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[2011] ZAGPPHC 193
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M.C.E v J.E (13495/2011) [2011] ZAGPPHC 193 (14 September 2011)
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REPORTABLE
IN THE NORTH GAUTENG HIGH
COURT,
PRETORIA (REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 13495/2011
DATE:14/09/2011
In
the matter between:
M
C
E
...........................................................................................................................
Applicant
and
J
E
...........................................................................................................................
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
This is an opposed application in terms of rule 43 of the Uniform
Rules of Court. The parties were married in community of property
on
18 December 2004. There are no minor children born of the marriage.
The applicant claims from the respondent: (i) maintenance
for herself
in the amount of R10 000; (ii) that the respondent re-register her as
a dependent on his medical aid and (iii) a contribution
of R10 000
towards her legal costs. A divorce action is pending in this court.
[2]
Both parties are salaried employees, earning R8 712.75 (the
applicant) and R22 634 (the respondent) respectively. The applicant
left the common home of the parties on 2 November 2010 (she briefly
returned to the common home for two weeks during an unmentioned
period). The applicant estimates her monthly expenses in the amount
of R18 972.00. The disputes between the parties are: the principle
of
interim maintenance; re-registration of the applicant on the
respondent's medical aid scheme, and contribution towards the
applicant's costs. With regard to medical aid, I am readily inclined
to order the applicant's re-registration. The respondent has
not
proffered any convincing reason why he has removed the applicant
therefrom. ! deal now with the other two aspects in dispute.
[3]
There is a need in rule 43 applications to set out briefly, the
dispute between the parties in the divorce action. That can
only be
achieved through succinct reference to the pleadings. The necessity
therefor, is to ensure that such issues have been genuinely
raised
with a bona fide intention that they be properly ventilated by the
trial court. Put differently, to ensure that sufficient
facts are
alleged, which if proven at the trial, would entitle the applicant to
the relief claimed. In Carstens v Carstens
1985 (2) SA 351
(SE)
Mullins J said:
"Without laying down
any rule of practice in this regard, and despite the desirability of
keeping the costs of Rule 43 applications
as low as possible, I am of
the view that the Court should not be required to search for and
peruse another file of papers. I am
not informed of the case number
of the divorce proceedings, nor even whether process was issued out
of this Court. Furthermore
Rule 43(2) requires the applicant's sworn
statement to set out "the relief claimed and the grounds
therefor". This suggests
that Rule 43 proceedings should be
self-contained...."
[4]
Experience has shown that in some instances, a party armed with an
interim order, frustrates the finalization of the divorce
action,
with full knowledge that the financial benefits derived in terms of
the interim order, are unattainable at the divorce
action. It is
therefore necessary to interrogate whether the disputes are genuinely
raised, regard being had to the purpose of
rule 43, which is worth
restating, in Nilsson v Nilsson 1984 (2) 294 (C) at 295F, the
following was said:
"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 claims 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. The grey area between
the two extremes causes
problems."
[5]
In the present case, the applicant only states that at the time of
deposition of her affidavit, she had instructed her attorneys
to
institute action against the respondent for a decree of divorce and
certain ancillary relief, including rehabilitative maintenance
for
herself in the amount of R10 000 for 3 years from the date of the
decree of divorce. In his answering affidavit the respondent
only
acknowledges that summons containing such prayers had been served
upon him. It appears from the respondent's answering affidavit
that
the only prayer he joins issue with, is the rehabilitative
maintenance for the applicant, post divorce. No basis is set forth
in
the application why the applicant would be entitled to rehabilitative
maintenance from the respondent, post divorce.
[6]
It is important to know such basis, since, as a general statement of
law, the reciprocal duty of support, which is one of the
invariable
consequences of marriage, comes to an end when the marriage
terminates. However, s7 of the Divorce Act 70 of 1979 (the
Act)
empowers the Court granting a decree of divorce to make an order of
maintenance in favour of one of the spouses after considering
the
following jurisdictional facts: the existing or prospective means of
the parties; the parties' respective earning capacities;
their
financialneeds and obligations; their ages; the duration of the
marriage; the standard of living of the parties prior to
the divorce;
the parties' conduct insofar as it may be relevant to the breakdown
of the marriage; an order for the division of
assets and any other
factor which, in the court's opinion, should be taken into account.
[7]
In each of the cases I have considered where maintenance was granted
post divorce, the spouse in whose favour it was granted,
was not
earning an income as at the date of divorce. See for example Nilsson
(supra); Kroon v Kroon
1986 (4) SA 616
(E) Carstens v Carstens
(supra); Pillay v Pillay
2004 (4) SA 81
(SE) and Koorvertjee v
Koorvetjee
2006 (6) SA 127
(C). In all these cases, what tipped the
scales in favour of awarding maintenance seemed to be that there were
minor children and
the recipient spouses were unemployed.
[8]
The general approach of our courts seems inclined to award little or
no maintenance at aii where one or more of the following
factors are
present:
(a)
the woman is young or reasonably young;
(b)
she is well-qualified;
(c)
she has no children;
(d)
she has worked throughout her married life and/or is working at the
time she applies for maintenance;
(e)
she is in good health;
(f)
the marriage was not of long duration.
See
Nel v Nel
1977 (3) SA 288
(O); Qoza V Qoza
1989 (4) SA 838
(CK) and
Pillay v _Pillay
2004 (4) SA 81
(SE) at 87A-B. See however, Brink v
Brink
1983 (3) SA 217
(D).
[9]
In Kroon (supra) the court stated three broad principles: First, no
maintenance would be awarded to a woman who can support
herself.
Second, in considering whether maintenance should be ordered post
divorce, the court's aim should be to ensure a "clean
break"
between the parties. Third, the court may, however, award
"rehabilitative" maintenance to middle-aged women
who have
for years devoted themselves full-time to the management of the
household and the care of the children of the marriage.
Such
maintenance is awarded for a period sufficient to tide them over
while being trained or retrained for a job or a profession.
[10]
The applicant is clearly excluded from the category of spouses for
whom "rehabilitative" maintenance was meant for:
(i) she
has not been a housewife; (ii) there are no minor children; (iii) she
is very young (only 28 years old); and (iv) she is
employed.
Moreover, she has not alleged any of the jurisdictional facts upon
which maintenance, post divorce, could be granted
in her favour, in
any event, having regard to those jurisdictional facts I am convinced
that no court would award rehabilitative
maintenance for the
applicant.
[11]
With regard to contribution towards costs, similarly no basis has
been laid for a proper consideration. All the applicant states
is a
bald and terse allegation that:
"Ek beskik nie oor
die finansiele-vermoe om die litigasieJn die egskeidingsaksie_ te
finansier nie en benodig 'n voorlopige
bydrae vanaf die respondent in
die bedrag van R10 000."
[12]
The applicant has not informed the Court the basis of the R10 000 she
claims, e.g. how it is are arrived at; what unpaid costs
have already
been incurred, the projected amount up to and including the first day
of trial, etc. There can be no better manner
of placing such
information before court than a draft bill of costs, or at the very
least, a summary of fees schedule. This is
how courts considering
applications for contribution towards costs have, over the years,
approached the matter. See for example
Van Rippen v Van Rippen
1949
(4) SA 634
(C); Service v Service
1968 (3) SA 526
(D); Micklem v
Micklem
1988 (3) SA 259
(C); Nicholson v Nicholson
1998 (1) SA 48
(W); Cary v Cary
1999 (3) SA 615
(C); Greenspan v Greenspan
2001 (4)
SA 330
(C).
[13]
In Van Zyi v Van Zyi
1947 (1) SA 251
(T) it was held that to succeed
in an application for contribution towards costs, the applicant must
set out sufficient facts which
if established by her at the trial on
the hearing of the evidence would justify the court in granting an
order for restitution
of conjugal rights
1
.
In the present case, I have already found that the applicant has not
set out any facts which would justify the court in granting
her
rehabilitative maintenance.
[14]
In the recent past a trend has developed in this Division, in terms
of which excessive and unmotivated amounts for contribution
towards
costs are claimed in rule 43 applications. The idea clearly is
underpinned by the hope that the court would simply order
an amount
midway the high and the low. It is even common for counsel to submit
that "the practice in this Division is to allow
an Rx amount for
contribution towards costs." I am not aware of such "practice".
If it indeed exists, it is manifestly
wrong. A blanket, proximate,
"one size fits all" approach, encroaches on the Court's
discretion to consider each case
on its own facts.
[15]
Lastly, an observation. The applicant is heavily indebted. She earns
R8 712.75 net. Well over half of her income (R4 800) is
spent on
servicing debt in the form of credit cards and clothing accounts.
According to her schedule of credit card and clothing
accounts, she
owed a whopping R87 750 at the time of deposing her affidavit. She
has, as a result, applied for debt review. She
states that some of
the debts have been incurred jointly with the respondent. That may be
so but that aspect cannot be resolved
through a rule 43 application.
It falls to be dealt with in the process of division of the joint
estate, in terms of which joint
liability for those debts is assumed
ex lege, I see no reason why the divorce action should not be settled
immediately. The parties'
estate is too small and heavily indebted to
incur any further unnecessary costs in litigation.
[16]
To sum up: the applications for interim maintenance and contribution
towards costs should be refused. Pendente lite, the applicant
should
be re-registered on the respondent's medical aid scheme.
[17]
In the result, the following order is made:
1.
Pending the finalization of the divorce action, the respondent is
ordered to re-register the applicant as a dependent on a medical
aid
scheme to which he is a member, at his cost, and to pay all excesses
which are not covered by the medical aid scheme;
2.
The applications for interim maintenance and contribution towards
costs are dismissed,
3. The costs of this
application are costs in the divorce action.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 10 MARCH 2011
JUDGMENT
DELIVERED : 14 SEPTEMBER 2011
FOR
THE APPLICANT : ADV D MEYER
INSTRUCTED
BY : SHAPIRO & SHAPIRO INC, PRETORIA
FOR
THE RESPONDENT : ADV Z SCHOEMAN
(PRACTICE
NOTE SIGNED BY ADV N. ERASMUS)
INSTRUCTED
BY
-:
T GERHARD DE BEER ATTORNEY, PRETORIA
1
An action for restitution of conjugal right was abolished with the
promulgation of the
Divorce Act 70 of 1979
.