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[2021] ZAGPJHC 392
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AC v SM (2020/27617) [2021] ZAGPJHC 392 (13 September 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
13 SEPTEMBER 2021
Case No: 2020/27617
In
the matter between:
AC
Applicant
and
SM
Respondent
JUDGMENT
WILSON
AJ
:
1
The applicant (“Mrs. C”)
is a Spanish citizen, who married the respondent (“Mr. M”)
in 2008, and then moved
with him to South Africa in 2012. Although
she has degrees in business administration, Mrs. C has no right to
work in South Africa.
For a time she had a critical skills permit,
but that expired. Despite a series of efforts to obtain employment
(which have for
most of that time implied also the need to take steps
to obtain a work permit) Mrs. C has not been able to advance her
career outside
the marital home since she moved to South Africa. Her
primary occupation has been as a caregiver to the parties’ two
children,
and as a homemaker.
2
In 2017, the parties separated. Mr.
M moved out of the marital home, in which Mrs. C still resides with
the parties’ two children.
An action for divorce was instituted
in 2020. As a result of what Mrs. C considers to be Mr. M’s
unreasonable conduct in
making erratic maintenance payments, and his
initial refusal to allow her to relocate abroad with the parties’
children (where
Mrs. C would be able to find employment), Mrs. C now
seeks court-ordered maintenance in terms of Rule 43 in order to
support herself
and the children. She also seeks a contribution to
her costs in the main action.
3
While Mrs. C lacks a regular or
dependable income, Mr. M is a successful management consultant. In
the papers, he alleges that his
career prospects have recently become
uncertain. This appears partly to be the result of the economic
impact of the COVID-19 pandemic,
and partly the result of performance
management issues his employer appears recently to have raised with
him. The fact remains,
however, that Mr. M is in well-remunerated
employment (nobody suggests that his net salary is anything less than
R96 000 per month),
while Mrs. C must, on any assessment of the
facts, get by on considerably less than that.
4
Rule 43 is meant to provide prompt
and temporary relief to a spouse in need of maintenance, and
assistance with legal costs pending
the finalisation of the divorce
action. The test, at least in respect of maintenance
pendente
lite
, is simple and straightforward.
The amount awarded is the product of an examination of Mrs. C’s
reasonable needs, and Mr.
M’s ability to meet those needs,
having regard to the standard of living the parties enjoyed when they
lived together (see
Taute v Taute
1974 (2) SA 675
(E), 676D-H). Judgements about the propriety of
either party’s spending, or their willingness to find work,
play no role
in the analysis – unless, of course, they provide
evidence of the means and needs to which a court must have regard.
5
As the Constitutional Court has
observed, applicants in Rule 43 applications are “almost
invariably” women, who have
forgone the opportunity to secure
independent means because they have devoted themselves to making a
home and raising children
(
S v S
2019 (6) SA 1
(CC), paragraph 3). The assumption of this role is
often driven by powerful social expectations about the role women
ought to play
within the family, and the limits of what they can
expect to achieve outside it, at least for so long as they have young
children.
6
In this case, it seems clear to me
that Mrs. C subordinated her career prospects to the needs and
interests of her family by moving,
with Mr. M, to a country in which
both he and she knew it would be difficult for Mrs. C to seek work.
Maintenance
pendente lite
7
I set all of this out because it
highlights the extraordinary position Mr. M adopted before me in
argument. His stated view (to
some extent ameliorated in post-hearing
written submissions made on his behalf) is that Mrs. C should get a
job, and support herself.
Beyond retaining Mrs. C on his medical aid,
and paying 50% of any “reasonable” costs not covered by
medical aid, Mr.
M initially refused to tender anything at all
towards Mrs. C’s maintenance. I was referred, instead, to
paragraph 130 of
Mr. M’s supplementary affidavit of 30 July
2021, in which he undertakes a maintenance contribution of just R4000
per month
to the parties’ children, over and above their school
fees, their medical expenses and the costs associated with housing
them in the former marital home.
8
In light of the rules and principles
applicable to Rule 43 applications, Mr. M’s position
unsustainable. Mr. M’s failure
to engage reasonably with his
obligations has made my task in determining the true nature of those
obligations significantly harder.
This is unfortunate. It is in Mr.
M’s interests, and those of the parties’ children, that I
make an order that is fair
and equitable, having regard to the
parties’ reasonable means and needs.
9
Ms. Segal, who appeared for Mrs. C,
sought to assist in that task by placing a series of tables before me
that summarise the parties’
respective financial positions,
based on the information disclosed on the papers. It was accepted by
both parties that the tables
contain no new factual matter, and that
they are merely an interpretation of the facts disclosed on the
papers. However, in fairness,
I gave Mr. Courtenay, who appeared for
Mr. M, leave to file supplementary written submissions on the content
of the tables, by
no later than 13 August 2021.
10
Those submissions concede that Mr.
M’s net monthly income, encompassing both his net salary and
some investment returns, is
at least R124 000 (about R1 000
less than the amount calculated in Ms. Segal’s tables). The
submissions nevertheless
assert that the tables are not a “proper
reflection” of Mr. M’s “take-home income”
(paragraph 5 of
the submissions). There follow a series of
calculations that seek to equate Mr. C’s true income with his
take-home salary.
11
The position taken in Mr. C’s
post-hearing written argument is, at first blush, internally
contradictory. I have some difficulty
in understanding the assertion
that Mr. C’s “net income” is not in fact a “proper
reflection” of
his “take-home income”. However,
evaluated fairly and as a whole, the post-hearing submissions appear,
in substance,
to assert that, in determining Mr. C’s
maintenance obligations, I should have regard to Mr. C’s
take-home salary, and
not his actual income.
12
That position obviously cannot be
accepted. I find that Mr. M’s net monthly income is at least
R124 000, and that this
is the relevant figure for assessing Mr.
M’s ability to meet his monthly maintenance obligations.
13
It is on the basis of this figure
that Ms. Segal motivated Mrs. C’s maintenance needs. These are
substantially comprised of
R24 456 per month for Mrs. C’s
and the children’s maintenance; payment school fees and other
educational costs
for the parties’ children; payment of medical
expenses for Mrs. C and the children; payment of costs associated
with maintaining
the erstwhile marital home, where Mrs. C still lives
with the parties’ children; and payment of the cost of an
annual return
economy class air ticket to Europe for Mrs. C and each
of the children.
14
At their most extensive these
obligations are to a value of somewhere in the region of R80 000
per month. Mrs. C also seeks
an order linking the cash component of
this amount to the consumer price index. The other payments
constituting the overall obligation
for which she contends are
envisaged to be made directly by Mr. M to the service providers
involved. This includes just over R24 000
per month in school
fees at an exclusive private school. These fees are not to be met
from Mr. M’s income, but from the liquidation
of some of Mr.
M’s investments. There is some disagreement between the parties
about whether it is appropriate for the children
to continue at that
school. However, for the moment, that is where the children are, and
will remain, unless and until the parties
agree to move them
elsewhere.
15
Having regard to Mr. M’s
income, I am satisfied that the claim for Mrs. C’s and the
children’s maintenance, educational
expenses for the children,
medical expenses for the children and Mrs. C, and the costs of
maintaining the erstwhile family home
should be allowed. I am not
satisfied that I should order a specific amount for an economy class
trip to Europe annually, that
I should link the amounts payable to
the consumer price index, or that I should make an order that
embraces certain other costs,
for example homeopathic medical
treatment, that are sought on Mrs. C’s behalf.
16
In the (in my view unlikely) event
that inflation so eats into 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 at that
stage. It is to be hoped that the divorce
will be finalised before that becomes a realistic prospect.
17
The effect of my order is that Mr.
M’s maintenance obligations will burden his net monthly income
in the approximate sum of
R50 000. (The school fee contributions
will be met, as I have recorded, from the liquidation of capital).
That appears to
me to be eminently reasonable, at least as a
temporary measure while the main action is finalised.
The
application for a contribution to Mrs. C’s legal costs
18
Mrs. C seeks a contribution to costs
in the sum of R108 000. By the standards of the amounts usually
expended on divorce proceedings
of this nature, this amount is quite
modest. Mr. M’s response is a flat denial that he can afford to
make the contribution.
But the facts show that he can. I will,
though, spread the payments to be made over eight months rather than
the four that Mrs.
C asked for.
19
It is, of course, open to the
parties to forestall the expenditure of those legal 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. M.
The amounts due to him,
if any, will no doubt form part of the
calculation of any such settlement.
20
As is usual in matters of this
nature, the costs of this application will be costs in the main
action. Although Mr. M’s approach
to this litigation, and to
his obligations to Mrs. C and the parties’ children, has not
disclosed a realistic appreciation
of the duties that lie upon him,
his stance does not rise to the level of litigious misconduct, and I
do not think I should penalise
him with the costs of this
application.
21
For all these reasons, I make the
following order
pendente lite
–
21.1
The respondent is granted leave to file his
supplementary affidavit dated 30 July 2021.
21.2
The respondent is directed to pay
maintenance as follows –
21.2.1
R24 456 per month to the applicant,
from 1 September 2021. The first payment must be made within 5 days
of the date of this
order. Subsequent payments must be made on or
before the first day of every calendar month; and
21.2.2
the parties’ minor children’s
school fees, and any costs associated with extra-mural activities
that are pursued under
the auspices of the children’s schools;
and
21.2.3
the reasonable costs associated with the
erstwhile marital home, Unit [....], La B[....], [....] M[....] Road,
Morningside, Johannesburg
(“the property”), including the
monthly mortgage bond instalments due to SA Homeloans, the rates and
taxes due on the
property, levies due on the property, utilities
supplied to the property, homeowners’ and household contents
insurance and
the costs associated with securing the property.
21.3
The respondent shall retain the applicant
and the parties’ children on his current CAMAF medical aid
scheme, or on another
scheme of his choice with similar benefits.
21.4
The respondent shall meet any costs for
non-elective medical treatment not covered by the medical aid to
which the applicant and
the parties’ children are subscribed.
21.5
The respondent shall contribute R108 000
to the applicant’s legal costs, in monthly instalments of
R13 500, payable
from 1 October 2021, and then on or before the
first day of each month thereafter until the contribution is paid in
full.
21.6
The costs of this application are 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 13 September 2021.
HEARD
ON:
5 August 2021
FURTHER
WRITTEN SUBMISSIONS ON:
13 August 2021
DECIDED
ON:
13 September 2021
For
the Applicant:
L Segal SC
Instructed
by Clarks Attorneys
For
the Respondent:
RM
Courtenay
Instructed
by Sterling Attorneys