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[2019] ZAECPEHC 77
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ZD v TD (3066/2016) [2019] ZAECPEHC 77 (31 October 2019)
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
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
REPORTABLE
Case
No: 3066/2016
Date heard: 28 October
2019
Date
delivered: 31 October 2019
In
the matter between:
Z[…]
D[…]
Applicant
AND
T[…]
D[…]
Respondent
JUDGMENT
Beyleveld
AJ:
[1]
The
applicant, the defendant in the divorce action, seeks an order
pursuant to Rule 43(1)(b). She claims from the respondent, the
plaintiff in the action, an amount of R85 114.00 as a
contribution towards her costs
[1]
.
[2]
The application was first set down for hearing on 1 October 2019,
but,
by agreement postponed to 28 October 2019, the same day the
action was enrolled for hearing.
[3]
By further agreement between the parties the divorce action was
postponed
sine die
and the Rule 43 application argued on the
morning allocated for the hearing of the action.
[4]
The defendant’s allegations contained in her sworn statement in
terms of Rule 43(2) are, to say the least, sketchy, generalized and
lacking necessary particularity.
[5]
The reasons advanced by the defendant for not being able to fund the
litigation
are:
[5.1]
That she was previously employed at a Local Municipality at a salary
less than that earned by the
plaintiff
[2]
;
[5.2]
She was compelled to relocate to Port Elizabeth with her husband;
[5.3]
The plaintiff promised to look after the defendant and pay her
“
accounts
”
as he was earning more than the defendant
[3]
;
[5.4]
Marriage infidelity on the part of the plaintiff caused the defendant
to leave the matrimonial home
during 2016;
[5.5]
The plaintiff ceased paying her accounts and, until she gained
employment again in March 2018
[4]
she was dependent on her mother;
[5.6]
By the time she obtained employment she was “
heavily
indebted
” to third parties and was compelled to obtain a
loan from a bank to settle the arrears on her vehicle;
[5.7]
her salary advice
[5]
is
indicative of the fact that she is unable to finance the litigation.
[6]
The
defendant asserts that she has already incurred an indebtedness
towards her attorney for past expenses
[6]
and she is advised that a future amount estimated as being R42 135.00
would be required to finalize the matter.
[7]
In respect
of past legal expenses, she annexes an attorney and client schedule
prepared by her attorney. A portion thereof relates
to withdrawn
proceedings in the Regional Court in Mthatha whilst a material
portion relates to travel and accommodation
[7]
.
[8]
It is apparent from the court file that the trial, which has
previously
been set down, has been postponed on more than one
occasion.
[9]
It is perhaps apposite at this stage to revert to the issues in
dispute
in the action.
[10]
No
maintenance is claimed by the defendant
[8]
whose counterclaim is aimed at obtaining a division of the joint
estate.
[11]
The plaintiff, on the other hand, asserts that the marriage regime is
out of community
of property as the parties so orally agreed prior to
the marriage.
[12]
An “
antenuptial contract
” was concluded between
the parties and registered. Such conclusion and registration was
clearly non-compliant with the requirements
relating to the execution
and registration of antenuptial contracts and is an issue raised by
the defendant.
[13]
Such an
issue is, in my view, of no relevance to the essential issue in
dispute in the action, namely whether or not,
inter
partes
,
agreement existed that the marriage would be out of community of
property
[9]
.
[14]
Our law
recognizes the validity,
inter
partes
,
of an informal antenuptial contract
[10]
.
[15]
The real
issue in the divorce action is, therefore, an uncomplicated factual
issue, namely whether the parties orally agree to be
married out of
community of property
[11]
.
[16]
The trial
should, therefore, be of limited duration, certainly not going beyond
one day and in my view, would not require an attorney
from Mthatha to
travel to Port Elizabeth to conduct the trial. Local junior counsel
would be more than adequate to assist the defendant
during the trial
which, in travelling and accommodation alone, would amount to a
substantial saving of costs
[12]
.
[17]
In his sworn reply, the plaintiff denies being possessed of assets
(or income) which would
enable him to pay a contribution.
[18]
He also contends that the defendant has been reticent in not
disclosing what she did with
her pension pay-out and the proceeds of
the sale of her immovable property.
[19]
Justifiably, the plaintiff asserts that the defendant has failed to
disclose the nature
and extent of her assets and liabilities and
meaningfully set out her monthly financial commitments.
[20]
The defendant’s salary advice indicates a gross salary of
R22 795.22, which
includes a housing allowance of R1336.22 per
month.
[21]
In annexure
“ZD2” which is annexed by the defendant, it indicates
that as at 29 January 2019 the defendant’s gross
salary is
R20 206.25
[13]
. It also
indicates that the defendant
[14]
had income available after having regard to monthly expenditure
including repayment of the loan. Such free residue
[15]
has presumably increased in the months subsequent to the date of
annexure “ZD2” by virtue of the increase in salary.
[22]
The defendant’s disclosure of her financial position and
ability to fund litigation
is at best lacking in particularity and
substance, but more realistically falls far short of a full and frank
disclosure of her
financial position.
[23]
In
Du
Preez v Du Preez
[16]
the following was stated:
“
. . . there is a
tendency for parties in rule 43 applications, acting expediently or
strategically, to misstate the true nature
of their financial
affairs.”
Further,
[17]
the court said:
“
A misstatement of
one aspect of relevant information invariably will colour other
aspects with the possible (or likely) result that
fairness will not
be done. Consequently, I would assume there is a duty on applicants
in rule 43 applications seeking equitable
redress to act with the
utmost good faith (
uberrimae fidei
) and to disclose fully all
material information regarding their financial affairs. Any false
disclosure or material non-disclosure
would mean that he or she is
not before the court with 'clean hands' and, on that ground alone,
the court will be justified in
refusing relief.”
[24]
In the
present instance, the defendant’s disclosure falls far short of
what is required. An example of what is considered
proper financial
disclosure is contained in the disclosure form annexed to the Full
Bench decision in
E
v E and Others
[18]
.
It would, in my view, be considered a prudent practice in Rule 43
applications for the parties (in cases where the financial ability
of
the parties is an issue) to annex to the affidavit a spreadsheet or
form similar to the disclosure form referred to above. This
would not
offend the underlying principle in Rule 43 applications that the
affidavits are in the nature of a declaration or plea.
Pleadings
often contain annexures setting out how a claim is calculated and
computed. This necessary annexure would, in fact, result
in the
affidavits themselves being less prolix as the deponents to the
affidavits could simply confirm the contents thereof and,
where
necessary succinctly elaborate on certain issues.
[25]
Not only
would a proper disclosure such as contemplated in the disclosure form
not offend against the underlying principle of such
applications
[19]
but would activate the parties to embark on earlier settlement
negotiations
[20]
.
[26]
Applying a
procedure as set out above, I do not believe it is appropriate to
emasculate the provisions of Rule 43 by allowing the
filing of
affidavits “
without
restrictions
”
and to allow a replying affidavit as an “
automatic
right
”
[21]
.
Perhaps that is something best left to the Rules Board to consider.
[27]
The issue of a compulsory disclosure form in Rule 43 applications may
also form the subject
matter of a debate and/or deliberations on
amending our practice directives to include the necessary provisions
and/or guidelines
in respect thereof.
[28]
In the
defendant’s sworn statement, for instance, there is no
disclosure at all of her monthly expenses
[22]
.
[29]
The
defendant’s attorney, faced with this difficulty sought leave
to file a supplementary affidavit. The reason advanced for
seeking
leave to file a further affidavit
[23]
was that the defendant “
.
. . omitted to give details of my expenditure as I though (sic) these
are expenses that are ordinary to everyday life and Rule
43(5) also
empowers this Honourable Court to call for further evidence if need.
”
[30]
This
explanation is unsatisfactory, ill-conceived and opportunistic. A
contribution is not awarded merely because it is asked for
but only
when a proper case has been made out in the sworn statement
[24]
.
[31]
The lack of cogency for the reason advanced militates against a
ruling that a further affidavit
be filed. In the exercise of my
discretion, I decline to accept the supplementary affidavit.
[32]
Even if the affidavit were accepted, it would not improve the
defendant’s position.
[33]
There is no explanation why the expenses listed are markedly
different to the expenses
listed in annexure “ZD2”.
[34]
In my view, even the supplementary affidavit falls short of the
disclosures expected.
[35]
It is trite
law that litigation costs are part of the duty to support
[25]
.
[36]
The test to
be applied in considering the amount necessary to place the other
litigant in a position to adequately present her case
is set out in
Senior
v Senior
[26]
.
[37]
As indicated above, however, I am not persuaded that the defendant
has made out a proper
case, more particularly where she does not
claim to be reliant on the plaintiff for any maintenance.
[38]
On the
papers, it is also not apparent that the plaintiff is in a better
position to litigate than the defendant. Even if I were
to find
otherwise, the defendant’s estimated future costs are not
verified and in any event, could only be a reasonable contribution
to
costs up to the first day of trial
[27]
.
[39]
Insofar as past costs are concerned, a material portion relates to
Regional Court proceedings
where the defendant had the right to
insist on payment of her taxed costs.
[40]
The costs
relating to the attorney travelling to Port Elizabeth and
accommodation are in any event, in my view, not recoverable.
In any
event, an appropriate adjustment may, where necessary, be made in a
cost order issued by the trial court
[28]
.
[41]
In conclusion, the defendant has not made out a proper case entitling
her to a contribution
towards costs.
[42]
In the result I make the following order:
[39.1] The application is
dismissed.
[39.2] The costs of the
application are reserved for determination by the trial court.
_____________________
A.
BEYLEVELD
ACTING
JUDGE OF THE HIGH COURT
Appearance:
Obo
the Applicant: Mr
S.C. Vutula
S.C.
Vutula & Co, c/o Zonke Budaza Attorneys
192
Cape Road, Mill Park, Port Elizabeth
Obo
the Respondent:
Adv
I. Bands
Instructed
by McWilliams
& Elliott Incorporated
152
Cape Road, Mill Park, Port Elizabeth
Ref:
K Ngubentombi
Tel:
(041) 582 1250
[1]
For the sake of convenience the parties will be referred to as in
the action.
[2]
No particulars are forthcoming as to the amount of any discrepancy,
or for that matter the amount earned by the defendant.
[3]
“more than me”.
[4]
She advances no details as to why she was unable to procure
employment during this period having particular regard to her
excellent
qualifications or what steps she took to seek employment.
[5]
Annexed to the affidavit.
[6]
In the sum of R42 979.00.
[7]
The travel and accommodation costs of her attorney.
[8]
There are no children born of the marriage.
[9]
The only potential relevance may be to contend that the executing of
the power of attorney inferentially support the plaintiff’s
assertion that a prior oral agreement existed.
[10]
Aschen’s Executrix v Blythe
(1886) 4 SC 136
;
Ex
Parte
Spinazze and Another N.N.O
1983 (4) SA 751
(T);
1985 (3) SA 650
(A)
confirmed on appeal; Schmitz v Schmitz
[2015] 3 ALL SA 85
(KZD);
Mathabathe v Mathabathe 1987 (3) SA (W).
[11]
The defendant herself, notwithstanding a contention that she is
married in community of property, annexes to her affidavit as
“ZD2”
a copy of the credit agreement form signed by the defendant when
obtaining a loan from African Bank, which
records the marital status
as married by “ANC” – mysteriously on the form
annexed someone has attempted to
redact the letters “ANC”.
[12]
The plaintiff is also represented by junior counsel.
[13]
The salary advice annexed as “ZD1” indicates an increase
in gross salary.
[14]
At a lower salary.
[15]
Which was in excess of R2 500.00 per month.
[16]
2009 (6) SA 28
(TPD) at para [15]
[17]
At para [16]
[18]
[2019] JOL 44933 (GJ)
[19]
Speedy and expeditious interim relief
[20]
E v E
supra
at para [56]
[21]
E v E
supra
at paras [59] and [61]
[22]
And leaving aside for the moment disclosures of her assets and/or
realization thereof.
[23]
Rule 43 contemplates only two sets of affidavits –
Mather
v Mather
1970 (4) SA 582
(E);
Boulle
v Boulle
1966 (1) SA 446
(D);
Maree
v Maree
1972 (1) SA 261 (O).
[24]
See PA Van Niekerk, A Practical Guide to Patrimonial Litigation in
Divorce Actions at para 6.3
[25]
Heaton and Kruger, South African Family Law, 4
th
Edition 199;
Chasen
v Chasen
,
Unreported judgment by Kroon J in this division under case number
1623/99;
Glazer
v Glazer
1959 (3) SA 928
(W) at 931G;
Dodo
v Dodo
1990 (2) SA 77
(W) at 96F and
Nicolson
v Nicolson
1998 (1) SA 48
(W) at 50B.
[26]
1999 (4) SA 955
(W) at 963H-964A. See also the extensive exposition
by Kroon J in
Chasen
supra
.
[27]
Lategan v Lategan, Port Elizabeth High Court case number 1307/2016
at para [15].
[28]
Griesel v Griesel
1981 (4) SA 270
(O) at 277A