About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2011
>>
[2011] ZAECPEHC 6
|
|
Dorfling v Dorfling (3197/2005) [2011] ZAECPEHC 6 (8 March 2011)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE – PORT
ELIZABETH)
Case
No.: 3197/2005
Date
heard: 25 January 2011
Date
delivered: 8 March 2011
In the matter between:
STEPHANUS
GEORGE DORFLING
Plaintiff
and
HESTER
ALETTA DORFLING
(born JACOBS)
Defendant
J U D G M E N T
TSHIKI, J
:
I shall refer to the parties herein
as they are referred to in the main action.
This is an application brought by the
defendant in terms of Rule 43 for an order in the following terms:
[2.1] That the plaintiff make a
contribution of R70,000.00 towards the defendant’s costs in
their divorce action.
[2.2] That the plaintiff be directed
to pay defendant a further contribution of her legal costs of the
main action in the amount
of R17,500.00 per day in respect of each
additional day the main action runs.
[2.3] That the plaintiff be directed
to pay the costs of this application, alternatively that the costs
thereof be costs in the
main action.
[2.4] That the defendant be granted
alternative relief.
Plaintiff is a pensioner and receives
a monthly pension of R7,068.56. From that amount plaintiff
contributes monthly a sum of
R2,250.00 towards the maintenance of
the defendant. Defendant is not employed and has no income except
for the sum of R2,250.00
she receives as maintenance from the
plaintiff. Plaintiff’s assets are mainly immovable property, a
house worth R850,000.00
in which defendant is living, furniture and
other household movables worth about R22,676.61. In addition to the
pension amount
plaintiff earns interest of R199.74 from his Money
Market account with ABSA. His monthly expenses amount to R8,952.20.
He has
an overdraft facility of R30,000.00 in his bank account with
ABSA. According to his income and expenditure account he has a
monthly
debit balance which is a loss in the sum of R1,763.90. In
his Money Market account with ABSA bank plaintiff has an amount of
R20,000.00 to his credit. Defendant is unable to explain how
plaintiff will be able to afford the amount she is claiming as
contribution
towards costs except for what she says that plaintiff
enjoys an overdraft facility in the sum of R30,000.00 in his Gold
Cheque
account with ABSA. Defendant suspects that plaintiff must be
secured by investments or assets that plaintiff owns. Defendant
contends that plaintiff can utilise this facility to contribute
towards her legal expenses. According to defendant plaintiff
supplements the cheque account from one of his two savings accounts
he has with ABSA and that plaintiff receives a regular monthly
payment of at least R7,000.00. I am tempted to believe, though it is
not clear from the evidence, that the R7,000.00 referred
to is the
pension he receives monthly. Defendant’s further contention is
that plaintiff is able to afford his legal costs
incurred for the
divorce action.
Plaintiff denies that he can afford
the amount claimed by the defendant and that he currently owes his
attorneys of record an
amount of R27,171.38 in respect of services
rendered in the present matter. In this regard he annexes an invoice
as proof. Plaintiff
contends that defendant cannot seek to be able
to litigate on the same basis as himself, especially if one has
regard to the
fact that she has obtained the services of an attorney
and advocate with far greater seniority in comparison to the
attorney
and advocate employed by him. He prays that the application
be dismissed with costs on the scale as between attorney and client.
In an application of this nature the
applicant (defendant) is entitled, if respondent (plaintiff) has the
means and she does not
have them, to be placed in the position
adequately to present her case, relevant factors being the scale on
which the respondent
(plaintiff) is litigating and the scale on
which the applicant (defendant) intends litigating. This all depends
on the respondent’s
financial position as well as what is
reasonable having regard to what is involved in the case. [
Nicholson
v Nicholson
1998 (1) SA 48
(WLD).]
In my view, unless otherwise
specifically stated,
prima facie
when an amount is given as a
contribution to costs, that means party and party costs. [
Glazer
v Glazer
1959 (3) SA 928
(WLD).]
If one has regard to the facts of
this case, the parties’ income and expenditure as well as the
surrounding circumstances,
it is not clear to me how the defendant
arrives at the amount she has claimed. The assets of the plaintiff
are those listed in
the papers. However, according to the defendant
there is a suspicion that the plaintiff has some assets or
investments which
assist plaintiff to secure his overdraft facility
of R30,000.00 which is available to him. A suspicion in my view
cannot be a
basis for saddling a litigant with an obligation to pay
a huge amount of money without proof that in fact he will afford
such
amount. It could be that the bank has afforded the plaintiff
the overdraft facility on the basis of the R20,000.00 in his bank
account together with the monthly pension which is sure to be
deposited into his account. Any other suggestion on how he maintains
his overdraft facility would be a dangerous speculation.
The parties here are married out of
community of property and that the defendant has filed a
counterclaim in the main action.
Defendant has filed a counterclaim
for her share in the estate on the basis that she had, throughout
the marriage, contributed
towards the plaintiff’s increased
estate. However, the claim for a contribution towards costs in a
matrimonial suit is
sui generis
. It has its origin in
Roman-Dutch procedure and has been sanctioned through many decades
in our own practice. The basis of such
claim is the duty of support
which the spouses owe each other and the main consideration for
liability in the duty of support
is need and ability.
Notwithstanding what I have said
above the fact that the plaintiff has a sum of R20,000.00 in his
bank account, in addition to
his monthly pension and the defendant
has no other income other than the contribution of R2,200.00 by
plaintiff, is an indication
that defendant is in need of the
contribution towards litigation costs and that the plaintiff is able
to afford to make some
contribution
albeit
far less than what
is claimed by the defendant.
It is not the practice in Rule 43
applications to give detailed reasons for arriving at the quantum of
relief granted to an applicant
and I shall simply say that in
watering down the defendant’s claim I have eliminated a
considerable amount. I am of the
view that the plaintiff can afford
to contribute a total amount of R10,000.00 towards the total costs
incurred or to be incurred
by the defendant in the divorce
litigation. Such amount should be paid to the defendant not later
than the 30th of April 2011.
The costs of this application shall be
costs in the cause. It is so ordered.
_________________________
P.W. TSHIKI
JUDGE OF THE HIGH COURT
Appearances
:
For plaintiff: Adv O Ronaasen SC
instructed by Roelofse Meyer Inc of Port Elizabeth
For defendant: Adv A Moorhouse
instructed by Kaplan Blumberg of Port Elizabeth