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[2018] ZAECPEHC 17
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C.R.B v H.T.B (4273/2017) [2018] ZAECPEHC 17 (10 May 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 4273/2017
In
the matter
between:
C.
R.
B.
Applicant
And
H.
T.
B.
Respondent
Coram:
Chetty J
Heard:
24
April 2018
Delivered:
10 May 2018
JUDGMENT
Chetty
J:
[1]
Rule 43 of the Uniform Rules of Court is intended to provide a
streamlined and inexpensive procedure for maintenance
pendente
lite
, a
contribution towards the costs of a pending matrimonial action,
interim custody of any child and interim access to any child.
It has
over the aeons generated inestimable judgments, where, in clear and
lucid language, the objects and import of the rule are
delineated,
but, despite the caveats expressed therein, it continues to befuddle.
The indexed and paginated papers number one hundred
and sixty one
(161). It spawned an application in terms of Rule 43(5) and a reply
thereto of a further one hundred and thirty six
(136) pages. The
applicant’s heads of argument and annexures number a further
sixty six (66), in total a three hundred and
sixty three (363) ream,
pertaining to a marriage contracted during 2010.
[2]
The introduction of the additional volume of papers is sought to be
admitted pursuant to the provisions of Rule 43(5) which
provides that
“
a
court may hear such evidence as it considers necessary and may
dismiss the application or make such order as it thinks fit to
ensure
a just
and
expeditious decision
”
The
applicant’s contention that justice demands its reception is
without foundation and requires no further deliberation.
Both it, and
the reply thereto, is struck out and the attendant costs are to be
borne by the applicant.
[3]
The applicant seeks tripartite relief, viz relocation costs of
R60, 999.00, maintenance
pendente
lite
of
R60, 000.00 per month and a contribution towards her legal costs
in the amount of R150, 000.00. Her entitlement to
the latter,
she contends, arises from the fact that given the span of the
relationship between herself and the respondent, i.e.
twenty-seven
(27), it gave rise to a universal partnership. Its exact parameters
consequently require investigation and so too
her co-trusteeship of a
raft of trust deeds. I have grave doubt whether, given the adulterous
nature of her relationship with the
respondent that her claim is
cognisable in law, but, given her impecuniosity, she is entitled to a
contribution towards costs,
albeit not on the inflated scale
advanced.
[4]
Although the applicant states that she is resident in the communal
home, it is not in issue, despite her protestations to the
contrary,
that she no longer does so. Her reticence to reside in the Tinkerbell
Trust property, 11 Swallows, is actuated by grandiosity
and cannot be
countenanced. It is common cause that she is a co-trustee of the
Tinkerbell Trust, that the house is fully furnished
and inhabited
solely by her mother. There is no satisfactory reason advanced why
she cannot reside therein pending the resolution
of the divorce
proceedings.
[5]
The applicant’s claim for maintenance
pendente lite
is
tabulated under various heads in annexure “LB5” to her
founding affidavit and, with reference thereto, she seeks,
a globular
sum of R60, 000.00 per month. In argument before me, Mr
Swanepoel
conceded that certain of the expenses impelled
reduced amounts but that given their lifestyle, the amount sought was
not extravagant.
The respondent’s refusal to accede to the
applicant’s plea for any maintenance whatsoever establishes
that he is a
scrooge. His claim to penury is contrived and I am
satisfied that the applicant is, given her current unemployment,
entitled to
an award of maintenance. In the result the following
orders will issue:
1.
The
respondent is ordered to pay the applicant the sum of R35, 000.00
per month in respect of maintenance
pendente
lite
.
2.
The
respondent is ordered to continue to maintain the applicant as a
beneficiary on his medical aid and to pay all her reasonable
medical
and dental costs,
pendente
lite
.
3.
The
respondent is ordered to permit the applicant the exclusive use of
the Hilux Toyota bearing the registration letters and numbers
[...]
and to ensure its regular service.
4.
The
respondent is ordered to make a contribution to the applicant’s
legal costs in the sum of R50, 000.00.
5.
The costs
of this application are costs in the divorce.
6.
The
application in terms of Rule 43(5) is dismissed with costs.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the Applicant:
Adv M.G. Swanepoel SC / Adv S. Potgieter
Instructed
by
O’Brien Incorporated, 26 Bird Street, Central, Port Elizabeth
Ref: Robin O’Brien
Tel: (041) 582 1309
Obo
the Respondent:
Adv M.
Barnard
Instructed
by
Prinsloo Incorporated c/o
Strauss Daly
Incorporated, 35 Pickering Street, Newton Park, Port Elizabeth
Ref: Vian Tee
Tel: (041) 399 5300