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[2022] ZAECQBHC 44
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R.A (born G) v M.S.A (131/2022) [2022] ZAECQBHC 44 (1 December 2022)
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 DIVISION – GQEBERHA
REPORTABLE/NOT
REPORATBLE
Case
No: 131/2022
In
the matter between:
R[....]
A[....] (born
G[....])
Applicant
and
M[....]
S[....]
A[....]
Respondent
JUDGMENT
MAKAULA
J:
A.
Introduction
:
[1]
The applicant, the plaintiff in the main action, sues for spousal
maintenance and
contribution for costs against the respondent,
defendant in the action for divorce. The application is opposed by
the respondent
on various grounds.
B.
Background facts
:
[2]
The parties were married to each other on 6 January 2001 out of
community of property.
Two children were born out of their union. The
applicant and the children vacated the common home on 20 May 2022 and
are currently
living in a rented property.
C.
Appellant’s case
:
[3]
The applicant is 47 years old and works as a beautician, running her
own business.
She had been gainfully employed during the subsistence
of the marriage with the exception of six years covering the period
2003
– 2009, which was between the births of her two children.
She works half days because in the afternoons she has the
responsibility
of transporting the children from school to
extra-mural activities and taking care of them. She attached bank
statements to prove
her income and expenses. She states that her
monthly profit varied from month to month. Realistically her monthly
nett income is
between R15 000.00 to R18 000.00 per month
and often less during quieter months. She attests that her current
living
expenses since she had moved out of the common home exceed her
income by R21 000.00 and that is the reason why she is seeking
spousal maintenance.
[4]
Regarding contribution to her legal costs, the applicant avers that
the legal costs
she has incurred to date, excluding the costs for
this application, amount to R90 000.00. She has already paid an
amount of
R15 260.00 and is currently paying an amount of
R2000.00 monthly to liquidate the balance owing. Contrasting that
with an
amount of R42 792.42, which the respondent has already
paid to his attorneys, the applicant alleges that she would not be
able to litigate at the same scale with him especially because the
respondent shall be engaging the services of senior and junior
counsel at the commencement of the trial. She contends that the
respondent has the necessary resources to litigate at a higher
scale
than she has and has the financial wherewithal to contribute towards
her costs.
[5]
Gleaning from the business account of the respondent (M[....] A[....]
Physiotherapy
Inc.), (the practice) the applicant alleges that the
respondent, on the average, transfers an amount of R120 150.00
monthly
and receives monthly benefits such as the use of a company
motor vehicle, petrol and maintenance of motor vehicle, the costs of
his cellular phone and entertainment expenses which total R33 290.33.
In all, the applicant argues that the respondent uses
the business
account for personal expenses interchangeably as he pleases. The
applicant further alleges that the respondent’s
personal
expenses amount to R88 085.13, which are exclusive of any
expenses incurred by him for which he was reimbursed by
his business.
[6]
The applicant contends that the value of assets of the respondent
(half share in their
property at Bushman’s and his own being
Erf [....] Blue Horizon Bay) excluding the business amounts to
R4 100 000.00.
The respondent’s liabilities amount to
R2 015 366.24. Based on the above information, the
applicant argues that
the respondent is able to contribute towards
her legal costs and would be able to afford R20 000.00 for
spousal maintenance.
D.
Respondent’s case
:
[7]
As aforesaid the respondent is a Physiotherapist operating a
physiotherapy practice
under the name and style M[....] A[....]
Physiotherapy Inc. He submits that his nett salary from the practice
historically was
R53 000.00 but since experienced a decrease in
turnover this year resulting in the practice losing half of its
staff. Due
to the financial strain currently experienced by the
practice, he has been able to draw an average salary of R41 800.00
from
December 2021 to April 2022. He denies that he is earning
R120 150.00 monthly.
[8]
The respondent testifies that his monthly debits like fuel expenses,
cellphone, extra
medical expenses not paid by the medical aid etc.
are debited in his practice loan account. His monthly expenditure is
R85 138.68.
He denies the value of his assets as estimated by
the applicant. He states that he transfers an amount of R25 000.00
monthly
from his business account to the bond account as a saving
mechanism for VAT and Taxes at the end of the year. These amounts are
paid back to the business account for cash flow purposes.
[9]
The respondent argues that it appears from the applicant’s bank
statement that
she receives an average income of R42 460.00 per
month and her expenses amount to R32 633.54. He therefore
submits that
the applicant has a surplus of approximately R10 000.00
per month. In the circumstances, he argues that the applicant has
failed to demonstrate a need for interim spousal maintenance as all
of her actual and reasonable requirements are adequately met
by her
own earning capabilities plus the maintenance currently paid by him
together with the other expenses he pays directly.
[10]
Regarding a contribution for costs, the respondent has tendered an
amount of R100 000.00
of the R180 000.00 required by the
applicant. The respondent argues that the applicant is not entitled
to all her anticipated
costs, even though the respondent may be able
to afford to pay them, but only a contribution.
E.
Contribution towards legal costs
:
[11]
The guiding principle in regard to contribution for costs is that the
amount which an applicant
should be given for a contribution towards
costs is in the discretion of the court. In the exercise of the
discretion the court
should have the dominant object in view that,
having regard to the circumstances of the case, the financial
position of the parties,
and the particular issues involved in the
pending litigation, the wife must be enabled to present her case
adequately before court
[1]
. A
spouse is entitled to a contribution towards costs which would ensure
the equality of arms in the divorce action
[2]
.
[12]
Similarly, in this matter, the applicant has to be allowed to
litigate in the same footing with
the respondent. In the papers, the
respondent has admitted that “(i)t is so that I have briefed
Senior Counsel in respect
of the divorce action”. The services
of a senior counsel do not come cheap. I am alive to the offer of
R100 000.00 the
respondent has tendered. It is difficult for a
court to assess with any degree of mathematical precision what is, or
is not adequate
as a contribution towards the legal costs of an
applicant
[3]
. I shall have to
exercise my discretion. In doing so I find that the amount of
R100 000.00 is inadequate.
F.
Spousal maintenance
:
[13]
Hart AJ made the following profound statement in
Taute
v Taute:
[4]
“
The applicant
spouse (who is normally the wife) is entitled to reasonable
maintenance
pendente lite
dependant upon the marital standard
of living of the parties, her actual and reasonable requirements and
the capacity of her husband
to meet such requirements which are
normally met from income although in some circumstances inroads on
capital may be justified”.
[14]
Likewise, I must have regard to the facts placed before me by the
parties. This is a very difficult
exercise because in cases of this
nature, the versions are conflicting and invariable make the task
difficult. I find reason in
the words of Ludorf J, in
Levin
v Levin
[5]
as cited also in the
Taute
matter that:
“
To decide the
issues I am compelled to draw inferences and to look to the
probabilities as they emerge from the papers. Obviously,
my findings
are in no way binding in the trial court and indeed after hearing of
evidence it may emerge that some or all of the
inferences I have
drawn are wrong. . .”.
[15]
From the papers, it does not emerge that the applicant ever
complained in their 21 years of marriage
about lack or inadequacy of
the maintenance for her and the children. It is common cause that she
did for a considerable number
of years receive an extra R10 000.00
from the respondent. I am live to the dispute between the parties in
this regard, with
the respondent claiming that he had paid her the
amount as an employee of the practice. Be that as it may, the
applicant as far
as I can deduce from the papers, received the
R10 000.00 from the practice for some time, until she was
“expelled”
from the practice in December 2021, after a
“disciplinary process”. This, seemingly was after the
applicant and the
children moved out of the common home and shortly
before the issue of the summons on 21 January 2022. I am of the view
therefore,
that the applicant was used to the amount when they lived
together and it would not be unreasonable of this court to order the
respondent to continue contributing that amount to the applicant
pendent lite
.
[16]
Consequently, I make the following order:
1.
The respondent shall pay a contribution towards the applicant’s
legal costs in the
amount of R130 000.00 for which the applicant
shall be obliged to account from time to time and which shall be paid
as follows:
1.1
R55 000.00 by 30 November 2022;
1.2
the balance of R15 000.00 shall be paid in equal monthly
instalments for 5 months, the first such
instalment shall be paid no
later than 15 December 2022.
2.
Spousal maintenance of R10 000.00 monthly starting from 1
December 2022.
3.
The costs of this application shall be the costs in the divorce.
M
MAKAULA
Judge
of the High Court
Appearances:
Counsel
for the applicant:
Adv A White
Gqeberha
Instructed
by:
Moya Rossouw Inc.
Gqeberha
Counsel
for the respondent:
Adv L Ellis
Gqeberha
Instructed
by:
Kaplan Blumberg Attorneys
Gqeberha
Date
heard:
01 November 2022
Date
delivered:
01 December 2022
[1]
Van
Rippen v Van Rippen
1949
(4) SA 634
(C) at 639.
[2]
Cary v
Cary
1999
(3) SA 615
(C) at 621 (D).
[3]
Van
Rippen supra
at
640.
[4]
1974 (2) SA 675
at 676 E
[5]
1962 (3) SA 330
(W) at 331 D.