About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 48
|
|
Grobbelaar v Grobbelaar [2016] ZAFSHC 48 (24 March 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Case number: 595/2016
DATE: 24 MARCH 2016
In the matter between:
ANNA CATHARINA
GROBBELAAR
...................................................................................
Applicant
And
GROBBIE
GROBBELAAR
.................................................................................................
Respondent
CORAM:PHALATSI, AJ
HEARD ON:10 MARCH 2016
JUDGMENT BY:PHALATSI, AJ
DELIVERED ON: 24 MARCH 2016
[1] This is an application in terms of
Rule 43(6), following an order in terms of Rule 43 which was granted
by this court on 28
March 2013. On the said date, the court granted
an order in the following terms, by agreement between the parties:
“1. Die respondent, met ingang
van 1 April 2013, pendente lite onderhoud aan die applikante betaal
in die bedrag van R12 000.00
per maand, betaalbaar voor of op die
eerste dag van elke en iedere maand.
2. Die respondent om pendente lite die
uitgawes soos na verwys in pragrawe 8.2.2, 8.2.4, 8.2.5 en 8.2.6 van
die opponerende verklaring,
uitgesluit die applikante se
elektrisiteitsverbruik, te betaal.
3. Die respondent binne 14 dae na
verlening van die bevel, die bedrag van R549.00 aan Kloppers,
Bloemfontein oor te betaal vir die
installasie van ‘n DSTV
DSD1132 dekodeerder en skottel, en ‘n bedrag van R1 600.00 vir
die installasie van ‘n
elektriese motor tot die motorhuisdeur.
4. Die respondent ‘n bydrae tot
die applikante se regskostes maak in die bedrag van R5 000.00.
5. Die koste van die aansoek, koste in
die hoofgeding sal wees.”
In the present application the
applicant seeks an order in the following terms, among others:
“(a) Die respondent word beveel
om met ingang die eerste dag van die kalendermaand wat volg op die
datum van hierdie bevel,
pendente lite die hoofaksie, onderhoud aan
die applikante te betaal in die bedrag van R25 213.31,
alternatiewelik R14 000.00 per
maand, betaalbaar voor of op die
eerste dag van elke opeenvolgende kalendermaand;
(b) Die respondent word beveel om binne
veertien dae na verlening van hierdie bevel aan die applikante te
betaal die bedrag van
R100 000.00 as ’n bydrae tot die
applikante se regskoste in die hoofaksie.”
[2] In support of prayer (a) above, the
applicant attached annexure “B” to her founding
affidavit, setting out her monthly
financial needs. It is
instructive to note that the items listed in Annexure “B”
are identical to the items as set
out in the previous Rule 43
application, but for the costs of the medical fund. It is only the
amounts in respect of these items
which have increased and the
applicant avers that this is because of inflation.
In respect of the prayer for
contribution towards her legal costs, the applicant avers that she
has up to date incurred the following
legal costs:
“R42 409.99 for the respondent’s
wasted costs occasioned by her application for postponement of the
main trial; R41
473.00, being her former attorneys’ legal
costs and R126 545.00, being legal costs for an application she
brought to join
the trusts of which her husband is the trustee, as
co-defendants in her counter claim. She has up to date incurred
legal costs
in the amount of R130 765.00 in respect of her present
attorneys’ and advocate’s fees. She further avers that
the
respondent is in a financial position to pay the amounts that she
is asking for.”
[3] The respondent has taken a point in
limine that the applicant has not shown any changed circumstances as
envisaged in Rule 43(6).
The second point in limine taken by the
respondent is that the applicant is not entitled to make an
application for a further
contribution towards costs, before the
first day of the trial.
LEGAL PRINCIPLES
[4] Rule 43(6) states as follows:
“The court may, on the same
procedure, vary its decision in the event of a material change taking
place in the circumstances
of either party or a child, or the
contribution towards costs proving inadequate.”
The first question is what constitutes
“material change”. In the matter of Grauman v Grauman
1984 (3) 477 WLD at 480
(C), the court states the following:
“Rule 43(6) should be strictly
interpreted to deal with matters which it says has to be dealt with,
that is, a material change
taking place in the circumstances of
either party or child. That relates to a change subsequent to the
hearing of the original
Rule 43 application.”
In casu, the applicant has relied on
effluxion of time and inflation as factors constituting material
change within the meaning
of the sub-rule. In the matter of Micklem v
Micklem
1988 (3) SA 259
CPD, the applicant had relied on the fact
that the time in which the matter had been expected to have been
finalised had lengthened
substantially; and that inflation in itself
constituted a material change. The court found that the delay was
triggered by her
own choice to delay and she therefore had to pay for
the delay. In respect of inflation, the respondent had already made
an offer
to increase her own maintenance and that of the children by
the percentage in excess of the current inflation rate, which offer
had been refused by the applicant. The court did, therefore, not
deal with the question whether these two factors, namely, effluxion
of time and inflation, constitute material change within the meaning
of Rule 43(6), but merely endorsed the tender which had been
made by
the respondent. In casu, it is common cause that the applicant
applied for a postponement of the trial in May 2014, in
order to join
the trusts of which the respondent is the trustee, as the
co-defendants in her counter claim, which application was
finally
brought in February 2015. There are no facts placed before me as to
why was this application not made before the start
of the trial, nor
why was it only brought in February 2015, some nine months after the
trial was postponed. I am, however, prepared
to accept that a fair
amount of investigations had to be made, seeing that it is in total
22 trusts that had been joined as co-defendants
in the applicant’s
counter claim. The application was not only to join the said trusts,
but also to show that the said trusts
are nothing more than the alter
ego of the respondent.
In my view, it is undesirable to
consider only inflation per se, as constituting “material
change” within the meaning
of the sub-rule. This may lead to a
proliferation of applications in terms of Rule 43(6), that such
applications are brought on
a yearly basis, based on the increase, or
decrease, in the inflation rate. I am of the view that where there
has been a substantial
lapse of time after the initial Rule 43
application, on circumstances that are beyond the control of the
parties, such lapse of
time can be regarded as constituting “material
change” within the meaning of the sub rule. I therefore find
that in
casu, where there has been a lapse of nearly 3 years from the
initial application, the said period constitutes material change.
In
respect of the monthly expenses of the applicant, I must agree with
the respondent that the applicant does not show why she
needs a
medical fund whilst she is covered by the respondent’s medical
fund. It is also not clear what interest she pays
to First National
Bank is for. In the premises, I am of the view that the amount of
maintenance paid by the respondent to the
applicant should be
increased from R12 000.00 to R13 000.00 per month, to cater for the
increase of expenses because of effluxion
of time.
[5] The next question is the one of
contribution towards costs.
The point in limine taken by the
respondent in this regard is that the applicant is not entitled to
bring an application for further
contribution towards costs before
the first day of trial. In the matter of Maas v Maas
1993 (3) SA 885
OPD at 888 C, the court held as follows:
“Ek meen dat die korrekte
benadering sou wees om die bewoording van die Reël te volg en as
uitgangspunt te neem dat ‘n
verdere bydrae tot koste nie voor
die eerste dag van die verhoor aangevra kan word nie, tensy die
aanvanklike bydrae tot koste
nie voldoende was nie en dit noodsaaklik
is vir ‘n applikant om ‘n verdere bydrae tot koste te
verkry voor die eerste
dag van die verhoor.”
It is therefore clear that although it
might not be desirable to do so, there is no hard and fast rule that
an application for a
further contribution towards costs cannot be
done before the first day of trial. If it is necessary, depending on
the facts of
each case, such an application can be made.
It is therefore necessary to determine
whether the applicant has shown that it is necessary that she be
awarded a further contribution
towards costs, and if so, what the
amount should be. In the Micklem matter, supra, at 262 I, the court
held as follows:
“A wife seeking a contribution
towards costs is not entitled to payment in full of the costs that
she avers will be incurred
in presenting her case to the court nor
all costs incurred to date. In a matter such as the present, this
may clash with the “paramount
consideration” that she
should be enabled ‘adequately to place her case before the
court’ in which the question
of essential disbursements is a
material factor”.
It was further decided, at 263 B that
“the costs of interim
applications are excluded from costs to which respondent is obliged
to contribute.”
I share the sentiment that the
applicant must be enabled adequately to place her case before the
court. The difficulty in this
present matter is that the whole
application of the applicant is characterised by the paucity of
information and or facts upon
which the court can properly evaluate
her case. The only information that is placed before court is of the
legal costs already
incurred. In the absence of essential
disbursements that are going to be incurred by the applicant to
enable her to adequately
place her case before the court, it is
impossible to quantify the amount that she needs as contribution
towards her costs. The
legal costs that she has incurred cannot help
the court to determine the amount she needs to prepare for her case.
Mr Fischer,
on behalf of the applicant, argued that the applicant
would need experts to investigate the finances of the trusts, but
there is
nothing showing how much will be needed to engage such
experts, and what the other disbursements would be and how much they
would
cost. In the premises, I cannot find that the applicant has
made out a case for contribution towards her legal costs, in the
amount
of R100 000.00, or in any amount at all. In the light of this
finding, I deem it not necessary to decide whether the applicant
has
shown that it is necessary to bring an application for a further
contribution towards costs, in line with the finding of the
court in
the Maas matter, supra.
[6] In respect of the costs of this
application, both parties are partially successful in their cases and
it would be proper that
no order as to costs be made.
I therefore make the following order:
1. The respondent is ordered to pay
maintenance to the applicant pendente lite, in the amount of R13
000.00 per month, from 1 April
2016, payable on or before the first
of each month.
2. The application in respect of
contribution towards costs is dismissed.
3. No order as to costs is made.
N.W. PHALATSI, AJ
On behalf of applicant: Adv. P.U.
Fischer SC
Instructed by:
Hill McHardy & Herbst Inc.
Bloemfontein
On behalf of respondent: Adv. E. Els
Instructed by:
Honey Attorneys
Bloemfontein
/PC