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[2018] ZAGPPHC 517
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A.M.C.P v I.M.P (92910/2016) [2018] ZAGPPHC 517 (11 January 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER
JUDGES
(3)
REVISED.
CASE
N0 :92910/2016
11/1/2018
In
the matter between:
A
M C P
Applicant
and
I
M
P
Respondent
Date
of Hearing
:
09 January 2018
Date
of
Judgment
:
11 January 2018
JUDGMENT
MANAMELA,
AJ
Introduction
[1]
On 19 July 2017, Kubushi J of this Court granted an order (the Rule
43
Order), under the same case number as appearing above, on
application in terms of Rule 43 of the Uniform Rules of this Court
(the
Rule 43 Application). The applicant in the Rule 43 Application
is applicant in the current application. The Rule 43 Order contains
a
raft of orders, to do, in main, with parental rights and
responsibilities; primary care and residence, and contacts rights, in
respect of minor child, as well as, maintenance for the minor child
and the respondent.
[2]
The
applicant seeks variation of the Rule 43 Order in terms of Uniform
Rule 43 6),
[1]
on
the basis that, there has been a material change in his and the
respondent's circumstances. The application is opposed by the
respondent and the respondent included a counter application on the
basis that, there has been indeed a material change in her
and the·
minor child's circumstances.
[3]
The application came before the Court, as an unopposed motion, on
Tuesday,
09 January 2018. Mr E Janse van Rensburg appeared for the
applicant and Ms NM Krige for the respondent at the hearing. This
judgment
was briefly reserved until today, Thursday, 11 January 2018,
to allow sufficient reflection on the issues and for the order to be
given to be accompanied by brief reasons. However, I will not delve
deeper into the issues, due to the pending divorce action and
other
proceedings between the parties in this judgment. But, I deem it
necessary to narrate the material part of the background
issues of
the matter (to the extent that they are common cause between the
parties), after the preliminary points raised at the
hearing or in
the papers.
Points
in limine
[4]
The respondent raised, in her answering affidavit, three points
in
limine
as follows: firstly, that the
applicant has not made out a case for variation of the Rule 43 Order;
secondly, that the application
is unreasonably voluminous , as it
contains 44 pages of annexures, 95% which is completely irrelevant to
the application, and thirdly,
that the applicant is utilising the
Rule 43(6) process to serve as an appeal for a reconsideration of the
facts presented in the
Rule 43 Application, and consequently,
disposed of in terms of the Rule 43 Order.
[5]
Argument by counsel on the abovementioned preliminary points was
contemporaneous
with argument or submissions on the merits. There was
also, in this regard, submissions to the effect that the applicant
had already
launched another application in terms of Uniform Rule 42
for " rectification" of aspects of the Rule 43 Order , as
according
to the applicant the Rule 43 Order "contains certain
errors that should be rectified". The Rule 42 application is
also
opposed by the respondent and therefore pending before the
Court.
[6]
I considered the preliminary points not requiring immediate ruling
before
attention was to be given to the merits. I chose to deal with
the matter in wholesale manner, although some of my comments made
at
the hearing, in interactions with counsel, may have been telling
regarding the direction of my potential rulings on the issues.
I will
deal with the issues at, what I consider, opportune moments below.
Relevant
brief background
[7]
The
parties were married to each other on O1 March 2001 out of community
of property. As stated above, there is a pending divorce
action
before this Court, issued under different a case number 42916/2016 as
the one cited above.
[2]
The
action is oppose or defended by the respondent.
[8]
One minor child was born out of the marriage between the parties. The
respondent and the minor child left the common household at the end
of August 2017 and are currently renting a house. In terms of
the
Rule 43 Order the respondent has the primary care and residence of
the minor child, with the applicant allowed reasonable exercise
of
rights of contact, whilst both parties retain full parental rights
and responsibilities in respect of the minor child.
[9]
It is said that when the parties met, the respondent was involved in
a
business of her own, offering recruitment services. She went into
another business after the former was closed down, which also
eventually ceased and she is currently unemployed. On the other hand,
the applicant manages and owns a security services business,
under
the name Global Glad Developers CC, trading as Axon Security
(Axon). The applicant shares his residential premises
with Axon's
business operations.
[10]
In April 2017, three months before the Rule 43 Order (on 19 July
2017) and about four months
(around end of August 2017) before the
respondent and minor child vacated the parties' matrimonial home, the
applicant launched
the Rule 43 Application.
[11]
The Rule 43 Order was granted on 19 July 2017. On 28 September 2017,
the applicant deposed
to the affidavit in support of the current
application. This was barely over two months after the Rule 43 Order
was granted and
a month after the respondent (and minor child) left
the joint household. I hasten to point out that, the timing of this
application
and the other dates aforementioned would have a bearing
on the outcome of the relief sought by the applicant.
Applicant's
alleged material change in circumstances
[12]
The applicant states that when the Rule 43 Application was brought,
he was normally paying
for all the respondent's expenses, including
groceries and therefore the respondent did not have any need for
maintenance. The
corollary, the applicant suggests, is that his
financial situation was not addressed for purposes of the Rule 43
Order. Kubushi
J agreed that the respondent did not actually need
maintenance, the applicant, ably assisted by his counsel, submits.
This is obviously
disputed by the respondent. But, I find it
inconceivable that the Court would have held as suggested and still
granted the Rule
43 Order.
[13]
Regarding the alleged material change in circumstances, the
applicant's submissions can
be summarised as follows. Axon
experienced or is experiencing financial problems, which has led to a
steady decline in its income
and the business has actually lost a few
contracts in the last few months to a year. Its gross income fell
from approximately R5.5
million to less than R4.5 million, and
thereby resulting in a loss of about R1 million per month over the
past year (i.e. as at
28 September 2017, being the date of the
founding affidavit). This has had a concomitant effect on the
applicant's income from
the business of Axon, which comprises his
R100 000.00 monthly salary and (as counsel for the applicant
submitted at the hearing)
benefits payable by Axon to the applicant.
[14]
In
motivation of both the decline in the applicant's income and
deterioration of Axon's financial situation, the applicant attached
Axon's bank statements for the months of April to July 2017, to his
papers. Conspicuous by their absence are the applicant's personal
bank statements, which, in my view, points to the absence of full
disclosure (of vital financial information on the part of the
applicant), inherent in proceedings relating to maintenance.
[3]
The
applicant did include, however, his salary advices for the months of
April to July 2017, which confirm his gross income of R100
000.00 and
net income of around R66 000.00, after statutory and other
deductions, have been made. Evidently, the salary advices
and Axon's
statements are for the period when the Rule 43 Order was granted,
save for a few days thereafter towards the end of
July 2017.
Therefore, all this information was available at the time the Rule 43
Order was made and nothing material differs in
both applications, in
this regard. The inclusion of the irrelevant or outdated bank
statements unnecessarily added to the volume
of the papers and
consequently the costs or expenses of the matter.
[4]
This
is impermissible in terms of Rule 43 and the respondent's complaint
was justified in this regard and the Court shall ameliorate
the
situation through an appropriate costs order.
[15]
The question to be considered is whether the decline in the financial
situation of the
business of Axon may serve as a material change in
the financial circumstances of the applicant. The applicant submits
that this
is so, as he derives his only income from the business. I
agree that this may well be so, but the applicant has failed to
establish
this fact. During the hearing, I incessantly enquired from
counsel for the applicant as to why the decline in the income of the
business would automatically and immediately represent a decline in
the income of the applicant. I do not remember getting a satisfactory
answer, save for something along the following lines: the decline in
the income of the business, as the sole source of the income
of the
applicant, represents the decline or deterioration in income o
applicant or has an adverse effect on the applicant's financial
position. Yes, the decline in income of the business may lead to the
inability of the business to afford payment of applicant's
emoluments, just as it would possibly lead to the inability to pay
other debs of the business, as and when they become due. This
would
ordinarily require rationalisation or adjustment of the financial
obligations of the business, but not exclusively of the
applicant's
income. In other words, such a decline would have a bearing on many
relationships and necessarily the applicant's alone.
Such
rationalisation or adjustment may require of applicant (wearing his
proverbial hat, as a manager or member of Axon, and dictated
by his
rational business acumen) to make the necessary cuts in the
expenditure of the business. But, there is nothing in the current
application to confirm that what was paid to the applicant before the
Rule 43 Order, be it by way of salary or benefits, has no
longer been
paid or met by Axon, after the grating 9f the Rule 43 Order.
[16]
The applicant also submitted that the fact that the respondent has
moved from the common
household and is now in a position to supply
"us" (ostensibly the applicant an this Court), with the
current and true
financial position to enable the Court to determine
the nature and extent of maintenance required, represent a material
change
in circumstances. This may well be so, but the applicant did
not proffer any shred of evidence in his founding affidavit as to
what those changes are. This Court grants orders similar to the Rule
43 Order on a basis in which amounts based on estimates are
used. It
would be impossible to dispense justice if any party involved in such
matters would hardly a month thereafter after app
the Court for
variation of the particular order because he or she thinks there has
been a material change in circumstances, without
being able to tell
the Court the nature and extent of the alleged change, which has to
be material. It beckons such party to fathom
(and consequently
establish) what the actual changes are, before embarking on expensive
litigation. Nothing prevented the applicant
in this matter from
firstly trying to establish from the applicant as to what changes
there were after her move from the common
house before instituting an
application with the hope that the respondent will oppose and divulge
such changes in her opposing
affidavit. It ought to be borne in mind
that, the applicant has alleged luxurious lifestyle on the part of
the respondent and by
extension the minor child, but has failed to
establish such. Effectively, the applicant has made a failed attempt
at an impermissible
appeal or rehearing of the Rule 43 Application.
This too justifies the respondent's preliminary objection and shall
be visited
upon with an appropriate costs order.
[17]
Although, the application alludes to change in personal circumstances
regarding the primary
residence of the minor child, there is nothing
suggesting or establishing that the contact regiment set out in the
Rule 43 Order
ought to be tinkered with. Also, nothing forceful, if
anything, came from counsel's oral submissions in this regard.
Therefore,
no need for variation is found to have been established
and consequently none will be ordered. Besides, I consider it logical
that,
the Rule 43 Order was made in anticipation of the moving out of
the common household by the minor child and the respondent.
[18]
,
Therefore, I find that the applicant has failed to establish that
there has been material change in circumstances warranting
interference with the Rule 43 Order. In my view, that the application
was clearly ill-conceived and constitutes abuse of the process
of
this Court,
[5]
is
manifested by the timing thereof, as well as, material contained in
the application. As stated above, the applicant deposed to
the
founding affidavit on 28 September 2017, about a month and half
after the Rule 43 Order was granted, and included substantially
documents pertaining to the period before the granting of the Rule 43
Order. This type of conduct is not what is contemplated by
the rule
and will not be countenanced by the Court.
[6]
It
is prejudicial to the respondent, who, quite beknown to the
applicant, is unemployed and it unnecessarily clogs the court rolls
and dispensing of justice . Therefore, for the reasons stated above,
applicant will be ordered to pay the respondents costs of
application
on a scale of attorney and client.
Respondent's
counter application
[19]
As stated above, the respondent included as part of her answering
affidavit, a counterapplication
seeking the variation of the Rule 43
Order in respect of maintenance payable. She alleged that there has
been material change in
circumstances, significantly due to her (and
the minor child’s) move out of the matrimonial home. It is also
submitted that
the applicant refuses to pay for some of the expenses,
like life policy, pension and legal costs, sanctioned by the Rule 43
Order,
as he believes that the order is wrong
[20]
The respondent has made very specific submissions regarding the
changes in paragraph 45
of her affidavit. Considerable amount of time
was also spent on the items listed therein during the hearing of this
application
. From the applicant's side it was also submitted that,
the respondent deliberately left her own business which was lucrative
and
as a qualified and experienced businesswoman, she should be
making effort to seek employment or new business ventures, instead of
staying home , unemployed. Further, it is also submitted that the
respondent has various assets, including property.
[21]
I have considered the submissions made on behalf of both parties
regarding maintenance
of the respondent and the minor child. In my
view the figures submitted in terms of the counterapplication appear
reasonable ,
but cannot all be allowed in their entirety,
particularly those relating to accommodation; water and lights; DSTV;
internet; domestic
worker; vehicle fuel; groceries and household
expenses, to mention but only just a fi w. I have exercised my
discretion, which
is naturally not based on considerations with
scientific precision, in allowing and reducing some of the expenses.
In my view ,
an appropriate amount for the maintenance of the
respondent and the minor child ought to be in the amount o R88
700.00. This amount
will be substituted for the R80 000.00 in terms
of the Rule 43 Order.
[22]
Apart from the aforementioned amount the applicant will remain liable
for payment of the items
in terms of paragraphs 3 and 5 of the Rule
43 Order. Also, those items forming of the relief sought by the
applicant in the pending
Rule 42 application are not affected by the
order to be made herein, the same being applicable to the remainder
of the Rule 43
Order.
[23]
In arriving at the above conclusion, I have been mindful of the
submissions made by counsel for
the applicant regarding ability to
afford the payments required by the applicant. I am not swayed by the
submissions made on behalf
of the applicant in this regard,
particularly due to non-disclosure of primary evidence in the form of
bank statements by the applicant.
Conclusion
[24]
Therefore, as with her opposition of the application, the respondent
is successful in her counter
application. Costs, on a normal party
and party scale, shall follow this outcome with regard to the counter
application.
Order
[25]
For the abovementioned reasons , the following order is made
pendente
lite:
1.
that,
the issues dealt with in the pending Rule 42 application, brought
under the same case number as appearing above, and directed
towards
the order granted by Kubushi Jon 19 July 2017, are not amended by
this order;
2.
that,
the application based on Rule 43(6) of the Uniform Rules of this
Court brought by the Applicant is dismissed, and the Applicant
is
liable to the Respondent for costs of the application based on a
scale of attorney and client, such costs shall include costs
of the
hearing of the application on 09 and 11 January 2018;
3.
that,
the counter application by the Respondent is granted and the order
granted by Kubushi J on 19 July 2017 is varied as follows:
3.1
that, the monthly amount payable by the Applicant as maintenance in
terms of paragraph 4 of the order, is increased from R80 000.00
to
R88 700.00, and
3.2
that, the first payment payable in terms of varied amount of R88 700.
00 stated in 3.1 hereof, shall be on or before 01 February
2018.
4.
that, the Applicant is liable to the Respondent for costs of the
counter application
based on a scale of party and party, such costs
shall include costs of the hearing of the counter application on 09
and 11 January
2018.
K.
La M. Manamela
Acting
Judge of the High Court 11 January 2018
Appearances:
For
the Applicant
:
Mr E Janse van Rensburg
Instructed
by
:
Baartman & Du Plessis Attorneys
Montana,
Pretoria
For
the Respondent
:
Ms NM Krige
Instructed
by
:
Martini-Patlansky Attorneys
c/o
Friedland Hart Solomon Nicholson
Monument
Park, Pretoria
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 92910/2016
On
the 11
th
day of January 2018
Before
His Lordship Manamela AJ:
In
the application between:
A
M C
P
Applicant
and
I
M
P
Respondent
ORDER
Having
read the papers; after hearing argument on behalf of the parties and
based on the reasons summarised in the written judgment
accompanying
this order, the following order, is made
pendente lite:
1. that,
the issues dealt with in the pending Rule 42 application, brought
under the same case number as appearing above, and directed towards
the order granted by Kubushi Jon 19 July 2017, are not amended
by
this order;
2. that,
the application based on Rule 43(6) of the Uniform Rules of this
Court brought by the Applicant is dismissed, and the Applicant is
liable to the Respondent for costs of the application based on
a
scale of attorney and client, such costs shall include costs of the
hearing of the application on 09 and 11 January 2018;
3. that,
the counter
application by the Respondent is granted and the order
granted by Kubushi J on 19 July 2017 is varied as follows:
3.1
that,
the monthly amount payable by the Applicant as maintenance in terms
of paragraph 4 of the order, is increased from R80 000.00 to
R88
700.00, and
3.2
that,
the first payment payable in terms of varied amount of R88 700. 00
stated in 3.1 hereof, shall be on or before 01 February 2018.
4. that,
the Applicant is liable to the Respondent for costs of the counter
application based on a scale of party and party, such costs shall
include costs of the hearing of the counter application on 09
and 11
January 2018.
BY
ORDER
[1]
Rule 43(6) reads in the material
part: "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... "
[2]
There was a dispute or confusion
regarding the case numbers to the Rule 43 Order and this application
, but ultimately counsel
for the applicant pointed out that both
ought to share the same case number as cited abo .
[3]
See
Buch
v
Buch
1967
(3) SA 83 (T).
[4]
See
Andrade
v
Andrade
1982
(4) SA 854
(O);
Visser
v
Visser
1992 (4) SA 530 (SE).
[5]
See
Nienaber
v Nienaber
1980 (2)
SA 803 (O).
[6]
See
Visser
v Visser
1992 (4) SA
53
(O).