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[2017] ZAGPPHC 48
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H.M.S v T.S (66405/2013) [2017] ZAGPPHC 48 (8 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
08/02/2017
CASE
NO: 66405/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
S,
H
M
Plaintiff
And
S,
T
Defendant
JUDGMENT
TSHABALALA
AJ
This
is an application for contribution towards the Applicant's legal
expenses in a pending divorce matter between the parties in
terms of
Rule 43 of the Rules of Court. The Applicant has approached this
Court to seek an order that the Respondent make a contribution
to
costs in the sum of R202 120,00. The Applicant also seeks an order
that the Respondent pay travelling costs of her attorney
and counsel.
The Respondent has filed a counter-application seeking an order for
the discharge of the order handed down on 20 March
2014.
APPLICANT'S
CASE
[1]
The Applicant and
the Respondent were married to one another on 7 April 1973, out of
community of property, with the exclusion of
the accrual system.
[2]
The Applicant,
Plaintiff in the main action, instituted divorce proceedings against
the Respondent during October 2013 in this Honourable
Court. The
Applicant has claimed 50% of the Respondent's assets in the divorce
action. The Applicant contends that she is entitled
to half of the
estate of the Respondent due to the fact that the marriage is in
excess of 40 years. The said marriage was concluded
prior to 1984
and, is subject to
section 7(3)
of the
Divorce Act, No. 70 of 1979
as
contended by the Applicant.
[3]
The Respondent has
defended the divorce action and claimed forfeiture of the Applicant's
right to share in his estate as well as
an order that the Applicant
transfer her half share in the matrimonial home to him, free of
consideration.
[4]
A
rule 43
order
was granted on 20 March 2014. It is also common cause that the
Respondent is in contempt of the
Rule 43
order of 20 March 2014.
[5]
According to the
Applicant, the Applicant has as a result of the Respondent's contempt
of the
Rule 43
order, issued a writ whereafter an attachment of R145
125,00 (one hundred and forty five thousand one hundred and twenty
five rand)
was made. The Respondent remains in arrears, and a further
writ has been issued.
[6]
The Applicant
contends that she has also been forced to institute contempt of Court
proceedings in respect of the
Rule 43
order as well as three
applications to compel due to the Respondent's attitude.
[7]
The Applicant's
application for a request for further particulars was successful in
that the Respondent complied therewith but refused
to tender wasted
costs , necessitating the matter being heard in Court whereafter a
costs order was granted in the Applicant's
favour.
[8]
The Applicant
contends that the Respondent's attitude towards litigation against
the Applicant is vexatious and frivolous.
THE
RESPONDENT'S ASSETS
[9]
The
Applicant contends that the Respondent's estate was valued as follows
as at May 2012:
[9.1]
R11 011 856,00 excluding insurance and funeral policy accounts;
[9.2] R10 261 856,00 nett value,
that is less R750,000.00 being the Applicant's half share to the
immovable property. The Applicant
further contends that the above was
the version of the Respondent as at May 2012;
[9.3] Further, on the
Respondent's version as submitted by the Applicant, the total value
of the Respondent's investments and shares
as at 30 May 2012 was R1
559 002,00. The Applicant has annexed "HMS11" being a copy
of a schedule of assets drafted by
the Respondent in May 2012.
[10]
The
Applicant is of the view that the Respondent has, at the very least,
assets which can be converted to cash, with a value of
not less than
R1 559 002,00. The Applicant states that she has convertible assets
in the amount of R224 646,37, and that she owes
her attorneys legal
fees in the amount of R48 065,83.
[11]
The
Applicant has filed a breakdown of legal costs for trial, annexure
"HMS1O" for trial preparation and consultation
up to and
including the first day of trial for a total of R202 120,00. The
hourly rate charged by each of the Applicant's attorney
and counsel
is indicated as R2 000,00 plus VAT per hour.
RESPONDENT'S
CASE
[12]
The gist of the
Respondent's reply to the Applicant's claim is the following:
[12.1] It is common cause that
the Respondent and the Applicant were married to each other on 7
April 1973 out of community of property
with the exclusion of
accrual.
[12.2]
He avers that he separated with the Applicant in December 2012, when
the Applicant vacated the matrimonial home.
[12.3]
He is aware of the
Rule 43
Order of October 2013 made by the
Honourable Phathudi J
[13]
Regarding the
valuation of his assets, the Respondent states at paragraph 5 of his
answering affidavit and counterclaim that:
"The
Court will glean from the list that I hold assets including
a
pension fund of
approximately R4,77m. It includes
a
claim against the
Applicant of R900 000.00,
a
claim that she
disputes".
[14]
Insofar as the
investments of the Applicant are concerned, the Respondent states at
paragraph 17 as follows:
"It
is clear from Annexure "HMS6" that the Applicant can afford
to litigate, even at the luxurious scale that she
claims in this
application. She has two Sanlam policies which in total is worth more
than R770 000,00 which she can utilise to
pay her attorneys.
She
has the financial
means to pay for her own legal expenses".
[15]
The relief to
contribution to costs is available to a spouse
pendente
lite
and is founded
on the duty to support.
See:
Chamani v Chamani 1979 (4) SA804 (W)
[15.1]
An Applicant 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
a Defendant that she is defending in good faith. See Lyons v Lyons
1923 TPD. The Applicant must further show that
she has insufficient
means of her own.
In
Van Rippen v Van
Rippen 1949(4)
SA
634(1)
the
Court held that:
"In
the exercise of that discretion in regard to
a
costs contribution the
Court should, I think, have the dominant 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 Court. In
any such assessment the question of essential disbursements must
necessarily be
a
very
material factor... The paramount consideration is that, as I have
indicated, the Court should have as its object the determination
of
an amount which in its discretion it considers necessary for the wife
adequately to place her case before the Court".
[15.2]
In this matter the parties have been married for a considerable
amount of time, that is in excess of 40 years. The parties
have
placed before the Court their financial ability which the Court has
to consider. The Court has to consider the complexity
of issues in
the matter and all the circumstances of the case. The Court has to
exercise its discretion judiciously.
[16]
It is important to mention that the Respondent does not challenge the
Applicant's right to approach the Court for contribution
to legal
costs, the Respondent contends that the Applicant is employed and has
assets of her own .The Respondent concedes that
the "parties are
entitled to the right to equality before the law and to equal
protection before the law".
[17]
The Respondent in this matter has stated that he earns the monthly
amount of R14 460,00. It later comes to light that the Respondent
earns a total amount of R21 786,00. This is not due to
misrepresentation but due to further amounts that the Respondent
earns
as a lecturer. The Respondent has assets worth approximately R4
774 887,00. The Respondent states that he pays the amount of R8
900,00 per month towards his legal costs. The Respondent's monthly
expenditure was R13 936,00 per month, it has now risen to R36
959,09
per month.
[18]
The Applicant earns R23,959.00 per month, her expenses are R26,190.00
per month. The Applicant's nett value of her assets is
R1 289 931,00.
[19]
It is common cause that the Applicant was compelled to bring various
applications against the Respondent due to Respondent's
attitude of
non-compliance with requests for information. The Respondent is also
in contempt of the
Rule 43
order of October 2014.
[20]
The Respondent currently pays the amount of R8 900,00 per month for
his legal fees. It is the view of the Applicant that the
Respondent
has been paying this amount but there is no conclusive evidence
before this Court. It is fair that the Appellant has
access to funds
to contest the legal action on an equal basis as required by S 9 of
the Constitution of the Republic of South Africa.
Having regard to
the circumstances of this matter and the financial position of the
parties, especially the fact that the Respondent
has far more
considerable assets than the Applicant, I am satisfied that the
Applicant has shown a prima facie case in this matter.
The Respondent
must not be punished though for having more assets than the
Applicant. The parties have employed junior counsel
in this matter,
there is no reason to charge fees at a higher scale at this stage. I
am also of the view that the Applicant is
not entitled to all the
costs set out in her Annexure "HMS10". I consider it
reasonable in the circumstances that the
Applicant be awarded
contribution to costs in the amount of R75,000,00 up to the first day
and including all necessary preparation.
In
the result,
I
make
the following order:
1.
That
the Respondent is to make an interim contribution to costs of
preparation to the Applicant in the sum of R75 000,00.
2.
That
the Respondent pay the amount as follows:
2.1
R40, 000.00 on or before 28 February 2017.
2.2
R35, 0.00.00 on or before 31 March 2017.
3.
That
the costs of the application be costs in the main action.
_________________
D.
B. TSHABALALA
ACTING
JUDGE OF THE HIGH COURT
6/7/2017
Matter heard on: 12 December
2016
Delivered on: