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[2023] ZAECMKHC 122
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L.D.P (Born G) v T.J.D.P - Rule 43 (3622/2023) [2023] ZAECMKHC 122 (10 November 2023)
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
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 3622/2023
In
the matter between:
L[…]
D[…] P[…] (born: G[…])
Applicant
and
T[…]
J[…] D[…] P[…]
Respondent
JUDGMENT: RULE 43
Govindjee J
Background
[1]
The applicant, the plaintiff in a defended
divorce action, seeks an order pursuant to Uniform Rule 43(1)
(a)
and
(b)
.
The parties were married on 15 May 1999 in terms of an antenuptial
contract, with the exclusion of the accrual system. There are
no
children born of the marriage. A divorce summons was issued on 31
August 2023.
[2]
The applicant declares that she does not
have any formal employment and requires maintenance
pendente
lite
for herself. On her version, the
parties enjoyed a high standard of living and the respondent owns
significant assets, notably
livestock. His company also received
revenue, during 2022, of almost R1,5 million. Her assets, by
contrast, totals some R300 000.
[3]
The
applicant attached a schedule reflecting monthly needs to the tune of
R43 550,00. This was on the assumption that the applicant
would
be retained on the respondent’s Hospital Plan and Gap Cover.
During argument, Ms
Watt
adopted a pragmatic approach in persisting only with certain claims,
and reducing the amounts claimed in some instances.
[1]
Part of the remaining claim, totalling R21 100,00, is an amount
of R3500,00 for fuel, which the applicant explains with reference
to
necessary treatment in Bloemfontein, and transportation of staff to
Burgersdorp. The applicant also claims R10 000,00 as
a
contribution towards legal costs.
[4]
The respondent disputes that the applicant
has made a full disclosure of pertinent facts, and highlights the
applicant’s failure
to attach her bank statements, which he has
provided. His sworn reply reflects, inter alia, that the couple never
undertook overseas
vacations or exchanged lavish gifts, each driving
bakkies with mileage in excess of 160 000 kilometres on the
clock. The
respondent highlights loss of livestock during
September 2023. His assets, not including liabilities, are reflected
at a total
value of R7,7 million. He submits that his monthly income,
after farming expenses and liabilities are deducted, amounts to
R4 000
per month, derived from his company, which earned income
of approximately R115 000 during September 2023. That account is
in debit to the tune of almost R890 000,00, the overdraft limit
being R900 000,00.
[5]
The respondent summarised his monthly
expenses for September 2023. That includes various payments at
grocery stores, as well as
cash withdrawals totalling R12000,00. He
confirms that various expenses incurred by the applicant are
presently paid for by his
company or farm, including water and
electricity, telephone and internet, insurance, vehicle maintenance,
medical aid and gap cover,
life insurance, retirement annuity and
policies and the alarm system. Although it was submitted that the
applicant received an
allowance of approximately R11 000,00 over
and above this, from which the respondent argued that various items
claimed could
be covered, that amount is more accurately averaged in
the amount of R8700,00, paid sporadically.
The supplementary
affidavit
[6]
The applicant sought to file a
supplementary affidavit on the basis that various rights had been
violated by misleading statements
contained in the respondent’s
answering affidavit. Uniform Rule 43(5) provides that the court may
hear such evidence as it
considers necessary and may dismiss the
application or make such order as it deems fit to ensure a just and
expeditious decision.
[7]
I
am disinclined to entertain the affidavit for the following reasons.
The object of Uniform Rule 43 is that applications for maintenance
are to be dealt with as inexpensively and expeditiously as possible.
It is for that reason that prolixity in averments and the
unnecessary
proliferation of papers and affidavits are to be avoided.
[2]
As Ms
Beard
,
pointed out, while the court may receive further evidence, either
orally or adduced by affidavit, such evidence cannot be adduced
as of
right.
[3]
Notwithstanding the
Constitutional Court’s remark that Uniform Rule 43 may be given
an expansive interpretation,
[4]
and the judgment in
E
v E
,
[5]
proposing amendment to the practice directive in another Division of
this court, the present circumstances do not warrant deviation
from
the general rule.
[8]
On the approach I adopt, a just and
equitable outcome is possible without recourse to the supplementary
affidavit, given what appears
from the papers properly filed in terms
of Uniform Rule 43(2) and (3). Considering the limited extent of the
supplementary affidavit,
and the circumstances that led to it being
filed, it is appropriate that there be no order as to costs in
respect of that affidavit.
[9]
Bearing in mind the nature of the
proceedings, and that the object of these proceedings is to provide
only interim relief, I am
disinclined to adopt too strict an approach
to the shortcomings in respect of the manner of disclosure that
appears on the papers.
While this is not to suggest that a generous
approach will always be appropriate, it puts paid to the argument
that this court
should refuse the application outright.
What is reasonable?
[10]
Maintenance
pendente
lite
cannot be determined with the same degree of precision as would be
possible following a trial. Ultimately, the applicant is entitled
to
reasonable maintenance
pendente
lite
dependent upon the marital standard of living of the parties, the
applicant’s actual and reasonable requirements and the
capacity
of the respondent to meet such requirement.
[6]
It is generally accepted that such maintenance is to be met from
income although in some circumstances inroads on capital may be
justified.
[11]
It is apparent from the facts emerging from
the papers that the parties have not lived a lavish lifestyle. The
applicant is unemployed
and has limited assets at her disposal. She
receives various forms of support from the respondent, including
medical aid, gap cover,
insurance and retirement provisioning. As Ms
Watt
argued, she clearly also requires a regular monthly cash payment to
make ends meet.
[12]
What is reasonable requires balancing the
applicant’s reasonable needs with the respondent’s
ability to meet those needs,
bearing in mind the demonstrated
lifestyle of the parties. Most of the categories of expenditure
claimed were not disputed, the
real quibble being the extent of the
claim, particularly in respect of ‘holiday, entertainment and
recreation’ and
‘groceries, food and personal care’.
Whether out of pocket medical expenditure and pet-related costs
should be paid
by the respondent was, however, in dispute. The
approach adopted by Ms
Watt
certainly facilitated the court’s consideration of these
issues, and I have no hesitation in concluding that what has now
been
claimed is, in broad terms, reasonable.
[13]
What is more difficult to ascertain is the
respondent’s capacity to meet that amount, particularly when
considering his monthly
expenditure and that portion of his income
that remained for discretionary spend. In striving to strike the
appropriate balance,
I have considered the cash withdrawals reflected
on the September 2023 bank statement, as well as the respondent’s
own grocery
bills, bearing in mind that not everything reflected on
that statement has been explained. On his own papers, it is apparent
that
the respondent believed that he paid a monthly amount of
R11 000,00 to the applicant. The applicant has satisfied me that
she is entitled to more, although I accept Ms
Beard’s
argument that there is more to be trimmed from what has been claimed
considering what appears on the papers. In the final analysis,
I
consider an amount of R17 500,00 per month, commencing on 30
November 2023, to be appropriate.
[14]
The claimed contribution towards costs in a
matrimonial suit is
sui generis
.
The sum to be contributed is determined by the court’s view of
the amount necessary for the applicant adequately to put
her case
before the court. Determining an appropriate amount requires
consideration of the circumstances of the case, the financial
position of the parties and the issues involved in the pending
litigation. In exercising its discretion as to quantum of the
contribution
towards the costs to be awarded, the court is bound by
the constitutional right to equality before the law and equal
protection
of the law.
[15]
Considering that the applicant is
unemployed and that there is a demonstrated disparity in her ability
to access funds, I am of
the view that the applicant has made out a
case for a R10 000,00 contribution to her legal costs.
Considering the assets at
the disposal of the respondent, and the
amount awarded, there is no basis to order payment in instalments.
Order
[16]
The following order is issued:
1.
The respondent is directed to pay
maintenance to the applicant
pendente
lite
in the sum of R17 500
(seventeen thousand five hundred rand) per month, commencing on 30
November 2023.
2.
The respondent is directed to make a
contribution towards the applicant’s legal costs in the sum of
R10 000,00 (ten thousand
rand) by depositing such amount into
the trust account of the applicant’s attorneys of record within
seven (7) days of this
order.
3.
The costs of this application, excluding
the costs of filing of a supplementary affidavit, are to be costs in
the cause.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
07 November 2023
Delivered:
10 November 2023
Appearances:
For
the Applicant:
Adv
K Watt
St
George’s Chambers, Makhanda
Instructed
by:
Wheeldon
Rushmere & Cole Inc.
119
High Street
Makhanda
Email:
bbb@wheeldon.co.za
For
the Respondent:
Adv
M L Beard
St
George’s Chambers, Makhanda
Instructed
by:
Nettelton
Attorneys
118A
High Street
Makhanda
Email:
ilze@netteltons.co.za
[1]
That amount comprises the following:
a)
Groceries, food, personal care:
R6500,00
b)
Domestic worker:
R2000,00
c)
Garden services:
R2000,00
d)
Clothes and shoes:
R500,00
e)
Fuel:
R3500,00
f)
Medical
expenditure:
R2300,00
g)
Holidays, entertainment and
recreation:
R1500,00
h)
Gifts:
R300,00
i)
Pets:
R2500,00
[2]
Mather
v Mather
1970
(4) SA 582 (E).
[3]
Verster
v Verster
1975
(3) SA 493
(W) at 494C.
[4]
S
v S and Another
2019
(6) SA 1
(CC) para 56.
[5]
E
v E; R v R; M v M
[2019]
ZAGPJHC 180;
[2019] 3 All SA 519
(GJ);
2019 (5) SA 566
(GJ) para 59.
[6]
See
CMSC
v NC
[2021] ZAWCHC 227
para 14.