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[2018] ZAGPPHC 352
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O.A.J v K.J (67591 / 2013) [2018] ZAGPPHC 352 (19 March 2018)
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IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
[REPUBLIC OF
SOUTH AFRICA]
CASE NUMBER:
67591 / 2013
9/3/2018
In
the matter between:
O
A
J
APPELLANT
And
K
J
RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1] This
is an application by the defendant for a contribution towards her
costs
in an action between her and her husband, which is presently
pending before this Court and which was set down to be commenced on
28 August 2015, just about 3 days prior to this application. .
[2] It
is common cause that the husband, an attorney of this Court, is in a
much
stronger financial position than the applicant, who was in the
employ as a secretary of the respondent. The applicant in May 2015
approached this Court for and was granted an order for maintenance
pendent lite,
in an amount of R200, 000. 00 in terms of rule
43. She now approached this Court for contributions towards her legal
cost in an
amount of R600, 000. 00 in terms of rule 43(6).
[3] In
as much as the respondent, as the husband of the applicant has a duty
to support
and maintain his wife, this duty includes the liability to
contribute towards reasonable costs of legal proceedings by or
against
her. The purpose of rule 43 (6) is to level the litigation
playing field of the respective parties, placing them at the same
financial
position to engage in the dual as equals.
[4] The
application is highly contested. The respondent contending,
inter
alia,
that in principle, he is not averse to contributing towards
the cost of the applicant. He however contends that the parties are
married with an accrual system, in terms of which at the commencement
of the marriage, each party has a zero per cent in his or
her
account, and 50% each in the subsequent estate generated by virtue of
both parties, irrespective of the extent to which each
contributed. I
agree with the submission, on behalf of the respondent that the
cut-of- point of this unique system comes to an
end either at the
commencement of divorce litigation or at the pronouncement of
divorce. This requires that a complete severance
of the respective
parties' interest in the accrual be pronounced before the
determination of their respective 50% interest. It
-is common cause
that the respondent is involved in a relationship with another woman.
It is common cause that he has moved out
of the matrimonial home in
2013. He contended and exalted the applicant to agree to a speedy
divorce, subject to the determination
of the respective parties' 50%
interest. The applicant resist this approach contending, that there
would be no benefit to her in
adopting this approach, insisting that
an all-embracing finalisation of the divorce be proceeded with,
irrespective how long it
takes. The applicant's stance, is in my
view, unreasonable but calculated to delay the finalization of the
divorce and extort as
much as she wants from the respondent. This
should not be countenanced.
[5]
As pointed out earlier these proceedings were brought 3 days away
from the date on
which the divorce was set down for hearing. This
Court was informed that the matter is not trial-ready and will
invariably be postponed,
for one or other of the following reasons:
The respondent will apply for a separation in terms of rule 33(4),
that the divorce
be separated from the determination of the accrual
interest of the respective' p arties, the latter to be postponed
sine
die.
On the other hand the applicant too will apply for the
matter to be postponed
sine die
because of late discovery on
the part of the respondent.
[6]
A
trial date was allocated for the main matter. It turns out that the
applicant intended to apply for postponement. It can only
mean that
the matter is not trial ready. The applicant must satisfy the Court
that there were changed circumstances warranting
that a contribution
towards cost be brought three days from the date of trial. She must
also provide cogent reasons why such relief
was not sought during the
application for maintenance
pended
lit e; vide Greenspan v Greenspan.
[1]
This Court is not
satisfied that there are changed circumstances from the date when the
initial application was brought, to the
stage when this application
for contribution towards legal costs was brought. Besides , the
applicant during the application for
maintenance
pedente
lite,
was
awarded an amount of R200 , 000. 00 which, in my view, was a
substantial amount, from which she could also have met her legal
costs. In the premises I am disinclined to exercise my discretion in
her favour to order· a contribution towards her legal
costs.
[7]
In
the matter of
Ex
Parte Burger and Another
[2]
it was held that:
The accrual system was introduced in chap I of the Act. It was
something completely new, which had no counterpart
in the common law.
Section 2 of the Act provides that every marriage out of community of
property which was concluded after the
commencement of the Act is
subject to the accrual system. In terms of the Act a claim by one
spouse against the other or the latter
's estate in respect of an
accrual arises only on the dissolution of the marriage.
[8] The
approach contended for by the respondent is, in my view, pragmatic.
It serves
no purpose to retain the umbilical matrimonial strings
intact, when for all practical purposes the quintessence of matrimony
is
non-existent. It is open for abuse and to frustrate the other
party from walking away to start,
in casu
the respondent , his
new life, while the other party,
in casu
the applicant merely
enjoys the financial toil and sweat of the other respondent, after
the quintessence of the marriage has evaporated
to thin air. This
might engender resentment on the other party who might feel
frustrated and being held to be a cash comfort zone
when he no longer
enjoys the warmth and benefits of the marriage.
[9] The
parties are
ad idem
that the respondent's legal practice has
been a golden-laying egg to the parties. It would take some time to
determine its actual
value for purposes of making a clean severance
of the parties ' matrimonial consequences. In my view, once the
parties are divorced,
there would be greater urgency and co-operation
in embarking on resolving the determination of the accrual benefits
of each party.
[10] In
the premises, the application in terms of rule 43(6) is dismissed
with costs.
N.M. MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT
:
09/03/2018
APPLICANT'S
ADV
: ADV
DAVE SMITH.
INSTRUCTED
BY
:
SCHOEMAN ATTORNEYS
RESPONDENT'S
ADV
:
ADV K
JOUBERT
INSTRUCTED
BY
: ADAMS &
ADAMS.
[1]
2001 (4) SA 330
(CPD) at 335H-336D.
[2]
1965 (1) S A 140
(D& CLD)