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[2017] ZAECPEHC 16
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V. N. v V. N (4487/2016) [2017] ZAECPEHC 16 (21 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: 4487/2016
In
the matter between:
R.
M. V. M.
Applicant
AND
H.
G. V. N.
Respondent
Coram:
Chetty J
Heard:
14 February 2017
Delivered:
21 February 2017
JUDGMENT
Chetty
J:
[1]
Judicial proceedings for the dissolution of marital relationships
invariably engender acrimony transforming the wedded couple
into
bitter adversaries, quintessentially over matters, monetary. This
application for maintenance
pendente
lite
and a contribution towards costs, is a classic example of the
centrality of pecuniary issues in contested divorce proceedings.
The
protagonists to this preliminary skirmish, by all accounts, enjoyed
an opulent lifestyle. Although their relationship became
strained and
cohabitation virtually ceased, the respondent’s generosity
towards the applicant never diminished. By his own
admission he
donated a R20 million home to her and fully maintained her by paying
her R40, 000.00 per month in addition to covering
all her household
expenses. For reasons not apparent from the papers however, his
largesse decreased hence this application in
which she seeks monthly
maintenance of R52, 600.00, payment of all household, insurance,
motor and related expenses and a contribution
towards costs in an
amount of R350, 000.00.
[2]
The application is resisted primarily by reason of the exorbitance of
the cash component of the maintenance claimed and her
alleged non
entitlement to a costs contribution given the valuation of her
residence. In determining the legitimacy of the competing
submissions
advanced on behalf of the parties, it is instructive to refer to the
factors enumerated in s 7 (2) of the
Divorce
Act
[1]
.
It provides as follows: -
“
(2)
In the absence of an order made in terms of subsection (1) with
regard to the payment of maintenance by the one party to the
other,
the court may, having regard to the existing or prospective means of
each of the parties, their respective earning capacities,
financial
needs and obligations, the age of each of the parties, the duration
of the marriage, the standard of living of the parties
prior to the
divorce, their conduct in so far as it may be relevant to the
break-down of the marriage, an order in terms of subsection
(3) and
any other factor which in the opinion of the court should be taken
into account, make an order which the court finds just
in respect of
the payment of maintenance by the one party to the other for any
period until the death or remarriage of the party
in whose favour the
order is given, whichever event may first occur.”
[3]
Apropos the aforegoing, Van den Heever J articulated her approach
hereanent in
Nilsson
v Nilsson
[2]
,
thus: -
“
A
proper weighing of all these factors is important to counterbalance
the inherent immorality that could follow were the sole or
even the
main criterion for a claim for maintenance to be the plaintiff's need
or ability to maintain herself. Had the Legislature
intended to
preserve the common law and limit maintenance in accordance with a
wife's ability to maintain herself (cf Professor
Andreas van
Wyk THRHR vol 43 (1980) at 433) the Divorce Act could encourage
immorality in many ways. It could then be the middle-aged
libertine's
charter of freedom. A man could throw out the woman who had shared
his bed, ran his home, and reared his children,
after twenty years or
so, replacing her with something younger and prettier, and
claim that his wife is not entitled to maintenance
because during
twenty years of minding his home and family she had also earned money
outside that home (which she had, as in law
and duty bound,
contributed towards the maintenance of the home and its inhabitants)
and could now that the children were off her
hands work that much
harder. On the other hand it would be equally unjust that an
indigent woman unable to earn much money
could marry a wealthy man,
walk out of her wifely duties and try to use him as a meal-ticket for
life. In short, where an order
of divorce is now obtainable without
regard to fault, the Courts can and should use s 7 to ensure that,
where there can be no equitable
division of capital assets because
there was no community nor sufficient antenuptial settlements
to ensure fairness, the
parties are treated fairly vis-à-vis
one another.”
[4]
The second scenario postulated in
Nilsson
is clearly not of application. In
casu
,
the parties had been married for twenty-six years and her
contribution to the upkeep of the common home is admitted. It is not
in issue that the respondent is unable to pay the maintenance claimed
or the contribution for costs sought. As adumbrated, the
resistance
is premised on the supposition that she is a spendthrift with an
invaluable asset base. The difficulty I have with the
submission made
is two-fold – firstly, the respondent’s generosity itself
placed the applicant in a position where
she would want for nothing.
Consequently, she became accustomed to a lifestyle in conformity with
their status and she is therefore
entitled to be maintained
pendent
lite
,
consonantly, as the wife of a wealthy man. A perfunctory reading of
the opposing affidavit reveals no rational basis for the unilateral
reduction of the cash component of her maintenance and an order that
the
status
quo ante
be restored will emplace the applicant in the lifestyle hitherto
enjoyed. The increased amount now sought, is, regard being had
to
annexure “RM1”, and in particular the expenses detailed
therein under the rubrics, “
Entertainment
”
and
“
Holidays
”
,
however, clearly exorbitant.
[5]
Secondly, the mere fact that the applicant is the owner of a home of
considerable value is a
non
sequitur
.
She is sixty-six years of age and has been happily ensconced in her
home for almost a decade. To now contend that she realize
her only
asset to fund the litigation is iniquitous. It is common cause that
the respondent’s particulars of claim make no
provision for
payment of any maintenance to the applicant. This very issue will
perforce fall for determination by the trial court
and in order for
her to properly present her case, she is entitled to be placed in a
position to instruct her legal representatives,
albeit not in the
amount that she seeks. It is not in issue that her indebtedness to
her attorney is substantial. Having due regard
to the cost
considerations enumerated in her founding affidavit, an award
commensurate with the order I propose would be appropriate.
[6]
In the result the following order will issue:-
1.
The
respondent is ordered, pending the finalisation of the divorce
action, to maintain the applicant as follows:
1.1
payment
by electronic transfer of an amount of R40, 000.00 per month into the
applicant’s nominated banking account,
1.2
payment
of her medical aid premium,
1.3
rates
and taxes on her immovable property,
1.4
the
monthly levies in respect of her immovable property,
1.5
insurance
in respect of her immovable property, household contents; and motor
vehicle,
1.6
electricity
to the value of R3,000.00 per month,
1.7
the
domestic worker’s salary, and
1.8
life
policies of which she is the owner.
2.
The
respondent is ordered to pay the applicant’s attorneys of
record an amount of R200, 000.00 as a contribution towards her
legal
costs.
3.
The
costs of this application are to be paid by the respondent.
______________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the Applicant:
Adv B.C. Dyke
Instructed by
Greyvensteins Inc
St
George’s House, 104 Park Drive, Port Elizabeth
Ref: M Rossouw
Tel:
(041) 501 5539
Obo the
Respondent:
Adv A. Beyleveld S.C.
Instructed by
BLC Attorneys
4
Cape Road, Port Elizabeth
Ref:
K Loon
Tel:
(041) 506 3700
[1]
Act No 70 of 1979
[2]
1984 (2) SA 294
(C) at 297B-F