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2021
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[2021] ZAGPJHC 398
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LP v MP (31812/2021) [2021] ZAGPJHC 398 (20 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
DATE:
20 SEPTEMBER 2021
Case No: 31812/2021
In
the matter between:
LP
Applicant
and
MP
Respondent
JUDGMENT
WILSON
AJ
:
1
The applicant (“Mrs. P”)
approaches the court in terms of Rule 43 seeking interim maintenance
and a contribution to
her legal costs, pending the finalisation of
her action for divorce from the respondent (“Mr. P”).
Maintenance
pendente lite
2
Mr. P is a businessman with
interests in at least six companies and a family trust. In his
answering affidavit, he states that all
but one of these entities is
effectively dormant, and that his sole income is R66 500 per
month, consisting of payments from
one of the companies, rental
income, and a return on an endowment investment.
3
However, during argument, Ms.
Georgiou, who appeared for Mrs. P, provided an analysis of Mr. P’s
bank statements, produced
as part of the financial disclosure process
now hardwired into Rule 43 proceedings (see
E
v E
2019 (5) SA 566
(GJ), paragraph
64). On that analysis, Mr. P was shown to have made payments in
reduction of credit card debt in the amount of
an average of just
over R91 000 per month over a four-month period. A similar analysis
of his current account statements yielded
the conclusion that Mr. P’s
accounts have been credited with an average of around R100 000
per month.
4
Ms. Manning, who appeared for Mr. P,
was constrained to accept that Mr. P’s true income is at least
R82 000 per month.
Ms. Manning took issue with Ms. Georgiou’s
analysis of Mr. P’s statements, however, and there was some
debate between
counsel about how the various statements had to be
interpreted.
5
On any analysis, Mr. P’s
declared income is somewhere between R82 000 and R100 000
per month. His true means, though,
are inextricably linked to the
value of his various businesses. Given the discrepancies I have
pointed out between the income Mr.
P says he derives from the
companies, and the income and expenditure disclosed in his bank
statements, I cannot accept Mr. P’s
assertion that he derives
an income from only one of those businesses.
6
There is, however, no dispute about
Mrs. P’s income. That income is presently a little under R4 000
per month from a
retirement annuity and interest earned from capital.
Mrs. P also has fairly substantial interests in two, perhaps three,
of Mr.
P’s businesses (Mr. P says she resigned from one of them
in 2018). Mrs. P currently derives no benefit from any of these
business interests, because Mr. P manages them “to [her]
exclusion” (paragraph 24 of Mrs. P’s sworn statement).
This allegation is not denied in Mr. P’s answering statement.
7
As is trite, Mrs. P’s
entitlement to maintenance must be assessed having regard Mr. P’s
means and to the standard of
living enjoyed by the parties when they
lived together. In the course of that assessment, Mrs. P’s
reasonable and moderate
claims carry more weight than any extravagant
or unmotivated demands. Mr. P’s version is entitled to the
requisite degree
of credit if it evinces a willingness to implement
rather than evade his lawful obligations (see
Taute
v Taute
1974 (2) SA 675
(E), 676D-H).
8
Mrs. P’s total maintenance
request is R37 000 per month, for rent, subsistence and various
other fairly mundane expenses.
She also asks that Mr. P pay
for the renewal of the licence for a car in her possession and
deliver the licence to her. None of
this is un
reasonable.
It is, at any rate, far from “extravagant”.
9
On the other hand, Mr. P’s
attitude on the papers is marked by selective and unreliable
financial disclosures, and a dogmatic
refusal to engage with what his
maintenance obligations might be. During argument, Ms. Manning all
but conceded that Mr. P’s
failure to tender any maintenance at
all was not consistent with a Rule 43 respondent’s duty to
identify and implement their
lawful obligations. I afforded Mr. P an
opportunity to make a reasonable tender in post-hearing submissions.
Perhaps as a result
of Ms. Manning’s wise counsel, he tendered
R15 000 per month and the payment of Mrs. P’s medical aid
contributions.
10
While I am encouraged by Mr. P’s
change of heart, it seems to me that there is in the circumstances no
fair alternative to
the award of Mrs. P’s maintenance request
as motivated in argument before me. The amount requested had itself
been reduced
from the amount sought in Mrs. P’s Rule 43 notice,
and it is an amount I am satisfied that Mr. P can reasonably afford.
The
contribution to Mrs. P’s legal costs
11
Mrs. P also seeks a contribution to
costs in the sum of R100 000, payable in five monthly
instalments of R20 000. The
amount is both modest and genuinely
needed if Mrs. P is to be able, in the main action, to carve out a
claim to what seems to me
to be a complex chain of business
interests. I am satisfied that the contribution Mrs. P seeks is
appropriate.
Order
12
For all these reasons, I make the
following order.
12.1 The
respondent is directed to:
12.1.1 pay
maintenance
pendente lite
to the applicant at the rate of
R37 000 per month commencing on 24 September 2021 and thereafter
on or before the 7
th
day of each succeeding month;
12.1.2 pay for the
renewal of the licence in respect of the Toyota Fortuner motor
vehicle bearing registration letters and
numbers XJD 309 GP in the
applicant’s possession when such payment becomes due and to
deliver the renewed licence disc to
the applicant; and
12.1.3 pay a
contribution towards the applicant’s costs of the pending
divorce action in the sum of R100 000, payable
in instalments of
R20 000 per month, commencing on 7 October 2021, and then on or
before the seventh day of each succeeding
month.
12.2 The
costs of this application will be costs in the divorce 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 20 September 2021.
HEARD
ON:
5 August 2021
DECIDED
ON: 20
September 2021
For
the Applicant:
S Georgiou
Instructed
by Houghton Harper Inc
For
the Respondent:
B Manning
Instructed
by Fullard Mayer Morrison Inc