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[2018] ZAGPPHC 501
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N.E v G.E (53648/2017) [2018] ZAGPPHC 501 (20 March 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NUMBER: 53648/2017
20/3/2018
In
the matter between:
N
E
APPLICANT
and
G
E
RESPONDENT
JUDGMENT
HATTINGH
AJ
[1].
This is a rule 43 application for maintenance
pendente lite.
[2].
The parties were married to each other on 27 August 1994 at
Krugersdorp, out of community
of property and the marriage
relationship still subsists.
[3].
One minor child was born from the marriage being a daughter named K M
E, who was born on
21 July 2000 and is to be a Grade 12 scholar at De
La Salle Holy Cross College, Victory Parl.
[4].
The marriage relationship between the parties has broken down
irretrievably and no reasonable
prospect of the restoration of a
normal marriage relationship between them exists. This is common
cause.
[5].
The applicant commenced with a divorce action against the respondent
out of this court
under case number: 53648/17 during August 2017 and
claimed, inter alia, the following relief:
5.1.
A
decree of divorce;
5.2.
That
an order be made in terms whereof the respondent and applicant retain
their full parental responsibilities and rights in respect
of the
minor child, subject to the minor child primarily resides with the
applicant subject to reasonable contact with the respondent.
5.3.
The
respondent contributes towards the maintenance of the minor child by
making payment of R15,000.00 (Fifteen Thousand rand) per
month and
retaining the child on a medical aid scheme and paying all the
medical shortfalls, and by making payment of all educational
expenses
pertaining to the minor child.
5.4.
That
the respondent maintain the applicant by making payment to her of a
sum of R60,000.00 (Sixty Thousand Rand) per month and that
the
respondent retain her on his medical aid scheme and pay all
reasonable medical expenses incurred by her which are not covered
by
the medical aid scheme.
5.5.
That
the respondent be ordered to make payment to the applicant of an
amount equal to half of the difference between the accrual
in their
respective estates.
[6].
The respondent defended the action and instituted a counterclaim
wherein he claims:
6.1.
A
decree of divorce;
6.2.
That
both parties retain full parental responsibilities and rights in
respect of their child subject to the minor child residing
primarily
with the applicant and the respondent having reasonable contact.
6.3.
An
order that the accrual in their respective estates be determined and
that the respondent make payment to the applicant of an
amount equal
to one half of the difference between the accrual of their respective
estates.
6.4.
That the respondent pay maintenance to
the minor child in the amount of R10,000.00 (Ten Thousand Rand) per
month, all educational
expenses and medical costs.
[7].
The following is common cause:
7.1.
Both
parties are presently residing in the same house albeit in separate
rooms.
7.2.
The
applicant is presently in possession of a Standard Bank Credit Card
linked to the account of the respondent. The abovementioned
credit
card has a limit of R25,000.00 (Twenty Five Thousand Rand) on it.
7.3.
The
applicant received on her version at least R820,000.00(Eight Hundred
and Twenty Thousand Rand) worth of unit trusts from the
respondent
during 2014 and that such investment grew to R1,500,000.00 (One
Million Five Hundred Thousand) in value.
7.4.
Out
of the abovementioned investment the applicant purchased a townhouse,
[….] which her parents reside. The applicant's
parents
apparently reside in the town house for free.
7.5.
The
applicant and her sister commenced an estate agency business named
Lifestyle Estates. It is furthermore clear from the financial
statements of the business that it does generate some income.
7.6.
The
respondent deposits an additional amount of R10,000.00 (Ten Thousand
Rand) per month into the applicant's bank account.
[8].
It cannot de disputed that the family is used to a high standard of
living.
[9].
On the respondent's own version his estate is in the region of
R35,000,000.00 (Thirty Five
Million Rand) to R27,000,0000.00(Twenty
Seven Million Rand) and his income fluctuates between R190,000.00
(One Hundred and Ninety
Thousand Rand) nett to R700,000.00(Seven
Hundred Thousand rand) nett during the course of 2017. The respondent
earned a gross amount
of R9,094,609.00(Nine Million and Ninety Four
Thousand Six Hundred and Nine Rand) over the period 1 March 2016 to
28 February 2017,
which amounts to a nett annual payment of
R4,410,409.00 (Four Million Four Hundred and Ten Thousand Four
Hundred and Nine Rand)
and a monthly average of R367,500.00 (Three
Hundred and Sixty Seven Thousand Five Hundred Rand) nett before
payment of expenses.
The respondent place his monthly expenses at
approximately R178,000.00 (One Hundred and Seventy Eight Thousand
Rand) per month.
[10]. The
applicant list in her affidavit under paragraph 21 the fair,
reasonable, necessary monthly needs and
expenses. There are certain
expenses that clearly are excessive. To name some:
10.1.
Body
and skin treatment, facials etc. for herself and their daughter of
R2,500.00(Two Thousand Five Hundred Rand) per month;
10.2.
Clothing
and shoes for herself and their daughter of R5,000.00 (Five Thousand
Rand) per month;
10.3.
Holidays
at R6,000.00 (Six Thousand Rand) per month. This is clearly opulent
taking into account that the applicant have full excess
to a holiday
home in Balito.
[11]. It is
clear from the papers that the applicant seeks payment of an amount
of R47,830.00 (Forty Seven Thousand
Eight Hundred and Thirty Rand)
per month whilst the respondent states that R18,000.00(Eighteen
Thousand Rand) should be enough.
[12]. The
respondent contributes presently the following towards the applicant:
12.1.
Credit card with limit of
R25,000.00 (Twenty Five Thousand Rand)
12.2.
Payment into the applicant's
account
of
R10,000.00(Ten Thousand Rand);
12.3.
Payment directly to the daughter
of
R10,000.00 (Ten Thousand Rand)
TOTAL AMOUNT
R45,000.00 (Forty Five Thousand Rand)
[13]. The object
of the rule is that application brought in terms of rule 43 should be
dealt with as inexpensively
and expeditiously as possible, prolixity
in averments and the unnecessary proliferation of papers and
affidavits should be avoided.
[14]. It is
stated in Erasmus, Superior Court Practice, Second Edition, Van
Loggerenberg, Volume 2 page 01-580
that:
"Each case decided
under this subrule must depend upon its own particular facts: There
are, however, certain basic principles
which govern application under
this subrule. Maintenance pendent lite is intended to be interim and
temporary and cannot be determined
with the same degree of precision
as would be possible in a trial where detailed evidence is adduced.
The applicant is entitled
to reasonable maintenance pendent lite
dependent on the marital standard of living of the parties, the
applicant's actual and reasonable
requirements and the capacity of
the respondent to meet such requirements which are normally met from
income..."
and
"It has been said that
a claim supported by reasonable and moderate details carries more
weight than one which includes extravagant
or extortionate demands.
Similarly, more weight will be attached to the affidavit of a
respondent who evinces a willingness to
implement his lawful
obligations than that of one
who is seeking to
evade them."
[15]. As was
said by Ludorf J, in the case of
Levin v Levin and Another
1962
(3) SA 330
(W) at 331
D:
"'To decide the issue I
am compelled to draw inferences and to look to the probabilities as
they emerge from the papers. Obviously
my findings are in no way
binding on the trial Court and indeed after hearing the evidence it
may emerge that some or all of the
inferences I have drawn are wrong.
On this basis I now turn to the issues
as
they
emerge from the papers.'
I say with respect that I
agree entirely with these remarks which are most appropriate in the
present matter.
The applicant spouse (who is
normally the wife) is entitled to reasonable maintenance pendent lite
dependent upon the marital standard
of living of the parties, her
actual and reasonable requirements and the capacity of her husband to
meet such requirements which
are normally met from income although in
some circumstances inroads on capital may be justified. I have found
nothing however in
the decisions to which I have been referred which
justify in such maintenance the inclusion of extraordinary or
luxurious expenditure
even in the case, for example, of Glazer v
Glazer
1959 (3) SA 928
(W), where the husband is described by
Williamson, J (as he then was),
as
being
'very wealthy' or 'very rich'. The quantum of maintenance payable
must in the final result depend upon a reasonable interpretation
of
the summarised facts contained in the founding and answering
affidavits as indeed is contemplated and intended by rule 43. It
is
also in my view helpful to take cognisance of the approach made in
the affidavits by the applicant and the respondent respectively,
bearing in mind that normally it is not the practice in these matters
(although permissible) to test the evidence viva voce.,,
[16]. It is
clear from the facts above that the plaintiff also asks for
R20,000.00 (Twenty Thousand Rand) contribution
as an initial
contribution towards her legal costs.
[17]. The claim
for a contribution towards costs in a matrimonial suit is
sui
generis.
Its basis is the duty of support the spouses owe each
other.
[18]. It is
further stated in Erasmus Superior Court Practice, Second Edition van
Loggerenberg, Volume 2, page
01 - 580 that:
"An application for a
contribution towards costs must show that, if she is the plaintiff in
the main action, that she has a
prima facie case; if she is the
defendant, that she is defending in good faith. The applicant must
further show that she has insufficient
means of her own."
[19]. The sum to
be contributed is determined by the court's view of the amount
necessary for the applicant adequately
to put her case before the
court. The applicant is not entitled to all her anticipated costs,
even though the respondent can well
afford to pay them, but only a
substantial contribution towards them. The emphasis in obtaining a
contribution on this basis is
premised on the following:
19.1.
The
fees so payable have to be reasonable and as ordinarily payable as
between an attorney and his own client;
19.2.
Not
all the fees payable on the criteria set out in 19.1 should be
granted in advance in an application under rule 43 and the attorney
should bear some risk with regards to his fees; and
19.3.
The
fees set out in 19.1 are those that are necessary and as would be
adequate for the applicant to prepare for and conduct her
pending
litigation.
[20]. Attention
should also be drawn to the matter of Glazer v Glazer 1959 (3) SA 928
(W):
"The scale upon which she is
entitled to litigation in my view is a scale commensurate also with
the means of the parties.
People in this position are not expected to
litigate upon the basis that they have to watch every penny that is
spent on litigation.
Litigation can be conducted luxuriously or
economically. I do not say that she is entitled to every luxurious
expense in litigation,
but she is entitled to litigate upon the basis
you would expect rich people to litigate. She is the wife of a rich
man who is obviously
going to litigate against her on a luxurious
basis. In this comparatively simple preliminary application he has
appeared through
senior counsel and junior counsel. I think she is
entitled to litigate upon somewhat the same sort of scale as that
upon which
he can be expected to litigate. I do not think, on papers,
that it is going to be a simple action. There are obviously very
difficult
questions of fact to be decided in the sense that there is
bitter opposition to her action and bitter counter-a/legations by
him,
equally strenuously denied by her. Obviously, if the matter be
not settled, it would be a heavily disputed action required
experienced
legal skill for its proper preparation and presentation.
If he is to employ the best possible legal assistance obtained by
means
of his wealth, she is entitled to be assisted upon a somewhat
similar scale. I think that at this stage she is entitled to quite
a
considerable contribution towards her costs."
[21]. It is in
the final analyses clear that the applicant does have a capital base
from which she can augment
her own maintenance. If regard is taken to
the financial statements pertaining to the applicant’s business
it seems clear
that the business also generate some income albeit on
her version a very small amount.
[22]. Having
heard counsel and having read the papers it is ordered,
pendente
lite:
22.1.
That the parties retain parental
rights and responsibilities in respect of the minor child born from
their marriage;
22.2.
That the Respondent contribute
towards the maintenance of the minor child and the applicant as
follows:
22.2.1.
By
making timeous due payment of the following expenses, directly to the
service providers:
(i)
Accommodation
at 132 Senior Drive, Northcliff, Johannesburg, Gauteng Province;
(ii)
Water
and electricity;
(iii)
Domestic Worker;
(iv)
Gardners;
(v)
Ballito
domestic;
(vi)
DSTV
premiums;
(vii)
Medical Aid premiums (Bankmed);
(viii)
School expenses;
(ix)
Medical expenses and shortfalls,
including pharmacy;
(x)
BMW
X3 motor vehicle payments, including insurance and maintenance;
(xi)
Car tracker;
(xii)
License;
(xiii)
Internet access.
22.2.2. By making
payment to the applicant of a sum of R400,00. 00 (Forty Thousand
rand) per month, on or before
the first day of every month. The
abovementioned amount shall include the credit card amount of
R25,000.00 (Twenty Five Thousand
rand) and a cash payment of
R10,000.00 (Ten Thousand rand) per month into the applicant's
account.
22.2.3. By
retaining the applicant and the minor child, at his costs, as
dependents on his current medical scheme,
or a scheme with analogous
benefits, and by paying the monthly premiums (and any escalations)
timeously and on due date and by
bearing the costs of all reasonable
expenditure in respect of medical, dental surgical hospital,
orthodontic and ophthalmological
treatments needed by the applicant
and the child not covered by the medical aid scheme, including any
sums payable to a physiotherapist,
occupational therapists, speech
therapist, psychiatrist, psychologist and chiropractor, the costs of
medication and the provision,
where necessary, of spectacles.
22.2.4 By
effecting payment of the child's educational costs, such costs to
include, without limiting the
generality of the aforegoing, all
secondary and
tertiary
fees, additional tuition fees, the
costs of extracurricular school and sporting activities and the costs
of all extramural activities
in which the child participates, as well
as the costs of all books, stationary, school uniforms, equipment and
attire relating
to the child's education and her sporting and/or
extramural activities.
22.3.
That
the respondent be ordered to make an initial contribution towards the
applicant's legal costs in a sum of R20,000.00(Twenty
Thousand Rand);
22.4.
That
costs hereof be costs in the divorce action.
HATTINGH
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA