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[2021] ZAGPJHC 642
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M v M (12816/21) [2021] ZAGPJHC 642 (30 August 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 12816/21
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
In
the matter between:
M[....],
H[....]
E[....]
Appellant
And
M[....]
S[....]
Respondent
Date
of hearing:
24
August 2021- In a ‘virtual hearing’ during a
videoconference on Microsoft Teams digital platform.
Date
of Judgment:
30 August 2021
This
judgment is deemed to have been handed down electronically by
circulation to the parties representatives via email and uploaded
to
caselines.
JUDGMENT
GRAF
AJ
INTRODUCTION
[1]
This is an application for relief
pendente lite
in terms of
Rule 43 of the Uniform Rules of Court. The applicant (the wife) is
the defendant and the respondent (the husband) is
the plaintiff in a
pending divorce action. The application is opposed by the respondent,
who in essence, launched a counter application
for defined contact
with the parties’ three minor children.
[2]
In her papers the applicant sets out the relief she requires from
this court in the
following terms:
(i) That the respondent
pays maintenance in the sum of R 77 505.79 per month in respect of
the applicant and the children without
deduction or set-off, which
amount should be paid to the applicant into a bank account nominated
by her on or before the 1st day
of the month that follows upon the
court order and thereafter on the first day of each succeeding month.
(ii) That the
maintenance claimed shall increase annually, commencing on the
anniversary of the date of the court order, by the
equivalent of the
weighted average of the Consumer Price Index for the previous
12-month period as published from time to time
by Statistics South
Africa or its successor, alternatively 8% per annum, whichever amount
is greater.
(iii) That the respondent
be liable for and pay all educational costs of the minor children,
including but not limited to the pre-primary
and primary education
(iv) That the respondent
retains the applicant and the minor children as dependents on a fully
comprehensive medical aid scheme.
(v) That the respondent
shall be liable for and pay all reasonable and necessary excess
medical expenses not covered by the medical
aid scheme.
(vi) That the respondent
continues to pay the costs in respect of the residence situated at
[....] Heron Place, Cedar Lake Estates,
Cedar Rd, Fourways, Sandton.
(vii) That in the event
that he applicant makes payment of any of the expenses as set out in
(iii), (iv), (v) or (vi) above the
respondent shall be liable to
refund the applicant for such amounts paid on presentation of the
invoice and proof of payment of
such expense.
(viii) The respondent
makes a contribution towards the applicant’s costs in the sum
of R 130 000.00 within 10 days from the
date of the court order.
(ix) That the respondent
shall exchange the motor vehicle currently in the applicant’s
possession for the Land Rover Discovery
5, with registration number
[....], within 10 days from date of the order.
(x) That the parties
shall be entitled to supplement their papers, if necessary, for
purposes of further relief upon the report
of a jointly appointed
expert having been filed of record.
(xi) That the respondent
pays the costs of the application including the cost of Senior
Counsel.
[3]
The respondent seeks the following order:
(i) That the respondent
pays the applicant the sum of R 42 500.00 per month as maintenance
for the applicant and the children without
deduction or set- off,
which amount shall be paid to the applicant into a bank account
nominated by her on or before the first
day of August 2021 and
thereafter on the first day of each succeeding month thereafter.
(ii) That the respondent
shall be liable for and pay all educational costs of the minor
children, including but not limited to their
pre-primary and primary
education.
(iii)The respondent shall
retain the applicant and the minor children as dependents on his
medical aid scheme.
(iv) That the respondent
shall pay all reasonable medical expenses not covered by the medical
aid.
(v) Reasonable contact
with the minor children, that includes sleepovers at his house.
[1]
(vi) That the Respondent
is to ensure that the Trust continues to pay the expenses it
currently pays, which expenses are set out
in annexure “SM2”.
(viii) A contribution to
the Applicant’s legal fees in the sum of R 25 000.00 must be
made.
(ix) Cost of the
application to be cost in the cause.
[4]
The applicant submitted a voluminous founding affidavit in support of
the application.
[2]
Although the
respondent, in his answering affidavit, took issue with the prolixity
of the applicant’s affidavit, as being
an abuse of the court’s
process, he did not pursue this argument during the hearing of the
matter. Having regard to the disputes
of fact that were raised in the
answering affidavit the applicant was granted leave to file a
replying affidavit. Although the
prolixity of the application renders
it non-compliant with the strict provisions of Rule 43 and the
general purpose and spirit
of Rule 43 applications
[3]
,
I have decided to use the discretion conferred upon me in Rule 43(5)
to allow the affidavits and the material annexed thereto.
The matter
involves complex issues that needed to be properly ventilated to
enable this court to make a decision that will give
effect to the
minor children’s constitutionally protected right to have their
best interests considered as being of paramount
importance.
[4]
[5]
Advocate De Wet (SC), who
appeared for the applicant, informed the court that the applicant
has
reduced the cash amount claimed for her maintenance and the
maintenance of the minor children from R77 505-79 to R66 064-54.
This was due to some overlaps between the listed expenses and the
separate prayer for educational expenses of the children.
[6]
She requested the court to deal with the application, but to postpone
the counter
application for defined contact with the children, until
the parties’ jointly appointed expert, Dr Fasser’s
investigation
and recommendations have been finalised. I indicated to
the parties that I was not inclined to postpone or stay the
respondent’s
counter application until the expert’s
investigation was completed, without making an interim contact order,
as I deemed
it to be in the best interest of the children. After some
debate the parties agreed that pending the finalisation of Dr
Fasser’s
report, the respondent would have contact with the
three minor children as follows:
(i) Every Saturday from
10h00 to 17h30,
(ii) Every Tuesday and
Thursday from 14h00 until 17h30.
(iii)The respondent shall
be allowed to remove the children from the applicant’s care or
fetch them from school to exercise
contact as aforesaid.
[7]
I therefore confine myself in this judgment to those areas where the
parties remain
at odds, namely:
(i) Whether the
respondent should pay a cash amount of R66 064-54 to the
plaintiff in respect of her maintenance and the maintenance
for the
children, or whether he should only pay the amount of R42 500-00,
as tendered.
(ii) Whether the
respondent should be ordered to exchange the Toyota Fortuner
currently in the applicant’s possession with
the Land Rover
Discovery.
(iii) Whether the
respondent should pay an amount of R130 000-00 to the applicant
as a contribution to her legal fees, or only
the amount of
R25 000-00, as tendered.
BACKGROUND
[8]
The parties were married on the
15
th
of December 2013, out of community of property, with
the inclusion of the accrual system. They have three young children,
aged
6, 5 and 3 respectively. The children reside with the applicant.
[9]
The applicant is a 37 year old woman. She is presently unemployed.
She is a qualified
sonographer. She has not worked full time since
shortly after the birth of the couple’s second child, as the
respondent was
able to maintain the family comfortably. The
respondent is a geologist by profession. He is 39 years old. He is
also currently
unemployed. The respondent left the marital home in
November 2019, before instituting divorce proceedings against the
applicant.
[10]
According to the applicant the respondent is a wealthy man, who
provided for all the maintenance
requirements of the family since her
resignation from employment in October 2016. The family enjoyed a
high standard of living,
which included holidays abroad. He was a
successful businessman who, together with two business partners,
started a company, Bushveld
Chrome Resources (Pty) Ltd (‘BCR’).
The company bought two mines and conducted business in the mining
industry. The
respondent and his two business partners held equal
shares in BCR. They transferred their shares in BCR to their
respective trusts.
In 2018 the respondent sold his shares in BCR for
R30 million and resigned as director of the company. In addition to
the funds
realised from the sale of the shares in ‘BCR”
the respondent bought and / or transferred numerous assets, including
the former marital home (‘Cedar Lake Estates property’),
another residential property (‘the Weaver Street property’)
and a Land Rover Discovery into the name of the trust. Although the
respondent is no longer employed, he draws sufficient funds
from the
trust to maintain his extravagant lifestyle. The applicant, who
describes the trust as the respondent’s ‘
alter ego’
,
has joined the trust as a third party to the divorce proceedings.
[11]
The respondent, on the other hand, although conceding that the family
had a good lifestyle, maintains
that their lifestyle was funded by
the monthly income that he derived from his previous employer, BCR.
During 2012, and amidst
threats of litigation against BCR, the BCR
M[....] Business Trust (‘the trust’) was created to limit
his exposure in
his personal capacity. The respondent sold his shares
in BCR to the trust. The trust was intended to secure the children’s
future and to ensure that their educational needs were catered for.
In 2018 he resigned from BCR and the shares held by the trust
were
sold. As the respondent had to abide by a restraint of trade for a
period of one year, he entered into a loan agreement with
the trust
in terms of which the trust paid him a monthly income of R40 000-00
to make ends meet. Due to the lockdown brought
about by the Covid 19
pandemic the respondent is still unemployed and he remains
financially dependent on the trust in terms of
the loan agreement.
[12]
It is against this background that the issues between the parties
must be considered. Numerous
factual disputes have been raised in the
papers. Given the nature of this application, I will deal only with
those disputes which
are necessary for the resolution of this
application.
MAINTENANCE
FOR THE APPLICANT AND THE THREE MINOR CHILDREN
[13]
The court is mindful of the fact that the relief
granted in terms of Rule 43 is interim in nature and cannot
be
determined with the same degree of accuracy allowed by detailed
evidence adduced at a trial.
[5]
[14]
it is trite that when entertaining an application for maintenance the
reasonableness of the request,
having regard to the applicant’s
reasonable and actual expenses, and the respondent’s capacity
to meet such requirements
must be taken into account.
[6]
The applicant’s entitlement to maintenance
pendente
lite
is further dependent on the marital standard of living of the
parties.
[7]
[15]
The considerations enumerated in section 7(2) of the Divorce Act
[8]
that deals with claims for spousal maintenance in divorce proceedings
are similarly useful in applications in terms of Rule 43.
These
factors include the existing or prospective means of each of the
parties, their respective earning capacities, financial
needs and
obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties prior
to the divorce,
and any other factor which in the opinion of the court should be
taken into account.
[16]
The applicant, in furtherance of her application, provided the court
with a schedule wherein
she listed her and the children’s
monthly expenses, which amount to a total of R119 771-19.
[9]
She informed the court that the respondent pays the amount of
R42 265-40 directly to the service providers, leaving a
shortfall
of R77 505-79. As already alluded to, counsel for the
applicant indicated during argument that the cash shortfall had been
re-calculated to a total of R66 064-54 to avoid a duplication of
the educational expenses that the respondent has tendered
to pay in
terms of the other prayers.
[17]
Counsel for the respondent contended that some of
the applicant’s listed expenses were inflated and
excessive and
that the amount of R42 500-00 tendered by the respondent was
fair and reasonable under the circumstances. He
referred the court to
the matter of
Du
Preez v Du Preez
[10]
where it was said that:
“…
there
is a tendency for parties in rule 43 applications, acting
expeditiously or strategically, to misstate the true nature of their
financial affairs. It is not unusual for parties to exaggerate their
expenses and to understate their income…To my mind
the
practice is distasteful, unacceptable, and should be censured. Such
conduct, whatever the motivation behind it, is dishonourable
and
should find no place in judicial proceedings…Should such
conduct occur in rule 43 proceedings at the instance of the
applicant, then relief should be denied”
.
And
further that:
“
A
misstatement of one aspect of relevant information invariably will
colour other aspects with the possible (or likely) result that
fairness will not be done. Consequently, I would assume there is a
duty on applicants in Rule 43 applications seeking equitable
redress
to act with the utmost good faith…and to disclose fully and
all material information regarding their financial affairs.
Any false
disclosure or material non-disclosure would mean that he or she is
not before the court with ‘clean hands’
and on that
ground alone the court will be justified in refusing relief”
.
[18]
I have scrutinised the applicant’s listed expenses, her
founding and replying affidavits,
coupled with the annexures thereto.
Although some of the applicant’s expenses appear at first
glance to be very high, I cannot
find any deliberate misstatement or
exaggeration on her side. In his answering affidavit the respondent
accused the applicant of
deliberately misleading the court, inter
alia, regarding her sources of income, his mental health and his use
of prescription medication.
Counsel for the respondent, quite
correctly in my view, did not pursue this line of argument during the
hearing. It became very
clear from the replying affidavit and the
supporting documentation that there was no merit in the respondent’s
accusations.
I do not intend to dwell on these issues as same will no
doubt be fully canvassed during the trial.
[19]
While assessing the reasonableness of the applicant and minor
children’s expenses. I had
regard to the respondent’s
listed expenses, including his unlisted rental expense of
approximately R68 000-00 per month.
[11]
I am of the view that most of the applicant’s expenses are
reasonable, taking into consideration the couple’s
socio-economic
and cultural situation. I have, however, reduced some
of the applicant’s expenses that I regard as a bit high to
amounts
that strike me as more reasonable. Those are the following:
·
Gifts: R1250-00 to R700-00.
·
Toiletries: R3890-00 to R3000-00.
·
Entertainment: R7420-00 to R5000-00
·
Birthday parties: R2500-00 to R2000-00
·
Groceries: R15 598-00 to R14 000-00
[20]
I have accordingly deducted a total of R5958-00 from the applicant’s
expenses claim of
R66 064-54 leaving a balance of R60 106.64,
which I will round up to R60 200.00 which I regard as fair and
reasonable
for the applicant and her children.
[21]
I have pondered over the respondent’s averment that he is
reliant on an income of approximately
R40 000-00 monthly that is
paid to him by the trust in terms of a loan agreement. According to
the respondent he is unable
to pay the amounts claimed by the
applicant. He has, however, secured a resolution from the trust to
the effect that a payment
of R42 500-00 monthly will be made to
the applicant.
[22]
The respondent has a lavish lifestyle. That much is clear from the
following common cause facts:
(i)
He spent approximately 3 months in a luxury hotel in the Seychelles
from December 2020 to March
2021.
(ii)
Although the respondent owns an unoccupied property, (the Weaver
Street property) near the property
in which the applicant and the
minor children reside, he rents a house for R68 000-00 per
month. In terms of the lease agreement
six months rental had been
paid upfront.
[23]
Even if it is accepted in favour of the respondent that his stay in
the Seychelles was extended
due to circumstances beyond his control
and that he lives in a rental home because of renovations to the
Weaver Street property,
there is nothing in the papers to show that
the respondent attempted to secure cheaper accommodation or that he
is unable to maintain
his chosen lifestyle. The respondent’s
contention regarding his limited means is simply not borne out by the
bank statements
annexed to his financial disclosure form. Counsel for
the applicant drew the court’s attention to numerous
transactions that
are strongly indicative of the respondent’s
unfettered access to the trust funds.
[24]
This court is not called upon during these proceedings to make a
finding regarding the exact
nature of the connection between the
respondent and the trust and whether the trust should be regarded as
the respondent’s
‘
alter ego’
. The applicant
has placed facts before me, that if proved at the trial, will
demonstrate that the respondent has substantial control
over the
decisions taken in the structuring of the trust and the utilisation
of its funds. The inference is inescapable that if
the respondent was
able to secure a resolution from the trust to pay an amount of
R42 500-00 to the applicant, he is able
to secure a resolution
to pay an amount in excess thereof.
[25]
The applicant has limited assets. She listed her assets as clothing
and personal effects, jewellery
donated to her by the respondent, a
Nedbank current account with a credit balance of R763-87 and a
timeshare in the Drakensberg
which she had purchased for R15 000-00
during 2017. She owes her mother R40 200-00 in respect of a loan
agreement and
owes Nedbank money in respect of her credit card. She
does not have any source of income, other than money received from
the respondent
when he deems it fit to make funds available to her.
[26]
I am accordingly satisfied that the applicant and the minor children
have a reasonable need for
maintenance from the respondent in the sum
of R60 200-00 per month and that the respondent has the means to
pay this amount.
SHOULD
THE RESPONDENT EXCHANGE THE TOYOTA FORTUNER CURRENTLY IN THE
APPLICANT’S POSSESSION WITH THE LAND ROVER DISCOVERY?
[27]
The applicant avers that she has been driving the Land Rover
Discovery, which is apparently registered
in the name of the trust,
since 2018. After the Land Rover Discovery was involved in a
collision with another motor vehicle in
December 2020 the
respondent’s father collected the said motor vehicle from the
panel beaters and he retained it. The respondent
and his father
refused to return the Land Rover Discovery to the applicant, even
though the motor vehicle was purchased to replace
the vehicle
previously driven by the applicant and to ensure that the children
had safe transport. The respondent gave his Toyota
Fortuner (‘the
Fortuner’) to the applicant to use instead.
[28]
According to the applicant the Fortuner does not provide safe
transport for the children, as
the middle seat in the back does not
have a proper seatbelt, only a belt over the waist. She prefers that
the children sit in the
back seat, properly strapped in in their car
seats and by the vehicle’s seat belts. When travelling with the
Fortuner one
of the young children must now sit in the boot part
where a chair folds up which places that child at risk.
[29]
The respondent contends that the Fortuner had been given to the
applicant for her daily use and
that the Fortuner was adequate when
he used it previously to transport the children. Although he had
offered to purchase the applicant
a new Haval SUV and to register it
in her name, she had declined the offer, because she was concerned
with the image it would portray
to her circle of friends.
[30]
From the information available to me at this stage it is clear that
the applicant is in possession
of a reliable motor vehicle that can
be used to transport the minor children, even though it is not her
motor vehicle of choice.
Although it is regrettable that the
respondent and / or the other trustees are not prepared to allow her
the use of the Land Rover
Discovery, I cannot find that the applicant
has established a reasonable need for the court to order the return
of the said motor
vehicle to her. Her request for such an order will
accordingly be denied.
APPLICANT’S
CLAIM FOR A CONTRIBUTION TOWARDS COSTS
[31]
In her founding affidavit the applicant alleges that she had to
consult senior counsel to prepare
her plea and counterclaim, as the
respondent had failed in any meaningful way to respond to her
settlement proposal. She had to
pay her attorneys an initial deposit
of R50 000-00, and to this end she borrowed the sum of
R40 200-00 from her mother
and utilised her credit card to pay
the balance. Her legal fees up to the end of March 2021 amounted to
R133 732-50. The applicant
was forced to sell her Rolex watch (a
30
th
birthday gift from the respondent) to place her
attorneys in funds. She received R55 000-00 from the sale of the
watch and
transferred R51 044-75 to her attorneys on 26 April
2021.
[32]
The respondent, on the other hand, alleges that he discussed
settlement proposals with the applicant,
but that her response to his
proposals was “I will take you to the cleaners”. He
tenders an amount of R25 000-00
in respect of a contribution to
the applicant’s legal fees, as the amount claimed by her is
excessive in his opinion.
[33]
The respondent, who was legally represented by senior and junior
counsel during the hearing of
this application, did not disclose to
this court what his legal fees to date amounted to.
[34]
The substantive basis of a claim for contribution to costs in a
matrimonial action is the reciprocal
duty of support between spouses,
which includes the costs of legal proceedings.
[12]
In order to succeed the applicant must show that she has insufficient
means of her own to pay legal fees and that the amount claimed
is
reasonably necessary to enable her to pursue her defence.
[13]
[35]
The quantum of the contribution to costs which a spouse should be
given lies within the discretion
of the presiding judge. In
Van
Rippen v Van Rippen
[14]
, in explaining how this discretion should be exercised, it was held
that:
“…
the
Court should, I think, 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 the Cour
t”.
[36]
The applicant’s counsel also referred me to
Glazer
v Glazer
[15]
where Williamson J said:
“
The
scale upon which she is entitled to litigate is in my view a scale
commensurate also with the means of the parties. People in
this
position are not expected to litigate upon the basis that they have
to watch every penny that is spent in litigation. Litigation
can be
conducted luxuriously or economically. I do not say that she is
entitled to every luxurious expense in litigation, but she
is
entitled to litigate upon the basis you would expect rich people to
litigate. She is the wife of a rich man who is obviously
going to
litigate against her on a luxurious basis. In this comparatively
simple preliminary application he has appeared through
senior counsel
and junior counsel. I think she is entitled to litigate upon somewhat
the same sort of scale as that upon which
he can be expected to
litigate
”
.
[37]
In
Cary
v Cary
[16]
Donen AJ emphasised the importance of exercising the discretion under
Rule 43 to give effect to the fundamental right to equality
and equal
protection before the law. He explained that:
“…
applicant
is entitled to a contribution towards her costs which would ensure
equality of arms in the divorce action against her
husband. The
applicant would not be able to present her case fairly unless she is
empowered to investigate respondent’s financial
affairs through
the forensic accountant appointed by her. That is applicant will not
enjoy equal protection unless she is equally
empowered with ‘the
sinews of war’. The question of protecting applicant’s
right to and respect for and protection
of her dignity also arises in
the present situation, where a wife has to approach her husband for
the means to divorce him. I therefore
regard myself as being
constitutionally bound to err on the side of the ‘paramount
consideration that she should be enabled
adequately to place her case
before the Court’. The papers before me indicate that
respondent can afford the amount claimed
and that he will not be
prejudiced in the conduct of his own case should he be ordered to do
so
”.
[38]
Taking into account the debt already incurred by the applicant to
secure legal representation,
as well as the complexity of the issues
raised in the pleadings, and the scale upon which the respondent is
likely to litigate,
I am of the view that a contribution of
R100 000-00 at this stage of the proceedings will be reasonable
and necessary to ensure
‘equality of arms’ between the
parties. The applicant cannot be expected to sell more jewellery in
an attempt to pay
her legal fees and I am convinced that the
respondent can afford to pay this amount.
COSTS OF THE
APPLICATION
[39]
I have considered the parties’ submissions regarding an
appropriate costs order, in as
far as the present application is
concerned. The applicant argued that she was entitled to the costs of
the application, as the
respondent’s conduct and his failure to
provide adequately for her and the children since the institution of
the divorce
proceedings, left her with no choice but to launch the
present application. The respondent submitted that an order that the
costs
will be costs in the cause of the divorce action will be more
appropriate, as such an order is usually given in applications of
this nature.
[40]
I cannot ignore the respondent’s conduct as evidenced in the
papers and his bank statements.
Applicant’s counsel alerted me
to the payments that the respondent made to the applicant that were
subsequently reversed
and the humiliation that the applicant suffered
as a result of the respondent’s actions. Even when the
applicant, out of
desperation, withdrew an amount of R2000-00 from
the respondent’s account, he removed the cash from her handbag.
The unfounded
allegations made against the applicant in the
respondent’s answering affidavit, forced her to file a replying
affidavit.
I cannot find any reason why the respondent should not be
held liable for the costs of this application, including the costs of
senior counsel.
ORDER
[41]
It is ordered
pendente lite
that:
(i) The respondent shall
pay maintenance in the sum of R 60 200-00 per month in respect
of the applicant and the children without
deduction or set-off, which
amount should be paid to the applicant into a bank account nominated
by her on or before the 1st day
of September 2021and thereafter on
the first day of each succeeding month.
(ii) The amount in (i)
above shall increase annually, commencing on the anniversary of the
date of the court order, by the equivalent
of the weighted average of
the Consumer Price Index for the previous 12-month period as
published from time to time by Statistics
South Africa or its
successor, alternatively 8% per annum, whichever amount is greater.
(iii) The respondent
shall be liable for and pay all educational costs of the minor
children, including but not limited to the pre-primary
and primary
education.
[17]
(iv) The respondent shall
retain the applicant and the minor children as dependents on a fully
comprehensive medical aid scheme.
(v) The respondent shall
be liable for and pay all reasonable and necessary excess medical
expenses not covered by the medical aid
scheme.
[18]
(vi) The respondent shall
continue to pay the costs in respect of the residence situated at
[....] Heron Place, Cedar Lake Estates,
Cedar Rd, Fourways, Sandton
directly to the creditors and/ or service providers on the due
dates.
[19]
(vii) In the event that
the applicant makes payment of any of the expenses as set out in
(iii), (iv), (v) or (vi) above the respondent
shall be liable to
refund the applicant for such amounts paid on presentation of the
invoice and proof of payment of such expense.
(viii) The respondent
shall make a contribution towards the applicant’s costs in the
sum of R 100 000.00 within 10 days from
the date of the court order.
(ix) Pending the report
and recommendation of
Dr Fasser (the parties’
jointly appointed expert) the minor children’s primary
residence shall remain with the applicant
and the respondent shall
exercise contact with the minor children as follows:
(a)
Every Saturday from 10h00 to 17h30,
(b)
Every Tuesday and Thursday from 14h00 until 17h30.
(c)
The respondent shall be entitled to remove the children from the
applicant’s home or to
fetch them from school to exercise
contact as aforesaid.
(x) The parties shall be
entitled to supplement their papers and approach this court, if
necessary, for purposes of further relief
upon Dr Fasser’s
report having been filed of record.
(xi) The respondent shall
pay the costs of the application including the cost of Senior
Counsel.
A.
GRAF
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearance
for the applicant
:
Adv Adele de Wet SC
advadw@gmail.com
Instructed
by Yammin Hammond Inc.
Appearance
for the respondent
:
Adv M Haskins SC with Adv DH Hinrichsen
alex@hininc.co.za
Instructed
by Hinrichsen Attorneys
[1]
See the respondent’s proposed draft order at 012-1 to 012-5
for the precise setting out of the relief sought. For a detailed
setting out of the contact sought by the respondent, see page 012-2
to 012-4. The ‘reasonable contact” as set out
by the
respondent amounts to shared residence with the applicant.
[2]
The
founding affidavit, including annexures, amounted to 97 pages.
[3]
Rule
43 contemplates a speedy and cost-effective resolution of disputes.
It requires an applicant to deliver a sworn statement,
in the nature
of a declaration, setting out the relief claimed and the grounds
therefore. The respondent is required to deliver
a sworn reply in
the form of a plea. Lengthy affidavits are generally discouraged and
it has often been held that prolixity is
an abuse of the process of
court.
[4]
S
28(2) of the Constitution of the Republic of South Africa provides
that a child’s best interests are of paramount importance
in
every matter concerning the child. In
Ts
v Ts
2018
(3) SA 572
GJ
Spilg J considered the impact which s 28 of the Constitution and its
adoption into the Children’s Act 38 0f 2008 may have
on the
application of Rule 43 and concluded that Rule 43(5) was
sufficiently elastic to allow a procedure that can reconcile
the
other provisions of Rule 43 with both s 28 of the Constitution and
the relevant sections of the Children’s Act. This
approach was
also endorsed by the full court of this Division in
E
v E and Related Matters
2019
(5) SA 566
(GJ) where is was held that the presiding judge has a
discretion to permit the filing of applications that have departed
from
the strict provisions of Rule 43(2) and (3) and to direct
parties, if it is deemed appropriate, to file supplementary
affidavits.
[5]
Taute
v Taute
1974 (2) SA 675
(E) at p676
[6]
Taute (footnote 5) at p676 D-G and Botha v Botha 2009 (3) SA 89 (W)
[7]
Taute
(footnote 5) at p676 D- F
[8]
Divorce
Act 70 of 1979
[9]
Caselines
006-36
[10]
Du
Preez v Du Preez
2009 (6) SA 28
(T) at 32C-H
[11]
Caselines
006-151 and 008-10
[12]
AF
v MF
2019 (6) SA 422
(WCC) at [27]
[13]
W v W (469/10) [2010] ZAECELLC 1 (7 September 2010) at [3]
[14]
Van
Rippen v Van Rippen
1949 (4) SA 634
(C) at p.640
[15]
Glazer
v Glazer
1959 (3) SA 928
(W) at p.933
[16]
Cary
v Cary
1999 (3) SA 615
(C) at 621 D-G
[17]
For
a detailed list of the costs included in ‘educational costs’
see Caselines 011-8 (para 3)
[18]
For
a detailed lists of the expenses included in ‘medical
expenses’ see Caselines 011-8 (para 5) to 011-9 (para 5)
[19]
For
a detailed lists of the costs in respect of this property see
Caselines 011-9 (para 60 to 011-10 (para 6).