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[2018] ZAECELLC 2
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P.P.T (N.M) v P.W.T (ECD2182/17, EL882/2017) [2018] ZAECELLC 2 (17 May 2018)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
Case No: ECD 2182/17
EL882/2017
REPORTABLE
In
the matter between:
P.
P. T. (N. M.)
Applicant
and
P.
W. T.
Respondent
JUDGMENT
TOKOTA
J
[1]
On 19 October 1990 the applicant and the respondent were married to
each other out of community of property in terms of the
provisions of
the Transkei Marriage Act No. 21 of 1978 and such marriage still
subsists. Three sons were born out of the marriage,
namely; S. V.
born on [...] 1992, L. M. born on [...] 1994 and O. M. born on [...]
1998. All of them are no longer minors, the
eldest being 26 years old
and the youngest 19 years old. S. and L. have completed their
tertiary education and are queuing in the
open labour market looking
for employment. O. is still pursuing his studies at the University of
the Western Cape.
[2]
During 2009 the respondent instituted divorce proceedings against the
applicant but later withdrew the action. Again during
March 2016 the
respondent instituted the present pending divorce proceedings against
the applicant. It is common cause between
the parties that the
marriage has irretrievably broken down and that there are no
reasonable prospects of a restoration of a normal
marriage. The
parties have not lived together as husband and wife for approximately
more than ten years. The divorce action is
pending before this Court.
[3]
The applicant has now brought an application in terms of Rule 43 of
the Uniform Rules of Court seeking an interim order,
pendente
lite,
for the following relief:
“
(a)
That the Respondent effect the payment of maintenance pendente lite
for the Applicant in the sum of R10 000.00
per month;
(b)
That the Respondent retain the children on his medical aid, attend to
the payment of the premiums payable
in respect of their membership on
his medical aid and all reasonable and necessary medical expenses
incurred which are not covered
by the Respondent ‘s medical
aid;
(c)
That the Respondent effect payment of O.’s tertiary fees and
related expenses at the University
of the Western Cape;
(d)
That the Respondent effect payment of the bond, rates and services in
Ripplemead Road, Nahoon Valley
Park, East London;
(e)
That the Respondent effect a contribution of R14 850.00 to the
Applicant towards the repairs to
the Corsa motor vehicle, within a
period of 5 days of this order being made;
(f)
That the Respondent effect a contribution towards the Applicant’s
legal costs in the sum
of R70 000 (SEVENTY THOUSAND RAND)
(g)
Costs in the cause.”
Pursuant
to the debate we had with Counsel representing the applicant during
the hearing of the matter prayers (b) to (e) were abandoned.
I
am now only required to determine the issues relating to prayers (a)
and (f).
[4]
In order to put matters in proper perspective and to determine
whether the remaining relief sought is justifiable in the
circumstances
of this case it is necessary to give a brief historical
background relating to personal circumstances of each party as
appears
from the papers.
[5]
The applicant is gainfully employed by the Department of Education in
the Eastern Cape Province and occupies a position of a
Principal at
JJ Njeza High School, Centane district. Her basic salary is
R35 580.50 and receives a net salary of R22 794.62.
The
respondent is a Judge in this Division and earns a gross salary of
R153 339.32 and receives a net salary of R72 522.41.
[6]
The respondent owns two properties. One is situated at Ripplemead
Road, Nahoon Valley Park, East London and the other is at
Unit [...]
K. G., Port Elizabeth. Both properties are burdened with mortgage
bonds which are serviced by the respondent. The respondent
is living
in the property situated in Port Elizabeth.
[7]
The applicant lives in a flat which she is renting in Butterworth
where she stays during the week and commutes everyday to school.
She
pays a rent of R2 500 per month. In the papers she avers that during
the week-ends and holidays she stays at the house in Nahoon
Park,
East London. Although the respondent is not in a position to dispute
this he alleges that the applicant has left the common
household and
has been staying away for approximately ten years. It is not clear
from the papers as to when she started staying
at this house, regard
being had to the fact that for ten years she has not been staying
there.
[8]
The respondent is responsible for and is paying the mortgage bonds on
the properties. S. and L. are staying in the property
in East London.
When they were studying at Nelson Mandela University they were
staying with the respondent.
[9]
During the hearing of this matter I asked Mr Wood, who appears for
the applicant, whether these children cannot ask for maintenance
themselves from the respondent. He quite correctly conceded that it
was not necessary for the applicant to make an application
on their
behalf and that it is not necessary to maintain them via the
applicant. He submitted that the applicant only seeks maintenance
for
herself and contribution for costs in the main action, hence the
other prayers were abandoned.
[10]
The purpose of Rule 43 is to relieve, temporarily, the applicant
spouse who feels the pinch of maintaining the children alone
and, if
she unable to do so, for the maintenance of herself as well whilst
the divorce proceedings are still pending. The basis
of the order for
contribution on costs emanates from the duty of support which the
spouses owe each other.
[11]
The Rule was designed to protect the innocent spouse who has been
neglected by the guilty spouse who is not willing to fulfil
his legal
obligations to maintain the family. The applicant must show that she
is in need of reasonable maintenance and is unable
to maintain
herself. Where the wife seeks maintenance for herself she must
demonstrate further that it is just and equitable to
make such an
order. The ordinary grammatical meaning of 'just' is,
inter alia
,
appropriate, fair-minded, sound, deserved or appropriate in the
circumstances, fitting, reasonable, justified, and 'equitable'
means,
inter alia
, fair and impartial, reasonable and right.
Where
the children, as in this case, are grown up adults they are free to
seek maintenance for themselves from the spouse who neglects
them.
Section
28 of the Constitution of the Republic of South Africa Act, 1996 and
section 1 of the Children’s Act No. 38 of 2005
define a child
as “
...a
person under the age of 18 years”.
[12]
Section 7(2)
of the
Divorce Act No. 70 of 1979
provides that when
making an order with regard to the maintenance of one spouse by the
other regard must be had to the existing
or prospective means of each
of the parties, their various respective earning capacities,
financial needs and obligations, the
age of each of the parties, the
duration of the marriage, the standard of living of the parties prior
to the divorce, their conduct
insofar as it may be relevant to the
breakdown of the marriage and any other factor which in the opinion
of the Court should be
taken into account. The Court may then make an
order which it finds just and equitable in respect of the payment of
maintenance
by the one party to the other for any period until death
or remarriage.
Although
the section deals with maintenance after divorce, it is, in my
opinion, proper to take some of the factors into account
in
determining maintenance of the other spouse
pendente
lite
.
[13]
It was submitted on behalf of the applicant that the applicant has no
rights to the assets of the respondent in terms of their
marriage
regime. She will therefore claim a rehabilitative maintenance from
him.
[14]
In making an interim order for the maintenance of the spouse by the
other, one cannot turn a blind eye to the prospects of
such
rehabilitative maintenance order being made when the marriage is
finally dissolved. The applicant is gainfully employed as
a Principal
of a High school. She earns a decent salary. She has not disclosed
any asset which she is maintaining other than a
car which she alleges
is in a state of disrepair. She uses a car belonging to the
respondent with his consent. She has not disclosed
the reason for
leaving the common marital house for the past ten years and why she
did not claim maintenance during this period.
The maintenance claim
has been instituted only during the divorce proceedings
[15]
Without laying down any rule of practice in this regard, and I accept
the desirability of keeping the costs of
Rule 43
applications as low
as possible, I am of the opinion that an application of this nature
should contain sufficient information to
enable the Court to
determine properly the desirability or otherwise of making an order
for the maintenance of another spouse.
Furthermore,
Rule 43
(2)
requires the applicant's sworn statement to set out "
the
relief claimed and the grounds therefor
". This suggests that
Rule 43
proceedings should be self-contained. Submitting a list of
monthly expenditure without proper motivation is not enough. It must
be obvious from the list of expenditure furnished that the
expenditure is realistic and reasonable. The applicant has motivated
the following monthly expenditure:
(a)
Rent;
(b)
Electricity and municipal charges;
(c)
Cell phone;
(d)
Groceries and toiletries
(e)
Transport contract;
(f)
Petrol
(g)
Domestic worker;
(h)
Garden service;
(i)
Air time/ pocket money
(j)
Toiletries
(k)
O.
(l)
Gym;
(m)
Medical aid
(n)
DSTV
(o)
Motor vehicle insurance
(p)
Sanlam loan
(q)
Liberty
(r)
RCS card
(s)
Credit card
(t)
Tracker
[16]
Most of the above items can easily be discarded. I mention a few
hereunder.
She
does not have to pay any municipal rates as this is paid by the
respondent. Domestic worker and garden services relate to the
property in East London. The two sons are there to maintain the
garden and do not need a house helper to cook for them. The
contribution
towards the maintenance of O. is voluntary and emanates
from her duty of support as the parent. However, the respondent is
willing
to maintain him alone as he has done so in respect of S. and
L.. There is no obligation to pay a tracker for a vehicle which is
in
a state of disrepair including its insurance, which in any event is a
luxury which the respondent has gratuitously afforded
the applicant
by giving her his car. Debts arising from credit cards and loans are
self-created and do not last forever. The balances
owing have not
been disclosed. It has not been explained why there is a transport
contract if the applicant is using the respondent’s
car. The
medical aid is usually deducted from the salary and there is no
explanation why this is not so in the case of the applicant.
[17]
The respondent submitted that there is no basis for this claim. I am
of the opinion that no sufficient grounds have been advanced
to
support the claim as required in
Rule 43.
I conclude therefore that
the applicant is able to maintain herself and is not entitled to the
relief sought in prayer (a), at
least at this stage.
[18]
The claim for contribution of legal costs is
sui generis.
In
order for the applicant to demonstrate that she is entitled to an
order of this nature she must show that she has a bona fide
defence
in the action. The Court has to determine an amount which will enable
the applicant to adequately place her case before
the Court hearing
the divorce. The contribution cannot be made by the mere asking. The
basis of the claim is the duty of support
the spouses owe each other.
See
Chamani v Chamani
1979 (4) SA 804
(W) at 806F
- H. I.
The manner of assessment of quantum of the
contribution was dealt with in the case of
van Rippen
v van
Rippen,
1949 (4) SA 634
(C)
at p. 638 and the position is
set out at p639, where the learned Judge says:
“
The
quantum which an applicant for a contribution towards costs should be
given is something which has to be determined in the discretion
of
the Court. In the exercise of that discretion, the Court should, I
think, have the dominant object in view that, having regard
to the
circumstances of the case, the financial position of the parties, and
the particular issues involved in the pending litigation,
the wife
must be enabled to present her case adequately before the Court.”
[19]
In
Nicholson v Nicholson
1998 (1) SA 48
(W) at 50C
- G
Wunsh J said the following:
“
The
applicant is entitled, if the respondent has the means and she does
not have them, to be placed in the position adequately to
present her
case, relevant factors being the scale on which the respondent is
litigating and the scale on which the applicant intends
litigating (I
would have qualified this by reference to what is reasonable having
regard to what is involved in the case), with
due regard being had to
the respondent's financial position
.”
[20]
The purpose of the order for contribution is to equalise the scale of
litigation between the spouses. Section 9(1) of the Constitution
of
the Republic of South Africa Act 108 of 1996 guarantees the right to
equality before the law and to equal protection of the
law. In
Qozeleni
v Minister of Law and Order and Another
1994 (3) SA 625
(E)
(1994 (2) SACR 340
)
at 642
(SA)
Froneman J suggested that the right of an accused in a criminal trial
to information from the State flowed from the fact that equality
before the law requires equality of arms in order for a criminal
trial to be fair. By similar reasoning, where
circumstances
justify it, the applicant is entitled to a contribution
towards her costs which would ensure equality of arms in the divorce
action
against her husband.
[21]
It is common cause that the marriage is over and what is lacking is a
decree of divorce to officially dissolve it. The marital
regime
presently, dictates that the applicant has no claim against the
assets of the respondent. I asked Counsel for the applicant
during
the hearing of the matter why the divorce is contested and I was
informed that the parties are waiting for the outcome of
the case of
Holomisa
v Holomisa
which is pending in the Constitutional Court otherwise the only issue
will be a claim for rehabilitative maintenance.
[22]
On the limited facts disclosed in this application I am not in a
position to say that the application for rehabilitative maintenance
in the main case will be successful or not. However, I was also
informed that the divorce proceedings will be held in abeyance
pending the decision of the Constitutional Court in connection with
the consequences of the impact of Marriage Act, Extension Act
No 50
1997 (the Extension Act) which extended the operation of the
provisions of the Marriage Act, 1961 (Act 25 of 1961), to apply
to
the whole of South Africa. The extension of these provisions is, in
terms of the Extension Act, deemed to have come into operation
on
[...] 1994. How these provisions will affect the marriages entered
into in terms of the Transkei Marriage Act
before
1994 remains to be seen.
[23]
Without predicting the outcome of the
Holomisa
matter I deem it expedient to comment on the impact which it may have
on this matter. I do so because the delay in finalising the
divorce
in this matter is pegged on that case. The case is set down for
hearing in August 2018. That case concerns the legal consequences
of
the Extension Act on the matrimonial property regime of the Transkei
Marriage Act solemnised after [...] 1994. In particular
the issue is
whether the retrospective operation of the Extension Act did not have
the effect of altering the matrimonial property
regimes of parties
whose marriages were solemnized after [...] 1994. Holomisa’s
marriage was solemnised on 16 December 1995.
[24]
The Extension Act is short and pr
ovides:
“
1
Extension
of operation of Marriage Act to whole of South Africa
(1)
The operation of the provisions of the Marriage
Act, 1961 (Act 25 of 1961), is hereby extended to the whole
of South
Africa.
(2)
The provisions of subsection (1) shall be deemed
to have come into operation on [...] 1994.”
[25]
The marriage between the parties in this matter was solemnised on 19
October 1990 more than three years before [...] 1994.
I have
reservations as to whether the interpretation of the Extension Act
will, insofar as the case of Holomisa is concerned, affect
the
marriages solemnised in Transkei before [...] 1994. Consequently, it
does not appear to me that the Constitutional Court judgment
will
affect the case of the parties in this matter.
[26]
Turning to the point now under consideration the question is whether
the applicant in this case has established that she has
justifiable
grounds, regard being had to the means of the parties, the prospects
of success in the main action by a party seeking
the relief, her
conduct during the subsistence of the marriage, especially relating
to the causes of breakdown thereof and whether
she has bona fide
defence. I have already alluded to the fact that there were scanty
facts to assist me in determining the desirability
or otherwise of
the order sought. The respondent simply denied that the applicant is
entitled to the contribution.
[27]
In
Smith v Smith
1963 (3) SA 84
(SR)
it was said: “
There
is some uncertainty about the test to be applied in determining the
right of a spouse to obtain an order for contribution.
See Hahlo S.A.
Law of Husband and Wife, 2nd ed. pp. 497 - 8 and n. 49. The weight of
authority seems to be that the test is whether
the applicant has a
'fair and reasonable prospect of success', that is ultimate success.
In addition, the authorities show that
the situation must be judged
in the light of the information available at the time the application
is heard and also that, in general,
an applicant who is a defendant
may succeed on rather less than must be shown by an applicant who is
a plaintiff. See
Turkstra v Turkstra,
1946 CPD 774
at pp.
780 and 781
, following inter alia Butterworth v
Butterworth,
1943 W.L.D. 127
at p. 131.
The
learned judge continued and said:
“
The
only other point I need mention in this connection is that it has
often been said that the defence sought to be put up must
be a bona
fide one. This, it seems to me, is an essential foundation of any
case made by an applicant for the kind of relief now
sought. If a
defence is mala fide, then it is obvious that an application must
fail.”
[28]
In my view if the marriage has irretrievably broken down to the
extent that there are no reasonable prospects of a restoration
of a
normal marriage, unless there are obvious justifiable grounds for
defending the action, a party who decides to defend such
action
should do so at the peril of suffocating herself into legal costs
concomitant therewith. She should not expect the other
party to
salvage her especially if she has the means to defend herself.
Without deciding that the applicant will not succeed in
the main
action, contribution orders for legal costs
pendente
lite
should be preserved for those spouses who, due to lack of means,
cannot afford legal costs to put them on an equal footing to enable
them to put up their defences. I am not persuaded that this is such a
case.
[29]
The last aspect which is disquieting is the conduct of Counsel who
was briefed to appear on behalf of the respondent. I was
informed in
the morning of the hearing of the matter that Advocate Ngadlela who
was initially briefed and who held the brief until
a day before the
hearing was not available to argue the matter. This necessitated
briefing another Counsel at the last moment a
night before the
hearing. Mr Kotze who accepted the brief, had to ask that the matter
stand down for him to peruse the papers and
prepare for argument. I
must commend him for his efforts and submissions, regard being had to
the limited time he had to prepare
for argument.
[30]
The inconvenience caused by the last moment withdrawal is
self-evident. The Uniform Rules prescribed by the GCB describe such
conduct as improper. Rule 2.6 thereof provides;
“
2.6
It
is improper for counsel :
(i)
to accept a brief unconditionally; or
(
ii)
to retain a brief previously accepted by him;
if the
circumstances are such that he should reasonably foresee:
(i)
that he will not be able to attend to the brief within a reasonable
time; or
(ii)
that he would have to surrender the brief for whatever reason;
and
(iii)
that the surrender of such brief could cause inconvenience
and/or
embarrassment and/or prejudice to:
(a)
his client; and/or
(b
colleague who is to s9ucceed him in the brief; and/or
(c)
instructing attorney.”
(Emphasis
is mine)
[31]
The conduct of Mr Ngadlela was incompatible with this sub-rule. He
did not even have the courtesy to apologise to the Court
for his
conduct and I am not sure if he did so to his client or attorneys.
Conduct of this nature from an officer of this Court
is
reprehensible. Counsel has a duty to Court, which overrides that of
his client.
[1]
Unless it is
beyond his ability by virtue of unforeseen circumstances Counsel has
a duty to inform his attorney timeously of his
inability to continue
with the brief.
[32]
Regard being had to all the circumstances relative to the merits of
the application I make the following order:
1
The
application is dismissed.
2
There is no
order as to costs.
3
A copy of
this judgment shall be forwarded to the Chairperson of the Bhisho
Society of Advocates.
_____________________
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Counsel
for the applicant :
Adv C Wood
Instructed
by
: Difford Underwood
Inc.
Counsel
for the respondent :
Adv Kotze
Instructed
by
: IC Clark Inc
Date
Heard
:
3 May 2018
Judgement
Delivered
:
17 May 2018
[1]
See LAWSA Vol. 14 para.132 p.136