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[2020] ZAECPEHC 47
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ECD v BDD (878/2019) [2020] ZAECPEHC 47 (26 November 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 878/2019
In
the matter between:
E[…]
C[….] D[…] (born D[…] S[…])
Applicant
And
B[…]
D[…] D[…]
Respondent
JUDGMENT
BESHE J:
[1]
The applicant instituted divorce proceedings against the respondent
in January 2018. She is now seeking
a further contribution of
R1 000 000.00 towards her legal costs in the divorce action
until the first day of the trial.
Also sought by the applicant is
costs of application, including costs of two counsel.
[2]
The following factors appear to be common cause between the parties:
In April 2018, respondent
paid a R1 000 000.00 contribution towards applicant’s
cost but due to the exchange rate
the amount actually paid over to
the applicant was R93 800.00.
In April of the following
year, being 2019, applicant launched an application similar to the
present one in respect of which she
was seeking a contribution
towards her costs in the sum of R 500 000.00. The matter was
settled between the parties and respondent
agreed to an order in the
amount sought by the applicant, namely R 500 000.00.
The parties are married
to each other out of community of property. The accrual system is
applicable to the marriage.
At the time when the
order for a contribution of R 500 000.00 was made in April 2019,
the divorce action had been set down
for hearing on 27 May 2010, but
postponed
sine die
. It was thereafter set down for hearing on
11 May 2020. Once again it did not proceed, having been removed from
the roll by agreement
between the parties. Even though a new trial
date in December 2020 had been set, I was advised that the matter was
not going to
proceed on the appointed date.
[3]
If I understand applicant’s case properly, it is that even
though she had sought a contribution
towards her costs in the action
up to the first day of trial previously, even though the trial has
not taken off – she has
exhausted the costs contribution of R
500 000.00 that was previously paid by the respondent. That is
due to the fact that
a number of events have occurred since April
2019 when the contribution was made by the respondent
inter alia
:
Pre-trial conference was held. Requests for further particulars were
made by both parties. Replies thereto by both parties.
[4]
This prompted respondent’s counsel
Ms
Dicker SC
to argue that applicant is seeking a costs
contribution in respect of the same legal services / disbursements
which the previous
costs contribution was intended to cater for.
Further that costs orders were made in respect of certain
interlocutory applications
applicant refers to, and that those fall
to be disregarded for purposes of this application. Also, that
applicant’s legal
expenses are exorbitant and in many instances
unreasonable and unnecessary submitting that she has conducted this
litigation wastefully.
[5]
Applicant describes herself as an adult unemployed female. She lives
in a house that is valued at R6 700 000.00
and situated in
Jeffrey’s Bay with one of their two daughters. She states that
the respondent is a successful businessman
who has built up a
substantial estate during the course of their marriage. Further that
he established a number of trusts and companies.
That however the
respondent has not made a proper disclosure of his assets and
liabilities. That therefore the dispute between
them relates to the
patrimonial consequences of the divorce but also to a large extent to
whether the assets of the trusts are
in reality those of the
respondent. Consequently, she has appointed a panel of experts to
render reports and give evidence at the
hearing of the divorce. She
may also need to appoint a valuer in Australia to evaluate the
properties that are in Australia. According
to the applicant, her
total legal costs for which she was billed in respect of the divorce
action until 22 May 2020 amount to R767 000.00.
That however,
she has not been billed for all the work performed on her behalf. Her
attorneys having last rendered a debit note
for their fees in
November 2019.
[6]
Applicant estimates that fees from May 2020 to first day of trial
will amount to R1 342 470.00.
Her legal cost until May 2020
are said to be R 767 000.00 and fees due to her attorneys from
November 2019 R 550 686.00.
From the total of the abovementioned
figures, she subtracts the contribution she has received which she
puts at R 593 800.00.
She puts the shortfall at R2 066 356.00.
[7]
To support her assertion that the respondent is possessed of the
means to pay the amount she is claiming,
applicant makes the
following averments:
Respondent receives a
gross remuneration of ± 35 880.00 Australian Dollars a
month which, according to her translates
to R 360 000.00 per
month. Regarding what respondent communicated through his attorney in
April 2020, namely that she has
substantial funds available to her in
Australia, she explains that there are certain bank accounts and loan
accounts that are nominally
registered in her name in respect of
which she has no access thereto, with respondent exercising effective
control over them.
[8]
The papers filed in this application are by no means brief, with the
main index running into 194 pages.
Applicant’s founding
affidavit comprising of 71 pages, with annexures thereto. It is trite
that prolixity in
Rule 43
applications is an abuse of the
process because it defeats the purpose of the rule. The purpose of
Rule 43
applications is to decide the applications provided
for by the rule as inexpensively and as expeditiously as possible.
[9]
Applicant’s counsel,
Mr Buchanan SC
justified this by
submitting that the underlying issues in this matter are not straight
forward. Unlike the run of the mill
Rule 43
applications
courts usually deal with.
[10] To
make matters worse, applicant has sought permission to file a
supplementary affidavit following the filing
of the opposing
affidavit. This is on the basis that respondent’s opposing
affidavit is replete with unsubstantiated and
speculative allegations
which are irrelevant, scandalous, abusive and defamatory and false.
That in the interest of justice and
in order for her not to be
prejudiced, she should be permitted to respond to these allegations.
She also seeks an order for costs
against the respondent in respect
of the application to file a supplementary affidavit, as between
attorney and client. This in
turn prompted the respondent to request
that in the event of the filing applicant’s supplementary
affidavit being allowed,
he be allowed to file a response thereto.
This clearly is not what is envisaged in
Rule 43
. This does
not lend itself to a simple and expeditious decision of the
application.
[11] What
does respondent allege in his opposing affidavit:
The applicant refuses his
suggestion of mediation which he believes may resolve the issues in
dispute between them. The applicant
has always had access and
continues to have full access to certain banking accounts. Throughout
their marriage, applicant was fully
involved in their affairs. These
are some of the allegations that seem to have been raised applicant’s
ire. Respondent contends
further that he is not hiding any assets. He
confirms having made the following payments to the applicant since
the institution
of the divorce action:
R1 000 000.00
paid directly to the applicant. R 500 000.00 as a contribution
to her costs per a court order agreed
to. That there are existing
costs orders in applicant’s favour. Applicant’s attorneys
have litigated on an extraordinary
scale, adopting a technical
uncompromising and obstructive approach to the matter. Costs claimed
by the applicant are unreasonable,
exaggerated and in some instances
duplicated. He then points out to items in annexures B and C to
applicant’s founding affidavit
he alleges amount to duplication
or an excessive. Applicant’s refusal to provide actual invoices
and bills as per respondent’s
request speaks volumes of and is
indicative of applicant’s tendency not to take the court into
her confidence and to mislead
the court. That the R 500 000.00
contribution was made on the basis, as claimed by the applicant, that
it will cover her costs
up to and including the first day of trial.
Respondent complains that applicant does not provide any details as
to how the amounts
of R 93 800.00 and R 500 000.00 paid to
her as contribution to her costs in April 2018 and May 2019
respectively were
used. There is no logic in her averment that her
attorneys have not rendered a bill since 5 November 2019. He denies
the trusts
are only for his benefit. That applicant is a trustee of
the trusts. They are family trusts created for the ultimate benefit
of
their children. Provision was made in the previous
Rule 43
application for valuers and experts to conduct investigations in
Australia so was provision for Mr
Honeyball’s
costs.
Mr
Honeyball
, an auditor, is assisting the applicant to value the
respondent’s asserts. He assails some of the costs claimed as
well as
some items in the bill of costs and abbreviated party and
party bill of costs. He insisted that applicant has access to funds
that
she has in fact withdrawn from the bond account. Further that
she has significant funds available to her in the form of Australian
bank accounts and shares.
[12]
Respondent points out that his legal costs, excluding the costs of
Senior Counsel and attorney’s costs for
June / July 2020, do
not exceed R 400 000.00. That therefore applicant’s costs
are exorbitant. His monthly expenses
exceed his monthly income. In
this regard, he annexes a list of his estimate of his monthly
expenditure. Respondent complains that
applicant does not provide
details regarding amounts drawn from the access bond. He further
raises concerns about items listed
in exhibit B and C which are Debit
notes and Draft abbreviated part and party bill of costs 22 March
2019 to 22 May 2020, respectively.
Respondent denies that applicant
requires contribution to her cost in the amount she claims or that
she does not have the financial
means to finance her litigation.
[13] It was
necessary for me to go through applicant’s supplementary
affidavit to determine whether she was justified
in seeking its
admission. All that the supplementary affidavit does is raise further
debates about who does what in regard to filing
of tax returns, who
signs what and why, why the trusts were established, the role of the
applicant in the running of those trusts,
motive behind opening of
certain bank accounts. Alleged attempts by respondent to avoid paying
certain taxes – it just perpetuates
the counter-accusations
between the parties. But most importantly what emerges from the
supplementary affidavit is that applicant
has managed to have access
to certain accounts and draw money therefrom, which according to her,
she believed were only nominally
held in her name. As to what led her
to believe the accounts were only nominally held in her name is to me
unclear. This has led
to her reducing the amount sought towards the
contribution to her costs to almost half the amount that she
initially sought, to
R 422 376.69.
[14] In my
view, respondent had every right to put the record straight in so far
as these accounts are concerned and
the accessibility thereto by the
applicant. That is exactly what an opposing affidavit is meant to
achieve. The applicant seeks
an indulgence by seeking leave to file a
further affidavit that is otherwise not provided for in
Rule 43
.
She had not made out a case why the respondent should be ordered to
pay the costs of her application to file a supplementary affidavit.
The applicant does not deny much of what respondent states in the
opposing affidavit, save to try and explain some of the aspects
raised by the respondent in his opposing affidavit. Even though I
have had regard to the applicant’s supplementary affidavit,
no
case has been made out why I should award costs to the applicant in
this regard on any scale. Applicant seeks costs on an attorney
and
client scale. All what applicant sought to achieve via the
supplementary affidavit was to try and prove that she has not been
less than candid in the founding affidavit.
[15]
Both parties are
ad idem
about the need to achieve / ensure parity of arms between parties to
a litigation, in keeping with
Section 9
(1)
of our Constitution. A contribution
towards costs in a divorce action is meant to enable the applicant
party to be in a position
to present their case fairly. That it is
usually the wife who is forced to settle for less than she is
entitled to because she
lacks the financial resources required to
pursue her claims.
[16] In
casu
, respondent contends that there is equality of arms
between the parties. That the applicant has sufficient income and
assets at
her disposal to meet her reasonable past, present and
future legal expenses.
[17] I
am satisfied that the applicant does have financial means at her
disposal to finance her legal costs. I
however take cognisance of the
fact that it is not required of an applicant to exhaust all her
assets before the respondent can
be required to contribute towards
her legal costs. Respondent denies that the contribution towards
costs that is sought is reasonable.
There is merit in respondent’s
contention that the contribution that was made by him was meant to
cater for legal costs until
the first day of trial. Even though
applicant claims that a lot has happened since the last trial date
that was set. Apart from
the Pre-trial Conference, there does not
seem to be much else that happened. In respect of the interlocutory
applications mentioned,
there are costs orders in place. The
commissioning of reports by experts in respect of the aspects in
respect of which applicant
requires reports were catered for to a
large extent by the previous contribution. It also does not assist
the court in making an
assessment regarding a contribution to be
made, for applicant to state that her legal costs until 22 May 2020
are R 767 000.00,
which excludes the fees of her attorneys since
November 2019.
[18] It is
not clear what led to applicant to believe that the bank accounts in
question were nominally opened in her
name and that she could not
access them. It is also concerning that the applicant is
reluctant to attend mediation which
may help to resolve the issues
between the parties and therefore reduce costs. Respondent makes a
point about what he regards as
exorbitant and in many instances
unreasonable and unnecessary legal expenses. He complains that these
are depleting his savings
to the detriment of both parties and their
children. There is no doubt that the parties are expected to litigate
responsibly to
avert the depletion of their assets. It is so that in
the period between the institution of the divorce proceedings in
January
2018 and April 2019 the respondent has made a contribution
towards applicant’s legal costs amounting to ±
R1 500.000.00.
In regard to the 2018 payment, even though he
paid R1 000.000.00, only R 93 000.00 was paid over to the
applicant. It
was only in respect of the second amount paid towards a
contribution to applicant’s legal costs that applicant
instituted
an application for such. This was granted by agreement
between the parties. This paints a picture of a respondent who is not
unwilling
to make a contribution towards applicant’s legal
costs.
[19] Granted
that respondent is possessed of financial means, which he states are
not limitless, just as the applicant
is not expected to exhaust her
resources in footing the bill for the divorce, so too is the
respondent not expected to exhaust
or deplete his savings on the
divorce.
[20] For the
following reasons, amongst others, I am not persuaded that the
applicant has made out a case for the amount
she seeks as a
contribution towards her legal costs: Since the last trial date was
set, not much has happened. Provision was made
in relation to the
last contribution for her legal costs up to the first day of trial,
including for the appointment of experts
to a large extent. It has
been shown by the respondent that she has access to banking accounts
held in her name. In my view, a
contribution of R 300.000.00 will be
adequate to cater for applicant’s legal costs up to first day
of trial.
[21]
Accordingly, the respondent is ordered to pay a further contribution
of R 300.000.00 towards applicant’s
costs in the divorce action
to be paid within sixty (60) days from date of this judgment.
Costs of this
application to be costs in the cause.
Costs
for the application for leave to file a supplementary affidavit are
to be borne by the applicant, including the costs of two
counsel.
_______________
NG
BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For the Applicant
:
Adv:
R. G. Buchanan SC &
Adv: T. Zietsman
Instructed by
: SCHOEMAN OOSTHUIZEN INC.
167 Cape Road
Mill Park
PORT
ELIZABETH
Ref:
Dr JS Oosthuizen/ah/C02357
Tel.:
041 – 373 6878
For the
Respondent
:
Adv:
Dicker SC & Adv: M. Morgan
Instructed by
: BDLS
ATTORNEYS
60
2
nd
Avenue
Newton
Park
PORT
ELIZABETH
Ref:
Ms A Gomes/MAT/24254
Tel.:
041 – 373 9693
Date Heard
:
3 November 2020
Date
Reserved
:
3
November 2020
Deemed Date of Delivery
: 26
November 2020