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[2018] ZAECPEHC 33
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S v S (231/2017) [2018] ZAECPEHC 33 (9 July 2018)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
CASE NO: 231/ 2017
Dates heard: 25 & 26 April
2018
Date
delivered: 3 July 2018
In
the matter between
N
S (born
A) Plaintiff
And
A
S Defendant
JUDGMENT
GOOSEN,
J.
[1]
This
is an action for divorce in which the principal issue to be
determined concerns the cash component of maintenance payable by
the
defendant. Prior to the commencement of the trial the parties reached
agreement in relation to the primary care of the minor
children born
of the marriage. The parties also reached agreement in relation to
the appointment of a receiver to effect the division
of the joint
estate.
[2]
The
parties were married to each other in community of property on 25
March 2012. There are two children born of the marriage, both
girls,
aged 4 years and 1 year, respectively. The children are in the
primary care of the plaintiff. Maintenance of the minor children
is
presently regulated by an interim order made by this Court, pursuant
to Rule 43 on 7 December 2017. In terms of that order,
the defendant
pays maintenance of R5 000.00 per month per child in addition to
certain non-cash amounts relating to educational
and medical related
expenses of the children.
[3]
In
her particulars of claim the plaintiff claims payment of R6 500.00
per month per child. The defendant’s plea contains a
tender of
payment of the amount of R3 500.00 per month per child.
[4]
At
the commencement of the trial, the plaintiff made a substantive
application for postponement of the trial. The application for
postponement was premised upon an alleged failure by the defendant to
make further, and full, discovery, pursuant to a Rule 35
(3) notice
dated 22 March 2018. The application was opposed. After hearing
argument the postponement application was refused. The
trial stood
down on 25 April 2018 to commence 26 April 2018, when the trial
concluded.
[5]
I
begin by stating, briefly, the reason for refusing the postponement
application. As indicated, the plaintiff filed a notice in
terms of
Rule 35 (3) on 22 March 2018. In that notice the plaintiff sought
discovery of a number of listed documents relating to
tax
assessments; IRP 5 certificates; bank statements; pay-slips; policy
schedules and the like. The plaintiff also sought source
documents in
relation to certain transactions on the defendant’s banking
account and the provision of values of his pension
fund.
[6]
The
defendant replied, on affidavit, to the plaintiff’s notice on
19 April 2018. In it he states that all such documents as
exist are
available for inspection at the offices of his attorney. In relation
to particular items, namely tax assessments for
the year ending
February 2017 and February 2018, he states that no such document
exists. He also states that a value statement
of his pension with his
employer does not exist.
[7]
The
postponement was sought in order to obtain further documents which
flowed from those provided by the defendant, which it was
contended
were provided late. At the outset, it is to be noted that this matter
served on the trial roll-call on two occasions,
namely 22 March and
29 March 2018. The purpose of the trial roll-call is to facilitate
the management of cases which serve on the
trial roll. A roll-call is
scheduled four weeks prior to the trial date. This is to ensure that
the necessary pre-trial procedures
envisaged by Rule 37 have been
fully complied with and to determine whether the enrolled matter is
ready to proceed to trial.
[8]
At
the hearing on 22 March 2018 the matter stood down to 29 March 20
218. This was, so I understood it, to enable the parties to
finalise
certain trial preparations. It appears from the postponement
application that what was then in issue was the further discovery
required by the plaintiff. When the matter was again called on 29
March 2018, coincidentally before me, both parties were represented
by counsel and they agreed that the matter could be certified as
trial-ready.
[9]
The
postponement application must, in the first instance, be evaluated
against this certification process provided for by the Practice
Directive relating to trial roll-call. Ordinarily, where parties
certify that the matter is trial ready, a postponement will only
be
granted if it has been necessitated by subsequent events which may
have intervened. Parties will ordinarily be bound by their
assertion
that the trial is ready to proceed. There are sound reasons why this
should be so. It is to be expected of the legal
representatives that
they comply with the Rules relevant to the preparation of matters for
trial and, in particular, that they
apply themselves to meet the
objectives of Rule 37. Certification that a trial is ready to proceed
signifies that the parties are
prepared for the conduct of the trial.
Late postponements or the late removal of matters from the trial roll
necessarily result
in delays, and prejudice to other litigants whose
matters await the allocation of judicial resources. For this reason,
once a matter
is certified as trial ready, it must, unless very good
reasons are put forward, proceed on the allocated trial date.
[10]
In
this instance, the plaintiff sought further discovery at a late stage
in the pre-trial period. The defendant replied to the notice
on oath
and provided access to those documents sought which he stated he had
in his possession. The plaintiff’s complaint,
as I understood
it, was that they were provided late and that the response was
inadequate. This may be so, but in my view this
flows from the
initially late request for further discovery.
[11]
The
postponement was sought in order to obtain further documents, more
particularly, what was referred to as a “suite of documents”
referred to in defendant’s letter of employment. The defendant
argued that the alleged inadequacy of the responses are matters
that
the plaintiff’s counsel would be free to take up in
cross-examination. In my view, this is the appropriate manner in
which to deal with such issues. In regard to the recent employment of
the defendant and the availability of certain documents relating
thereto, the defendant’s counsel argued that the defendant’s
employer could be subpoenaed. He stated that the employer
was in any
event available to be consulted if necessary. Accordingly, there was
no reason to postpone the matter.
[12]
When
plaintiff’s Counsel was asked whether an adjournment of the
trial, by standing down to commence after the employer had
been
consulted, would suffice, she stated that it would. The only question
would be the period.
[13]
In
the light of this, and having regard to the basis upon which the
application was brought, I refused the application. I directed
that
the trial stand adjourned to commence on the following day. The
question of the costs of the postponement application were
reserved.
I shall deal with this hereunder.
[14]
I
turn now to the main issue to be decided in the trial, namely the
cash component of the maintenance payable by the defendant.
[15]
The
plaintiff is employed as a trainee tax consultant at KPMG. According
to salary advices tendered in evidence, she earns a gross
amount of
R17 088.65 per month. She stated that this amount has very recently
been increased to R233 000.00 per annum, representing
a monthly
increase of approximately R1 000 per month. Her monthly income is
therefore to be taken to be R18 000.00 per month.
[16]
Her
monthly expenditure is set out in a schedule to which she testified.
It reflects a total monthly expenditure of R23 215.00 for
both her
requirements and those of the children. The schedule allocates
expenses as between the plaintiff and the minor children
in the ratio
of 1/3 to 2/3. The plaintiff stated that the defendant should bear a
proportionally greater burden of the maintenance
needs of the
children since his gross earnings of the parties is considerably
higher than hers. According to the plaintiff the
expenditure
allocated to the children’s needs is an amount of R18 816.00.
The schedule to which she testified however, reflects
an amount of
R15 600.00.
[17]
In
cross-examination the plaintiff was challenged in relation to certain
of the expense items. It was pointed out that at the time
of
signature of the affidavit confirming her expenses in the Rule 43
application, she was aware that her monthly rental income
was less
than that claimed, i.e. R6 050.00 as opposed to R8 000. She accepted
this was so. In regard to the costs of the motor
vehicle, the
plaintiff stated that they were estimates. The actual cost would only
be determined once the division of the estate
had occurred. It was
put to her that the estimate of R4 000.00 per month on an instalment
was excessive in the circumstances and
that an amount of R2 500.00
would be required.
[18]
With
reference to bank statements reflecting petrol purchases it was
pointed out that her monthly expenses were no more than R1
100.00 per
month, rather than the claimed R2 000.00. The response to this was
that she often drew cash and also used this to pay
for petrol and
other expenses.
[19]
The
plaintiff was also challenged in regard to the estimated maintenance
costs of the vehicle. When these monthly estimates are
annualized the
claim exceeds R5 000.00.The plaintiff conceded that the schedule is
based on an estimate of what would be required,
rather than the
actual cost in relation to certain items. She nevertheless stated
that the estimate reflects the reasonable costs
of her monthly living
expenses, both for herself and for the minor children.
[20]
The
defendant testified that he is now employed by Acoustex Pty Ltd. His
gross earnings are in the amount of R77 079.28 per month.
After
deductions, he receives a net income of R50 385.35. He testified to
his monthly expenditure, as set out in a “budget”
reflecting both current expenditure and his anticipated
“post-divorce” expenditure. He explained that the
“post-divorce”
calculation reflects no disposable income.
It includes provision for the non-cash maintenance requirements for
the children, which
he has tendered, and an amount of R10 000.00 per
month as a cash component. He stated however that he could not afford
to make
such payment.
[21]
In
regard to his overdraft loan repayments he explained that these
amounts, more particularly, an amount of R2 000.00 paid to First
National Bank, represents matrimonial debt. He stated that the
matrimonial home, which has been sold, was sold at a loss and that
he
is responsible for payment of the shortfall.
[22]
In
cross-examination he was asked to explain expenditure, as reflected
in his bank statements, indicating that he spent significant
amounts
on entertainment and eating out. He stated that initially, in the
period after the parties were separated he did eat out
a lot. That
was because he was then staying with his brother. Now that he has
established a household, this has been curtailed.
[23]
In
regard to deductions from his earnings, he stated that he had
included a pension deduction of R5 500.00 which he does not presently
have. He also made provision for an educational policy deduction for
the children which he stated, is an estimate, since he does
not
currently make such payment.
[24]
Matters
such as this invariably involve fraught questions as to what
constitutes a reasonable expense in the context of two separated
households. What is reasonable is, more often than not, driven by the
particular circumstances, both economic and social, of the
parties to
the divorce. A court dealing with the maintenance claim is required
to determine, in the first instance, what the reasonable
needs are
for the children’s maintenance. It does so on the basis of the
parties’ testimony regarding what is reasonably
required. It is
then required to consider whether those needs can be met. The
parties’ estimate of what is reasonable, serves
to guide the
court. Where it concerns the maintenance requirement of children, the
court must, on the available evidence determine,
as best it can, what
maintenance payment will meet the best interests of the minor
children.
[25]
As
indicated, the plaintiff claims payment of R6 500.00 per month per
child. This is based on a proportional allocation of the maintenance
requirements of the children. It is trite that the burden of
maintenance support which both parents bear is distributed according
to their respective means (see
Farrell
v Hankey
1921 TPD 590
at 596;
Herfst
v Herfst
1964 (4) SA 127
(W) at 150).
[26]
Based
on this the plaintiff contended that the defendant should provide to
the extent of 80% of the children’s requirements.
Since the
maintenance requirements are in the order of R15 600.00 defendant
should contribute approximately R12 500.00. This would
place the
claim in the order of that originally sought in the particulars of
claim.
[27]
There
is, in my view, force in the submission. As will be seen from what
follows however, it is not necessary to define the proportional
contribution of the defendant with any degree of precision. This is
so because, as will be seen, there is scope for reduction in
the
amount claimed by the plaintiff for the children to bring it in line
with that which the evidence establishes, the defendant
is able to
pay. In my view the result will serve the best interests of the minor
children in regard to maintenance.
[28]
There
are three principal items of expenditure which it seems to me, on the
evidence, can reasonably be adjusted. The first concerns
the
estimated costs in relation to entertainment, holidays and gifts for
which provision is made by the plaintiff. The second concerns
certain
claims in regard to miscellaneous educational needs and extra-mural
activities. The third concerns the provision for payment
of a
personal loan on the part of the plaintiff.
[29]
Although
it was suggested that the plaintiff’s estimate of her expenses
in relation to a motor vehicle are excessive, there
was no evidence
presented as to what these costs would reasonably be. The plaintiff
fairly conceded that it was an estimate. Although
it was put to her
that a substantially lower amount would suffice, both in respect of
the instalment and maintenance, she did not
concede the amounts put
to her. It is worth noting that the present instalment on the vehicle
she is using until division of the
estate is in excess of R5 000.00
per month, as per the defendant’s evidence. In the light of
this her estimate does not strike
me as unreasonable.
[30]
In
regard to the entertainment expenses, the amount allocated, when
annualized, strikes me as excessive. While it is accepted that
entertainment for young children may be costly, it seems to me that
an amount of effectively R1 500.00 (R1 416.00 on the schedule)
per
month, is excessive. A reduction by R500 would still provide a
reasonable amount for the children, given the exigencies of
this
matter and taking into account that the parties clearly need to trim
their overall expenses. Then there is the allocated R1
000.00 for
payment of a personal loan which is included in the schedule of
expenses. It is not apparent what this covers and whether
it has
anything to do with the children’s maintenance. It appears that
the loan is one incurred by the plaintiff following
separation in
order to meet certain of her requirements. In my view this obligation
is one could be addressed in the division of
the estate. For this
reason it should be discounted as part of the monthly maintenance
obligation.
[31]
Finally
there is the provision for books, stationery and other incidental
educational costs and extramural costs, such as ballet
lessons and
violin lessons. These, in my view, are adequately catered for in the
non-cash maintenance obligations of the defendant.
[32]
The
effect of this is to reduce the maintenance requirements in respect
of the children to an amount of approximately R13 600.00
per month.
[33]
Turning
to the defendant’s means to pay a proportion of this, I am
satisfied that the defendant is able to afford a total
monthly
payment of R10 000.00 per month by way of maintenance rather than his
tendered R7 000.00. This is so because, as is apparent
from the
defendant’s evidence, he has made provision in his monthly
budget, “post-divorce”, for payment of an
amount of R10
000.00 as the cash component of maintenance payable by him. Although
he stated that he was unable to afford that
payment since the
consequence is that he has no disposable income to meet any
exigencies or emergencies should they arise, this
evidence cannot be
accepted. In his monthly budget he has discontinued certain payments
in the so-called “post-divorce”
scenario, namely payment
of the instalment on the vehicle utilised by the plaintiff, which is
an amount in excess of R5 000.00.
He has, however, included certain
further expenses which he resent does not have, namely a pension
payment in an amount of R5 500.00
and an educational policy for the
children in the amount of R2 000.00. These are amounts that he
anticipates he will be required
to pay in the post-divorce scenario.
[34]
In
regard to the pension payment, it was suggested that this is an
obligatory requirement. That does not accord with the fact that
such
payment is not presently being made. Even if it accepted that he is
obliged to contribute to a pension fund in that amount,
there is
still the provision made for payment of an educational policy. Whilst
provision for an educational policy to cover the
tertiary education
of the minor children is, without doubt, a laudable and prudent step
to take, such longer term investment in
the interests of the children
cannot, in my view, trump the immediate best interests of the
children. Those immediate best interests
of the children plainly
require that provision be made for adequate monthly maintenance to
meet their needs. The evidence indicates
that those reasonable needs
require a maintenance contribution in the order of R13 600.00 per
month. The evidence also establishes
that the plaintiff earns
considerably less than the defendant and that, having regard to the
proportional distribution of the maintenance
requirements of the
children, a maintenance contribution in the order of R10 000.00 per
month by the defendant is indicated. The
defendant is, for the
reasons set out above, able to afford that amount. He is in any event
currently paying that amount pursuant
to the interim order previously
made. In the circumstances therefore, such order will issue.
[35]
It
is necessary briefly to address the form in which relief is to be
granted before dealing with the question of costs. As indicated
hereinabove the parties reached agreement in relation to the primary
care of the minor children and matters related thereto. They
also
reached agreement in relation to the appointment of a receiver and
the appropriate orders to be made in respect of the receiver’s
powers. All of these agreements are embodied in what is referred to
as a “Note”, which serves as an addendum to the
Further
Rule 37 Minute dated 26 April 2018. Although it is not formally
framed as an agreement between the parties, it is apparent
from the
Rule 37 that the parties have so agreed and the “Note” is
endorsed by the parties’ respective legal
representatives. For
this reason, it will be appropriate to issue an order which
incorporates the terms of the Addendum to the
Further Rule 37 Minute,
by which the parental rights and responsibilities of the parties are
regulated and the terms of the division
of the estate are to be
determined. The further orders to be made need only regulate the
question of the cash maintenance payable
in respect of the minor
children since the Addendum covers the agreed non-cash components of
maintenance.
[36]
Finally
there is the question of the costs of the action. The plaintiff, as
indicated, claimed R6 500.00 per month per child. Although
this was
pursued by her throughout the trial, the plaintiff nevertheless made
an open tender in relation to her claim for maintenance
shortly
before the commencement of the trial in which the payment of an
amount of R5 000 per month per child was sought. The defendant
persisted in his opposition on the basis that he could not afford
said amount. There can be no doubt, in my view, that the plaintiff
has been substantially successful in her claim in relation to
maintenance and there is, for this reason, that no reason why the
costs should not follow the result.
[37]
Insofar
as the postponement application is concerned, the plaintiff failed in
her bid to secure a postponement. Having regard to
the further
conduct of the trial and the outcome thereof, the postponement
application was unnecessary. It brought about a delay
in the
commencement of the trial and its finalisation. In my view the
plaintiff should bear the costs of the postponement application
and
the attendant wasted costs occasioned thereby.
[38]
In
the result I make the following orders:
1.
A
decree of divorce;
2.
An
order incorporating the terms of the agreement reached by the parties
as set out in the Addendum to the Further Rule 37 Minute
dated 26
April 2018;
3.
The
defendant is ordered to pay maintenance in respect of the minor
children in the sum of R5 000.00 (Five Thousand Rand) per month
per
child. Payment of the aforementioned maintenance shall be made by the
defendant on the first day of each month, commencing
on the first day
of the month following the date of this Order and thereafter on the
first day of each consecutive month by debit
order, free of exchange,
and without any deduction or sett-off into such bank account as the
plaintiff may nominate from time to
time in writing.
4.
The
defendant is ordered to pay the plaintiff’s costs of trial,
payable from the defendant’s half share of the divided
estate;
5.
The
plaintiff is ordered to pay the costs the application for
postponement and the wasted costs occasioned thereby, payable from
the plaintiff’s half share of the divided estate.
_______________________
G.
G. GOOSEN
JUDGE
OF THE HIGH COURT
Appearances:
For the Plaintiff
Adv.
S. Potgieter
Instructed
by Anthony-Gooden Inc.
For
the Defendant
Adv.
B. Dyke SC
Instructed
by BLC Attorneys