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[2023] ZAECQBHC 41
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C.J.H (Born A) v C.F.H (1378/2022) [2023] ZAECQBHC 41 (20 July 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE NO: 1378/2022
In
the matter between:
C[…]
J[…] H[…] (born A[…])
Applicant
and
C[…]
F[…] H[…]
Respondent
JUDGMENT
ELLIS, AJ
[1]
In this opposed application in terms of rule 43 of the Uniform Rules
(“the application”),
only two issues remained for
determination after the parties came to an agreement on 18 July 2023
as to the following issues
pendente lite
:
1.1
the primary care of their minor children;
1.2
the Respondent’s contact with the children;
1.3
the maintenance amount payable by the Respondent to the Applicant,
pendente lite;
and
1.4
the payment of the children’s school fees.
[2]
The remaining issues in dispute are in respect of:
2.1
The Applicant’s application for a contribution to her costs of
the divorce action; and
2.2
The costs of the application.
[3]
At the hearing of the matter, the Respondent, Mr H[…],
appearing in person, conceded that
the Applicant’s legal costs
which had already been incurred and still due to the Applicant’s
attorney (as per the statement
provided as annexure “CH6”
in the rounded amount of R35 000) could be paid to the
Applicant’s attorney from
the proceeds of the sale of the
matrimonial home. I understand that the proceeds are being retained
by the conveyancer responsible
for the transfer pending the division
of the joint estate.
[4]
Ms Van Schalkwyk, appearing on behalf of the Applicant, did not
persist with her argument in respect
of the Applicant’s further
anticipated future legal costs (in the amount of R65 000 as
claimed in the notice in terms
of rule 43) and the Applicant accepted
the R35 000 contribution tendered for legal fees already
incurred.
[5]
The only remaining aspect therefore is the costs of the application.
[6]
The usual order in rule 43 matters is that costs are ordered to be
costs in the divorce action.
Ms Van Schalkwyk argued that such
an order would ultimately be paid from the joint estate, and that the
application could have
been avoided if the Respondent engaged more
meaningfully in settlement negotiations prior to the hearing date.
[7]
It is trite that the court has discretion in awarding costs and such
discretion is to be exercised
judicially upon a consideration of the
facts in each case and the decision is a matter of fairness to both
sides. The general
rule is that a successful party is entitled
to their costs, but this rule is not absolute and, in fact is rarely
applied in applications
in terms of rule 43.
[8]
The
Divorce Act 70 of 1979
contains a provision dealing with the
aspect of costs in a divorce action.
Section 10
reads as
follows:
“
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 in so far as it
may be relevant, make such order as it considers just,
and the court
may order that the costs for proceedings be apportioned between the
parties.”
[9]
I am of the view that the court dealing with the divorce action will
be better placed to determine
the costs of the application as
evidence can be placed before it, which can be taken into account
when exercising its discretion
on costs. There were
insufficient facts placed before me for me to exercise my discretion
in a manner that is fair to both
parties and which would suggest a
departure from the usual practice that costs in this type of
application are ordered to be costs
in the divorce action.
[10]
Having carefully considered the papers filed of record and the
submissions advanced by the parties, and the
draft order containing
the agreement between the parties the following order shall issue
pendente lite:
1.
The minor children shall primarily reside with the Applicant, subject
to the Respondent’s
right of reasonable contact with the minor
children at all reasonable times.
2.
The Respondent shall contribute to the Applicant and the minor
children’s maintenance
as follows:
2.1
A monthly cash contribution in the amount of R21 300 to be paid
from the Respondent’s share
of the proceeds of the sale of the
immovable property, which proceeds are held in the trust account of
Botha Labuschagne Attorneys
and who are hereby directed to make
payment of the cash contribution, without set off or deduction, to
the Applicant’s nominated
bank account as follows:
2.1.1 R21 300
to be paid on or before 31 July 2023; and
2.1.2 R21 300
to be paid on or before the last day of each subsequent month.
2.2
Payment of half of the children’s school fees and school
related expenses directly to the school
and/or service provider.
3.
Botha and Labuschagne Attorneys are hereby directed to make payment
of R35 000 from
the proceeds of the sale of the immovable
property held in their trust account directly to the Applicant’s
attorneys being
Annali Erasmus Inc, with bank account details as
below on or before 31 July 2023:
ANNALI
ERASUMUS INC
NEDBANK
ACCOUNT
NO.:
1[…]
BRANCH
CODE:
198 765
REFERENCE:
MAT13842
4.
The costs of the application shall be costs in the divorce action.
L ELLIS
ACTING JUDGE OF THE
HIGH COURT
Appearances
:
For
the Applicant:
Adv
Van Schalkwyk
Instructed
by:
Annali
Erasmus Inc
For
the Respondent:
Mr
C H[...] in person
Date
heard:
18 July 2023
Date
delivered:
20 July 2023