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
>>
2013
>>
[2013] ZAECPEHC 56
|
|
Briggs v Briggs (1549/2012) [2013] ZAECPEHC 56 (3 September 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, PORT ELIZABETH
CASE NO: 1549/2012
Date heard: 27 August 2013
Date delivered: 3 September 2013
NOT REPORTABLE
In the matter between:
JANINE PEARL BRIGGS
.........................................................................
APPLICANT
and
ARTHUR JONATHAN BRIGGS
..........................................................
RESPONDENT
JUDGEMENT
GOOSEN, J.
The applicant and the respondent are
married to each other out of community of property. A divorce action
is pending between the
parties in which the applicant claims payment
of maintenance post divorce, and costs. These issues remain in
dispute.
In this application, brought in terms
of Rule 43, the applicant seeks payment of interim maintenance in
the sum of R10 000.00
per month as well as a contribution
towards her costs of R80 000.00.
The applicant is a 49 year old woman
who is presently employed as an administrative assistant by
Tradelane Management CC. She
resides on the farm River Ridge in the
district of Addo. The respondent is a 74 year old man who is
retired, in ill health and
resides in a retirement village in
Sunlands. The parties were married to each other, out of community
of property and without
operation of the accrual system, on 27 July
1985. One child, now a major, was born of the marriage. The
applicant instituted
an action for divorce alleging that the
respondent deserted the common home. This latter allegation is
denied by the respondent
who pleads that he left the common home
because he was no longer able to trust the applicant by reason
inter
alia
of alleged financial mismanagement of the respondent’s
farming operation and because applicant had allegedly developed an
unduly close relationship with her employer.
The divorce action was set down for
trial in May 2013. Following a formal postponement application
brought by the applicant the
matter was postponed
sine die.
It has now been set down for trial during March 2014. In July 2012
the applicant brought an application in terms of Rule 43 in
which
she claimed payment of interim monthly maintenance in the sum of
R15 000.00. The matter was argued before Bacela AJ
on 24 July
2012 and judgment was handed down on 31 July. The learned judge
granted an order directing the respondent to pay maintenance
in the
amount of R2950.00 per month. In determining the amount of interim
maintenance payable the leaned judge found that the
applicant’s
expenses upon which she relied in her claim for interim maintenance
are not reasonable and that these had been
inflated. She went on to
determine those expenses which were reasonable and on the basis of
this determined the amount of maintenance
payable. I should mention
that the learned judge also considered the ability of the respondent
to make payment of the interim
maintenance and concluded that
although his means are restricted some allowance for the payment of
interim maintenance should
be made.
A party is entitled, in terms of Rule
43(6) to bring a further application in terms of the Rule in which
he or she seeks an order
varying the order which has already been
granted in terms of the Rule. What must be shown is that a material
change has taken
place in the circumstances of the party seeking the
variation. It is well established that the sub-rule is to be
strictly interpreted.
This is to ensure that the Rule is not abused
and that a party, aggrieved by an order, does not in effect bring
about reconsideration
of an interim order as if on appeal. It is
therefore essential that a party relying upon Rule 43(6) should set
out in detail
those circumstances which it is alleged constitute a
material change warranting the variation of the interim order
already made.
In this instance the applicant seeks
both an interim order of maintenance in the sum of R10 000.00
and an order for a contribution
towards costs. The interim
maintenance order sought necessarily involves a variation of the
order of Bacela AJ and accordingly
the application falls squarely
within the ambit of Rule 43(6).
Insofar as the claim for the
variation of the interim maintenance order is concerned the
applicant does not pertinently address
the issue of an alleged
material change in her circumstances. The founding affidavit refers
to an increase in the Eskom levy
and the Levy payable in respect of
her occupation of the farm and refers to certain loans which the
applicant has allegedly had
to enter into in order to survive. She
does not however address the change in her circumstances since July
2012 either in relation
to specific increases in her monthly
expenses or, insofar as relevant, the increase or decrease in her
monthly income. Indeed
it appears from the schedule of expenses upon
which the applicant relies that a great many of the expenses listed
are expenses
which Bacela AJ specifically found to be unreasonable
or unnecessary for purposes of determining interim maintenance. In
these
circumstances it is difficult to avoid the conclusion that the
applicant is in effect seeking a variation of the interim
maintenance
order by way of a
quasi
-appeal against the
findings made by Bacela AJ.
In my view the applicant has not made
out a proper case for the variation of that order.
The other aspect concerns the
contribution towards costs. It appears that in the previous
application the request for a contribution
towards costs was
abandoned at the hearing. I am therefore at large to deal with this
aspect
de novo
.
The applicant seeks a very
substantial contribution towards costs in the amount of R80 000.00.
It is of course trite that
a party seeking a contribution towards
costs in pending matrimonial litigation must show, in the first
instance that she / he
has a
prima facie
case for the
particular relief sought
and
that she / he has insufficient
means with which to prosecute the matter. In the event that these
requisites are established the
court determines the
quantum
of the contribution to be made having regard to the circumstances of
the case, the financial position of the parties and the
issues to be
determined at trial.
It is common cause that the principal
issues in the trial action concern the applicant’s claim for
maintenance. This claim
is apparently based on the allegation that
the applicant is a 49 year old woman who has limited work experience
and qualifications
and therefore limited employment prospects in the
future. It may be gathered from the applicants’ papers that in
addition
to her maintenance needs, the issue of the respondent’s
ability to afford maintenance payments to the applicant is also in
issue.
The applicant’s case for the
substantial contribution to costs which she seeks is stated in very
terse terms in her papers.
Her claim for a contribution is
essentially stated in a single paragraph which reads:
In order to properly
prepare for trial my Attorney of Record needs to peruse and consider
many documents and financial statements
of the Respondent. As stated
herein above, the Respondent’s life expectancy is alo in issue.
The Respondent is consulting
a physician. Once a report is received,
it will have to be properly considered and discussed with a further
impartial expert. The
Respondent also filed an expert notice
regarding the evidence of his financial planner in respect of his
earning capacity. Once
the Respondent’s report of the physician
is received I will also have to discuss it with a financial expert,
compile a further
report and file the required notices. I will have
to incur the costs of these consultations, investigations and
reports. I also
need to lead expert evidence regarding my
employability and earning capacity, which is very limited. Should I
not be able to properly
place my case before this Honourable Court, I
will suffer severe and irreparable harm.
In my view this is wholly inadequate.
Much of the envisaged expert investigation appears to be based on
speculation as to what
may or may not emerge from the report of the
respondent’s physician. The schedule of anticipated legal
expanses annexed
to the papers also does explain what investigations
will necessarily be required.
What is striking is that the
applicant does not explain, at all, what steps have already been
taken in respect of preparation
for trial. The application papers
appear to ignore the fact that the matter was previously enrolled
for trial in May 2013 and
that, having regard to the court file of
which this Rule 43 application forms part substantial pre-trial
preparation has already
been completed, including the filing of a
notice in terms of rule 36(9) qualifying a recruitment expert to
testify on behalf
of the plaintiff regarding her earning capacity.
The applicant also does not deal with what legal expenses have
already been
incurred and how these have been funded to date.
Even if I accept – upon a
generous interpretation of the applicant’s papers – that
she has made out a
prima facie
case entitling her to
substantial success in her claims, and that her papers disclose an
inability to fund her own litigation
costs, I cannot accept that she
has made out a case for the scale of the contribution she seeks. An
applicant seeking a contribution
towards costs must set out the
anticipated reasonable legal expenses with sufficient detail to
enable the court to properly assess
what is reasonably required in
order to do justice between the parties. It is not good enough
simply to assert the alleged need
to employ certain experts and then
to provide no substantiated basis for estimating the costs
associated with the employment
of such experts. That, regrettably,
is the state of the applicant’s papers. The result is an
estimate of costs which, in
my view, is excessive and speculative.
This court is left with no basis upon which it can determine the
applicant’s reasonably
anticipated legal costs, whether she is
able to meet those costs herself either wholly or in part and
therefore the quantum of
any contribution to which the applicant may
be entitled.
It was submitted on behalf of the
respondent that in the event that I am inclined to dismiss the
application I should not restrict
the respondent to recovery of the
costs permitted by rule 43. The submission was advanced on the basis
that the applicant’s
application constitutes an abuse of
process.
The fact that a party has not
advanced a meritorious claim does not mean that she or he is guilty
of an abuse of process. I am
unable, upon a proper consideration of
the papers filed in this matter, to find that the applicant has
abused the process. In
the circumstances I do not consider that a
punitive costs order is warranted.
In the circumstances I make the
following order:
The application is dismissed with
costs.
G. GOOSEN
JUDGE OF THE HIGH COURT
APPEARANCES: Adv. S. Potgieter, for
the Applicant
Instructed by Joanne Anthony Attorneys
Adv. B Dyke, for Respondent
Instructed by Kaplan Blumberg
Attorneys