved in active
business operations which generate significant sums of income which
would sustain the parties' lifestyle as set out so luminously
in the
papers of the applicant.
Ms
Gassner
pressed the point that, whatever the disputes may have been, there
was a letter which had been generated by Mr Vukic, the attorney
acting on behalf of respondent which confirmed to Investec Bank
Limited, which, it appears, acted as respondent's banker, that
his
asset value is "not less than R60 000 000,00". Mr Vukic
also wrote that "I have for the purposes of the exercise
ignored motor vehicles, jewellery and personal expenses which Joe
may own, taken into account Joe's trust interest".
Ms
Gassner
also referred to an affidavit deposed to by Mr Tappolet, a Swiss
attorney, who appears to have been the executor of the estate
of
respondent's father-in-law and a trustee of two Lichtenstein
foundations established during the lifetime of the father-in-law,
Dr
Zoellner, in which the respondent appears to be a beneficiary.
According to Ms
Gassner
.
there was more than sufficient capital for the respondent to pay the
amounts so sought in this application.
Ms
McCurdie
strenuously contended to the contrary. She submitted that the only
funds which were forthcoming by way of capital were from a
trust, in
which, it was common cause, the respondent is a beneficiary, the
Russet Trust, in an amount of 1.75 million euros.
Given the
liabilities already incurred by the respondent, it could not be said
that he could sustain the claims sought by applicant
without
significant financial difficulty. Ms
McCurdie
also pointed out that, on applicant's own papers, she has assets.
There is an amount in excess of R200 000 in her bank account.
She
has assets which can be realised, including a Maserati motor vehicle
and a considerable amount of jewellery which, it appears
from the
papers, was purchased on the basis that such jewellery could be
employed to realise liquid cash, if so required.
In
short, if these assets are taken into account, together with the
cash which, on applicant's own version, she can utilise, together
with further amounts which respondent avers applicant accessed and
where the amounts remains unexplained. For example respondent,
in
his affidavit, avers that applicant withdrew a sum of R1 million
from the mortgage bond registered against the De Wilde Gans
property
a few days after their marriage and has failed to account for such
monies. Respondent avers that applicant's ex-husband
repaid a sum of
R800 000 of a R4 million amount received by him from respondent in
respect of a debt due to her and in respect
of a sale of shares.
It
would thus appear that applicant does possess assets which she can
also employ and which it would be unfair to the respondent
for this
Court to ignore, within the context of this particular application.
However, there are a number of expenses which, in
my view, have to
be paid, given the nature of the assets owned by the two parties
during the period of this application until
the divorce proceedings,
which I was informed in court will take place in February 2011.
I
have,
therefore, in making an award, taken account of the claim as revised
by the applicant (JS-7 which was annexed to applicant's
papers).
I
have,
in so doing, examined the amounts which it appears to me would be
reasonable expenses generated in the interim, particularly
those to
preserve the major asset: the valuable domestic property. Some
expenses do not however appear in the light of the parties'
present
financial positions, viewed respectively, to be justified.
For
example, applicant is not justified in her claim for a personal
assistant or for more than one domestic worker, or for lavish
entertainment expenses and treatments such as facials, beauty
therapists etcetera, or overseas holidays or even extensive local
holidays during the interim. From these set of calculations I have
fashioned the order which I will presently make. Before I
do that,
I
must
turn to the other principle disputed issue, namely the question of
legal costs. Here again
I
was
entertained by submissions by both parties as to the nature of
amounts to be paid insofar as legal costs are concerned.
In
this connection, I found an unreported judgment of
Setikowitz
,
J in
Synott
v Synott
(14 December 1993) to be extremely useful.
Selikowitz
J examined, in his judgment, the jurisprudence which had been
generated to that point and which is still applicable in this case.
In particular, it appears that the issue of costs to be paid by the
other spouse was considered to form part of the necessary
expenses
to which such a spouse should make a significant contribution.
However, in coming to this decision,
Selikowitz
.
J had regard to the applicant spouse's income, expenses and capital.
These are significant considerations of which account must
be taken.
In
addition, it appears that the reasonable nature of the claim must be
examined. Applicant seeks to litigate a dispute which
involves no
more than money, not children, nor custody, and hence the
exquisitely difficult issues which vex courts in these
matters she
still litigates on a lavish scale, already having spent, according
to the papers, approximately R1.2 million which
is in significant
excess of the amounts which respondent avers that he has expended in
his answering affidavit. Some contribution
to costs should be made,
but in my view, this amount must be significantly reduced from the
claims which have been made by applicant.
In
the result, therefore, I find that applicant is entitled to be paid
a cash amount of R60 000 per month and R100 000 towards
legal costs.
These amounts are in addition to the payment of the costs incurred
on the investec loan facility homeowners insurance
premiums, the
Silvahurst Home Association levies and water account, rates and
taxes, municipal levies and charges upon the property,
service and
repairs to the home automation system, garden services, pool and
pond maintenance costs, window cleaning services,
pest control,
carpet cleaning, service and repairs to household appliances.
Insofar as payment of medical expenses are concerned,
they are
awarded, but the order distinguishes between item 32 in JS-7, which
is for medical expenses, which is granted, and the
pharmaceutical
purchases of vitamins and supplements which is excluded. There will
be no award as to costs of this application.
DAVIS, J