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[2017] ZAECPEHC 26
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A.L (born K) v W.D.L (1307/2016) [2017] ZAECPEHC 26 (18 April 2017)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case No.: 1307/2016
Date
Heard: 11 April 2017
Date Delivered: 18
April 2017
In
the matter between:
A.
L. (born
K.)
Applicant
and
W.
D.
L.
Respondent
JUDGMENT
EKSTEEN
J:
[1]
The parties in the present matter are embroiled in acrimonious
divorce proceedings in which the main disputes relate to money.
In the present proceedings the applicant seeks maintenance
pendente
lite
and a contribution towards the costs of the litigation.
[2]
It is not seriously in dispute that the parties, who have been
married for 34 years, enjoyed a comfortable, if not lavish,
lifestyle. The applicant was never required to seek employment
and has enjoyed a comfortable lifestyle as a housewife.
She has
accumulated no significant assets although she has an investment
portfolio in the amount of R330 652,37. The respondent
has
throughout the marriage provided financially for the applicant’s
needs and during the subsistence of the marriage they
enjoyed
overseas vacations including a luxury cruise. The applicant has
accumulated a substantial wardrobe, they drove
luxury vehicles,
dined out in restaurants and enjoyed the fruits of a holiday home on
Thesen Island in Knysna.
[3]
Although the respondent is in employment earning a salary of
approximately R45 000 per month both he and the applicant
are
beneficiaries in the W. L. Trust, a discretionary trust. Both
parties are trustees in the trust and much of their marital
lifestyle
was funded from the trust.
[4]
The respondent is also a trustee in two other trusts and he is
involved in a number of other business entities. He denies,
however, that he has any financial ownership interests in the
business entities or the trusts.
[5]
The marital home, which is presently occupied by the applicant, vests
in the W. L. Trust and all expenses relating to the maintenance
and
upkeep of the property are paid from the W. L. Trust.
[6]
The pleadings in the main action had previously closed and the matter
had been set down for trial. At the eleventh hour
the plaintiff
amended her particulars of claim so as to join the trusts referred to
earlier in the main action contending that
the value of the trust
assets should be taken into account for purposes of the determination
of the redistribution in terms of
section 7(3) of the Divorce Act.
This caused a postponement of the matter and I am advised from the
Bar that a plea to the
amended particulars of claim is ready to be
filed and the matter will then re-enrolled without further delay.
[7]
In the interim and
pendente lite
the applicant claims payment
of:
1.
Maintenance
to the applicant in the sum of R58 400 per month, such sum to
be paid on or before the first day of each month;
2.
An amount
of R42 000 to the applicant on the first day of December of each year
to enable the applicant to rent accommodation in
Thesen Island for
two weeks over the December/January period, in the event that the
applicant is not granted access by the respondent
to their family
holiday home in Thesen Island during this period;
3.
All
household expenses which the respondent currently pays, including but
not limited to the rates, taxes, water, electricity, wages
for the
domestic worker and gardener, medical aid, cell phone, telephone
accounts and insurance;
4.
The sum of
R495 888 towards the applicant’s costs, which amount is payable
within 7 (seven) days from the date of this order.
5.
The costs
of this application on an attorney and client scale (outside the
tariff provided for in terms of rule 43(7) and (8)).
[8]
In his answering papers the respondent has tendered to provide the
applicant access to the house in Thesen Island as requested.
Paragraph 2 of the notice of motion accordingly falls away. The
respondent tenders further to pay all the household expenses
which he
currently pays. Ms
Rossi
,
who appeared on behalf of the applicant, advised from the Bar that
the applicant accepts the tender. What remains in issue
therefore is the claim for maintenance, the contribution towards
costs and the costs order in the rule 43 application.
Maintenance
pendente lite
[9]
I have recorded earlier that the main action will be ready for
enrolment shortly and the duration of the order which I am asked
to
make at this stage is accordingly to be in force for a relatively
brief period. The tender by the respondent to continue
to pay
for all the household expenses which he currently pays for has been
accepted. The applicant is maintained on the respondent’s
medical aid scheme and the respondent has further tendered in his
answering papers to pay all medical expenses not covered by the
medical aid scheme. The tender is likewise accepted. The
maintenance
pendente
lite
claimed is accordingly, as I understand the claim, directed solely at
the applicant’s personal expenses.
[10]
In arriving at her claim for R58 400 per month the applicant set out
her monthly expenses as follows:
Groceries
R18 000
Medical
Expenses
R
3 000
Pets
R 3 000
Gardening
expenses, gas and home maintenance
R 6 500
Clothing
R
5 000
Make-up,
creams and perfumes
R 2 000
Hairdresser,
beauty treatments and massages
R 3 900
Restaurants
R10 000
Petrol
and other vehicle expenses
R 4 000
Gifts
R 3 000
TOTAL
R58 400
[11]
By virtue of the tender relating to medical expenses the amount of R3
000 contained in the calculation falls away. The
costs incurred
in respect of gardening expenses, gas and home maintenance is covered
by the tender relating to the household expenses
and the figure of R6
500 in this respect similarly falls away.
[12]
As recorded earlier the respondent earns approximately R45 000 per
month from his employment. He alleges that the expenses
which
he has tendered, and which he has thus far paid, amount to
approximately R50 000 per month. In addition he has over
the
past year contributed an amount of R25 000 to the applicant in
respect of her personal expenses. He accordingly contributes
an
amount of R75 000 to the applicant’s maintenance, the bulk of
which emanates from the W. L. Trust. He contends that
the
applicant has comfortably maintained herself for the past year on
such maintenance and tenders to continue to pay an amount
of R25 000
to the applicant in respect of her personal expenses. This the
applicant considers to be inadequate.
[13]
I have recorded earlier that it is not in dispute that the parties
maintained a very high standard of living prior to their
separation.
Subject to the available means of the parties, the applicant is
entitled to expect to be maintained at a similar
standard. In
my view, however, the respondent’s tender in respect of
maintenance
pendente
lite
is a generous one even to an affluent person. Whilst I do not
intend to analyse the individual expenses listed in the applicant’s
monthly expenditure I consider the demand to be excessive in the
circumstances. I further have regard to the fact that the
order
which I make will be of limited duration and that the applicant’s
lavish accommodation remains fully maintained in
the same manner as
it was prior to the separation of the parties by the trust. I
consider that a contribution of R25 000
in respect of the personal
expenses of the applicant without dependants constitutes an adequate
provision.
Contribution
towards costs
[14]
It is the applicant’s case, as alluded to earlier, that the
assets of the various trusts ought to be considered in determining
the extent of the redistribution of the respondent’s estate.
She contends that the respondent controls the trusts as
his alter
ego. She accordingly requires what she termed “a forensic
audit”. It is not explained what the
forensic audit
entails nor why it is necessary in respect of the issues in dispute.
The respondent is represented by senior
counsel in the litigation and
the applicant contends, rightly in my view, that she is entitled to
litigate on a similar scale.
The claims made are substantial
and,
prima
facie
,
I am of the view that she would be justified in seeking to employ two
counsel.
[15]
In making a claim for a contribution towards costs it is the
intention to enable the applicant to present her case and to bring
the matter to court. She is entitled therefore to a reasonable
contribution to the costs up to the first day of trial.
In the
event that the matter proceeds to trial a further application may be
made on the first and every subsequent day for additional
contributions.
[16]
She has set out in her founding papers her calculation for the amount
which she requires as a further contribution. It
is computed as
follows:
1.
Pre-trial
contributions (8 hours)
R45 048
2.
Attendance
of pre-trial conference (2
hours)
R11 262
3.
Preparation
of pre-trial agenda, response thereto
by
counsel (3 hours) R11 421
4.
Preparation
of pre-trial minutes by attorney (1 hours)
R 1 824
5.
Reply to
possible notice in terms of rule 35(3) by respondent by counsel (2
hours) R 7 614
6.
Preparation
of request for trial particulars by counsel (3 hours)
R11 421
7.
Perusal of
discovered documents (6 hours)
R33 786
8.
Trial
preparation (1 day)
R56 310
9.
Forensic
auditor (including first day of trial)
R300 000
10.
First day
of trial in respect of counsel
R38 070
11.
First day
of trial in respect of attorney
R18 240
Sub-Total
R534 996
Less
contribution already made by respondent
R30 000
TOTAL
R504 996
[17]
At the hearing of the matter, however, Ms
Rossi
advised that she sought only the contribution in the amount of R495
888 set out in the notice of motion as opposed to the R504
999 in the
affidavit.
[18]
In respect of the cost of a forensic audit the applicant has annexed
a “quotation” from Messrs Grant Thornton which
records:
“
I hereby provide a quotation
for fees for performing work relating to the abovementioned divorce
matter.
Forensic audit to be charged at an
average rate of R1 500 per hour. The time can only be estimated
once we have received a
copy of the latest annual financial
statements. The costing of this could range from R200 000 to as
much as R300 000.
This fee is excluding VAT and
disbursements.”
[19]
It is readily apparent from the letter that Messrs Grant Thornton
give no more than an illustrative indication of what auditing
fees
may entail. They are unable to give any indication as to the
likely costs of their intended mandate and are unable to
venture any
estimate as to the time required until they have had sight of the
annual financial statements. In these circumstances
I did not
consider that a great deal of weight can be attached to the figure of
R300 000 set out in the estimate of costs in the
applicant’s
affidavit. (The figure of R300 000 presupposes 200 hours of
work.) In view of the nature of the dispute
between the parties
it seems to me
prima
facie
that the work which they would be required to do is likely to amount
to a substantially lower bill.
[20]
The costs of counsel’s fees for preparation of trial and the
first day trial fee similarly requires comment. Counsels’
fees at the Eastern Cape Society of Advocates are generally payable
sixty days after the delivery of the first account. The
costs
of preparation for trial by attorney and counsel and first day fee,
which together amounts to more than R100 000 of the estimate
will not
be payable prior to trial and may similarly be dealt with in a
further application brought on the first day of trial.
[21]
In all the circumstances I consider that a more realistic assessment
of the applicant’s financial needs to bring her
case to trial
would, on the information currently available, be in the vicinity of
R250 000 to R300 000.
[22]
Ms
Rossi
has referred me to authority which provides that an applicant
possessed of assets should not be required to sell her assets in
order to raise money for her defence where there are sufficient means
available in the defendant’s estate to pay for the
costs of
trial. I agree entirely with the principle. The same,
however, cannot apply where the applicant is possessed
of money
sufficient to cover her costs of the preparation of trial.
Where the applicant is possessed of money to pay for
the preparation
of trial she should, absent other material considerations, do so and
an appropriate adjustment may, where necessary,
be made in the order
issued at the trial. (Compare in this regard
Griesel
v Griesel
1981 (4) SA 270 (O) and in particular at p. 277A.)
[23]
In the present instance the applicant is possessed of a sum of
approximately R330 000 in cash invested in an investment portfolio.
In these circumstances I do not consider that the applicant is
entitled to at this stage the further contribution which she claims.
Costs
of application
[24]
Rule 43 is designed to provide an expeditious and inexpensive manner
to deal with issues
pendente
lite
listed in the rule. For this reason costs recoverable by legal
practitioners are limited by the rule itself. In exceptional
matters the court is justified in granting a deviation from the
tariffs set out in the rule.
[25]
The present matter does not relate to any issues more complex than
those encountered in the run of the mill application for
maintenance
pendente
lite
and a contribution towards costs. No particular complex legal
issue has arisen in the matter and I am unpersuaded that there
are
grounds set forth in the papers to justify a deviation from the
tariff.
[26]
In the result I make the following order
pendente lite
:
1.
The
respondent is ordered to pay maintenance to the applicant in the sum
of R25 000 per month such sum to be paid on or before the
first day
of each month.
2.
The
respondent is ordered to pay all household expenses, which the
respondent currently pays, including not limited to the rates,
taxes,
water, electricity, wages for the domestic worker and gardener,
medical aid, cell phone, telephone accounts and insurance;
3.
The
respondent is ordered to retain the applicant on his medical aid
scheme and to pay all medical costs incurred by the applicant
which
are not covered by the scheme.
4.
The
respondent is ordered to grant the applicant access to the holiday
home on Thesen Island for two weeks over the December/January
holiday
period each year.
5.
The costs
of this application will be costs in the main action, to be taxed on
the tariff set out in rule 43.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv Rossi instructed by Greyvensteins, Port Elizabeth
For
Respondent: Adv Beyleveld SC instructed
by Friedman Scheckter, Port Elizabeth