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[2021] ZAECPEHC 27
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L.H (Born C) v E.H (989/2020) [2021] ZAECPEHC 27 (7 May 2021)
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. 989/2020
Date
heard: 29 April 2021
Date
Delivered: 07 May 2021
In
the matter between:
L[…]
H[…] (Born C[…])
Plaintiff
and
E[…]
H[…]
Defendant
JUDGMENT
RUGUNANAN,
J
[1]
The
parties hereto were married to each other on 25 August 2012. The
marriage was contracted out of community of property subject
to the
accrual system in terms of an antenuptial contract.
[1]
They have one child born of the marriage, a minor female born during
June 2015. In circumstances set out hereunder a deed of settlement
was entered into and concluded on 28 April 2021 wherein the parties
agreed
inter
alia
,
that their marriage relationship has irretrievably broken down and
that a decree of divorce be granted in dissolution of their
marriage.
The action was set down for trial on 28 April 2021. The trial
preparation checklist (“the checklist”) filed
on 19 April
2021 duly signed by the parties’ legal representatives
identified the following issues to be determined
at the trial:
“
1.2.1
the primary care and residency and contact in respect of the minor
child;
1.2.2
the duty to pay maintenance in respect of the minor child and the
extent of such maintenance to be paid
by the party who will not have
primary care of the minor child;
1.2.3
whose estate accrued more during the subsistence of the marriage;
1.2.4
costs of suit of the action for divorce;
1.2.5
costs of the urgent application brought in December 2020.”
[2]
Following a meeting in chambers with the
parties’ counsel on 28 April 2021, the matter stood down until
29 April 2021 for
attending to the finishing aspects of the deed of
settlement. Except for paragraph 1.2.4 of the checklist, the parties
resolved
all issues. Accordingly, when the matter proceeded to trial
on 29 April 2021 it was on the limited issue of the “costs of
suit of the action for divorce”.
[3]
For
the plaintiff, the argument, essentially, was that the defendant,
owing to his conduct, ought to be ordered to pay the costs
of the
action - the defendant, on the other hand, contending that each party
pays their own costs; alternatively, that there be
an apportionment
in accordance with section 10 of the Divorce Act
[2]
.
On the facts, no submissions were made as to what apportionment would
constitute a reasonable exercise of discretion if this court
were of
the opinion that an apportionment would be justified. At the
conclusion of the matter and after hearing the plaintiff’s
oral
evidence and the arguments presented by counsel for the parties, a
decree of divorce incorporating the terms of the deed of
settlement
issued but judgment on the costs issue was reserved.
[4]
Section
10 of the Divorce Act
[3]
provides as follows:
“
10
Costs
In
a divorce action the Court shall not be bound to make an order for
costs in favour of the successful party, but the Court may,
having
regard to the means of the parties and their conduct insofar as it
may be relevant, make such order as it considers just,
and the Court
may order that the costs of the proceedings be apportioned between
the parties.”
[5]
Only
the plaintiff testified and except for aspects of her testimony
considered relevant for purposes of this judgment, not much
turns on
her evidence. A resolution of the issue, I think, is best served by
recourse to the objective material contained in the
documentation
before me. It is stated at the outset that the plaintiff was
substantially successful in her claims for a medical
aid contribution
for herself (albeit for a few months until the end of July 2021) and
for the minor child for the duration of her
financial dependency on
the defendant, including maintenance for the child and expenses
related to her school fees and other apportioned
educational expenses
(excluding school fees).
[4]
[6]
To
begin with, in considering the means of the parties the exercise is
not undertaken with mathematical precision. The documentary
evidence
[5]
indicates that the
defendant earns a nett monthly income of R25 642.31 and that he
receives an annual bonus of R45 534.30.
[6]
His estate has a positive accrual value of R1 137 522.61
whereas the plaintiff’s has attained a negative value
of
R117 676.24. Although the evidence indicates that both parties
are gainfully employed
[7]
no
evidence was elicited regarding the plaintiff’s earnings, save
for the settlement award of R641 761 from the defendant’s
pension fund. The plaintiff testified that approximately 18% thereof
will be taxed and the remainder - without having proffered
any
specific detail - will be utilised to pay off debts and liabilities
amounting to some R90 000 which she stated was incurred
when she
resettled in Port Elizabeth after having left the parties’
matrimonial home in Pretoria. The settlement award, she
stated, will
also be utilised to acquire a motor vehicle and for putting up a
deposit for the purchase of a house. Plainly, the
defendant has a
significantly greater accrual than the plaintiff notwithstanding the
settlement award to her as regards his pension
fund.
[7]
Alluding
to the conduct of the parties during the subsistence of their
marriage, the plaintiff’s uncontradicted testimony
is that she
was subjected to episodes of emotional and verbal abuse by the
defendant.
[8]
Sometime during
December 2019 she sought psychiatric assistance in Port Elizabeth
when she, and the defendant, and the minor child
were visiting
family. The intervention brought her to the realisation that the
parties’ marriage was “
on
the rocks”
with there being no prospect of returning to the matrimonial home in
Pretoria. Thus began resettlement of her life and that of
the minor
child pending finalisation of these divorce proceedings that were
instituted during May 2020.
[8]
As
for the defendant’s conduct in the course of the proceedings,
this precipitated an urgent application during December 2020
in which
the plaintiff sought the leave of the court to permit the child to
undergo eye surgery and to permit the plaintiff to
have the child
registered for schooling in Port Elizabeth. It is not intended
to delve into the merits of that application
save that the defendant
withheld his consent that surgery be undertaken in Port Elizabeth, he
preferring rather that the relevant
procedure be performed in
Pretoria.
[9]
As for the child’s
schooling, when the parties’ efforts to enrol the child in a
Christian school came to naught, the
plaintiff was obliged to opt for
an alternative school to which the defendant objected on religious
grounds.
[10]
Although the
costs issue in respect of the urgent proceedings has been resolved,
in argument the defendant’s conduct was
accentuated on the
premise that it was unreasonable.
[9]
This
portrayal of the defendant’s conduct was similarly articulated
in the context of the minutes of a rule 37 conference
held on 25
March 2021. As at that date the issues detailed in paragraph 1.2.1;
1.2.2 and 1.2.3 of the checklist remained unresolved
until 28 April
2021 (it being the date on which the deed of settlement was
concluded). The minutes indicate that the issues affecting
primary
care, residency and contact with the minor child were not conceded by
the defendant; this notwithstanding the availability
of the reports
of the family advocate and the family counsellor as early as January
2021. It is accepted in principle that the
parties in contesting
these issues on the pleadings were acting in what they believed to
have been in the best interests of the
minor child,
[11]
but by the time the reports became available, a full investigation of
the issues had been done. The cumulative thrust of the reports
induced an overall settlement of the issues. Except for what is
contained in the defendant’s pleadings prior to the involvement
of the family advocate and the family counsellor, and absent the
placing of any other information considered to be in the best
interests of the minor child subsequent to their reports, the stance
adopted by the defendant, as indicated in the minutes, effectively
prolonged settlement of the matter until it reached the doorstep of
the court. The contentions to the contrary for seeking to rationalise
the defendant’s stance are unpersuasive and speculative.
[10]
A
further aspect relevant to the conduct of the defendant concerns his
failure to have filed his discovery affidavit by 23 March
2021 on
pain of a court order. Far from mitigating prejudice suffered by the
plaintiff, such failure merely exacerbated it. The
ample series of
emailed correspondence directed to the defendant’s
attorneys
[12]
, clearly imputes
unreasonable conduct to the defendant. Indeed, even more where no
explanation for such conduct has been proffered,
nor any attempt made
in argument to persuade the court to the contrary.
[11]
In the circumstances, and ancillary to
having made an order granting the plaintiff a decree of divorce
incorporating the terms of
the deed of settlement dated 28 April
2021, the following order issues:
“
The
defendant shall pay the plaintiff’s costs of suit as taxed or
agreed.”
____________________________
M. S. RUGUNANAN
JUDGE
OF THE HIGH COURT
Appearances:
For
the Plaintiff:
Adv. L. Gagiano, Instructed
by Lizelle Pretorius Inc., Attorneys for
Plaintiff, 22 Bird Street, Central, Port Elizabeth, (Ref: L.
Pretorius/L. Lundt), Tel
(041) 585-4369, email
lizelle@lpilaw.co.za
;
liesl@lpilaw.co.za
For
the Defendant:
Adv. S. Bands, Instructed by, Jurgens Bekker
Attorneys (Ref: Irene
Welling) email
irene@jurgensbekker.co.za
,
c/o Lexicon Attorneys, Cnr Westbourne & Clevedon Roads, Central,
Port Elizabeth, (Ref: Mr P. D. Abernethy), Tel (041) 373-7434,
email
paul@lex-icon.co.za
This
judgment was handed down electronically by circulation to the
abovementioned legal representatives by email and release to
SAFLII.
The date and time for hand-down is deemed to be 10h00 on Friday
07 May 2021.
[1]
Particulars
of claim, Annexure POC1
[2]
Act
70 of 1979, as amended
[3]
Act
70 of 1979
[4]
As
per Deed of Settlement
[5]
Exhibit
C, Accrual calculation, 11
[6]
Exhibit
C, 12 -13
[7]
Exhibit
E, report by family counsellor, 6
[8]
This
is detailed in Exhibit E, report by family counsellor, 9
[9]
Exhibit
E, report by family counsellor, 12
[10]
Exhibit
E, report by family counsellor, 11
[11]
Where
parties bona fide believe that in contesting a case they act in the
best interests of their child, the general rule is that,
it is
frequently, by reason of the circumstances of a case, inappropriate
to make an order for costs. see
Bethell
v Bland and Others
1996 (4) SA 474
(WLD) at 473I, 474A and 476C
[12]
Exhibit
C, 1-10