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[2015] ZAGPPHC 182
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A.P.S.A v J.L.C.A (27391/12) [2015] ZAGPPHC 182 (27 February 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER:27391/12
DATE:
27 February 2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
A[…]
P[…] S[…]
A[…]
.......................................................................................
Applicant
V
J[…]
L[…] C[…]
A[…]
....................................................................................
Respondent
JUDGMENT
MABUSE
J
:
[1]
This matter came before me in an unopposed motion roll as an
application in terms of Rule 43 of the Uniform Rules of Court.
It was
opposed by the respondent. In this application the applicant seeks
the following:
1.
arrear costs in the sum of R180 422.41
2.
future costs in the sum of R434 106.30 and
3.
further ancillary relief.
[2]
The applicant is an adult female who resides currently at 11 W[…]
P[…], North Lakes, Australia. The respondent
is an adult
businessman who works as a sole managing member of Ventac CC,
situated at 39 Gunib Street, Erasmuskloof, Pretoria.
The
applicant and the respondent were married to each other in community
of property on 19 December 1992 and the said marriage
still
subsists. There are two children born of the aforementioned
marriage, one R[…], a minor boy who is aged 15 years,
and
R[…], a daughter, who has just become a major, but who depends
entirely on her parents as she is a full time university
student.
[3]
On or about January 2009 the parties’ family relocated to
Australia with the intention of residing there permanently.
Although all the members of this family moved to Australia in
anticipation of residing there permanently the respondent remained
in
South Africa with the intention of later following his family in
Australia. With the passage of time his intention to
move to
Australia did not materialize and as a result he remained in South
Africa. He never relocated to Australia, although
on some
occasions he visited his family in Australia, some times to withdraw
money. Accordingly the applicant stays there
with the children
while the respondent stays in South Africa.
[4]
By 2011 the relationship between the applicant and the respondent had
completely fallen apart as a result of which the applicant
instituted
divorce proceedings against the respondent on 17 May 2012. The
aforementioned proceedings are pending in this
Court.
[5]
The applicant contends that for her entire life she was a bank
clerk. She did not have any specialised training or
qualifications
which would make her as an asset in the Australian
labour market. She is 45 years of age which, according to her,
is a disadvantage
for a prospective employment in Australia.
She has however been able to obtain or secure part-time position and
she is available
in the afternoons to assist the children. She
works at North Lakes State College where both their children attended
school
at the time and work at the tuck shop as an assistant.
She earns AU$928.25 (nine hundred and twenty eight Australian Dollars
and twenty five cents) fortnightly, amounting to AU$1,856.50 (one
thousand eight hundred and fifty six Australian Dollars and fifty
cents) which according to the late exchange rate amounts to
R18 000.00 (eighteen thousand rand) per month. As a
consequence
she is at home when the children return from school
around 15h00 and she is able to assist them with their homework, do
the housework
and garden maintenance.
[6]
The amount of R18 000,00 which she receives is, according to
her, not sufficient. The cost of living in Australia
is ten
times the average cost in South Africa. Her monthly expenditure
are R70 000.00. When the respondent left
Australia the
parties had two investment accounts, one in Commonwealth Bank and the
other in the Bank of Queensland. After
the commencement of the
divorce proceedings, the applicant’s attorneys of record
contacted the respondent’s attorneys
and informed them that she
had instructions to bring an application for maintenance
pendente
lite
. In response thereto, the respondent’s attorneys
advised that an application in terms of Rule 43 was not required in
light of the joint account at the Bank of Queensland.
Consequently she has been using the proceeds of the two bank accounts
in Australia, for the purposes of maintaining the two children and
herself. With the respondent’s consent she has been
using
the proceeds of the parties’ joint account at the Bank of
Queensland for the purposes of maintaining the children and
herself
and for nothing more.
[7]
The applicant contends that the remaining amounts in the said banks
as at 27 June 2014 was AU$234,000.00 (two hundred and thirty
four
thousand Australian Dollars), and furthermore that the said amount
was being eroded by the maintenance of the children and
herself.
She anticipates that by the time the divorce matter is disposed of
there will be little left in these accounts and
that will leave her
feeling vulnerable in respect of future security of maintenance for
the children and herself, in a foreign
country where she has no
family to whom she could turn to in the event of financial
emergency. And for that reasons she needs
a contribution
towards legal costs. The applicant contends that compared to
the overall wealth of the joint estate which
is under control of the
respondent as at date of institution of the action the amount that is
remaining in the aforementioned bank
account in Australia is
insignificant. The reasons why she requires contribution in the
sum of R180,442.40 (one hundred and
eighty thousand four hundred and
forty two rand and forty cents) is that on 30 June 2014 her attorney
of record had sent her a
statement for the said amount. After
she paid her attorneys the amount of R106,840.00 (one hundred and six
thousand eight
hundred and forty rand), there was still the
outstanding balance of R180 442.40 (one hundred and eighty
thousand four hundred
and forty two rand and forty cents). In
addition she contends that her counsel has not been paid and that
provision for her
fees should be provided for.
[8]
The respondent opposes the application as indicated earlier and
contends that the applicant has sufficient money at her disposal
which will enable both of them to finance their litigation.
During the course of the argument counsel for the respondent
submitted a schedule of cash monies which are available to the
applicant. The total of the said amount in terms of the South
African rate of exchange is R6,532,628.23 (six million, five hundred
and thirty two thousand six hundred and twenty eight rand
and twenty
three cent). The applicant was unable to contest this schedule
of cash monies.
[9]
Counsel for the applicant referred the Court to two authorities
according to which it was stated that a litigant was entitled
to
litigate against her spouse on a scale commensurate with the parties’
means. These two authorities are
Glazer vs Glazer 1959(3) SA
928(W) at page 932A
and
Nicholson vs Nicholson 1998(1) SA 48W
at 52B
. It is clear from the evidence that both parties are
possessed of sufficient financial muscle to pay for their
litigation.
The amount brandished in the abovementioned
schedule was sourced from the applicant’s own evidence.
In my view it is
clear that the applicant has assets which could be
used to meet the cost of her litigation. The parties’
funds are
held in Australia. For this reason the applicant
enjoys the advantage of the Australian Dollar to the South African
Rand
exchange rate. Secondly she has unfettered access to the
funds which she jointly owns with the respondent. Thirdly the
respondent has no objection to the applicant using such funds.
Fourthly the applicant has a piece of land in Portugal which
she
could realise in order to enable her to meet her financial
obligations.
[10]
I am of the view that the applicant is currently possessed of
sufficient means to enable her to finance her own litigation.
In the premises there seems to be no justifiable reason why this
Court should grant her application to be financed because she
has
sufficient means with which to pay her legal fees. I therefore
make the following order:
(1)
The application for contribution is refused;
(2)
The costs of this application should be costs in the action pending
between the parties.
_____________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Applicant: Adv. K Foulkes-Jones (SC)
Instructed
by: Roxo Law Offices
Counsel
for the respondents: Adv. D Smith (SC)
Instructed
by: De Oliveira Serrão
Date
Heard: 13 February 2015
Date
of Judgment: 27 February 2015