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[2018] ZAGPJHC 535
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C v C (13116/13) [2018] ZAGPJHC 535 (10 September 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
no: 13116/13
In
the matter between:
A
C
Applicant
and
J
C
Respondent
Case
Summary:
Costs
– Divorce Action – Settled, apart from the costs of the
divorce action - General rule is that costs follow the
event –
but court is not bound to make an order for costs in favour of the
successful party in a divorce action –
s 10
of the
Divorce Act
70 of 1979
provides that the court shall not be bound to make an
order for costs in favour of the successful party, but the court may,
having
regard to the means of the parties, and their conduct in so
far as it may be relevant, make such order as it considers just, and
the court may order that the costs of the proceedings be apportioned
between the parties.
Rule
that when a case has been settled and the costs have still to be
decided, the court must do its best with the material at its
disposal
to make a fair allocation of costs employing such legal principles as
are applicable to the situation, applied.
Husband
ordered to pay 50% of wife’s costs of the divorce action.
JUDGMENT
MEYER
J
[1]
The applicant, Ms A C, seeks the costs of the divorce action between
her and the respondent, Mr J C, which was settled just
before the
trial in the action was due to commence.
[2]
Mr and Ms C were married to each other on 6 April 2002, out of
community of property and with the exclusion of the accrual system.
Three minor children were born from their marriage. During
2013, Mr C instituted the divorce action against Ms C, which forms
the subject-matter of this application for costs. Therein, he,
inter alia
claimed a decree of divorce, joint parental
responsibilities and rights and primary residency of the minor
children, subject to
reasonable contact between Ms C and the
children. Ms C filed a plea and counterclaim. Therein,
she,
inter alia
claimed primary residence of the minor
children, subject to reasonable contact between Mr C and the
children, maintenance for the
minor children, rehabilitative
maintenance for herself and a declaration that a universal
partnership existed between her and Mr
C, a dissolution thereof, and
the appointment of a receiver and liquidator.
[3]
The divorce action was ultimately enrolled for trial on 19 October
2016. On that day the matter was not allocated to a
judge for
hearing and stood down to the next day. On 20 October 2016 at
about 09:30, just prior to the commencement of the
calling of the
trial roll by the Deputy Judge President of this division, Mr C
agreed to an order declaring that a universal partnership
existed
between him and Ms C, to its dissolution and the appointment of a
receiver and liquidator. The issue of a universal
partnership
seems to have been the biggest bone of contention between them.
Once that issue had been finally resolved, the
matter was not
allocated to a judge for trial and Mojapelo DJP made an order
dissolving their marriage. Both parties were
awarded joint
responsibilities and rights in respect of the minor children.
The primary residency of the minor children was
awarded to Ms C
subject to contact as defined in the order between Mr C and the
children. Mr C was ordered to pay maintenance
for the minor
children in the sum of R5000 per month per child (R15 000)
subject to annual escalation of 7%, to retain them
on a medical aid
scheme and to pay half of their reasonable excess medical expenses.
The order specifically provides that
either party ‘shall be
entitled to approach the Maintenance Court for an increase or
decrease of the aforesaid maintenance
awards without having to prove
a change in circumstances’. A declaration was made that a
universal partnership in equal
shares existed between Mr and Ms C
during the period July 2002 to the date of divorce, the partnership
was dissolved and the order
provides for the appointment of a
receiver and liquidator with the authority to realise all of the
universal partnership assets.
As to costs of the divorce
action, it was ordered that:
‘
The costs
are reserved, and either party has the right to approach the motion
court to have the costs adjudicated.’
[4]
The general rule, it is trite, is that costs follow the event.
A court, however, is not bound to make an order for costs
in favour
of the successful party in a divorce action.
Section 10
of the
Divorce Act 70 of 1979
provides as follows:
‘
In a divorce
action the court shall not be bound to make an order for costs in
favour of the successful party, but the court may,
having regard to
the means of the parties, and their conduct in so far as it may be
relevant, make such order as it considers just,
and the court may
order that the costs of the proceedings be apportioned between the
parties.’
[5]
A decision on the merits of the respective claims of Mr and Ms C in
the divorce action is no longer required. The matter
was
settled. In such an instance the decision as to costs should,
however, generally not be reached in total isolation from
considerations linked to the merits. A court must then make a
proper allocation of costs with the material at its disposal.
In
Jenkins v SA Boiler Makers, Iron & Steel Workers and Ship
Builders Society
1946 WLD 15
at 17-18, Price J said the
following:
‘
It seems to
me to be against all principle for the Court’s time to be taken
up for several days in the hearing of a case in
respect of which the
merits have been disposed of by the acceptance of an offer, in order
to decide questions of costs only.
If a plaintiff were to sue
for nullity of marriage and alternatively for divorce and were to
succeed in his first claim, it would
follow that no judgment would be
given in respect of the second claim. In such a case I do not
think that the Court would
decide the costs of the alternative claim
on the grounds that the evidence showed that if the plaintiff had not
succeeded in the
first claim, he would have succeeded in the
alternative claim. Such a decision ought to have been based on
much broader grounds.
In an action for transfer, alternatively
for damages if no transfer be passed within a given time, if the
defendant were to give
transfer before trial, I cannot imagine that a
Court allowing the alternative claim to be set down for hearing to
see who would
have won in order to determine the question of costs on
that issue. Academic success in respect of alternative claims
in
such cases would not necessarily carry costs. I cannot
imagine a more futile form of procedure than one which would require
Courts of law to sit for hours, days, or perhaps even for weeks,
trying dead issues to discover who would have won in order to
determine questions of costs, where cases have been settled by the
main claims being conceded. If the Court were eventually
to
say, that it awarded costs to a particular party because on the
evidence that party would have won on that issue, would the
disappointed party then be entitled to appeal in order to upset the
decision as to who would have won the dead issue that has been
tries? This must necessarily follow if Mr.
Kuper’s
application
is entitled to succeed. When a case has been disposed of by an
offer which concedes the main claim and the costs
of the whole case
have still to be decided, I think the Court must do its best with the
material at its disposal to make a fair
allocation of costs,
employing such legal principles as are applicable to the situation.
This is much preferred to laying
down a principle which requires
courts to investigate dead issues to see who would have won on such
issues. In most such
cases litigants would be required to incur
far greater costs than those at stake.’
[6] An enquiry into the
merits of the case is not possible. Very little information
regarding the merits was placed before
me. In terms of the
order, however, it seems to me that Ms C enjoyed the greater success
in the divorce action. The
only claim in which she achieved no
success was the one for rehabilitative maintenance for herself.
Her claim for payment
of R300 000 was in the alternative to her
claim for a declaration that a universal partnership existed between
Mr C and herself,
the dissolution thereof and for the appointment of
a receiver and liquidator.
[7]
The parties held a without prejudice round table meeting on 5 August
2016. Proposals were made and it appears to me that
since that
meeting the divorce action came close to settlement along the same
lines as those included in the order that was ultimately
granted by
Mojapelo DJP on 20 October 2016. What stood in the way of an
earlier settlement of the divorce action, so it appears
to me, was
that both parties required a settlement of all the issues.
(Regrettably, the court order to which they ultimately
agreed, also
did not achieve that.) In a letter dated 30 September 2016 -
when it appeared to Mr C’s attorney that
the divorce action was
no longer capable of settlement, and in response to a letter from Ms
C’s attorney to the effect that
the matter was not ripe for
hearing and should be removed from the trial roll – Mr C’s
attorney, with regard to the
relief relating to the universal
partnership, states that his client-
‘
.
. . i
n
n laaste en slegs in ‘n poging om die aksie finaal te probeer
skik, bereidwillig was om u klient se eis met betrekking tot
haar
bewering dat daar n universele vennootskap tussen haar en my klient
tot stand gekom het, te aanvaar en toe te stem dat die
regshulp deur
u klient in haar teeneis hieromtrent versoek, n bevel van die hof te
laat maak.’
[8]
Mr C contends that the divorce action did not settle at an earlier
stage before the trial date, because Ms C kept on shifting
the
goal-posts as far as the issue of the universal partnership was
concerned. He is of the view that the assets of the universal
partnership are not of significant value. However, once he had
indicated on 5 August 2016 that he might concede the claim
regarding
the universal partnership, Ms C indicated that she would settle the
action provided he pays her R2,5 million for her
equal share in the
universal partnership. He considered her proposal ‘…nie
net verregaande nie, maar om die
minste daarvan te sê,
oppertunisties’. Once he had rejected her proposal for
payment of R2,5 million, Ms C insisted
that the assets held by a
certain Jack Family Trust form part of the assets of the universal
partnership. Indeed, I am informed
from the bar, that that
issue was debated by the parties when the matter stood down on 19
October 2016. Mr C, on the other
hand, denies that the assets
held by the Jack Family Trust form part of the assets of the
partnership. When he, on 20 October
2016, agreed to an order
declaring that a universal partnership existed between him and Ms C
and to an order dissolving the universal
partnership and for the
appointment of a receiver and liquidator to realise its assets, Ms C
insisted that the following
proviso be included in the court
order, and it was so included:
‘
With the
proviso that the defendant is entitled to apply for the joinder of
the Jack Family Trust to ascertain whether assets held
by the Jack
Family Trust are assets of the partnership.’
[9] I must say that the
proviso seems senseless to me. A receiver and liquidator will
be enjoined to investigate Ms C’s
claim whether the assets held
by the Jack Family Trust indeed form part of the assets of the
universal partnership, and, if so,
take the necessary steps to take
control of and to realise such assets. However, I do not
believe that Mr C’s criticism
that Ms C kept on shifting the
goal-posts as far as the issue of the universal partnership was
concerned, is a factor that adversely
reflects on her conduct in the
divorce action. Both parties were desirous to settle all the
issues, but regrettably, that
did not happen. In the result, Ms
C needed to institute maintenance proceedings in the Maintenance
Court, which, I am told
from the bar, were settled. She was
also compelled to institute an application in this court for the
appointment of a receiver
and liquidator, because the parties could
not agree on the identity of the liquidator and receiver nor on all
his or her powers.
That application is still to be heard.
Then she needed to institute this application for a determination of
the costs of
the divorced action that were reserved.
[10]
Furthermore, on the evidence presented in this application it seems
to me that both parties tried to act in the best interests
of their
minor children. Since the meeting on 5 August 2016, Mr C only
insisted that the primary residence of their minor
son be awarded to
him, because that was the son’s express wish. The parties
agreed to an evaluation of the minor children
by a psychologist in
order to advise them what would be in the best interests of the
children, but the report was not yet furnished
by the time of the
trial. In this regard Mr C’s attorney, in his letter
dated 30 September 2016, addressed to Ms C’s
attorney, states:
‘
Wat die
kwessie rondom die primêre residensie van die minderjarige
kinders aanbetref en soos reeds aan u meegedeel op 5 Augustus
2016,
het ek my kliënt geadviseer om nie op hierdie stadium van die
verrigtinge te volhard met sy eis met betrekking tot primêre
residensie van die minderjarige kinders nie, gesien teen die
agtergrond van die gesinsadvokaat en familie berader se verslae en
die feit dat daar op hierdie stadium geen verslag ter hand is wat
teenstrydig is met bogemelde verslae nie.’
[11]
I now turn to the means of the parties. Ms C states that she
has not been financially able to fund the litigation and
has borrowed
monies from her father, a 70 year old pensioner. She states
that she is self-employed as a beautician and earns
approximately
R8 000 to R10 000 per month. In addition she receives
the maintenance payment from Mr C for the minor
children. She
states that she is presently indebted to her father in excess of
R300 000 of which the legal fees amounted
to approximately
R200 000. Mr C, in his answering affidavit, denies that
the applicant only earns an income as a beautician.
In this
regard he states:
‘
On her own
admission (which was only made shortly before trial), she also works
for an attorney, doing office work. The applicant
has however
never disclosed proper information or documents from which I could
determine what her total monthly income is.’
Ms
C’s reply to that averment of Mr C is this:
‘
As per the
application before the maintenance court, my earnings are clear and
evident.’
And:
‘
As stated
before, my earnings are quite evident from my bank statements
discovered prior to the trial.’
I accept, therefore, that
Ms C does not only earn an income as a beautician, but that she also
works for an attorney, doing office
work. But, I think it can
be safely accepted that if her bank statements or the evidence placed
before the maintenance court
reflected an income significantly higher
than that alleged in her founding affidavit, Mr C would have made the
point in his answering
affidavit.
[12] He is a farmer and
he and his father are partners in the ‘C Boerdery
Vennootskap’. Mr C is the managing partner;
his father is
retired. His gross monthly income, he states, is R25 530.00.
He further lives in a house on the
farm, his electricity consumption
is paid for by the partnership, he receives meat and dairy for his
personal use and he uses a
vehicle that is owned by the business.
The vehicle which he uses, I pause to mention, is a luxury Range
Rover Sport, and
a few weeks before Ms C deposed to her replying
affidavit in these proceedings, on 22 June 2017, she alleges that he
went on a
vacation to Italy with his new wife. Mr C states that
his parents assist him with certain expenses due to the fact that he
has insufficient funds. His legal costs, excluding the costs of
this application and the application for the appointment
of a
liquidator, amounted to R439 988.15. He states that he too
was not financially able to fund the litigation.
I was funded
by means of a loan of R80 000 from the C Boerdery Vennootskap, and
the balance by means of a loan from his mother
and from utilizing his
credit card account for the purpose. It is clear on the
evidence presented in this application that
Mr C’s means are
more substantial than those of Ms C.
[13] Doing the best with
the material at my disposal and employing the legal principles
applicable to this situation, and in particular
in having regard to
all the circumstances, including the means of the parties and their
conduct insofar as it is relevant, I consider
it fair and just for Mr
C to pay 50% of Ms C’s costs of the divorce action.
[14]
In the result the following order is made:
(a)
The
respondent is to pay 50% of the applicant’s costs of the
divorce action.
(b)
The
respondent is to pay the applicant’s costs of this application.
________________________________
P.A. MEYER
JUDGE OF THE HIGH
COURT
Date
of hearing: 4 September 2018
Date
of judgment: 10 September 2018
Counsel
for the Applicant: Adv N Strathern
Instructed
by: Barry Sim Attorneys, Randburg
Counsel
for the Respondent: Adv I Vermaak-Hay
Instructed
by: EAL Muller Attorneys c/o Muller Voigt Attorneys, Blackheath