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South Africa: Eastern Cape High Court, Makhanda
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[2022] ZAECMKHC 71
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M.G.H v M.N (1163/2022) [2022] ZAECMKHC 71 (11 October 2022)
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
– MAKHANDA)
CASE NO.: 1163/2022
Matter heard on: 27
September 2022
Judgement delivered
on: 11 October 2022
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: NO
REVISED.
In the matter between: -
M[....]1 G[....]
H[....]
Applicant/Plaintiff
and
M[....]2
N[....]
Respondent/Defendant
JUDGMENT
SMITH
J:
[1]
The applicant seeks relief in terms of Uniform Court Rule 43,
compelling the respondent,
pendente lite
, to continue making
payments relating to: the repayment of a mortgage loan; rates and
taxes; electricity accounts; payment of staff
salaries employed by a
trust; medical aid; motor vehicle instalments and insurance; fuel;
cell phone account; payment of her monthly
salary in the sum of
R16 500; and R15 000 payment into her credit card account.
She also seeks a contribution towards
her legal costs in the sum of
R70 000.
[2]
The parties have been in a relationship since 2002 and entered into a
universal partnership in 2013, in terms of
which that partnership was
recorded to have been in existence since 2002. They subsequently got
married by civil union, in community
of property, on 5 July 2019.
[3]
The respondent is a prosthetist and businesswoman. The applicant
claims that during the partnership and the
marriage she and the
respondent managed to successfully grow the latter’s business.
They were able to expand the business
internationally to Mauritius
and, more recently, to Zambia. Her role in the business related to
the provision of consulting services,
project management and
overseeing care and recovery of the respondent’s patients.
[4]
The matrimonial home was purchased in the name of a trust, namely the
Bozo Trust, which is a discretionary
inter vivos
trust of
which she and the respondent are beneficiaries.
[5]
It is apparent from the applicant’s founding affidavit that all
the relief sought by her, except for the R15
000 payment into her
credit card account, relate to expenses incurred by the Trust. It was
thus not surprising that the respondent
has taken the point in her
opposing affidavit that those claims have no place in rule 43
proceedings. In the event, the Trust is
not a party to these
proceedings.
[6]
In argument before me Ms
Sephton
, who appeared for the
applicant, has accepted that most of the relief sought in the notice
of motion are directed at the Trust.
She, however, urged me to have
regard to the respondent’s written undertaking to pay the
claimed expenses. She submitted
that the applicant is in any event
entitled to an order compelling the respondent to continue paying the
R15 000 per month into
her credit account, fuel costs in the sum of
R5000, as well as a contribution to her legal costs.
[7]
Ms
Watt
, who appeared for the respondent, submitted that there
was no need for the application since the respondent has been paying
the
R15 000 into the applicant’s credit card account on a
monthly basis, without fail. She submitted, furthermore, that it is
evident from the respondent’s opposing affidavit that all the
expenses which the applicant claims have been paid to her all
along,
including those that relate to the Trust.
[8]
I agree with Ms
Watt
that the claims in respect of the Trust’s
obligations vis-a-vis the plaintiff cannot form part of rule 43
proceedings, regardless
of undertakings given by the respondent.
However, this judgment should not be interpreted to mean that the
applicant is not entitled
to those payments, but rather that her
claims lie against the Trust.
[8]
I am, however, of the view that the applicant is entitled to an order
compelling the respondent to continue
the monthly payments into her
credit card account. That amount should be sufficient to take care of
her monthly expenses, including
her personal fuel costs. Divorce
proceedings are more often than not passionately contested affairs,
and the applicant was consequently
entitled to the comfort and
security of a court order compelling the respondent to continue that
payment. There was also no suggestion
that that amount is exorbitant.
[9]
Insofar as the contribution to legal costs is concerned, I am of the
view that the R70 000 claimed by the
applicant is exorbitant. It
seems likely that the divorce will be settled through mediation. In
fact, both parties have already
agreed in principle to that process.
I am therefore of the view that a contribution in the sum of R15 000
will be fair and reasonable.
[10]
There is no reason why the usual costs order should not follow,
namely that costs should be in the main proceedings.
[11]
In the result the following order issues:
(1)
The respondent must,
pendente
lite
, continue to pay the sum of R15
000 per month into the applicant’s credit card account.
(2)
The respondent is ordered to
contribute the sum of R15 000 towards the applicant’s legal
costs by way of payment directly
into her attorney’s trust
account.
(3)
Costs shall be in the main
proceedings.
JE
SMITH
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the Applicant/Plaintiff
:
Adv. Sephton
:
Netteltons Attorneys
118A High Street
MAKHANDA
(Ref: Ms. Pienaar)
Counsel
for Respondent/Defendant :
Adv. Watt
:
Neville Borman & Botha
22 Hill Street
MAKHANDA
(Ref: Mr. Powers)