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[2019] ZAWCHC 86
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R.N.M v A.M (8698/2019) [2019] ZAWCHC 86 (10 July 2019)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 8698/2019
In
the matter between
RNM
APPLICANT
and
AM
RESPONDENT
Coram:
Rogers J
Heard
:
26 June 2019
Delivered:
10 July 2019
JUDGMENT
Rogers
J
Introduction
[1]
I shall refer to the
applicant, the plaintiff in the divorce action, as the wife, and the
respondent as the husband. The wife seeks
a contribution to costs of
R703 000. The divorce has been acrimonious, characterised by a
slew of rule 43 applications and
incidental applications concerning,
among other things, care of and access to the children
[2]
I must record, at the
outset, that the affidavits are longer than they should have been. In
terms of rule 43 the founding affidavit
should be a sworn statement
in the nature of a declaration and the opposing affidavit a sworn
statement in the nature of a plea.
The affidavits need not exhibit
narrative elegance. Rhetoric should be avoided. So should repetition.
The important facts can usually
be conveyed virtually in point form
or by way of lists contained in schedules. The affidavits must not
stray into extraneous matter.
(For example, in the present case the
wife’s affidavit has several paragraphs dealing with possible
changes to the care and
contact arrangements but she claims no relief
in that regard.) Emotive pejorative allegations are generally
irrelevant and serve
little purpose because the court can hardly ever
base its judgment on them, given the brevity which should mark the
affidavits
and the absence of oral evidence. (There was a good deal
of this in the present case. The parties spilt much ink on the many
incidental
applications while overlooking certain basic information
which would have assisted the court.)
[3]
The divorce action was
instituted in November 2014. Over the period October-December 2014
the husband voluntarily contributed R131 000
towards the wife’s
legal costs. In February 2014 she launched her first rule 43
application dealing with care of the minor
children, personal
maintenance and a further contribution to costs. On 22 April 2015 Le
Grange J made an order in terms whereof,
among other things, the
husband was to pay the wife monthly maintenance comprising a R71 000
in cash and the payment of certain
specified expenses which brought
the total monthly maintenance obligation to R128 847. The
husband was ordered to make a costs
contribution of R200 000,
which he did. The costs of the rule 43 application were ordered to be
costs in the cause.
[4]
From a letter written in
October 2016 by the wife’s attorneys, at a time when the
husband was agitating for a reduction in
his maintenance obligation,
it appears that the wife has allocated R5000 per month from the
monthly maintenance towards the costs
of counsel. The present
application was argued on the basis that I could treat this as a
further contribution to costs by the husband.
Over the period May
2015 to June 2019 (50 months) this equates to R250 000.
[5]
There have been many
incidental applications, mostly opposed. Some have been applications
in terms of rule 43. Apart from the wife’s
first rule 43
application, in May 2017 the husband launched a rule 43(6) to reduce
the cash component of his monthly maintenance
from R71 00 to
R27 000. In January 2018 the wife launched her second rule 43
application seeking a further costs contribution
of R400 000.
Both applications were opposed. For reasons I need not explain,
neither was adjudicated.
[6]
Other incidental
applications have concerned care of and access to the three children
born of the marriage and their schooling arrangements.
To some extent
these incidental applications could be regarded as rule 43
applications concerning interim access and interim custody,
though
they have not been so characterised in the papers before me. In the
first quarter of 2016 the husband launched an interdict
application,
two further applications (referred to as the schooling applications),
and a related contempt application. In the interdict
and contempt
applications costs orders were made against the husband. The costs
have been taxed and he has paid R120 222 and
R159 020
respectively. In the case of the two schooling applications, on which
Gamble J made orders on 26 January and 15 March
2016, the costs were
ordered to stand over to the trial.
[7]
In December 2017 the
husband instituted an urgent application to compel the wife to have
herself and the children assessed by a
social worker engaged by him,
Prof Tanya Robinson. An order was eventually made by agreement, with
costs to stand over to the trial.
At that time the trial was
scheduled to start on 14 February 2018. On 7 February 2018 the
husband delivered lengthy expert reports
from Prof Robinson and an
industrial psychologist, Dr Hannes Swart. On 10 February 2018 the
wife delivered an application to postpone
the trial. The husband’s
response – in view of the fact that a final determination would
seemingly now be delayed –
was to deliver a counter-application
in which he asked the court to conduct an urgent enquiry into the
best interests of the children
and to order that they be placed with
him on an interim basis.
[8]
The matter came before
Wille J on 14 February. Over seven days he heard oral evidence on the
husband’s counter-application.
I assume he reserved judgment,
the delivery of which was made unnecessary by the fact that on 22
March 2018 the parties agreed
to an order, the gist of which was that
the children would reside primarily with the husband while the wife
would enjoy contact
with them supervised by a social worker. The
order did not contain any provision concerning the costs of the
counter-application.
[9]
In March 2018 the wife
brought an application to have the children assessed by Prof Astrid
Berg. Wille J heard that application
on 13 March 2018 and made an
order regulating the assessment, costs to stand over. The wife also
brought an application to obtain
what she refers to as the Form 22
documents (presumably Form 22 prescribed under the Children’s
Act 38 of 2005 for reporting
the abuse or neglect of a child in terms
of s 110 of that Act). This was granted with no order as to costs. In
the same month the
husband delivered applications to admit into
evidence the report of an expert, Dr Gisele Rausch, and the
assessment notes of another
expert, Ms Pam Tudin. Orders were granted
accordingly, costs to stand over. Although not so stated in the
papers before me, I gather
that this flurry of applications was
concerned with the counter-application on which Wille J made his
order on 22 March 2018.
[10]
In July 2018 the husband
delivered an application to vary the access and supervision
provisions contained in the order of 22 March
2018. On 17 July Wille
J postponed the variation application to 6 November but made an
interim order which to some extent varied
the earlier order. The
variation application was argued over two days in November, and on 13
December 2018 Wille J made an order
which substantially confirmed his
interim order of 17 July. The costs of the variation application were
to stand over for later
determination.
[11]
As far as I can see, the
only incidental applications truly interlocutory to the divorce
action have been the following: the husband’s
application to
transfer the divorce action to the high court; the wife’s
application in the latter part of 2017 to compel
discovery (Slingers
AJ made such an order, costs to be paid by the husband); a follow-up
application to dismiss the husband’s
defence (not adjudicated);
and the wife’s postponement application (which was effectively
overtaken by the husband’s
counter-application). All the other
applications were either rule 43 applications or independent
proceedings concerning the best
interests of the children.
[12]
The divorce action has
been set down for trial before Wille J commencing on 12 August 2018.
The present application, the wife’s
third recourse to rule 43,
was delivered on 21 May 2019.
[13]
The wife’s counsel
made clear that her client did not seek a contribution to cover any
part of her past (and still unpaid)
costs, which are very
substantial. It was long considered that rule 43 could not be used to
obtain a contribution in respect of
past costs (and cases to this
effect are cited in the husband’s heads of argument) though
this view has more recently been
challenged (
Cary
v Cary
1999 (3) SA 615
(C) at 621G-622F;
Du
Plessis v Du Plessis
[2005]
ZAFSHC 105
para 9). In view of the wife’s counsel stance, I
need not enter this debate.
Lis
pendens
[14]
The husband’s
attorney submitted that his client had a legitimate defence of
lis
pendens
,
having regard to the un-adjudicated application which the wife
brought in January 2018 for a contribution to costs. I reject this
argument. The principles relating to this dilatory defence appear
from
Caesarstone
Sdot
-Yam
Ltd v The World of Marble and Granite 2000 CC & others
[2013] ZASCA
129
;
2013 (6) SA 499
(SCA). T
he
requirement that the dispute in the two cases should be the same is
absent. In the January 2018 application the wife sought a
contribution of R400 000 to the costs of a divorce action
expected to commence on 14 February 2018. In the event the action
did
not run, and what she now seeks is a contribution of R703 000 to
the costs of a divorce action scheduled to commence on
12 August
2019, taking into account significant events which have occurred
since February 2018.
[15]
In any event, the defence
of
lis pendens
is not an absolute one. The court has a discretion to hear the second
case. The January 2018 application was apparently due to
be heard on
31 January 2018 but no hearing took place, according to the wife
because the court file was lost. The application was
then superseded
by the events of February 2018. From a practical perspective the
parties have treated the January 2018 application
as at an end. For a
year and a half the wife has made no attempt to prosecute it.
Possible
recusal
[16]
Without objection from the
wife’s counsel, the husband’s attorney handed in a
supplementary affidavit, seemingly with
a view to demonstrating that
the wife intends or may intend to seek Wille J’s recusal, which
– if it succeeded –
would require a new date to be
allocated, with substantial effect on prospective costs. From the
husband’s heads of argument
(drawn by his senior counsel, not
the attorney who appeared at the hearing), the contention appears to
be that I should dismiss
the application for this reason. I reject
that argument. As yet no application for recusal has been brought,
and the supplementary
affidavit does not show that the wife
definitely intends to bring one. Even if she does, the husband does
not say that he will
concede it. The wife will have to prepare for
trial on the assumption that any recusal application she may bring
might fail.
Should
application be heard by Wille J?
[17]
In his opposing affidavit
the husband stated that the present application should be heard by
Wille J who was immersed in the case.
Reference was made to para 4 of
the judge’s order 13 December 2018, reading as follows:
‘
That in the
event of any party (all the children’s legal representatives)
launching any application prior to the trial date,
then in that event
Mr Justice Wille will be approached, on notice to all the other
parties, to deal with the matter on such date
and in such manner, as
may be in the best interests of the children.’
When
this matter came before me in Third Division on 26 June 2019, Wille J
was on circuit in Swellendam. Term ended on 28 June.
As I told the
parties during argument, I contacted Wille J on 25 June. I
ascertained that his criminal trial would occupy him for
the last
three days of term. He informed me that he was on recess duty on
15-19 July and would if necessary hear the application
then. I think
it fair to say that neither of us particularly relished the prospect
of having to deal with it. Wille J’s capacity
to hear the
present matter during his week of recess duty would naturally depend
on the volume of other work. He also indicated
that para 4 of the
above order was really intended to cover the case of further
applications relating to care and access, as indeed
is suggested by
the concluding reference to the best interests of the children. I
thus concluded that there was no basis for deferring
the hearing of
the application.
Abuse
of process
[18]
The husband contended in
his counsel’s heads of argument that the application should be
dismissed as an abuse of process.
Reference was made to the length of
the founding affidavit and to the inclusion of irrelevant matter. I
have already touched on
this aspect in which, I must say, the
husband’s fault is at least as great as the wife’s.
Suffice to say that I do
not think the wife’s departure from
the requirements of rule 43 to be so egregious as to warrant
dismissal as an abuse of
process. It is unnecessary to consider to
what extent, if any, the strict requirements of rule 43 may in the
present era justify
relaxation, a matter recently considered by a
full court in Gauteng (
E
v E and other matters
[2019]
ZAGPJHC 180).
Prima
facie case
[19]
The husband’s heads
of argument advance the further submission that the wife has failed
to deal with her prospects of success
in the divorce action and that
this renders her rule 43 application fatally defective. With
reference to
Jones v
Jones
1974 (1) SA 212
(R) at 214D, it is contended that an applicant for a contribution to
costs must demonstrate a fair and reasonable prospect of success
in
the main case. Earlier cases differ somewhat in their formulation of
what an applicant need show, the most liberal being Selke
J’s
statement in
Stender
v Stender
1938
NPD 125
to the effect that a prima facie case does not require the
applicant to show that the probability of success is in her favour,
it being sufficient that she makes out a case upon which a reasonable
person might find in her favour (at 126).
[20]
In my experience of rule
43 applications, prospects of success in the main action are often
not addressed in contribution applications.
This may be because of
changing times. Most of the cases on this subject are older ones from
an era where the obtaining of divorce
orders was not as uncomplicated
as it now is. The cases were concerned with whether the plaintiff had
a prima facie case for obtaining
a divorce order or an annulment.
They were not concerned with prospects of success in regard to
disputed claims for ancillary relief
arising from a divorce order.
And they predated the current rule 43. It may be difficult for a
court to make a reasonable assessment
of prospects of success in the
main case, given the brevity mandated by rule 43.
[21]
On the assumption that the
wife should have formally addressed the question of prospects of
success in her founding affidavit, I
am not prepared to nonsuit on
this basis. She brought a previous rule 43 application which led to
the granting of substantial interim
maintenance and a contribution to
costs. To some extent this is already an indication of a prima facie
case. It appears sufficiently
from the present application that she
is not employed and has no formal qualifications. The husband is
affluent, and during the
marriage the wife has no doubt enjoyed a
relatively high standard of living. Prima facie she has reasonable
prospects of obtaining
a maintenance order, even if it is not as
large as the sum she claims.
[22]
Regarding care and
custody, the wife has engaged experts to present her case. In the
husband’s heads of argument reference
is made to a report by Dr
Hetta van Niekerk on behalf of the wife which is criticised on the
ground that the expert did not undertake
an in-depth investigation,
so presumably there is an expert expressing views which to some
extent favour the wife. We also know
that experts with differing
views testified on these matters in February 2018. The interim orders
made in this case over the last
several years show that appropriate
care and contact arrangements in this case are likely to be
intricate.
[23]
The court hearing the
divorce is obliged to enquire into the best interests of the
children. I cannot see that this can properly
be done if only the
husband and his experts provide evidence. Even if the trial court
were in due course to award primary care
to the husband, the extent
of the wife’s contact with the children and whether and to what
extent it should be supervised
are contentious matters of obvious
importance to her. In her founding affidavit in the present case the
wife expresses the belief
that the current interim contact she is
allowed should be extended, that the supervision requirements should
be partially relaxed,
and that in her view it is not in the
children’s best interests, or reasonable to her, that
supervision should persist much
longer. I am not willing to deprive
the wife, through lack of financial resources, of her opportunity of
placing evidence, including
expert evidence, on these matters before
the court.
Adequacy
of contributions already made
[24]
Turning to the merits, a
contribution to costs in terms of rule 43 is a contribution to the
costs of the divorce action. In
Micklem
v Micklem
1988 (3) SA
259
(C) it was said that the costs of interim applications are
excluded (263B). The case cited in support of this proposition,
Service v Service
1968
(3) SA 526
(D), does not establish it in those wide terms. Miller J
in that case excluded the costs of ‘interim applications
already
made’ (528F). At that time past costs, even those
directly concerned with the divorce, were thought not to be
recoverable
by way of a contribution under rule 43. Interlocutory
applications directly related to the divorce proceedings, such as
applications
to compel discovery and the like, are, in my view, costs
of the ‘pending matrimonial action’ within the meaning of
rule 43(1)(
b
).
I accept, though, that the costs of rule 43 applications and of
freestanding applications relating to the best interests of children
are not covered (cf
Winter
v Winter
1945 WLD 16
at 18;
Maas v Maas
1993
(3) SA 885
(O) at 888I-889B).
[25]
The husband’s
attorney submitted that the sums already contributed by his client
are sufficient. Neither side carefully distinguished
between those
costs falling within the ambit of rule 43 and those falling outside
it. On the basis of authority, almost all the
interim applications in
the present case fall outside the scope of rule 43. In two instances
costs were awarded in favour of the
wife. In all the other
applications the costs were ordered to stand over. Until those costs
are determined, the husband is not
obliged to contribute to them. In
assessing the adequacy of the contributions he has already made, this
principle must also be
applied; one must have regard only to those
proceedings properly covered by a rule 43 costs contribution.
[26]
This principle, it seems
to me, applies to the husband’s voluntary contribution of
R131,000 and the contribution of R200,000
ordered by Le Grange J in
April 2015. At the time the husband made his voluntary contribution
the divorce action was about to be,
or had just been, instituted. No
rule 43 applications or freestanding applications relating to
children were in mind. I am entitled
to assume that the husband was
making a contribution which might otherwise have been ordered in
terms of rule 43.
[27]
The monthly amounts of
R5000 stand on a different footing. The order for the monthly payment
of R71 000 was an order for the
payment of maintenance, not a
contribution to costs. Indeed, it seems that at the time the order
was made the wife had not indicated
that a contribution to the costs
of counsel was included in the calculation of the maintenance. Even
if it was, the wife has had
legal costs which are not directly
related to the divorce action but which she has been obliged to
cover. These include the first
rule 43 application and future rule 43
applications and applications relating to the best interests of the
children.
[28]
The first question, thus,
is whether the husband’s contributions of R301 000, which
were paid over the period October
2014 to April 2015, are sufficient
to cover the past and prospective divorce costs up to the first day
of trial. The past divorce
costs up to the time the action was
originally scheduled to begin, namely 14 February 2018, cover the
following matters (I have
had regard, inter alia, to a pro forma bill
of costs annexed to the husband’s affidavit as a reconstruction
of the costs
incurred by the wife):
·
preparing
particulars of claim and issuing summons;
·
pleading
to the husband’s counterclaim;
·
the
wife’s discovery (according to the pro forma bill she
discovered 55 pages);
·
responding
to notices for better discovery (according to the bill she disclosed
a further 71 pages);
·
calling
on the husband to make discovery and considering the husband’s
discovery affidavit;
·
calling
for better discovery from the husband, bringing an application to
compel better discovery, an appearance before Slingers
AJ when an
order for better discovery was made, and considering the husband’s
eventual response (285 pages according to the
pro forma bill, 820
pages according to the husband’s affidavit in the present
case);
·
requesting
further particulars for purposes of trial and considering the
husband’s reply;
·
considering
and replying to the husband’s request for further particulars
for purposes of trial;
·
obtaining,
settling and serving of expert reports by Messrs Fourie and Tutt;
·
four
pre-trial conferences;
·
preparing
for the trial scheduled to start on 14 February 2018;
·
considering
the extensive expert reports from Prof Robinson and Dr Swart which
the husband served in early February 2018;
·
engaging
experts on short notice to consider these reports;
·
preparing
and serving an application for a postponement;
·
the
first day of the aborted trial.
[29]
There is a dearth of
information as to what has been done since February 2018. I can find
little more than reference to a pre-trial
conference held in
September 2018 and, in the husband’s supplementary affidavit
(handed up at the hearing without objection),
to meetings of the
legal teams with the Judge-President on 31 January and 18 April 2019
for purposes of discussing the allocation
of a trial date and whether
Wille J should hear the trial.
[30]
In the light of the
information supplied by the wife regarding payments made by her to
her attorneys and counsel, it seems likely
that a large part of the
husband’s contributions of R331 000 was paid for
attendances relating to the first rule 43
application and the
interdict and schooling applications of early 2016. I must disregard
this use of the contributions and instead
consider whether the sum of
R331 000 would by now have been exhausted if it had been applied
in the payment of divorce costs.
[31]
The wife can be criticised
for failing to provide the details of the costs incurred in the
divorce action to date. The only figure
definitely mentioned is a sum
of R200 000 which she says she had to borrow to fund the costs
of the experts engaged to respond
to the husband’s late expert
reports of February 2018. She says the experts needed about 50 hours.
The wife’s attorney
and counsel would also have had to be
involved in briefing and considering the reports of the experts. It
is a reasonable assumption
that the costs the wife incurred in
January and February 2018 to prepare for trial – the costs of
her attorneys and counsel
and the costs of engaging new experts on
short notice – exceeded R200 000.
[32]
It also seems to me that
the other costs incurred by the wife in the divorce action from
November 2014 to date (excluding the preparation
costs of January and
February 2018) would comfortably exceed the balance of R131 000.
This would include the costs of the
experts engaged in 2017 and
R50 000 as a fee for the attorney and counsel for the first day
of the aborted trial of 14 February
2018 (the wife says that her
attorney and counsel each charge R25 000 per day and the
husband’s pro forma bill has been
drawn on the same basis).
[33]
When I speak of the costs
incurred by the wife, I am referring to the costs incurred as between
attorney and client, to the extent
that such costs are reasonable.
The husband’s pro forma bill seems to allow, in respect of most
of the attendances, costs
on only the party and party scale. However,
there should be a rough equality of arms (cf
Nicholson
v Nicholson
1998 (1)
SA 48
(W) at 50C-G;
Cary
v Cary
supra at
620C-621F;
Greenspan v
Greenspan
2000 (2) SA
283
(C) para 17). The husband is a wealthy man and has litigated on a
reasonably luxurious scale, often using one or two attorneys from
his
attorneys’ Johannesburg office. The bill is also, for present
purposes, unhelpful in other respects: it was evidently
drawn in
response to the wife’s aborted rule 43 application of January
2018, and thus does not incorporate actual known attendances
since
that date; and it makes no allowance for the fees charged by the
experts. I may also mention that it excludes altogether
the costs of
the rule 43 and incidental applications relating to the children. As
a bill confined to the costs of the divorce action,
such exclusion is
correct, but it must be understood that the bill is by no means a
full statement of the wife’s actual party
and party costs in
all the proceedings in which she has been embroiled.
[34]
I thus conclude that the
husband’s contributions totalling R331 000 have by now
been exhausted on legitimate costs relating
to the divorce
proceedings. My further assumption is that, to the extent that the
wife has used any part of her maintenance towards
legal costs, she
has legitimately applied them to the many incidental applications not
directly concerned with the divorce action.
Estimate
of wife’s prospective costs
[35]
The next matter to
consider is the likely costs to be incurred by the wife up to the
first day of the trial scheduled to start on
12 August 2019. Once
again, the wife has failed to provide relevant detail. She gives
estimated amounts, under various headings,
likely to be charged by
her counsel and attorneys but does not state the number of hours and
the hourly rates at which these amounts
have been estimated. Without
this information, it is hard for the court to know whether the
provision is reasonable or not. One
might infer, from the daily rate
provided for counsel and the attorney (R25 000 each), that the
hourly rate would be R2500
(that relationship between a daily and
hourly rate was quite common when I was at the bar), but the amounts
allowed for non-daily
attendances – which I must assume were
calculated along rational lines, ie by applying an hourly rate to an
estimated number
of hours – are not sensibly divisible by
R2500. The only number by which all the amounts allowed for counsel
and the attorney
are sensibly divisible is R1750. If this is less
than what the wife’s counsel and attorney actually charge, she
has only
herself to blame for not providing the relevant information.
[36]
The next difficulty with
the wife’s estimate of prospective costs is that she has
provided very little information about the
future attendances that
will be reasonably required by her attorneys and counsel. The same
difficulty bedevils her assessment of
the costs to be incurred by the
experts in updating their reports and for related travel costs. The
court has not been told how
many experts she will be leading at the
trial, where they are based, to what extent they will need to travel
to update their reports
or what their hourly charges are. Although
the wife may have more than three experts, I shall assume two experts
relating to the
best interests of the children and one expert
relating to the wife’s earning capacity. I assume an hourly
rate for each expert
of R2000. (In February 2018 the husband’s
expert, Prof Robinson, had an hourly rate of R1750 for in-office
consultations
and R3000 for out-of-office consultations.)
[37]
Since the wife’s
application is one for a contribution to costs, one would have
expected her to use the short space allowed
to her by rule 43 to
provide the type of information I have summarised above rather than
writing pages about the incidental applications.
Clearly she will
incur quite substantial costs up to the first day of the trial. I
also accept that she will lead expert evidence
concerning the best
interests of the children and that those experts will need to update
their reports. The wife cannot complain,
however, if – given
the absence of relevant detail – my estimates are conservative.
The table which follows sets out
the number of hours estimated by the
wife (‘W’), derived from the assumed hourly rate of R1750
for attorney and counsel
and R2000 for experts; the hours allowed by
the husband (‘H’) in the pro forma bill; and the hours
the court will allow
(‘Ct’). In each case the rand total
is furnished in an adjoining column. The superscript numbers are
notes dealt with
in the paragraph following the table.
Counsel
W (hrs)
Total
H (hrs)
Total
Ct (hrs)
Total
Amendments
2
3 500
---
---
--- 1
---
Perusing discovery
12
21 000
---
2 215
6 2
10 500
Request for TPs
9
15750
---
--- 3
---
Reply to H’s
Req
for TPs
8
14 000
---
--- 3
---
Experts: perusal + cons
15
26 250
4
10 000
9 4
15 750
Pre-trial conferences
15
26 250
---
---
2 5
3 500
Subpoenas
4
7 000
---
---
--- 6
---
Consultations + prep
37
64 750
25
62 500
30 7
52 500
Miscellaneous
5
8 750
---
---
2
3 500
Sub-total for counsel
85 750
First day of trial
---
25 000
---
25 000
---
25 000
Total for counsel
110 750
Attorney
Amendments
4
7 000
---
---
--- 1
---
Perusing discovery
34
59 500
---
2 215
6 2
10 500
Request for TPs
11
19 250
---
---
--- 3
---
Reply to H’s Req TPs
8
14 000
---
---
--- 3
---
Experts – perusal + con
15
26 250
4
10 000
9 4
15 750
Pre-trial conferences
15
26 250
---
---
3 8
5 250
Subpoenas
9
15 750
---
---
--- 6
---
Consultations + prep
34
59 500
25
62 500
25 7
43
750
Misc
30
52 500
---
10 9
17 500
Sub-total for attorneys
92 750
First day of trial
---
25 000
---
25 000
---
25 000
Total for attorney
117 750
Expert fees+travel
Updating reports
30
60 000
---
---
13 10
26 000
Travel
---
30 000
---
---
--- 11
15 000
Total
607 250
12
199 430
269 500
[38]
Notes to the
table:
Note 1
:
No amendments are foreshadowed in the rule 43 papers. If they arise,
they must come from the allowance for trial preparation and/or
the
‘miscellaneous’ allowance.
Note 2
:
The documents discovered by the parties, including those produced
pursuant to requests for better discovery, were all disclosed
prior
to the scheduled trial date of 14 February 2018 and would have been
perused at that time. My allowance of six hours covers
the documents
which the wife expects to obtain pursuant to subpoenas and a limited
amount of time for the legal team to refresh
their memories regarding
the documents already disclosed.
Note 3
:
There have already been request and replies. There is nothing to show
that further requests are needed.
Note 4
:
I allow one hour to peruse updated reports and two hours in
consultation with each expert. Experts are independent witnesses who
provide testimony to assist the court. Extensive consultations with
the legal team should not be needed and may be undesirable.
Note 5
:
In the absence of further information, I assume that the wife’s
enigmatic reference to ‘pre-trial’ is to pre-trial
conferences with the husband’s legal team. There were four such
conferences prior to 14 February 2018 and at least another
one in
October 2018. The matter has already been certified
trial-ready. It seems that the parties are so alienated and far
apart
that not much will be achieved in pre-trial conferences.
Note 6
:
The subpoenas have already been issued. I think in any event that
counsel's input on subpoenas can be subsumed in a general preparation
allowance.
Note 7
:
The husband's bill assumes 25 hours of consultation and preparation
for the attorney. Using that as a starting point, counsel
should be
allowed at least another five hours for matters such as preparing an
opening address, preparing questions in the leading
and
cross-examining of witnesses, legal research etc.
Note 8
:
I allow an extra hour for the attorney for drafting minutes.
Note 9
:
I make a higher allowance for the attorney to deal with
correspondence, liaising with the experts, making travel
arrangements,
organising and copying trial bundles etc.
Note 10
:
I assume that two experts, concerned with the children, may need to
spend five hours each, while an employment expert might require
another three hours.
Note 11
:
The wife has given no particulars of these disbursements. It may well
be that, since the parties live in George, which is where
the
children are based, the experts – certainly those concerned
with the children – are based there too. Consultations
with the
experts will either require them to travel to Cape Town or the legal
team to travel to George. On the other hand, none
of the experts are
likely to testify on the first day. There will be an opening address
after which, I assume, the wife will be
put in the box. My allowance
of R15 000 may not cover all these disbursements up to and
including the first day of trial,
but in the absence of more precise
detail I must necessarily make a conservative estimate.
Note 12
:
It is unclear to me on what basis the wife claims R703 000. The
wife’s counsel disavowed any right to claim a contribution
for
past costs.
[39]
For the reasons summarised
above, I consider that R269 500 would be a reasonable
contribution towards the wife’s prospective
divorce costs. A
final observation, in this regard, is that the husband has said very
little about his own past legal costs or
the costs he expects to pay
up to the first day of trial. This coyness on his part may well
reflect that any disclosure of the
scale at which he has litigated
and intends to litigate would cast the wife’s claim in a
favourable light.
Can
wife fund this estimate?
[40]
The next question is
whether the wife can afford to fund a reasonable allowance for
prospective costs in the amount of R269 500.
She has alleged
that she currently owes her past and present counsel R334 198
and her attorneys R1,5 million. I am entitled
to assume that her
present attorney and counsel, who can be expected to have personal
knowledge of the unpaid fees, would not have
settled the affidavit or
relied on it if they knew this information to be false. It is
unlikely that the wife would have allowed
R1,8 million in fees to go
unpaid if she had the wherewithal to settle at least some of it. It
is also unlikely that the wife’s
present attorney and counsel
would be willing to continue representing her without payment of
their past fees if they knew she
had resources from which to settle
them.
[41]
It is not in dispute that
the wife, who is now 36, has not worked since the age of 19 when she
and the husband began dating. There
is a dispute as to whether, since
the breakdown in the relationship, she could and should have
undergone vocational training so
as now to be in a position to earn a
modest salary. I cannot prejudge that question. As a fact she is not
currently employed.
[42]
The husband has alleged
that the wife received substantial sums from the realisation of
certain assets: R765 308 from the sale
of a Tygervalley property
donated to her in terms of the antenuptial contract; and R150 000
from the sale of an Audi vehicle
which he bought for her and which he
later replaced with another vehicle. This being a rule 43
application, there is not a replying
affidavit from the wife.
However, it appears from the husband’s papers that the proceeds
from the sale of the property were
received in October 2014 while the
Audi was sold in early January 2015. The husband was presumably aware
of these transactions
when he answered the wife’s first rule 43
application in March 2015. Since the court in April 2015 ordered him
to pay a contribution
of R200 000, I think it is too late now to
say that these realisations represent a source from which she could
fund her prospective
legal costs. Quite conceivably they have been
used to settle some of the wife’s costs in the various
incidental applications.
[43]
The husband says that in
November 2014 he paid R44 050 for his wife’s enrolment at
a design college, that she did not
thereafter attend the college, and
that in June 2016 the college refunded the money directly to her. If
that is so, it may well
have been expended, quite possibly on
incidental applications.
[44]
The wife says that the
change in care and custody arrangements (which has resulted in the
children spending less time with her)
has not reduced her monthly
requirements. The husband says that this is not credible. He also
says that, of the R71 000 monthly
maintenance, R10 000 is
being applied by the wife to pay her mother’s mortgage bond,
another R10 000 to meet the
mother’s living expenses and
R5000 as a ‘salary’ to the mother for performing au pair
services. (This latter
information appears from the wife’s
attorneys’ letter of October 2016 to which I made earlier
reference.) These amounts,
totalling R25 000, are not, the
husband says, expenses for which he is responsible. Since he is
paying them, the wife could
use these amounts towards legal costs.
[45]
There are several
difficulties in the way of deciding, at this stage, that a
substantial portion of the monthly maintenance of R71 000
is
available to meet the wife’s respect of legal costs.
(a) First, unless she and
(effectively) her legal team are being untruthful about the amounts
she currently owes her lawyers, the
wife would be entitled to apply
any surplus funds from her monthly maintenance to settle her past
obligations. For all I know she
has done so to some extent.
(b) Second, it appears from the
papers that there is likely to be a dispute relating to the mother’s
position. The wife’s
attorneys, in their letter of October
2016, stated that it was the husband’s idea that the mother
should resign her job and
relocate from Johannesburg to George to
assist with the children; that he promised to include the mother in
his medical aid scheme,
which never happened; that the wife was been
paying her mother’s medical expenses as the mother had been ill
for the past
year; and that the husband had offered to meet the
mother’s living expenses and mortgage bond.
(c) Third, as matters currently
stand the sum of R71 000 has been ordered as an amount payable
to the wife as maintenance,
not as a contribution to costs. The
husband brought a rule 43(6) application in May 2017 to have the
amount reduced. Although
he may (as he says) have jettisoned this
application in October 2017 because he expected a final determination
of the divorce action
by way of a preferential trial date in February
2018, he has not subsequently renewed the application.
[46]
The husband states that
the wife was for some time in a relationship with a wealthy Turkish
businessman and disbelieves her allegation
that the relationship has
terminated. This is not a matter which I can resolve on the papers.
Possibly the Turkish gentleman would
have been willing, may even
still be willing, to help her with her divorce costs, but I do not
know this as a fact, and he is not
under any legal obligation to do
so.
Can
husband afford to fund the estimate?
[47]
I thus find that the wife
is in need of a further contribution to costs. The final question,
therefore, is whether the husband is
able to pay the amount I have
determined as reasonable. Unsurprisingly this is contested terrain,
the wife painting a picture of
fabulous wealth, the husband
portraying his monthly expenditure as substantially exceeding his
monthly income. I accept that the
protracted matrimonial proceedings
have put some strain on the husband’s resources. In addition to
his conventional legal
expenses (including expert witnesses), he has
had to fund a range of other costs, such as the ongoing role of a
senior advocate
as the court-appointed representative of the
children, the short-lived panel established by the order of 22 March
2018 and the
cost of the social workers involved in the wife’s
supervised contact with the children.
[48]
The husband states that
his monthly income from his four Super Spar stores is R306 090
while his monthly expenses total R392 596
(this includes the
monthly cash maintenance of R71 000 and R67 169 in respect
of the wife’s additional expenses
costs forming part of the
monthly maintenance), leaving a monthly shortfall of R86 506 (he
does not state how this monthly
shortfall is currently funded).
Included in his monthly expenses are mortgage bond payments totalling
around R170 000 in respect
of his Victoria Bay farm (where he
resides) and a unit at Fancourt (where the wife resides). Also
included are expenses in respect
of his mother (R9110 for her medical
aid and vehicle insurance; and monthly credit card expenditure of
R25 000 which is said
to include expenditure on his mother).
Over and above the credit card expenditure (the make-up of which does
not appear), he allocates
R8000 for groceries, R4000 for clothing,
R2100 for pet food and R3000 for fuel.
[49]
The wife states that the
husband has failed to disclose financial documentation he should have
discovered. She has thus issued subpoenas
to banks, accountants, SARS
etc. At this stage, it seems, there is no way of testing, with
reference to discovered documentation,
whether the husband’s
earnings accord with his allegation. The wife says that according to
his 2016 tax return he earned
‘directors income’ of R2,88
million and income from the Secunda Spar (presumably only one of the
four Spars) of R987 486,
which in total represent a monthly
income of R322 920. Since he receives directors it appears that
one or more of his businesses
are conducted through companies. One
does not know whether those companies made profits which they have
declared or could declare
as profits (ie over and above the
remuneration he drew as part of the company’s deductible
expenditure).
[50]
In paras 64-65 of her
founding affidavit the wife says that the respondent is able to pay
the contribution she seeks, and attaches
in that regard (as ‘RM5’)
an extract from her answering affidavit, filed in June 2017, in
answer to the husband’s
application to reduce his maintenance.
In that attachment she alleges the following concerning his
resources:
(a) His ‘five-star’
Super Spar in Secunda trades from a commercial complex which he owns
and from which he or entities
controlled by him earn rent from
numerous tenants.
(b) He owns other property in
South Africa – a home in Sandton valued at R9 million and
on which he recently expended
R3 million; a property in Sandhurst
worth R3,5 million, previously occupied rent-free by his mother and
now occupied rent-free
by the husband’s sister and her family;
the unit in Fancourt where the wife resides, currently worth R6
million; and fractional
ownership of another Fancourt unit purchased
for R1 million and rented out at R3000 per day.
(c) In Greece he owns an
apartment in Athens valued at R3 million-R4 million. He owns other
properties in Greece, close to the city
of Trikala, comprising
farmlands, at least one residential property and at least one
commercial property.
(d) He also has a collection of
vehicles – a Mercedes SL and an Alpha Duetto (both collector’s
pieces), a VW Amarok,
a VW Kombi, a Toyota Hilux, a 2014
Harley-Davidson worth R400 000 and various other vehicles of
which she can no longer recall
the particulars.
(e) She alleges that he owns or
is the beneficiary of various ‘illegal casinos’ and that
he often arrived home with
travel bags filled with cash which he
preferred not to deposit.
[51]
In his answering affidavit
the husband traversed para 64-65 of the founding affidavit (together
with others) by denying that he
is in a position to pay any
contribution. He has not answered any of the wife’s detailed
allegations concerning his assets
and income.
[52]
The husband has also not
disclosed what he expects his own legal costs to be from the present
time up to the first day of trial
and how he intends to fund them. He
does not say that his legal team are acting on contingency or that
any part of their past fees
remain unpaid.
[53]
In the circumstances, I
find that the husband has the means, whether by way of undisclosed
income or the realisation of assets or
by borrowing against the
security of his assets, to fund not only his own legal expenses to
the first day of trial but also the
wife’s. I think it very
likely that the resources he will apply to his own legal expenses
will substantially exceed those
I intend to award the wife.
Conclusion
and order
[54]
VAT will need to be added
to the amount I award. I do not intend to order a daily contribution
beyond the first day. The daily rate
of R25 000 per counsel and
attorney seems uncontentious but there may be further developments
which show that it would not
be reasonable for the husband to be
ordered to pay a contribution beyond the first day. The daily
contribution can be dealt with
by the trial judge.
[55]
I think it appropriate to
take steps to ensure that the husband’s contribution is
expended in a manner consistent with the
way in which I have arrived
at the amount. This I shall do by ordering that the amount be paid to
the applicant’s attorneys’
trust account and that no more
than specified amounts may be released in respect of the fees of
counsel, the attorneys and the
experts respectively. Within these
three broad categories I shall not be prescriptive (for example,
counsel may spend less time
on one type of attendance and more than
another; one expert might charge less and another more, etc).
[56]
As to the costs of this
application, the wife will be awarded only 38% of the amount she
claimed. On the face of it, her claim was
excessive. At any rate, she
was at fault in failing to provide the sort of information which
would have helped the court to arrive
at a more accurate assessment.
While her affidavit, at around 20 pages (with another 29 pages of
attachments), was not necessarily
too long given the unusual
circumstances of the case, too much space was occupied by irrelevant
matter, while highly relevant matter
was omitted. The husband’s
affidavit, at 52 pages (with another 95 pages of attachments and
confirmatory affidavit), was
definitely too long and repetitive.
Although to some extent he can be forgiven for responding to
irrelevant material raised by
the wife, he did so at a length which
was not justified. He, too, has not been forthcoming with relevant
information, such as his
own anticipated legal costs; and he has not
responded to the relevant material concerning his resources.
[57]
I have thus been tempted
to order that the parties bear their own costs. However, since the
trial is now just over a month away,
and since the evidence which the
trial judge hears may show that one or other, or perhaps both, of the
parties have been untruthful
in their affidavits, it seems preferable
to leave the costs for determination at the trial.
[58]
I make the following
order:
(a) The respondent must pay a
further contribution of R269 500 plus value-added tax towards
the applicant’s costs in
the divorce action, of which R100 000
plus value-added tax must be paid by 16:00 on Monday 15 July 2019 and
R169 500
plus value-added tax by 16:00 on Monday 22 July 2019.
(b) The said amounts must be paid
to the applicant’s attorneys’ trust account, and may not,
without the respondent’s
attorneys’ written permission or
the court’s directions, be released from the trust account
except in payment of fees
and disbursements for work performed on or
after 21 May 2019 in respect of the pending divorce action (not
in respect of the
present rule 43 application) and subject to the
following limits (plus value-added tax in each case):
(i) R85 750 in respect of
counsel’s fees, excluding the first day of the trial;
(ii) R25 000 in respect of
counsel’s fees for the first day of the trial;
(iii) R92 750 in respect of
attorneys’ fees and disbursements (but excluding disbursements
for the fees of counsel and
experts, and excluding the attorneys’
fees for the first day of the trial);
(iv) R25 000 in respect of
attorneys’ fees for the first day of the trial;
(v) R26 000 in respect of
experts’ fees;
(vi) R15 000 in respect of
travel and accommodation expenses (whether for experts or the legal
team).
(c) If any balance of the said
amount remains in the applicant’s attorneys’ trust
account when the divorce action is
finally determined, such balance
shall, subject to any contrary term in a settlement agreement or
order of court, be repaid to
the respondent’s attorneys.
(d) The costs of this application
shall stand over for determination at the trial.
______________________
Judge
O L Rogers
APPEARANCES
For
Applicant
Ms
F Gordon-Turner
Instructed
by
Spencer-Pitman
24
Dreyer Street
Claremont
For
Respondent
Mr
C Bollo (attorney)
BBM
Attorneys
c/o
5 Leeuwen Street
Cape
Town