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[2012] ZAECPEHC 100
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Carstens v Carstens (2267/2012) [2012] ZAECPEHC 100 (20 December 2012)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION – PORT
ELIZABETH)
CASE NO 2267/2012
DATE HEARD: 27/11/2012
DATE DELIVERED:
20.12.2012
In the matter between
BRIGID MARY CARSTENS (born
O’REILLY)
..........................................
APPLICANT
and
CHRISTIAAN LOUIS CARSTENS
..........................................................
RESPONDENT
JUDGMENT
ROBERSON J:-
[1] This is an application in terms of
Rule 43 of the Uniform Rules. The applicant sought an order in the
following terms:
“
1.
That the Respondent pay Applicant the amount of R8,800.00 per month
pendente
lite
in
respect of maintenance for Applicant and expenses incurred by
Applicant in regard to the dependent child, Laura- Leigh;
2.
That the Respondent pays maintenance to Applicant in respect of the
minor child, Ingrid, in the amount of R4,400.00 per month
pendente
lite;
3.
That the Respondent continue to provide Applicant with a reliable
vehicle
pendente lite
;
4.
That the Respondent continue to pay all reasonable and necessary
medical expenses in respect of Applicant and the children
pendente
lite
;
5.
That the Respondent pay a contribution to Applicant’s costs in
the sum of R385,770.00;
6.
That the Honourable Court grant such further and/or alternative
relief as may be appropriate.
7.
Directing that the costs of this application are to be taxed on the
basis that this is an exceptional case in terms of the provisions
of
sub-rules (7) and (8) of Rule 43 of this Honourable Court, and that
such costs are to be costs in the cause of the main action.”
[2] The respondent has consented to an
order in terms of paragraphs 1, 2, 3, and 4 of the order prayed. Two
issues remain: the first,
raised by way of a point
in limine
,
is whether the applicant is entitled to utilise Rule 43; and the
second is whether or not she requires a contribution towards
costs.
Application of Rule 43
[3] Rule 43 (1) provides as follows:
43 Matrimonial matters
(1) This rule shall apply whenever a
spouse seeks relief from the court in respect of one or more of the
following matters:
(a)
Maintenance
pendente
lite
;
(b)
a
contribution towards the costs of a pending matrimonial action;
(c)
interim
custody of any child;
(d)
interim
access to any child.
[4] The circumstances of this case are
unusual. The parties were married on 16 August 1991, out of community
of property with the
inclusion of the accrual system. In 2004 the
applicant instituted an action for a decree of divorce and other
relief. On 15 November
2007 a decree of divorce was granted. The
minute of the Rule 37 conference held on 12 November 2007 recorded
that the interim arrangement
which presently existed between the
parties with regard to custody of and access to the children,
maintenance for the children,
and maintenance for the applicant,
would continue until finalisation of the whole action. The action has
not been finalised and
the trial is set down for 5 August 2013.
Primary care of the minor child has been resolved. Maintenance and
the patrimonial consequences
of the divorce remain in issue. The
applicant is claiming payment in accordance with the accrual system
and the respondent is claiming
that she forfeit her share of the
accrual of his estate.
[5] It was submitted on behalf of the
respondent that the words “
pendente lite”
and
“pending matrimonial action” contained in Rule 43, relate
to an action that has not been finalised. The marriage
between the
parties has come to an end by divorce, therefore, so it was
submitted, Rule 43 does not apply. It was further submitted
that a
claim for contribution towards costs is
sui generis
and
applies to spouses: the parties are unrelated litigants and there is
therefore no obligation on the respondent to contribute
towards the
applicant’s costs.
[6] It is so that the parties are no
longer married. However the “matrimonial action” has not
been finalised. The status
of the applicant with regard to the
remaining issues in the action, is that of a spouse. It can be
nothing else. The parties themselves
agreed in the Rule 37 minute
that interim arrangements would continue until the action was
finalised. This agreement could only
mean that the respondent
acknowledged that the applicant was still a spouse, or was pursuing
relief to which she was allegedly
entitled as a spouse, for the
purpose of adjudication of the remaining issues. The situation is
distinguishable from that in
Bienenstein v Bienenstein
1965
(4) SA 449
(TPD), to which I was referred. In that matter the
respondent had instituted an action against the applicant for
restitution of
conjugal rights and failing which, divorce. A final
order of divorce was granted. The applicant noted an appeal against
this order
and applied in terms of Rule 43 for a contribution towards
her costs of appeal. With reference to the contention of the
applicant’s
counsel that the application fell under Rule 43, De
Villiers AJ said the following at 451D:
“
I
cannot agree with that contention. Rule 43 to my mind clearly refers
only to pending matrimonial disputes; that is before the
final order
of divorce has been granted.”
In
Bienenstein
, unlike the
present matter, no further matrimonial disputes were pending. The
judgment therefore does not assist the respondent.
[7] I am therefore of the view that
the applicant is entitled to utilise Rule 43, and the point
in
limine
is dismissed.
Contribution towards costs
[8] During 2004 the applicant brought
an application in terms of Rule 43 for maintenance and other relief,
but did not in that application
seek a contribution towards costs. An
order was granted in terms of which the respondent was ordered,
inter
alia
, to pay the applicant R3 000.00 per month for maintenance
for herself, and R3 000.00 per month per child. That order remains in
force. During 2007 she brought an application in terms of Rule 43 for
a contribution towards costs, but withdrew the application
after she
received the sum of R986 721.87, following the dissolution of a
certain trust. These funds have since been utilised to
fund the
litigation as well as to meet her living expenses, because her salary
and the previous maintenance payments she received
from the
respondent were insufficient to meet her monthly expenses.
[9] She stated that she presently owes
the estimated sum of R76 000.00 to her attorneys and R37 905.00 to a
forensic auditor. In
addition, she has already paid R715 312.25 for
counsel’s fees.
[10] It is anticipated that the action
will run for a number of days. Both parties have instructed Senior
Counsel and experts will
be called to testify with regard to the
value of the accrual of the respondent’s estate. The onus will
be on the applicant
to prove this value. There is also a dispute
about whether the assets of a trust known as the Ardingly Estate
Trust (the Trust),
are to be taken into account in determining the
value of the accrual of the respondent’s estate. The applicant
maintains
that the Trust is the
alter ego
of the respondent,
which the respondent denies. They are both trustees of the Trust,
together with three other trustees. The applicant
alleges that the
respondent has dealt with the Trust assets as his own and mentioned
various instances in support of her allegation.
The Trust has been
joined as the second defendant in the action, and according to the
applicant, is represented by Senior Counsel.
The trial will therefore
involve a number of issues, some complex, and substantial costs.
[11] The applicant works part-time as
a nursing sister and earns a gross monthly salary of R7 736.10. The
respondent is a medical
practitioner who has a number of business
interests. He stated that his average monthly income during the first
half of 2012 was
R59 433.75 and that his monthly expenses are R70
118.31. There is a dispute about the value of the respondent’s
estate but
he stated it to be R10 281 609.75 as at November 2007. The
applicant stated that the value of her estate as at the date of
divorce
was agreed at R955 070.00, but the respondent disputes this
amount and says that in 2010 the value was agreed at R1 349 207.51.
[12] The applicant set out her
estimated future costs. They include valuator’s fees of R25 000
(she disputes the respondent’s
valuation of some of his
assets), consultation and trial fees of a forensic auditor (R1 250.00
per hour consultation fees and R10
000.00 per day at trial), and
Senior and Junior Counsel and attorneys’ fees for four days
preparation, as well as five days
at trial. She estimates her total
costs at R514 160.00.
[13] The applicant says that she does
not have the financial means to pay all these expenses.
[14] The respondent opposed the
application for a contribution towards costs on the grounds that the
applicant has the available
means to meet her future costs. Firstly
the trustees of the Trust have resolved to repay her loan account in
the Trust, in the
sum of R116 200.00. Secondly, she has two costs
orders in her favour, which the respondent estimates to be in the sum
of R250 000.00.
These costs orders follow from a point
in limine
raised by the respondent and the Trust at the trial on 1 September
2010. The point
in limine
concerned the applicant’s
entitlement to have the Trust assets considered in determining the
value of the accrual of the
respondent’s estate. The point in
limine
was dismissed with costs. An appeal to the Supreme
Court of Appeal was struck off the roll and the respondent and the
Trust were
ordered to pay the costs of the appeal. The applicant has
not yet taxed her bills of costs.
[15] It was submitted on behalf of the
applicant that because she contends that the Trust is the
alter
ego
of the respondent, and the Trust is a party to the
litigation, it would be inappropriate for her to accept payment of
her loan
account. I do not see how the applicant would be compromised
if she accepted such payment. It would not prevent her from
persisting
in her claim that the Trust assets should be taken into
account in determining the value of the accrual of the respondent’s
estate. On the other hand I do not see why she should not be allowed
to retain some portion of the repayment, given her present
financial
situation.
[16] It was submitted on behalf of the
applicant that the costs orders in her favour are for past costs. The
applicant did not deal
in her affidavit with the manner in which
payment of these costs by the respondent will be appropriated. I
assume that attorney
and client fees already incurred will be
accounted for, as well as disbursements which she has not already
covered. It does seem
however that the applicant has paid counsel’s
fees and I should make an allowance for some amount which may be left
over
following payment by the respondent and accounting by her
attorney.
[17] Taking into account all the above
considerations I am of the view that an amount of R250 000.00 is an
appropriate contribution
towards the applicant’s costs.
[18] It was submitted that this was an
exceptional case where fees should not be limited to the tariff
prescribed in terms of Rule
43 (7) and (8). I do not consider it to
be an exceptional case. The point
in limine
was not complex.
The amounts involved are large but the further grounds of opposition
were limited to a consideration of the applicant’s
own means.
[19] It is therefore ordered as
follows:
[19.1] That the Respondent pay
Applicant the amount of R8,800.00 per month
pendente lite
in
respect of maintenance for Applicant and expenses incurred by
Applicant in regard to the dependent child, Laura- Leigh;
[19.2] That the Respondent pays
maintenance to Applicant in respect of the minor child, Ingrid, in
the amount of R4,400.00 per month
pendente lite;
[19.3] That the Respondent continue to
provide Applicant with a reliable vehicle
pendente lite
;
[19.4] That the Respondent continue to
pay all reasonable and necessary medical expenses in respect of
Applicant and the children
pendente lite
;
[19.5] That the Respondent pay a
contribution to Applicant’s costs in the sum of R250,000.00;
[19.6] That the costs of the
application are to be costs in the cause.
______________
J M ROBERSON
JUDGE OF THE HIGH COURT
Appearances:
For the Plaintiff: Adv C Mey,
instructed by G P van Rhyn, Minaar & Co Incorporated, Uitenhague.
For the Defendant: Adv J D
Huisamen, instructed by Kaplan Blumberg Attorneys, Port Elizabeth.