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[2021] ZAGPPHC 60
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P.E.O.I v W.A.H (97132/16) [2021] ZAGPPHC 60 (3 February 2021)
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IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No:
97132/16
In the matter
between:
P[....]
E[....] O[....] I[....]
Applicant
and
W[....]
A[....] H[....]
Respondent
JUDGMENT
MAHON AJ
[1]
This is an application
for the variation of the order granted by this court, per the
Honourable Crutchfield AJ, on 23 June 2017.
The application is
in terms of Rule 43(6) of the Uniform Rules of Court.
[2]
The order which the
applicant seeks to vary, was granted pursuant to an application in
terms of Rule 43. A tender by the respondent
in that application (the
applicant in the present application) in terms of Rule 34(1),
culminated in the granting of the order,
albeit that argument was
seemingly presented in regard to certain aspects of the relief
granted.
[3]
The applicant now seeks
a variation of that order on the grounds that there has been a
material change in the applicant’s
financial circumstances, as
contemplated in Rule 46(3).
[4]
At the outset of the
matter, I was required to deal with an application for condonation
for the late delivery of the respondent’s
replying affidavit.
The condonation application was opposed by the applicant. However,
given the time which has elapsed since the
delivery of the replying
affidavit, it appeared to me that there was no prejudice to the
applicant which arose as a result of the
late delivery of the
replying affidavit. Indeed, the applicant’s counsel, quite
properly, indicated that whatever prejudice
may have been suffered by
the applicant at the time of the late delivery of the affidavit had
been ameliorated by the significant
period of time which had, since,
elapsed.
[5]
I accordingly granted
the application for condonation.
[6]
The applicant’s
contention that there has been a material change in his financial
circumstances which justifies a variation
of the previous order, is
premised upon the following allegations in the applicant’s
founding affidavit:
[6.1]
on 15 July 2019, the
applicant was advised by his employer that his salary would be
“
almost
halved
” as a
result of down-sizing measures being implemented by the company which
were aimed at preserving its economic sustainability;
[6.2]
with effect from 1 July
2019, the applicant’s gross salary was reduced from R80 200.00
(which he had been earning as
at the beginning of 2019) to
R40 000.00, with a net salary of R24 323.61; and
[6.3]
when added to the
applicant’s monthly retirement annuity payments of R5 039.46,
the applicant is said to receive a total
income of R29 363.27
per month, a drastic reduction from his previous income which he
received at the time of the previous
order.
[7]
An adjunct observation
is that the applicant is the founder of a company by the name of [….]
(Pty) Limited, which is apparently
a member of the [….] (SA)
(Pty) Limited and the applicant has been associated with the group
for the last 25 years.
[….] (Pty) Limited specialises in
the fruit and vegetable packaging and processing industry, both
locally and internationally
and has, at all material times, been
responsible for the payment of the applicant’s salary.
[8]
It appears that the
applicant is no mere employee of the company, but is a significant
shareholder and occupied a position of significant
influence within
the company.
[9]
The catalyst for the
alleged material change in the applicant’s circumstances, is
the significant reduction in the applicant’s
salary with effect
from 1 July 2019, as evident from the payslips provided by the
applicant. This is said to have occurred as a
result of down-sizing
measures being implemented by the company which were aimed at
preserving its economic sustainability
[10]
The difficulty with the
application is that, other than providing copies of his salary slips
reflecting the reduction in salary,
there is a paucity of information
demonstrating the impact which the reduction in salary has had on his
overall financial circumstances.
What is more, a period of no
less than 15 months has elapsed since the applicant’s founding
affidavit was deposed to and
the extent to which the
allegations contained in the founding affidavit accurately reflect
his current financial circumstances,
is accordingly unclear.
[11]
Moreover, whilst it may
seem tempting to conclude that a 50% reduction in salary would, of
necessity, result in a material adverse
change in financial
circumstances on the part of the applicant, one cannot assume that
this is so, particularly in light of the
amount of time which has
elapsed since the date that the founding affidavit was signed.
[12]
In
AP
v IP 2018 JDR 0349 (GP)
this court observed that
the decline in
the financial situation of the applicant’s could serve as a
material change in the financial circumstances
of the applicant as he
derived his sole income from the business but found that the
applicant had failed to establish that fact.
The reason for this is
that the applicant in that matter had failed to account for the
rationalisation or adjustment of the financial
obligations of the
business and the impact that this would have had on its ability to
meet its obligations to the applicant.
[13]
Although the facts in that matter were
different, the same principle applies by parity of reasoning. Without
being provided with
the full conspectus of the applicant’s
financial affairs, I am unable to conclude that the reduction in
salary (as opposed
to total income)
would,
of necessity, result in a material adverse change in financial
circumstances on the part of the applicant.
[14]
A considered reading of
Rule 43(6) suggests to me that, in order to succeed in demonstrating
a material change in circumstances,
one must make a full and frank
disclosure in regard to
all
of the numerous and varied elements which make up the broad overview
of the applicant’s financial situation.
[15]
It is therefore
unsurprising that the respondent criticises the applicant on the
basis that he ought to have done more to demonstrate
the impact of
the reduction in salary upon his overall financial affairs.
Thus, by way of example, the respondent states
that one would, at
least, have expected the applicant to have provided income tax
assessments or returns, IRP5’s and details
of dividends paid
from his shareholdings, amongst others.
[16]
The contents of the
applicant’s financial disclosure forms, regrettably, do not
meaningfully address these deficiencies. By
way of example, I was
referred to a copy of the applicant’s bank statements which
reflect a credit of R100,000.00 on 17 December
2019 which would, at
face value, contradict the applicant’s suggestion that he earns
a net monthly income of R29 363.27.
The respondent’s
counsel invited me to infer that this constituted undisclosed
dividends but the fact of the matter is that
I am unable to reach any
conclusion on the nature of this credit.
[17]
Confronted with these
difficulties, counsel for the applicant submitted, in the event that
this court were inclined to regard the
applicant’s disclosure
of his financial information as insufficient for purposes of the
present application, that rather
than dismissing the application, the
court should call for further evidence by way of affidavit as
contemplated in Rule 43(5).
[18]
However, I regret to
say that I have a number of difficulties with this submission:
[18.1]
Firstly, the criticisms
to which I refer were pertinently raised by the respondent in her
replying affidavit which was delivered
on 2 November 2019, more
than a year ago. Whilst I am mindful that the applicant
regarded the respondent’s replying
affidavit as irregular by
virtue of its lateness, the delivery of the affidavit nonetheless put
the applicant to an election. He
could either elect not to
respond to the criticisms raised in the hope that his objection to
the late delivery of the replying
affidavit would be upheld and that
such criticism would not be considered or he could, at that stage,
have sought the leave of
the court to deliver a further affidavit
addressing these criticisms or, at the very least, clarifying the
allegations contained
in his founding affidavit. Having elected
to stay supine, it is difficult to accept the applicant’s
invitation to invoke
the provisions of Rule 43(5) at this late stage,
after the proverbial shoe has started to pinch;
[18.2]
Secondly,
it does not appear to me that Rule 43(5) was intended to address the
situation in which the applicant now finds himself.
At this
juncture, I pause to observe that the respondent’s disclosure
of her financial affairs was not without criticism
from the applicant
as well. For this reason, counsel for the applicant correctly
submitted that the object of Rule 43 is
that applications of the kind
contemplated therein should be dealt with as inexpensively and
expeditiously as possible and that
prolixity of averments and the
unnecessary proliferation of papers and affidavits should be
avoided.
[i]
This can be
readily accepted but I do not interpret the provisions of Rule 43(6)
as contemplating a mere
de
novo
hearing of a Rule 43 application. Whilst it may, indeed,
involve a robust consideration of the parties’ competing needs
and means, it seems to me that one can only embark upon such an
enquiry after the prerequisites of Rule 43(6) have been met, namely,
that the applicant has established “
...
a material change occurring in the circumstances of either party or a
child, or the contribution towards costs proving adequate
”.
[ii]
As previously stated, the sole basis for the applicant’s
application was a material change occurring in his circumstances.
As I see it, the applicant bears the onus of establishing that fact
before the court should embark upon an enquiry as to the extent
to
which the variation sought by the applicant is appropriate, taking
into account the competing needs and means of the parties.
[19]
I am accordingly of the
view that in an application under Rule 43(6), the applicant bears the
onus of establishing that a material
change has occurred in the
circumstances of either party or a child, or a previous contribution
towards costs proving inadequate.
Although that onus is to be
considered in the light of the robust and expedient nature of Rule 43
proceedings, it is nonetheless
an onus which is to be discharged on a
balance of probabilities. To succeed in that endeavour, an
applicant must demonstrate,
not only that a change or even a
significant change in circumstances has occurred but must place
sufficient facts before the court
to enable it to determine the
materiality of that change in the context of the applicant’s
broader financial circumstances.
This would, at the very least,
entail a detailed exposition of all available sources of income and
would not merely be limited
to the income earned from his (now
reduced) salary.
[20]
On the information
provided by the applicant, I am unable to determine what the impact
of the reduction in salary is to the applicant
and its materiality in
light of the applicant’s broader financial circumstances.
I am accordingly of the view that
the applicant has failed to
discharge his onus in this regard.
[21]
During her submissions,
the applicant’s counsel raised the applicant’s concern
that if the court were to dismiss the
application, rather than
inviting further evidence as contemplated in Rule 43(5), the interest
of justice would not have been served
because the applicant would be
bound to the existing order and would be left without a remedy under
circumstances where, on his
version, material evidence exists which
is supportive of his alleged material change in circumstances.
This might have been
the case if the court, having had regard to the
contents of the founding affidavit and the financial disclosure forms
presented
by the applicant, found that there was in fact no change in
circumstances or that such change as had occurred, was not material.
That is not the finding of this court. On the contrary, as I
have stated previously, I consider myself unable to determine
whether
a material change of circumstances has occurred because of the dearth
of information provided.
[22]
I turn now to the
question of costs.
[23]
The parties’
submissions related not only to the costs of the present application
but to the costs which had previously been
reserved when the matter
was postponed on a previous occasion, 18 November 2019.
[24]
The respondent sought
to cast the blame for the previous postponement and the concomitant
wasted costs, at the feet of the applicant
as a result of the late
delivery of the applicant’s financial disclosure forms.
The applicant, for his part, submitted
that there was insufficient
factual matter before me to conclude that he was responsible for the
wasted costs previously incurred.
He did not, however, if I
understood the argument correctly, suggest that the respondent was
responsible for the incurrence of
those wasted costs or that the
respondent should be held liable for those costs. Instead, I
was urged to merely maintain
the reservation of those costs or,
alternatively
,
order that those costs should be in the course of the main divorce
proceedings.
[25]
It seems to me that the
costs incurred in regard to the postponed hearing are costs which are
clearly incidental to the current
application. It would, in the
circumstances, not be appropriate to reserve those costs or to order
that they be costs in
the main divorce proceedings unless I was
inclined to do so with the balance of the costs of this application.
Based on the
submissions made to me in regard to those costs and in
the light of my decision in regard to the costs of this application
which
I deal with more fully below, I am disinclined to reserve the
costs of the previous postponement and would rather direct them to
follow the result of the present application.
[26]
As for the costs of the
present application, I was urged by the respondent’s counsel to
visit a punitive cost order upon the
applicant for what the
respondent described as an abuse of process and a material
non-disclosure of relevant information which
the respondent
attributed to a deliberate concealment of information on the part of
the applicant.
[27]
I
am unable to find that the applicant has abused the court process or
that the present application was directed at harassing the
respondent. I cannot, on the papers before me, conclude that the
application was vexatious.
[iii]
The paucity of financial information provided by the applicant
appears to me to have arisen as a result of a miscalculation or
error
in judgment, rather than evidencing an intention to conceal financial
information. A failure to provide financial information
ought to be
considered in the light of the peculiar facts of every case. In this
matter, I do not consider the applicant’s
failure to deal with
his financial position as conduct of the nature described in
Du
Preez v Du Preez
2009 (6) SA 28
(T) at paras [15] to [17]
.
[28]
Finally, as to the
question of whether the applicant should be ordered to pay the costs
of this application or whether those costs
should be in the course of
the main divorce proceedings as, so it was submitted, is the usual
order in Rule 43 applications, I
observe, yet again, that I do not
regard the present application as a
de
novo
application in
terms of Rule 43 involving a consideration of the respective parties’
needs and means. Such applications,
almost invariably, result in
minor victories being achieved by either party in regard to the
various components of the respective
competing versions. This very
often culminates in an order which is quite disparate from that which
had been proposed by either
party. An order directing the costs of
such an exercise to be in the main divorce proceedings appears to me
to be eminently sensible.
[29]
However, where a party
fails to discharge the onus which it bears, with the result that such
an exercise does not arise, the difficulty
in apportioning the costs
does not present itself. Therefore, having found that the applicant
has failed to discharge his onus,
I see no reason why the costs of
the present application should not follow the result.
[30]
I accordingly make the
following order:
1.
The application in
terms of Rule 43(6) is dismissed with costs, such costs to include
the wasted costs arising from the postponement
which occurred on 18
November 2020.
D MAHON
Acting Judge of the
High Court, Pretoria
APPEARANCES
:
For the applicant:
Adv A Saldulker
Instructed by:
Robin Twaddle
Attorneys
For the respondent:
Adv P V Ternent
Instructed by:
Kim Meikle Attorney
Date of
hearing: 1 February 2021
Date of judgment:
3 February 2021
[i]
See
Harwood v Harwood
1976 (4) SA 586
(C) at 588E; Jeanes v Jeanes
1977
(2) SA 703
(W) at 706F and PT v LT
2012 (2) SA 623
(WCC) at 634E.
[ii]
Rule
43(6) provides that: “The court may, on the same procedure,
vary its decision in the event of a material change occurring
in the
circumstances of either party or a child, or the contribution
towards costs proving inadequate.”
[iii]
See
In Re Alluvial Creek, Ltd. 1929 CPD