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[2019] ZAGPPHC 197
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R.D v F.D (5571/2017) [2019] ZAGPPHC 197 (31 May 2019)
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 DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
CASE NO:
5571/2017
31/5/2019
In
the matter between:
R[….]
D[….]
APPLICANT
and
F[….]
D[….]
RESPONDENT
JUDGMENT
THOBANE
AJ,
Introduction
[1]
On 27 June 2018 Wanless AJ, having read the documents filed of
record,
heard Counsel and considered the matter, gave an order in the
following terms;
"The respondent is to pay the applicant
maintenance pendent (sic) lite in the sum of R8000-00 (Eight Thousand
Rand) per month
commencing on the first July 2018 and on or before
the first day of each subsequent month."
[2]
Before him was a Rule 43 application between the same parties as in
this
court. The applicant
in casu,
who was also the applicant in the
initial Rule 43 application sought the following relief pending
finalisation of the divorce;
1.
Payment of maintenance by the respondent
to the applicant in the sum of R28 931-00 per month;
2.
That the respondent pay the reasonable
medical, dental, ophthalmic, pharmaceutical and related expenses for
and in respect of the
applicant not covered by the medical aid scheme
on demand;
3.
Contribution towards costs in the sum of
R10 000-00.
[3]
The applicant approaches this court in terms of Rule 43(6). She
argues
that there has been a material change in her circumstances,
and consequently she seeks the following relief;
1.
That the Rule 43 order dated 27 June
2018 be set aside and replaced with the following
pendente
lite;
a. The respondent be ordered
to pay to the applicant the sum of R21 200-00 per month;
b. The respondent supply the
applicant with a vehicle for her sole and exclusive use within 7
days, and that the
vehicle not be more than 3 years old, be reliable,
and have less than 50 000km on its odometer. The respondent is to
remain responsible
for its financing, insurance maintenance and
service.
c. The respondent make
a costs contribution in the sum of R50 000-00 within 30 days of the
order.
[4]
The application is opposed by the respondent who contends that this
application
is simply an attempt to again re-hear the Rule 43
application one more time under the guise of materially changed
circumstances,
which is impermissible.
[5]
When the matter was to be argued counsel for the respondent indicated
that she wanted to raise a point
in
limine
which if upheld would be
dispositive of the whole application. She submitted that the
applicant has failed to show that there has
been a material change in
her circumstances and that the court should uphold the preliminary
point and dismiss the application.
I advised the parties that I was
inclined to entertain the point
in
limine
first and if necessary then
the merits of the main application at a later stage.
The law briefly
[5]
Rule 43(6) states as follows:
"The court may, on the same procedure,
vary its decision in the event of a material change taking place in
the circumstances
of either party or
a
child, or the contribution towards
costs proving inadequate."
[6]
In the matter of
Grauman v Grauman
1984 (3) 477 WLD at 480 (C),
the
court stated the following about what amounts to material change:
"Rule 43(6) should be strictly
interpreted to deal with matters which it says has to be dealt with,
that is,
a
material
change taking place in the circumstances of either party or child.
That relates to
a
change
subsequent to the hearing of the original Rule 43 application."
[7]
In
Micklem v Micklem
1988 (3) SA
259
(C)
Van den Heever J summarised the
principles applicable to Rule 43 applications which I suggest are
equally applicable to applications
brought in terms of rule 43(6). He
stated the following at
262A-263A:
"1.
Wealth is an undoubted advantage in litigating, in that
a
litigant with means can obtain the
services of experts which may not be available to someone with
a
more modest purse. No authority was
quoted, and I would be astonished to discover that any existed, that
a
man
of means is entitled to rewrite the rules to suit his own convenience
and still less that he should be obliged to permit his
opposition to
do so, even if she is his wife.
2.
Rule 43(2) sets out the type of
affidavits that should be put before the Court. The cases are clear
that unduly lengthy affidavits
and annexures, that would not in the
normal course be annexed to be
a
pleading, may amount to an abuse of
the process of the Court. The aim of Rule 43 is to conserve the
parties' energies for the trial
itself and provide speedy and
inexpensive interim relief
-
even
for millionaire spouses.
3.
...
4.
...
5.
The fact that a husband has unlimited
means does not in our law entitle his wife to unlimited spending.
There is
a
difference
between her wants and her needs
(Grasso
v Grasso
1987 (1) SA 48
(CJ
at 59G
-
H).
What she is entitled to, is to maintain the standard of living to
which she was accustomed, not to increase that.
6.
A
wife seeking a contribution towards costs is not entitled to payment
in full of the costs she avers will be incurred in presenting
her
case to the Court nor all costs incurred to date. In a matter such as
the present, this may clash with the 'paramount consideration'
that
she should be enabled 'adequately to place her case before the Court'
(Van Rippen v Van Rippen
1949
(4) SA 634
(C)
at 638
-
9) in which the question of essential
disbursements is a material factor. And what are essential
disbursements is adjudged against
the background of (a) the depth of
his purse and (b) his own scale of litigation.
(Glazer
v Glazer
1959 (3) SA 928
(W).)"
The point
in limine
[8]
In support of the point
in limine
the
respondent prepared a schedule juxtaposing the applicant's expenses
in the previous rule 43 application with those in this case.
The
schedule is reproduced below;
ITEM
RULE 43(6)
RULE 43(2)
1.
Rental
R7 500-00
R7 500-00
2.
Water,
and lights
R1 100-00
R1 050-00
3.
Medical
Aid contribution
R3 500-00
R3 012-00
4. Medical expenses not covered by Medical
Aid
R1 000-00
R1 050-00
5. Food, meat, bread, milk
R3 000-00
R1 400-00
6. Cleaning goods, personal care, pets
R1 500-00
R4 500-00
7. DSTV, books newspaper
R1 500-00
R1 870-00
8. Cellphone
R1 100-00
R1 000-00
9. Clothing
R1 000-00
R1 000-00
10. Vehicle monthly instalments
R3 000-00
R2 999-00
11. Insurance on motor vehicle
R 900-00
R 850-00
12. Fuel
R2 000-00
R1 800-00
13. Domestic Helper
R 900-00
14. Medical Aid Gap
R 300-00
Total
R27 100-00
R28 931-00
[9]
Counsel for the respondent asked the court to look thoroughly at the
schedule
from which, it was argued, the court can only deduct that
there has not been a material change in the circumstances of the
applicant.
The difference in monetary terms between what was claimed
then and what is claimed now is the sum of R1 831-00. The amount,
counsel
for the respondent argued, shows that there has not been a
material change in the circumstances of the applicant. She was also
of the view that the applicant was raising issues which were fully
ventilated and argued before Wanless AJ.
[10] Issues which
were fully ventilated include the applicant's need for transport, the
applicant's
health issues both physical and mental to which closely
connected are issues of the applicant's medical aid as well as
contribution
towards legal costs. On the latter aspect although the
court did not make a specific order of contribution, it also did not
give
an order of dismissal. The applicant approaches this court on
the basis that no order was made whereas the respondent contends that
the relief sought was effectively refused and that this is implied in
the court's order.
[11]
Counsel for the respondent asked this court to take a dim view to
the
fact that the applicant failed to take the court into its confidence
when the initial Rule 43 application was heard, in that
although the
applicant was already on a medical aid scheme of a third party since
1 January 2018, she failed to disclose such a
fact. Another omission
which the respondent contends should attract the courts dim
view,
is the fact that the applicant had
pre-existing medical conditions for which she had been receiving
treatment since 2015 and that
such a fact was not disclosed .
Applicant's
case
[12]
The point
in limine
is
opposed by the applicant. As I follow the argument in opposition, and
this is also captured in the applicant's heads of argument,
when the
application was heard and the order granted, the applicant had made
out a case that she required R28 931-00 per month
as maintenance
pendente lite,
that
she required medical aid and that she was entitled to a contribution
towards legal costs. She states that when the order was
granted that
RS 000-00 be paid as maintenance, she accepted that she could not
appeal. The award, according to the applicant, "immediately
proved to be inadequate" and she turned to other persons such as
friends for support.
[13]
It is also argued that the fact that the applicant's mental and
physical health took a turn for the worst, brought about a material
change in her circumstances. The cost of living, its is argued,
increased dramatically since the previous order this therefore is
accentuated as a material change in circumstances particularly
because the previous order did not make provision for an increase in
maintenance.
[14]
The issue for determination therefore, at this stage, is whether
the
point
in limine
is
meritorious, in which event it should be upheld or whether there is
in fact a material change in the circumstances of the applicant
and
that the merits of the relief she seeks should be entertained.
Evaluation
[15]
It is in my view clear that the applicant is now and was at the time
of its award, aggrieved
at the order of Wanless AJ. I say this
because on the applicant's own version she made a case that she was
unemployed, that she
deserved to be awarded a contribution towards
legal costs and that an order should have been granted that the
respondent pay for
her medical aid. She now argues before me, that
despite making such a case, the court inexplicably gave the order it
did. By implication
therefore, the order of the court that heard the
initial Rule 43 application is wrong. That the applicant accepted
that the order
was not appealable is in my
view
pure lip
service. The fact that the court made an award of R8 000-00 shows, in
my view, that the applicant in fact failed to make
out a case for
maintenance of R28 931-00, medical aid, and cost contribution. If a
case had been made, the award would have followed.
[16] The
applicant argues that soon after the court granted the order, it
proved insufficient.
Her financial position deteriorated and her
health took a turn for the worst. I interrupt myself to point out
that a realisation,
soon after a matter is argued and an order is
granted, that the award is inadequate, can not at a later stage be
said to be a weighty
consideration in an application where it is
contended there has been a material change in the circumstances of
the applicant. The
reason is manifest. A material change must occur
after the initial order.
[17]
After the first order was granted the applicant underwent a
laparoscopy procedure on both
her breasts. Subsequent thereto, on her
version, she injured herself and as a consequence had to undergo an
operation to correct/repair
a burst breast implant. The damage was
seemingly repaired in February 2019. The applicant submits that the
deterioration in her
health negatively impacted her life and
lifestyle as well as her needs and responsibilities. As a consequence
she developed blood
pressure issues and has since been emotionally
and psychologically affected. In addition, she has to undergo a back
operation in
due course.
The
applicant's health
[18] A
major contention that the applicant makes is that her deteriorating
health does amount
to a material circumstance warranting the court's
intervention. The respondent is quick to point out that when the
first Rule 43
application was heard, the applicant failed to disclose
that she was already a beneficiary in the medical aid scheme of one
Mr
Claassen. I have gone back to the founding affidavit of the
applicant in the initial Rule 43, for verification and can confirm
that she never disclosed that she was in need of financial assistance
to cover specifically medical costs or that she had a specific
medical condition at all. There is no mention in the affidavit that
the applicant was of ill health. It is my view that faced with
such
paucity, and without reviewing or revisiting the first court order,
the court was correct not to accede to the prayer seeking
payment in
respect of medical expenses.
[19]
What is significant however is that the applicant according to
annexure "RDT2"
from the founding affidavit which is a
letter from a family special physician of the applicant, Dr. HJ
Sommerville, the applicant
was receiving treatment for
hypothyroidism, hypertension and dyslipidaemia as at the date of the
launching of the Rule 43 application.
What this suggests, and the
respondent is correct to point it out, is that the medical
predicament the applicant finds herself
in at this stage, is not
"subsequent" to the Rule 43 order. It is a pre-existing
medical condition therefore it can not
be characterised as amounting
to materially changed circumstances which took root after the Rule 43
order..
[20]
Divorce is a stressful phenomenon. Parties to a divorce could very
well end up having medical
conditions. The sequelae could be
emotional or psychological. I am of the
view
that to elevate these sequelae to
circumstances that would warrant the courts intervention in Rule 43
applications would be to lower
the bar in these applications and
result in a huge proliferation of of Rule 43 and Rule 43(6)
applications. I take the view that
stress from divorce is not
material enough a factor as to warrant the intervention of a court as
envisaged in Rule 43(6) applications.
The applicant's transport and vehicular
needs
[21] In the
initial Rule 43 application the applicant listed in her schedule of
expenses that
she needed the sum of R1 800-00 for fuel, R2999-00 for
a motor vehicle and R850-00 for insurance in respect thereof. In
these proceedings
she suggests that respondent should purchase a car
for her with a monthly instalment of R3 000-00, and pay insurance
thereof in
the amount of R900-00 as well as fuel expenses of R2
000-00 per month. The applicant in support of this need makes the
point that
the respondent drives 2017 Ford Ranger but all she needs
is a smaller and much more basic car. The car sought, would,
according
to the applicant, solve all her transportation problems or
challenges.
[22]
The applicant compares her situation to that of the respondent. For
example she states
that she has sold her car and all that she wants
is an entry level vehicle. She then states that the respondent owns
or drives
a Ford Ranger which is an expensive vehicle. Unfortunately
for her that is not the test. The test is whether there has been a
material
change in circumstances.
[23]
In the initial Rule 43 application the applicant stated that
circumstances forced her to
sell her motor vehicle, a Renault Sandero
on 11 October 2017. The proceeds from the sale, she stated, were
utilised for her maintenance
and to settle expenses and liabilities.
The applicant did not give details of the sale price and the
liabilities or
expenses she had to settle.
[24] The
applicant in these proceedings has failed to show in what respect the
circumstances
in relation to the motor vehicle have changed. She
states that she always had a car and that she sold it to cover her
legal costs.
No further details are disclosed. She then "suggests"
that the respondent should buy her a car and that it would be up
to
him whether he buys it in cash or whether he finances it.
[25] While
the applicant has sold her car, she has failed to show, to the
satisfaction of this
court, that there has been a change in her
circumstances in so far as the need for a motor vehicle is concerned.
The applicant
sold her motor vehicle but had now approached this
court for an order that the respondent buy her a motor vehicle. The
argument
therefore lacks merit.
Applicant's
living conditions
[26]
In paragraph 15 of the applicant's founding affidavit in the initial
Rule 43 application
she states the following;
"I cannot continue to reside under
circumstances such as I presently do. My temporary accommodation with
my son and his fiance
is not fair either of them and constitutes an
invasion of their privacy. It is also not fait upon myself and I have
no privacy
and
am
in
the humiliating position of having to be maintained by my children."
[27]
in paragraph 23 of the Rule 43(6) application the applicant states
the following;
"I am currently living with my son and
daughter in law as I cannot afford to obtain accommodation of my own.
My son got married
in August 2018 and I do not believe it would be
fair for me to be intruding on him and his wife (as newlyweds) in the
manner that
I currently
am,
all
due to me not being able to afford my own place to live."
[28] It is
clear from the above that the applicant regurgitated, in the Rule
43(6), the reasoning
employed in the initial Rule 43 application to
bolster her claim that her circumstances have changed. There is
nothing in the content
of the submission which suggests that her
circumstances have changed materially.
Contribution towards legal costs
[29] In
these proceedings, as was the case in the Rule 43 application the
applicant seeks a
contribution towards legal costs. She asks for a
contribution of R50 000-00 and attached to her application are two
invoices and
quotations all of which total R156 129-50. In the
previous application she applied for a contribution of R10 000-00.
What is also
discernible from her affidavit is that she sold a motor
vehicle and received R95 000-00 from the sale. She then says she
'used the entire amount to pay for my
legal costs at my erstwhile attorney and or to live off'.
There
is serious ambiguity about how this amount was utilised. There is in
addition lack of detail about the previous attorney costs.
This
counts against the applicant.
[30]
The respondent in the heads of argument draws the courts attention to
the line items in
the invoices as well as the quotation from the
legal representatives. To the extent that certain moneys are
attributed in the invoice
to the Rule 43 application, she argues that
in addition to the fees being exorbitant, the applicant is not
entitled to a contribution
towards costs of the Rule 43 application.
I agree with her. (See
Service v
Service
1968 (3) SA 526
(DJ).
The
other aspect relates to discovery proceedings. As I follow the
respondent's contention, the applicant failed to discover within
the
time period stipulated in the Uniform Rules. The respondent then
approached court to compel discovery. It is after service
of the
application to compel that the applicant discovered. The applicant
lists the costs that arose in that process, as part of
those towards
which a contribution is sought. This is simply impermissible.
[31] As I
understand Rule 43(6) in relation to costs contribution, a party can
approach court
if the contribution towards costs proves to be
inadequate. If the order of Wanless AJ is anything to go by, no case
was made for
a contribution towards costs when it was granted. The
question of a contribution becoming inadequate therefore does not
arise in
this case. Besides, a contribution in terms of the rule can
be sought towards costs of a pending matrimonial action. The
applicant
does not in her affidavit list which circumstances have
changed materially, in relation to costs, which call for this court's
intervention.
The rise in the costs of living
[32] In
support of the contention that there has been material change in her
circumstances,
the applicant argues that one of the reasons why she
is approaching this court is that there has been a rise in the costs
of living.
In
Louis v Louis
1973
(2) SA 597
(T),
the court held
that inflation or the rise in the costs of living is not by itself a
sufficient ground in an application for variation.
I agree with that
approach. To hold otherwise would result in a proliferation of Rule
43(6) applications as and when there is an
increase in the costs of
living.
[33]
In
Mick/em v Mick/em
1988 (3) SA
259
(C)
Van Den Heever J set out
some of the guidelines in Rule 43(6) applications one of which is
that a Rule 43(6) hearing should not
be a rehearing of a former
application. He cited a dicta from
Grauman
v Grauman
1984 (3) SA 477
(W)
at
4791-480C, in making the point that were the court to allow a
rehearing of the former application, it would be faced;
".....
with virtually a review of a
previous decision, based on the existing facts but now having to deal
with the matter in more detail,
having been able to utilise more
information, another slant being given to those very same facts, or
one or two additional facts
might be discovered, which puts
a
different complexion on matters."
[34] The
court can not turn a blind eye to conduct of a party in the process
of litigation.
In considering a costs contribution, the issues that
are placed in dispute at the trial. My understanding is that the
parties as
at the time of the first Rule 43 application, divided
their assets in addition to the respondent consenting to the order of
divorce.
The only dispute, it would appear, is the maintenance of the
applicant. I am informed that the trial is only some 90 days away.
In
light of the imminency of the trial, at which the maintenance of the
applicant will be fully ventilated, while accepting that
in these
proceedings interim relief is sought, I take the view that the
balance of forces will be disturbed at the trial, were
this court to
grant an order against the respondent.
[35]
I am of the view that the application is ill conceived and that the
point
in limine
must
be upheld. I therefore make the following order;
1.
The application is dismissed with costs.
SA THOBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date
Heard: 27 May 2019
Date
of Judgment: 31 May 2019
Counsel
for the Applicant: Adv. E van der Merwe
Attorney for the Applicant: Francis Kinsella
Inc, c/o WF Bouwer Attorneys
Pretoria
Counsel
for the Respondent: Adv. S Venter
Attorney for the Respondent: Tiaan Joubert
Attorneys, Pretoria