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2021
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[2021] ZAGPJHC 373
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MC v JC (29301/2020) [2021] ZAGPJHC 373 (8 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
8 SEPTEMBER 2021
Case No: 29301/2020
In
the matter between:
MC
Applicant
and
JC
Respondent
JUDGMENT
WILSON
AJ
:
1
The applicant (“Mrs. C”)
approaches the court in terms of Rule 43 seeking interim maintenance
pending the finalisation
of her action for divorce from the
respondent (“Mr. C”). Mrs. C also seeks a contribution to
her legal costs in that
action.
2
Applications under Rule 43 are,
ideally, swift and simple matters, since they seek only to arrange
the parties’ financial
affairs equitably for what should be a
limited period before the divorce is finalised. The aim is to ensure
that neither party
is prejudiced during the divorce proceedings by a
lack of resources to maintain a reasonable standard of living, or to
pursue their
case in the main action.
3
Unless the residence and care of
children is involved, the issues raised in Rule 43 applications are
straightforward. They relate
to the applicant’s reasonable
needs, and the respondent’s ability to meet those needs. The
applicant’s entitlement
to maintenance must be assessed having
regard to the standard of living enjoyed by the parties during the
marriage (see
Taute v Taute
1974 (2) SA 675
(E), 676D-H).
4
The aim of any Rule 43 order is,
then, to avoid substantial prejudice to either party pending divorce.
It is not to provide a precise
account of what is due to or from
either party, according to the parties’ or the court’s
sense of morality, propriety,
the blameworthiness of the parties’
conduct during the marriage, or their habits of living after the
separation.
5
Unfortunately, straightforward
though the issues are, the way in which Rule 43 applications tend to
be pleaded and argued often
constitutes an obstacle to the
achievement of the purposes underlying the Rule. Applicants have been
known to overstate their needs,
and respondents to understate their
means. The parties, and, to a lesser but still unfortunate extent,
their legal representatives,
are sometimes unable to resist the
temptation to cast the case in moralistic, rather than practical,
terms. Counsel are, on occasion,
unable to keep the understandable
emotional heat of a separation out of the courtroom.
6
The upshot of this is often that a
simple and straightforward calculation of needs and means becomes
hopelessly clouded in irrelevant
recrimination. No allegation, no
matter how irrelevant or outlandish, can be left unmade, and still
less can the temptation to
answer it in needlessly heated terms be
avoided. The result is, unfortunately, that a court is often left
with the impression that
it has not been told a great deal that it
needs to know, and that it is necessary to pick through a series of
obscure or misdirected
allegations on the papers to pinpoint the
material facts.
7
There have been commendable efforts
to encourage the parties to make full and proper financial
disclosure, and to hew as closely
as possible to the material facts
in their papers (see generally
E v E
2019 (5) SA 566
(GJ)). However, it remains the case that the papers
filed in Rule 43 applications are often needlessly voluminous, and
replete
with irrelevant and sometimes misleading material.
8
This case has many of these
unfortunate features. The record runs to over 650 pages, and contains
allegations and counter-allegations
of unreasonable conduct and
profligate spending, the relevance of which I struggle to ascertain.
This can only redound to the prejudice
of the parties themselves. It
is in both their interests, and those of their children, that I make
an order that is fair and equitable,
having regard to their
reasonable means and needs. If they do not place information before
me that enables me to make such an order,
then there is a real risk
of an unduly burdensome order being made.
9
Happily, Ms. Rosenberg, who appeared
for Mrs. C, and Ms. van Aswegen, who appeared for Mr. C, were able to
compensate for many of
the shortcomings of the papers. Their argument
assisted me in isolating the relevant facts and formulating what I
believe to be
a fair order pending the finalisation of the divorce
action.
10
Mr. C is a senior banking executive.
He is coy about his wealth, but there is little doubt that he has a
substantial income. This
is made up, in the main, from annual bonuses
and investments. While Ms. van Aswegen emphasised his net basic
salary in argument
(which is just under R100 000 per month), Mr.
C’s financial disclosures reveal a true net income of just
under R7 million
in the last financial year. Those disclosures seek
to emphasise that, of this, there is only a R4 million “cash
component”,
but the fact remains that Mr. C is a man of
considerable resources. His financial disclosures estimate his net
worth at just over
R40 million. On his own version, Mr. C’s
average monthly cash income is at least R300 000.
11
There is no real dispute that, when
they lived together, Mr. and Mrs. C enjoyed a very comfortable
lifestyle. Mrs. C qualified as
a teacher, but she gave that career up
to work as a homemaker, and to look after the couple’s two
children. The children
remain with her. Having concentrated on
looking after the children, she has not developed a lucrative source
of income or a successful
career outside the marital home.
Maintenance
pendente lite
12
Mrs. C seeks maintenance in the sum
of R46 123.69 per month for herself, and R21 289.31 per month
for each of the parties’
minor children. She seeks an order
directing Mr. C to continue to meet the children’s educational
and medical costs, and
an order that he pay for the rental
accommodation they now occupy. Mrs. C also seeks an order directing
Mr. C to contribute to
the costs of setting up her new household
where she lives with the parties’ children. She asks that Mr. C
reimburse her for
some of these costs, which she financed by going
into debt. In the context of the standard of living enjoyed by the
parties when
they shared a home, and Mr. C’s obvious means, it
does not seem to me that these requirements are unreasonable.
13
It is to be emphasised that I am
asked to make a temporary order pending the finalisation of the main
action. The amounts sought
and ordered are not in any way finally
determinative of the parties’ rights and obligations. It is
accordingly unnecessary
and undesirable for me to go through Mrs. C’s
stated requirements and seek to inquire, line-item by line-item,
whether each
of them is individually necessary or appropriate. That
is not the level at which the inquiry takes place. It is enough that
I am
satisfied that, overall, the maintenance requirements are
reasonable, and that Mr. C can meet them. I am so satisfied, and I
will
make an order substantially as prayed for by Mrs. C.
14
I am not persuaded, however, that I
should link any of the amounts Mrs. C seeks to the consumer price
index. In the (in my view
unlikely) event that inflation so eats in
to the maintenance due as to materially affect her financial
position, or that of the
children, then Mrs. C is at liberty to
approach the court again alleging a material change in circumstances.
15
Nor am I persuaded that I should
make an order that Mr. C should pay Mrs. C’s and the parties’
children’s rent,
regardless of what that amount might be. A
contribution capped at R20 000 per month is, in my view, more
than adequate.
Contribution
to costs
16
Mrs. C seeks a payment of R91 995
in arrears due her attorneys, and a contribution to costs in the sum
of R1 480 950.05
until the trial certification stage. That
amount has been justified by reference to a bill of costs included in
the papers. Ms.
Rosenberg also justified these amounts by reference
to the complexities raised by division of the accrual in the main
action. Given
Mr. C’s apparent wealth, and the complexity of
his financial affairs, there is some weight to the argument that
determining
the accrual may be a difficult and contentious task.
17
A court in Rule 43 proceedings is,
in principle, entitled to direct the payment of legal costs that a
party has already incurred
(
AF v MF
2019 (8) SA 422
(WCC), paragraph 45). There is accordingly no barrier
to an order that Mr. C pay the legal costs that Mrs. C has already
run up.
As to the contribution to costs yet to be incurred, the
amount justified by the bill of costs is not disproportionate to the
size
of the marital estate, or the complexity of the issues likely to
be raised in the main action in determining the division of that
estate.
18
For all of these reasons, the
contribution to costs sought appears to me to be reasonable. It is,
of course, open to the parties
to forestall the expenditure of those
costs by coming to a reasonable agreement as to the division of the
marital estate. In that
event, any unexpended funds will have to be
repaid to Mr. C. The amounts due to him will no doubt form part of
the calculation
of any such settlement.
19
In light of the amounts involved, I
do not think it is appropriate to order a contribution to costs to be
incurred after the trial
certification stage, or during the trial
itself. I will postpone those prayers
sine
die
. Ms. Rosenberg accepted that a
contribution to the costs of the trial itself should not be ordered
at this stage, but I think that
the amounts sought to fund the
proceedings after trial certification should also be determined at a
later stage. Once the nature
of the issues between the parties have
been defined at the trial certification stage, a more realistic
picture of the legal costs
involved will be available, and a more
informed determination can then be made. If the litigation continues
beyond the trial certification
stage, the parties ought, in my view,
to be given the opportunity to come to an agreement on the nature and
extent of the contribution
to costs that is then due.
20
For all of these reasons, I make the
following order –
20.1
Pending the finalisation of the main action
for divorce the respondent is to pay –
20.1.1
maintenance to the applicant in the sum of
R46 123.69 per month, from 1 October 2021; and
20.1.2
maintenance in the sum of R21 289 per
month for each of the parties’ minor children; and
20.1.3
the applicant’s rent for the
residential accommodation in which the applicant resides with the
parties minor children, or
R20 000 per month in respect of such
accommodation, whichever is the lesser amount; and
20.1.4
the utilities due in respect of that
residential accommodation, if they are not included in the rent
charged; and
20.1.5
the parties’ minor children’s
schools fees, and any costs associated with extra-mural activities
that are pursued under
the auspices of the children’s schools;
and
20.1.6
the applicant’s and the parties’
minor children’s medical aid contributions, and any costs for
non-elective medical
treatment not covered by those medical aid
contributions; and
20.1.7
a contribution of R34 656.39 towards
Ms. C’s costs in relocating from the marital home.
20.2
The respondent will make the following
contributions to the applicant’s legal costs, on or before 1
October 2021 –
20.2.1
R91 995.75 in settlement of the
applicant’s arrears; and
20.2.2
A contribution to the applicant’s
costs up to the trial certification stage of R1 480 950.05.
20.3
If the main action is settled before the
trial certification stage, any unexpended funds must be returned to
the respondent.
20.4
The prayers for a contribution to costs
between the trial certification stage and the first day of trial, and
for a contribution
to the costs of the trial itself, are postponed
sine die
.
20.5
The costs in this application will be the
costs in the main action.
S
D J WILSON
Acting
Judge of the High Court
This
judgment was prepared and authored by Acting Judge Wilson. It is
handed down electronically by circulation to the parties or
their
legal representatives by email and by uploading it to the electronic
file of this matter on Caselines. The date for hand-down
is deemed to
be 8 September 2021.
HEARD
ON:
3 August 2021
DECIDED
ON: 8 September
2021
For
the Applicant:
R Rosenberg SC
Instructed
by CL Gorfil Attorneys
For
the Respondent:
S van Aswegen
Instructed
by SWVG Attorneys Inc