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[2021] ZAECPEHC 14
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J.M.F v P.V.A.F (2272/2020) [2021] ZAECPEHC 14 (25 February 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case
No: 2272/2020
Date
Heard: 9 February 2021
Date
Delivered: 25 February 2021
In
the matter between:
J[…]
M[…]
F[….]
Applicant
and
P[…] V[…]
A[…]
F[…]
Respondent
JUDGMENT
POTGIETER
AJ:
[1]
Applicant has instituted divorce proceedings
against the respondent. The latter is defending the action and
has instituted
a conditional counterclaim. It appears that the
trial was set down for 26 January 2021 but could not proceed and is
presently
set down for 8 June 2021. The trial is accordingly
ripe for hearing.
[2]
The applicant is presently applying in terms of
Rule 43 for maintenance
pendente lite
and a contribution towards her costs. After receipt of the
respondent’s answering affidavit she made application for
leave
to file a further affidavit. I need to deal with that matter
first.
[3]
In the application to file a further affidavit,
the applicant indicated that after the respondent filed his answering
affidavit
it became apparent that a significant dispute of fact had
arisen and that it was necessary to correct the erroneous impression
created by the respondent in his answering affidavit. The
applicant relies on Rule 43(5) for this relief. The sub-rule
empowers the court to hear such evidence as it considers necessary in
adjudicating a Rule 43 application. The applicant is seeking
leave to
adduce such further evidence in the form of an affidavit.
[4]
It is trite that Rule 43 only allows two sets of
affidavits mainly to promote an expeditious determination of the
matter.
There is no right to adduce further evidence or to file
a reply. The applicant is required to establish special
circumstances
for this indulgence or it would be allowed where this
is demanded by justice and equity (
Barclay v
Barclay
Case No EL961/2019 dated 31 March
2020; Dodo v Dodo 1990(2) SA 342 (W) at 79 C-E; JAW v GSMW Case No
ECP 3145/2015 dated 22 August
2017 at para [18]).
[5]
I agree with the submission of Mr Nepgen, who
appeared on behalf of the respondent, that the further affidavit in
fact amounts to
a replying affidavit. It does not purport to
deal with anything not reasonably foreseeable when the founding
affidavit was
filed or facts that were not available to the applicant
at that time. The disputes of fact referred to in the further
affidavit
were foreshadowed in the exchange of correspondence between
the respective attorneys representing the parties which preceded the
launching of the Rule 43 application.
[6]
I had regard to the submission by Mr Dyke SC, who
appeared on behalf of the applicant, that there has been a move away
from the
traditional approach towards greater flexibility regarding
the number of affidavits and the need to make full disclosures in
Rule
43 proceedings. He relied in this regard in particular on the
judgments of Spilg J in
TS,R v TS,T
Case
No GJ28917/2016 (7 August 2017) and of the Full Bench of the Gauteng
Local Division, Johannesburg in
E v E &
Other Matters
Case Nos 12583/17, 20739/18 &
5954/18 (12 June 2019).
[7]
The judgment in
TS,R v
TS,T
dealt with the inadequacy of Rule 43
proceedings effectively to deal with the issues that had arisen
before that court. In an illuminating
judgment, the court dealt
extensively with the practical difficulties in some cases to come to
a fair and just decision within
the confines of brevity and
expedition required by the rule. The actual issue before the court
was whether parties to a Rule 43
application can be required to make
material disclosures especially with regard to their financial
positions to facilitate the
resolution of issues that had arisen
between the parties in particular the concealment of sources of
income and failure to make
proper, full and frank disclosure of the
parties’ financial circumstances. The court invoked Rule 43(5)
and ordered both
parties to make disclosure of specified further
financial information and documentation. Closer to the present
matter, the applicant
sought leave to introduce an additional set of
affidavits. This was allowed to enable the applicant to deal with a
change of circumstances.
While the judgment is informative, it was
not particularly helpful in dealing with the matter before me.
[8]
The issue that prompted the Full Bench in
E
v E & Others
to deal, on referral from
the Judge-President, jointly with three Rule 43 applications as court
of first instance was the apparent
failure of the parties to comply
with the provisions of Rule 43(2) and (3) that require a founding
statement in the nature of a
declaration and a reply in the nature of
a plea. The complaint was that the papers in some instances were too
voluminous. The Full
Bench considered the divergent approaches
adopted in their division by Tsoka J in
Van
Beest Van Andel v Van Beest Van Andel
Case No
27869/2007 (dated 7 October 2009) and Spilg J in
TS,R
v TS,T
supra
.
The Full Bench held that the Practice Directives be amended to
provide,
inter alia
,
for the completion of a prescribed financial disclosure form at the
direction of the Judge hearing a Rule 43 application. The
judgment
states
en passant
that
the applicant in a Rule 43 application should have an automatic right
to file a replying affidavit, but no provision was made
for this in
the order that was issued. The judgment is only of peripheral
relevance to the present matter.
[9]
Having considered the matter and the arguments
advanced on behalf of the parties as well as the applicable legal
position, I am
not persuaded that there are special circumstances
justifying the filing of a further set of affidavits nor is this
demanded by
justice and equity. This application was argued
together with the Rule 43 application and has not significantly added
to
the total time spent on dealing with the Rule 43 application.
It would accordingly be fair and just that there be no order
as to
costs in respect of the application to file a further affidavit.
I proceed to deal with the merits of the Rule 43 application.
[10]
It is common cause that subsequent to the
separation of the parties, the respondent continued making payment of
various amounts
for the benefit of the applicant directly to her
relevant service providers. The applicant indicated in her
founding affidavit
that the value of these contributions is R36590.00
per month. The respondent in addition makes a cash payment of
R14217.78
per month to the applicant. It is readily apparent
from the papers that the applicant bears little personal knowledge of
the exact amounts that the respondent is paying to some of these
service providers. It is clear that the respondent
has
been in charge of the financial affairs of the common home as well as
of the parties and that the applicant had acquiesced
in this
arrangement. By way of example, the applicant was unaware that she
was the beneficiary of a retirement annuity until this
was disclosed
in the respondent’s answering affidavit where she learnt of
this for the first time. There are accordingly
discrepancies
between the amounts listed by the applicant as payments directly to
some of the service providers and the actual
amounts of such payments
being made by the respondent. A few examples would suffice.
It is common cause that the respondent
has been making the bond
payments in respect of the house that is registered in the
applicant’s name, directly to the bondholder.
In listing
her monthly expenditure, the applicant has indicated that the bond
payment amounts to R18 000.00. The respondent
indicated in the
answering affidavit that the actual payments amount to R15 176.03 per
month. The applicant indicated that
the rates and taxes
(including water) paid directly by the respondent amount to R3 800.00
per month while the respondent indicated
that the actual payment
amounts to R2 345.00 per month. The applicant furthermore
indicated that the short term household
content insurance (which is
also paid directly paid by the respondent) amounts to R2 500.00,
while the respondent indicated that
this payment actually amounts to
R2 731.25 per month. This affects the total monthly expenditure
in the sum of R81 904.41
provided by the applicant. The expenditure
would be overstated in those instances where the actual payments
being made by the respondent
are less than the amounts indicated by
the applicant in her list of monthly expenses. This would by
the same token decrease
the shortfall of R31 096.63 on her monthly
expenses as provided by the applicant.
[11]
The applicant indicated that she was unemployed,
has no income and is seeking an order that the respondent continue to
make payment
of the items of expenditure directly to the service
providers. In addition, she claims payment of the above
shortfall of
R31 096.63 between the total amount of her monthly
expenses and the value of these direct payments taken together with
the cash
sum of R14 217.78 presently being paid by the respondent.
[12]
The respondent has decided to continue with the
current contributions which he is making towards the applicant’s
maintenance
including the direct payments to service providers.
The issue essentially is the amount of any further cash contribution
which the respondent has to make towards the shortfall on the
applicant’s monthly expenses.
[13]
The respondent is described in the papers as a
farmer and businessman who is involved in various business entities,
mostly in the
farming sector, which he described as the Endulini
Entities. The applicant’s case is that respondent is a
person of
substantial means leading a lavish and extravagant
lifestyle which she was part of during the subsistence of their
consortium.
They have since separated. She contends that
it is this standard of living that renders her maintenance claim
reasonable
and affordable by the respondent. The respondent on
the other hand indicated that the family lived beyond its means
leaving
him with substantial debts. He had a limited interest
in the Endulini businesses and earned a relatively modest income out
of his involvement in these businesses. He emphasised that
these businesses were owned and being conducted by legal entities
and
none of the businesses belonged to him. There were a number of
other family members and third parties involved in these
businesses.
His total nett monthly earnings were R122 137.04 being salaries that
he earned from three of the Endulini Entities.
His total
monthly personal expenditure was R87 081.72. The value of his
assets is R2 980 200.00 and his liabilities amount
to R6
897 509.00. The bulk of his liabilities consist of
a loan from
Endulini Fruit (Pty) Ltd in the amount of R5 454 163.00 and a loan
due to Pieter Van Aarde Familie Trust in the amount
of R1 435
826.00. He suggested that it was these loans that financed the
lifestyle of the family. He indicated that
if the present
contributions that he is making towards the applicant’s
maintenance is added to his own monthly expenditure
his total
expenditure is R132 066.55 per month. His liabilities therefore
exceeded his assets and his expenditure his income.
[14]
This is the basis of the dispute of fact in this
matter.
[15]
I am required to ensure a just and expeditious
resolution of this matter. To this end Rule 43 has created a robust
procedure to
deal with issues in the interim pending the final
determination thereof at the trial, which in this instance is set
down to proceed
in a relatively short period of time. It is not
required that material disputes be finally determined at this stage.
The court is required to come to a fair and just decision within the
confines of the process established by the rule. I am also
not
persuaded that there is a need in this matter to systematically trawl
through the minutiae of income and expenditure, but rather
that I
should take a holistic view of the matter in coming to a decision.
[16]
Without pre-judging any of the issues finally to
be determined by the trial court, it suffices for present purposes to
indicate
that in my view the applicant is not left without any
residual earning capacity, while the respondent is able, without
having to
suffer any serious financial detriment, to make a higher
contribution than at present towards the applicant’s
maintenance
pendente lite.
[17]
Insofar as the claim for a contribution towards
costs is concerned, I bear in mind that the issue between the parties
in the divorce
action is effectively confined to whether maintenance
should be lifelong (the respondent having tendered limited
rehabilitative
maintenance) and the quantum thereof. These are
issues in my view that are capable of being settled or adjudicated
without
the need of proceeding to a drawn out trial. Insofar as
the quantum of maintenance is concerned the principal consideration
is that this is limited to the reasonable needs of the applicant.
The fact that the respondent might be able to afford to
pay even more
than the applicant’s reasonable needs due to some or other
concealed wealth, is strictly speaking irrelevant,
once it is
established that he is able to afford to make the required
contribution towards the applicant’s reasonable needs.
A
determination of exactly how wealthy the respondent or the Endulini
Entities are and the exact nature and extent of the businesses
being
conducted by the Entities, cannot be essential in deciding the issues
between the parties in the divorce action. These matters
are
accordingly not strictly speaking germane to the determination of the
pertinent issues for trial and cannot have any material
impact on the
amount of legal fees reasonably to be incurred by the applicant.
[18]
Having carefully considered the matter, the
arguments advanced on behalf of the parties, and the abovementioned
approach required
in matters of this nature, I make the following
order:
1.
The application to file a
further affidavit is refused and there shall be no order
as to costs
in that application;
2.
Pending finalisation of the
divorce action between the parties under case number 1111/2020:
2.1
The respondent shall continue to pay the following service provider
directly:
(a)
The bond;
(b)
rates and taxes including water;
(c)
cellular phone;
(d)
domestic worker;
(e)
gardener and gardening services;
(f)
short term insurance (car and house contents);
(g)
tracker;
(h)
Atlas alarm;
(i)
hospital plan premium;
(j)
medical expenses not covered by the hospital
plan;
(k)
motor vehicle repairs and maintenance;
(l)
house maintenance; and
(m)
DSTV.
2.2
The respondent shall make a cash contribution to the applicant in the
sum of R30 000.00 per month.
2.3
The respondent shall pay a contribution towards the applicant’s
legal fees in the sum of R120 000.00.
2.4
The costs of the application shall be costs in the cause.
D
POTGIETER
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
Adv B Dyke SC instructed by Anthony-Gooden Inc, Port
Elizabeth
For
Respondent: Adv J Nepgen instructed by
Schoeman Oosthuizen Inc, Port Elizabeth