Brief Summary

Divorce — Maintenance — Rule 43(6) application for contribution towards legal costs — Plaintiff sought R250,000 for legal costs due to defendant's failure to comply with maintenance orders — Defendant failed to file opposing affidavit, resulting in being barred from contesting allegations — Court ordered defendant to contribute R200,000 towards plaintiff's legal costs based on financial circumstances and increased litigation costs.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns divorce proceedings in the High Court of South Africa, Gauteng Division, Pretoria. The matter was heard as an action for divorce in which the plaintiff (Mrs F) sought a decree of divorce and ancillary relief, including spousal maintenance, maintenance for two children (one minor and one major but still dependent), and a further contribution to legal costs by way of an application brought in limine under Rule 43(6). The defendant (Mr F) delivered a counterclaim likewise seeking a decree of divorce, division of the joint estate, and ancillary relief, coupled with a tender relating to maintenance.

As recorded at the outset of the hearing, certain issues were not pursued for determination at trial. The parties indicated that the division of the joint estate (in practical terms) and the parties’ respective rights regarding the care and control of the minor child (including contact) were not issues requiring adjudication in the divorce trial itself, although the court ultimately still issued orders relating to parental responsibilities and rights and the minor child’s residence pending Children’s Court proceedings.

The dispute before the court therefore narrowed to a defined set of questions: a Rule 43(6) legal-cost contribution application; the quantum and duration of spousal maintenance; the quantum of maintenance for the minor child; the quantum of maintenance for the major dependent child; and costs.

The general subject matter was the proper regulation, upon divorce, of post-divorce financial support for the former spouse and the children, in a context where the court found there had been extensive litigation between the parties and ongoing conflict, including non-compliance with earlier court orders.

2. Material Facts

The parties were married in community of property on 14 February 1996 and had been married for approximately 20 years at the time of trial. Two children were born of the marriage: a major dependent child (about 19 years old) and a minor child (about 16 years old). Both children resided with the plaintiff at the former matrimonial home. The parties had been living apart since 2 October 2015, when the defendant vacated the common home.

It was common cause that the marriage had irretrievably broken down and that there was no reasonable prospect of restoring the marital relationship. While the parties disagreed about the reasons for the breakdown, the court treated the marriage as beyond repair and proceeded to dissolve it. It was also accepted that it was in the minor child’s best interests that both parents retain parental responsibilities and rights, although residence and contact were complicated by pending Children’s Court proceedings.

A substantial portion of the relevant factual matrix concerned the parties’ financial circumstances and litigation history after separation. The plaintiff alleged she had been unemployed since February 2014, had no savings or investments to fund litigation, and had been compelled to borrow money and obtain assistance to support herself and the children. She relied on the defendant’s alleged failure to provide consistent maintenance after he left the matrimonial home, and his alleged non-compliance with earlier court orders (including a prior Rule 43 order granting interim maintenance and a contribution to legal costs).

The plaintiff’s case on litigation costs was that she had incurred extensive costs in bringing and defending various proceedings, which she attributed largely to the defendant’s failure to meet maintenance obligations and comply with court orders. She further asserted that, to pursue her claim for spousal maintenance (including a claim advanced on the basis of asserted incapacity to work), she had to engage expert evidence and pursue steps to investigate and compel disclosure of the defendant’s financial position.

On the Rule 43(6) application, it was material that the defendant did not file an opposing affidavit, with the consequence described by the court that he was barred from placing controverting affidavit evidence before the court in terms of Rule 43(3), although he could still argue on the applicant’s sworn statement or seek the admission of evidence under Rule 43(5). The court also treated as material the plaintiff’s evidence that an earlier contribution to legal costs ordered on 3 March 2016 (R10 000) had not been paid by the defendant.

On the merits of maintenance, the plaintiff relied on evidence that she had resigned from employment in 2014, that she suffered physical and psychological conditions (including depression and back/hip pain), and that she experienced difficulty securing employment given her age and circumstances. Expert evidence was led by a counselling psychologist, an industrial psychologist, and an orthopaedic surgeon. The defendant, for his part, contended that the plaintiff should not receive lifelong maintenance and advanced a rehabilitative maintenance tender, while asserting financial constraints and outstanding liabilities (including to SARS), and disputing aspects of the plaintiff’s narrative concerning the marriage breakdown and the plaintiff’s unemployability.

The court treated as material that the plaintiff had received significant funds after resignation (a net amount exceeding R1.19 million) and later a retirement annuity payout, and that these sums were spent. The court also treated as material its assessment that both parties had displayed financial imprudence, including large expenditures over time despite later being under debt review.

As regards accommodation, the court considered it material that no evidence was presented quantifying the plaintiff’s future accommodation requirements or costs. This absence of quantification constrained the court’s ability to incorporate accommodation into maintenance in any specific way.

On the defendant’s means, the court accepted that the defendant earned approximately R42 030 per month, had allowances (including a medical allowance and car allowance), received rental contributions from a tenant, and had not made full and reliable disclosure of his overall financial position. The court treated the defendant’s evidence on finances and expenditures as unreliable in material respects, including in relation to additional income streams and the extent to which claimed deductions (such as SARS deductions) should be treated as overriding his maintenance obligations.

3. Legal Issues

The central legal questions requiring determination were, first, whether the plaintiff established grounds for an additional contribution to legal costs under Rule 43(6), and if so, what amount the court should order in the exercise of its discretion.

Secondly, the court was required to determine, under section 7(2) of the Divorce Act 70 of 1979, whether spousal maintenance should be ordered post-divorce, and if so, the appropriate quantum and duration, considering the factors enumerated in the statute and the requirement that the order be just.

Thirdly, the court had to decide what maintenance and related contributions were appropriate for the minor child and the major but dependent child, in light of the common-law duty of support, section 6 of the Divorce Act, and the principle that the best interests of the child are paramount. This included the question of whether support should be expressed as fixed monthly sums and what additional obligations (such as school and medical costs) should be included.

Finally, the court had to determine the appropriate order as to costs, taking account of the parties’ relative success and the litigation conduct described in the evidence.

The dispute was predominantly one of application of legal principles to contested and uncontested facts, together with evaluative and discretionary judgments on matters such as credibility, the extent of demonstrated need, the appropriate period for rehabilitative maintenance, and the weight to be attached to incomplete or unreliable financial disclosure.

4. Court’s Reasoning

On the Rule 43(6) application, the court approached the matter on the basis that such an application is competent where a material change of circumstances is shown. The court accepted that the plaintiff’s litigation costs had increased substantially after the earlier Rule 43 order, particularly in light of further litigation which the court understood to have been driven, at least in significant part, by the defendant’s failure to maintain and/or comply with orders. The court emphasised that the quantum of a contribution is discretionary, and that the applicant must be placed in a position to adequately present her case. In exercising its discretion, the court had regard to the parties’ respective financial positions, the nature and scale of the litigation, and the principle of equality before the law, including the dignity-related concern referenced in the authority it cited.

The court considered the plaintiff’s evidence that she had insufficient means to fund litigation and had incurred substantial legal costs, including expert costs, and contrasted this with the defendant’s apparent access to funds, including monies in his control that formed part of the joint estate to which the plaintiff lacked access. The defendant’s failure to file an opposing affidavit meant the plaintiff’s version on the Rule 43(6) papers stood uncontroverted in affidavit form. While acknowledging that the plaintiff was not entitled to all anticipated costs (and that the contribution related to the action rather than interim applications), the court concluded that a substantial further contribution was justified and fixed it at R200 000, which it considered reasonable.

On spousal maintenance, the court applied section 7(2) of the Divorce Act, treating the statutory factors as non-exhaustive and requiring a balancing exercise aimed at a result that is fair to both parties. The court cited authority indicating that no single factor is decisive and that the overall enquiry is directed to what is “just” in context.

In evaluating conduct and causation of the breakdown, the court accepted that the marriage had irretrievably broken down but aligned itself with the view that fault plays no part in the determination of maintenance on the facts of the case as presented. It characterised both parties as having contributed to the breakdown and, critically for the maintenance enquiry, as having demonstrated extreme financial imprudence over time.

A major point of reasoning concerned the plaintiff’s claim for maintenance in perpetuity, said to be justified by medical unfitness for work. The court examined the plaintiff’s employment history, noting sustained employment over many years during the marriage and that the plaintiff had worked despite longstanding back pain and depression. It considered the plaintiff’s varying explanations for resigning in 2014 and found it improbable, given the financial hardship the parties experienced at the time, that the defendant would have insisted she resign; the court regarded it as more probable that the plaintiff exercised an autonomous choice to resign. The court also considered that the plaintiff had remained motivated to work, including performing hairdressing work after separation, and that the plaintiff testified she wanted to work and would accept employment if offered.

While the court accepted that the plaintiff was in need of maintenance at present, it concluded that the plaintiff had not established an inability to work that would justify lifelong support. The court reasoned that a perpetual award would unfairly bind the defendant indefinitely while the plaintiff remained economically inactive, and it expressed the view that it was appropriate, on these facts, to apply a “clean break” approach geared toward economic independence. At the same time, the court recognised constraints on the plaintiff’s employability, including age and current psychological condition, and it therefore sought to craft an order that created a window of opportunity for therapy and re-entry to work, thereby incentivising self-support.

As to the quantum of spousal maintenance, the court relied on the plaintiff’s reduced claim (R4 402.75 per month, later reflected in the order as R4 403.00) and found it not unreasonable or exaggerated, noting that the figure excluded medical requirements. The court accepted the need for therapy as recommended and made provision for monthly payments to cover therapy sessions at the rate testified to, limited to a defined number of sessions.

On accommodation costs, the court referred to authority recognising accommodation as potentially part of maintenance needs, but held that it could not determine accommodation-related maintenance because the plaintiff led no evidence quantifying future accommodation needs or expenses. The court considered it just, in the circumstances, that the plaintiff’s future accommodation should be financed from her share of the joint estate once the matrimonial property was sold and proceeds divided.

On maintenance for the children, the court applied the principle that children are entitled to reasonable maintenance, assessed contextually, and reiterated that the best interests standard is paramount. For the minor child, the court took into account the plaintiff’s concession during cross-examination that R1 500 per month would be sufficient at that juncture (excluding medical and accommodation costs), and coupled that with an order requiring the defendant to pay the minor child’s high school educational expenses and reasonable medical costs.

For the major dependent child, the court relied on authority (including the recognition that the duty to maintain can extend beyond majority) and rejected the notion that support should be left wholly to the defendant’s discretion. Although the defendant claimed he paid what was needed as finances permitted, the court found his asserted inability to comply with a maintenance order in respect of the major child not credible, particularly given evidence of discretionary expenditures and the defendant’s history of non-compliance with maintenance orders while funding other expenses. Because the evidence did not quantify the major child’s full monthly needs with precision, the court crafted an order directed at at least the ongoing household and living costs borne by the plaintiff (including food and services), together with an obligation for reasonable additional items such as cell phone, entertainment, pocket money, and clothing.

On the defendant’s means and capacity, the court was not persuaded that claimed liabilities (such as SARS deductions) should trump maintenance obligations, especially because the defendant provided no reliable documentary basis for the asserted arrangements and timeframes. The court found that the defendant had not provided a true or accurate disclosure of his financial affairs and that he had additional means and benefits beyond what was straightforwardly presented, including allowances and other income streams. It concluded, on the totality of the evidence, that the defendant was able to afford the maintenance amounts ordered.

On an order sought in heads of argument relating to the defendant’s pension interest being used to pay certain prior cost orders, and on a request concerning tertiary education costs, the court declined to grant such relief. It reasoned that the division of the joint estate and proportional distribution were not triable issues in the proceedings as delineated at trial, and that enforcement mechanisms such as contempt proceedings were available regarding unpaid costs. It also declined to order tertiary education costs because such relief was not sought on the pleadings being used for determination and no evidence was led on those costs.

On costs, although acknowledging partial success on both sides, the court emphasised the defendant’s litigation conduct, including ignoring court orders, inadequate financial disclosure, and an approach described as akin to “catch me if you can.” It considered it just that the defendant pay the plaintiff’s costs of suit.

5. Outcome and Relief

The court granted a decree of divorce and ordered division of the joint estate. It declared that the defendant’s interest in the Government Employees Pension Fund (identified by number in the order) is, for purposes of the joint estate, an asset of the joint estate.

The court ordered that both parties retain parental responsibilities and rights in respect of the minor child, and granted the plaintiff primary residence of the minor child pending finalisation of proceedings in the Children’s Court, with reasonable contact to the defendant by arrangement.

The court ordered the defendant to pay maintenance for the minor child of R1 500 per month from 1 January 2017 (escalating annually with CPI), to pay the minor child’s high school educational costs, and to pay the children’s reasonable medical costs directly to service providers.

The court ordered the defendant to pay maintenance for the major dependent child of R1 500 per month from 1 January 2017 (escalating annually with CPI), together with the reasonable costs of the major dependent child’s cell phone, entertainment, pocket money, and clothing, until age 25 or self-support, whichever occurs first.

For the plaintiff, the court ordered rehabilitative spousal maintenance of R4 403 per month for three years from 1 January 2017 (escalating annually with CPI), and payment of R1 025 per month for 24 months for therapy sessions, payable directly to the service provider.

In addition, in a Rule 43(6) order made in limine at the commencement of trial (reasons later furnished in the judgment), the defendant was ordered to contribute R200 000 towards the plaintiff’s legal costs, payable into the trust account of the plaintiff’s attorneys within 10 days of the order.

The defendant was ordered to pay the plaintiff’s party-and-party costs of suit.

Cases Cited

Van Rippen v Van Rippen 1949 (4) SA 634 (C).

Nicholson v Nicholson 1998 (1) SA 48 (W).

Muhlman v Muhlman 1984 (1) SA 413 (W).

Senior v Senior 1999 (4) SA 955 (W).

Bates v Bates 1969 (3) SA 168 (R).

Cary v Cary 1999 (3) SA 615 (C).

Dodo v Dodo 1990 (2) SA 77 (W).

Service v Service 1968 (3) SA 526 (D).

Micklem v Micklem 1998 (3) SA 259 (C).

Maas v Maas 1993 (3) SA 885 (O).

S v Van der Meyden 1999 (1) SACR 447 (W).

LW v LW (52148/2007) [2013] ZAGPPHC 268 (22 June 2013).

Botha v Botha (2005/25726) [2008] ZAGPHC 169 (9 June 2008).

Grasso v Grasso 1987 (1) SA 48 (C).

Swart v Swart 1980 (4) SA 364 (O).

Smit v Smit 1980 (4) ALL SA 52 (O).

Zwiegelaar v Zwiegelaar 2001 (1) SA 1208 (SCA).

Buttner v Buttner 2006 (3) SA 23 (SCA).

Bursey v Bursey and Another 1999 (3) SA 33 (SCA).

Kemp v Kemp 1958 (3) SA 736 (D).

Legal-Aid South Africa v Mzoxolo Mogidiwana (1055/13) [2014] ZASCA 141 (26 September 2014).

B v B (700/2013) [2014] ZASCA 137 (25 September 2014).

Gauteng Province Driving School Association & others v Amaryllis Investments (Pty) Ltd & another (006/11) [2011] ZASCA 237 (1 December 2011).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 9(1)).

Divorce Act 70 of 1979 (sections 6(1)(a), 6(3), 7(2)).

Rules of Court Cited

Uniform Rules of Court, Rule 43(3).

Uniform Rules of Court, Rule 43(5).

Uniform Rules of Court, Rule 43(6).

Held

The court held that the plaintiff established grounds for a further Rule 43(6) contribution to legal costs and, exercising its discretion, ordered the defendant to pay R200 000 towards those costs.

On the merits, the court held that although the plaintiff was in need of maintenance at the time of divorce, she did not establish an entitlement to lifelong spousal maintenance. Applying the statutory framework in section 7(2) of the Divorce Act and an evaluative balancing of fairness to both parties, the court ordered rehabilitative maintenance for a finite period, together with therapy costs, to facilitate recovery and the pursuit of employment.

The court further held that the defendant must maintain both the minor child and the major dependent child, including specified monthly payments (with CPI escalation) and additional educational and medical obligations, and that it was not appropriate to leave the major dependent child’s support entirely to the defendant’s discretion.

Finally, the court held that the defendant’s litigation conduct and non-compliance with orders justified a costs award against him, and it ordered him to pay the plaintiff’s party-and-party costs.

LEGAL PRINCIPLES

The judgment applied the principle that a contribution to legal costs under Rule 43(6) depends on a material change in circumstances and is awarded in the discretion of the court, having regard to the parties’ financial positions, the nature and scale of litigation, and the need to ensure a party is placed in a position to adequately present their case.

In relation to post-divorce spousal maintenance under section 7(2) of the Divorce Act 70 of 1979, the court applied the principle that the court must consider the statutory factors in a contextual balancing exercise directed at an outcome that is just and fair to both spouses, and that no single factor is inherently decisive.

The judgment applied the principle that a child’s right to maintenance is determined by reasonableness in the circumstances and that the duty of support may continue beyond majority for a dependent child. It further applied the principle that in matters concerning children, the best interests of the child are paramount and that a divorce decree should not be granted unless the provisions for minor or dependent children are satisfactory or the best that can be effected in the circumstances.

The court further applied the principle that where a party fails to provide evidence quantifying a claimed head of need (such as accommodation costs), the court is not required or entitled to speculate in order to craft relief on that basis, and the evidentiary shortfall may constrain the relief that can be granted.

Finally, the judgment applied the principle that court orders must be obeyed until set aside, and that litigation conduct, including non-compliance with court orders and inadequate disclosure, may be relevant to the court’s discretionary decision on costs.

F v F (82419/2015) [2016] ZAGPPHC 1054 (22 December 2016)