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[2016] ZAFSHC 54
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G v G (595/2016) [2016] ZAFSHC 54 (24 March 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
number: 595/2016
In the
matter between:
A.
C. G.
Applicant
and
G.
G.
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