Heunis v Heunis (989/2020) [2021] ZAECPEHC 28 (7 May 2021)

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[2021] ZAECPEHC 28
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Heunis v Heunis (989/2020) [2021] ZAECPEHC 28 (7 May 2021)

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:
LOUISE
HEUNIS (Born CUTTING)
Plaintiff
and
EWERT
HEUNIS
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