M.J.M v L.C.M and Others (5474/2012) [2015] ZAKZDHC 89 (25 November 2015)

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[2015] ZAKZDHC 89
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M.J.M v L.C.M and Others (5474/2012) [2015] ZAKZDHC 89 (25 November 2015)

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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE NO: 5474/2012
In
the matter between:
M.
J. M.
Plaintiff
and
L.
C. M.
First
Defendant
M.
J. M. N.O.
Second
Defendant
L.
C. M. N.O.
Third
Defendant
S.
P. M. N.O.
Fourth
Defendant
S.
P. M.
Fifth
Defendant
L.
J. C.
Sixth
Defendant
G.
J. M.
Seventh
Defendant
D.
M. M.
Eighth
Defendant
JUDGMENT
Delivered:
25 November 2015
Orders
A:
Rule 43 Application
(Case No: 5474/2012: 5 November
2012:Gorven J )
1.
The
applicant, L. M., is directed to pay the costs occasioned by such
application, including the costs consequent upon the employment
of
senior counsel.
2.
The
cost limitations imposed by the provisions of rules 43(7) and 43(8)
do not apply.
B:
Rule 43 Application
(4417/2013 :Madondo J:
31
May 2013)
1.
The
applicant, L. M. , is directed to pay the costs occasioned by such
application, including the costs consequent upon the employment
of
senior counsel.
2.
The
cost limitations imposed by the provisions of rules 43(7) and 43(8)
do not apply.
3.
The
applicant’s attorneys are not entitled to charge and recover
any fees from her in respect of this application.
C:
Rule 43 Application
(7117/2013 :Nzimande AJ:
1
August 2013)
1.
The
respondent M. M. , is directed to pay the applicant L. M. ’s
costs occasioned by this rule 43 application.
D:
Application
under case number 7709/2012 (Interdict Application in respect of the
Manhattan Property)
1.
The
rule
nisi
issued
on 27 July 2012 is discharged.
2.
The
applicant, M. M.  is directed to pay the costs of the first
respondent, L. M. .
E:
Divorce Action
1.
A decree of divorce.
2.
An order directing the plaintiff to pay to the first defendant in
terms of section
7 (2) of the Divorce Act, Act 70 of 1979 the
following:
2.1.
The sum of R27 700.00 per month, for a period of 5 years, which
amount is to escalate annually
on the anniversary of the divorce
order at a rate equivalent to the Consumer Price Index. The first
payment in terms of this order
is payable by midday on 7 December
2015;
2.2.
The sum of R2 478.00 in respect of a monthly membership
contribution to the Discovery medical
aid scheme, for a period of 5
years from the date of this order. Such amount is to increase in
accordance with any increase imposed
by the Discovery medical aid
scheme. The first payment in terms of this order is payable by midday
on 7 December 2015;
2.3.
The sum of R250 000.00 as a contribution to the purchase of a
motor vehicle by the first
defendant. Such amount is payable by
midday on the 11December 2015.
3.
An order directing the plaintiff to pay to the first defendant the
proceeds
of      the sale of the immovable
property known as “Manhattan” (together with interest
accrued
thereon) less the sum of R30 000.00 already advanced to
the first defendant.
4.
The plaintiff’s claims insofar as they are inconsistent with
the aforegoing orders
are dismissed.
5.
The
first defendant’s claims-in-reconvention insofar as they are
inconsistent with the aforegoing orders are dismissed.
6.
The
first defendant is directed to pay the costs occasioned by the
joinder application as well as the costs of the second, fourth,
fifth
and sixth defendants in the divorce action, such costs to include the
costs of Senior Counsel where so employed and the reserved
costs of 8
July 2014.
7.
The
plaintiff is directed to pay the first defendant’s costs
occasioned by the rule 43(6) application on 8 October 2014.
8.
The
first defendant is directed to pay the reserved costs of 26 September
2014 and 1 October 2014 in respect of the rule 35(3) application,

such costs to include the costs of senior counsel where so employed.
9.
In
respect of the costs incurred in the divorce action not covered by
the orders in paragraphs A to E above, the plaintiff is directed
to
pay the first defendant’s taxed or agreed costs, on a
party/party scale up to and including 8 October 2014. These costs
are
to exclude:
9.1.
the
qualifying fees and attendance at court of the first defendant’s
experts Lance Marais and Neil McHardy which were taken
into account
in the order made in the rule 43(6) application for a contribution to
costs on 8 October 2014;
9.2.
the
costs occasioned by the adjournment of the trial on 25 June 2014, in
which there was no order as to costs.
10.
Any
remaining costs incurred are to be borne by the plaintiff and the
first defendant.
Introduction
1.
This is a divorce action in which the first defendant essentially
seeks an order
for maintenance in terms of section 7(2) of the
Divorce Act, Act 7 of 1979 (the “divorce act”) until
death or remarriage
and orders directing the plaintiff to comply with
the terms of an ante-nuptial contract and make certain lump sum
payments.
Pleadings
2.
On 29 May 2012, the plaintiff instituted divorce proceedings against
the first
defendant. In the action he sought a decree of divorce and
an order declaring him to be entitled to the net proceeds of the sale

of the Manhattan property in the sum of R 2 100 000.00
alternatively
payment of such sum from the first defendant.
3.
The basis of the claim for the proceeds of the Manhattan property as
pleaded,
was that the parties concluded an oral agreement in terms of
which the plaintiff would provide the funds for the property to be

acquired, the property would be registered in the first defendant’s
name purely as nominee on behalf of the plaintiff, but
the plaintiff
would be the actual owner of the property and pay for all the
expenses and outgoings in relation to the maintenance
and upkeep of
the property.
4.
When the property was sold on 28 June 2012, the plaintiff as owner of
the property
was entitled to the net proceeds of the sale
[1]
.
The first defendant initially filed a plea disputing the reasons for
the breakdown of the marriage and averred that she was the
owner of
the property and acquired the property from funds donated to her by
the plaintiff.
5.
The trial of the matter was initially enrolled for hearing in June
2014. By agreement
the trial was adjourned to October 2014.
Thereafter, the first defendant sought to amend the pleadings and
obtained an order on
the 8 July 2014 joining the trustees and
beneficiaries of the Moore Family Trust as
defendants-in-reconvention
[2]
in
the divorce action.
6.
Her counterclaim was amended to include an allegation that the Moore
Family trust
was a sham, it was merely the alter ego of the plaintiff
he being the true owner of the assets of the trust and in
de facto
control thereof.
7.
In the counterclaim the first defendant pleaded that Graeme John
Moore and Dean
M. M. , born of the marriage although majors, remained
financially dependent on the plaintiff and first defendant. In
addition
the first defendant sought orders directing the plaintiff to
comply with the terms of the ante nuptial contract concluded between

the parties prior to the marriage and contribute maintenance for
herself in the sum of R80 000.00 until her death or remarriage.
8.
She in addition sought orders directing the plaintiff to maintain her
as a member
of a medical aid scheme until death or remarriage and to
cover expenses not paid for by the medical aid scheme until death or
remarriage.
In addition, the plaintiff was required to purchase a new
motor vehicle with a value of not less than R700 000.00 within 4
years
of the final divorce order and to continue to do so every 4
years and to purchase for the first defendant an immovable
residential
property of her election with a value of R3 000 000.00
and pay her the sum of R400 000.00 as a once off lump sum
payment.
9.
In respect of the Moore Family trust the first defendant alleges that
the plaintiff
founded the discretionary trust and the second, third
and fourth defendants were appointed as trustees of the trust. The
trust
never held meetings and the trustees, specifically the third
and fourth defendants, were never involved in the management of the

trust. Even though      the fifth, sixth, seventh
and eight defendants are the capital and income beneficiaries
of the
trust, the trust deed makes provision for the appointment of any
other natural person who may be appointed as trustee from
time to
time.
10.
The first defendant avers that the trust has substantial assets and
the source of funds
to acquire the trust assets emanated from the
plaintiff and he in fact exercises full de facto control of the
management, acquisition
and alienation of assets of the trust and
treats the trust as his alter ego. She further alleges that the
plaintiff uses the trust
for his benefit, it never operated a banking
account and all funds received and dispersed by the trust were
deposited into and
withdrawn from banking accounts held in the name
of the plaintiff or his nominee which accounts were under his
control.
11.
The first, second fourth, fifth and sixth defendants in reconvention
filed a plea to the
counterclaim, and pleaded that in light of the
fact that the first defendant does not seek any relief against them,
save for the
first defendant in reconvention, any finding the court
makes binds them as individuals. They have no duty to support the
first
defendant consequently, insofar as the fifth and sixth
defendants are concerned their joinder to the action is an abuse of
process
and constitutes an “exercise in terrorem.”
12.
The plaintiff    denies any obligation to pay maintenance
or make payment of any
lump sum awards as prayed for by the first
defendant. In addition the lump sum awards which the first defendant
seeks, he alleges
are redistribution claims disguised as maintenance
claims and therefore the first defendant is not entitled to payment
of these
as she has no claim in terms of section 7 (3) of the Divorce
Act.
13.
During the course of the trial, the first defendant sought to further
amend her counterclaim dated
16 July 2014. Such application for
amendment and the outcome thereof is a matter of record
[3]
.
14.
At the commencement of the trial, Mr.
Stokes
SC, for the plaintiff, indicated that the plaintiff consented to an
order in terms of which the first defendant was entitled to
the net
proceeds of the sale of the Manhattan property together with interest
thereon, without any concession or admission that
the first defendant
was entitled thereto. In addition an open tender with prejudice of R
2 000 000,00 (two million rand) was made
in settlement of the first
defendant’s claim for maintenance.
Issues
for determination
15.
The issues requiring determination in the trial are the following. Is
the first defendant
entitled to orders directing the plaintiff to:-
15.1.
Pay her maintenance until death or remarriage, the calculation of
which includes claims for her major sons?
15.2.
Comply with the terms of the ante-nuptial contract?
15.3.
Make certain lump sum payments in respect of her maintenance?
16.
A further issue for consideration is whether for purposes of deciding
the first defendant’s
maintenance claims, and the ability of
the plaintiff to pay them, this court ought to “pierce the
veil” of the Moore
Family Trust and hold that the assets of the
trust are in fact the plaintiff’s.
17.
It is common cause between the plaintiff and the first defendant that
their marriage has
broken down irretrievably and they are both intent
on divorce.
18.
The plaintiff instituted the divorce proceedings in May 2012, and he
and the first defendant
subsequently permanently separated on 11 July
2012 when the first defendant left the former matrimonial home.
19.
The parties were married to each other on 30 January 1988 at
Johannesburg, out of community
of property by ante-nuptial contract
with the exclusion of the accrual system. Two children born of the
marriage are majors but
are still allegedly financially dependent on
the parties
[4]
.
20.
In terms of the ante-nuptial contract, upon their marriage, the
plaintiff undertook to settle
on the first defendant the following:
“
3.1.1
all engagement and wedding presents presented to them on the occasion
of their intended marriage;
3.1.2
furniture, linen, plate and domestic effects, together with any and
all renewals of or additions to the same to
the value of R25 000,00
(TWENTY FIVE THOUSAND RAND);
3.1.3
cash to the value of R30 000,00 (THIRTY THOUSAND RAND);
3.1.4
certain life insurance Policy No. 250763 effected with Sage Life
(formerly Ned Equity) (“the Policy”)
for the sum of
R50 000,00 (FIFTY THOUSAND RAND).”
[5]
21.
The first defendant bore the onus in respect of her counterclaim,
testified and led the
evidence of several witnesses. I have
considered all the evidence presented, even though I may not have
specifically referred to
it for the purposes of this judgment.
22.
I propose to firstly dispose of the issue in respect of the first
defendant’s claim
for maintenance insofar as it includes Graeme
and Dean Moore.
Maintenance
claimed by first defendant in respect of Graeme and Dean Moore
23.
During the evidence of the first defendant, it became apparent that
included in the calculation
of her claim were amounts in respect of
her major but dependant sons Graeme and Dean. This was also apparent
from the affidavits
and expenses filed in the various rule 43
applications.
24.
Insofar as the claim for maintenance of her major sons, is concerned,
the first defendant
appears to rely on the provisions of section 6
(3) of the Divorce Act which deals with the safeguarding of interests
of dependant
and minor children and reads as follows:
“
6
(3)  A
court granting a decree of divorce may,
in
regard to the maintenance of a dependent child
of the marriage or the custody or guardianship of, or access to, a
minor child of the marriage,
make
any order which it may deem fit
,
…….
(My
emphasis)
25.
The first defendant testified that the plaintiff had previously paid
for all educational
and living expenses of the dependent children
using the trust. At the time of their separation in July 2012, the
plaintiff indicated
via email to their sons Dean and Graeme that he
would not contribute to their support and in fact did not do so.
26.
The impression created by the first defendant in her evidence was
that she together with
her family have effectively been maintaining
and supporting the dependent children.  She conceded,
albeit
reluctantly, that Dean studied and was employed at Sugar Bay earning
a minimal income but still required financial support from
her. She
indicated that Dean had expressed a desire to change his course of
study. Graeme, the elder of her children, she also
conceded earns an
income but is a full-time medical student at Wits University.
27.
She confirmed that despite these being included, certain of the
monies reflected specifically
items like rent had not in fact been
paid. She testified that her brother assisted her in paying certain
of the university fees.In
addition the expenses were not limited to
merely educational expenses. In some of the affidavits, it is also
clear that Graeme
had been living on his own with his partner and
decided to pursue a degree in medicine.
28.
If one has regard to the Trust minutes of 24 May 2013, the trustees
at such meeting resolved
to stand surety for any fees that both Dean
and Graeme would incur with a financial institution. In the event of
neither one of
them being in a position to repay such loans, then the
trust would repay the loans and this would be set off as a
distribution
against their respective loan accounts. This tender was
rejected by the first defendant and as testified by her also by Dean
and
Graeme.
29.
It is trite that a major dependent child has a claim for maintenance
or financial support
against both parents.  Both Graeme and Dean
have
locus standi
in their personal capacities to lodge a
claim for maintenance against the plaintiff and specifically payment
of their educational
expenses. In my view, the first defendant cannot
include in her expenses maintenance and support for Dean and Graeme
as she has
done previously.
30.
The first defendant seeks an open ended maintenance order until her
death or remarriage.
This would mean that if this court were disposed
to granting such an order and in fact did make such an order, the net
effect thereof
would be that the plaintiff would have an order in
place against him
ad infinitum
until the death or remarriage
of the first defendant from which both Graeme and Dean would benefit.
31.
In addition should Graeme and Dean decide independently to proceed
and institute a claim
for maintenance against the plaintiff and were
successful in doing so, they would not be bound by such order in the
first defendant’s
favour and the plaintiff would effectively be
penalised by having three maintenance orders in place in favour of
Graeme and Dean
and one in respect of the first defendant.
32.
Consequently, the amounts claimed for Graeme and Dean must be
excluded from any calculation
of the first defendant’s
maintenance expenses.
First
Defendant’s claim for maintenance in terms of section 7(2) of
the Divorce Act
33.
The first defendant relied on the provisions of section 7 (2) of the
Divorce Act for her
maintenance claims. The section reads as follows:
“
(2)
In the absence of an order made in terms of subsection (1) with
regard to the payment of maintenance by the one party to the
other,
the court may, having regard to the existing or prospective means of
each of the parties, their respective earning capacities,
financial
needs and obligations, the age of each of the parties, the duration
of the marriage, the standard of living of the parties
prior to the
divorce, their conduct in so far as it may be relevant to the
break-down of the marriage, an order terms of subsection
(3) and any
other factor which in the opinion of the court should be taken into
account, make an order which the court finds just
in respect of the
payment of maintenance by the one party to the other for any period
until the death or re-marriage of the party
in whose favour the order
is given, whichever event may first occur”.
34.
There have been number of cases dealing with a section 7(2) claim and
I have been referred
to a number of these by Counsel who appeared.
The principles emanating from the cases relevant to this matter are
the following-
34.1
“wants and needs are different things”, and after divorce
parties tend to live on a lower scale
and a women cannot expect to
enjoy the same standard of living as before the divorce;
[6]
34.2.
rehabilitative maintenance may be awarded to a divorced women and a
wide discretion is conferred on the court;
[7]
34.3.
the section does not create a right to maintenance, and in making an
award the court must assess the impact of
such award on both parties
and award what is “just”;
[8]
35.
In
ACV
CV
[9]
the court expressed the view
that an ex wife was not entitled to maintenance as a right. The onus
was on her to persuade the court
to exercise its discretion in her
favour and must provide a factual basis for doing so and ultimately
in determining whether to
do so the court must do “justice as
between the parties”.
[10]
36.
As regards her ability to earn an income, the first defendant
testified that she had been
employed periodically during the course
of the marriage but this was not to generate an income as she and the
plaintiff had agreed
that she would stay at home and take care of the
house and the children. Any income she earned was not what she
considered significant
and termed it “pocket money”. She
also testified that she did not have any records of this income.
37.
This income would be derived from baking and would be expended on the
household and estimated
it to be in the region of ± R400 .00 –
R700.00 per month. She was a consultant for Annique selling beauty
products
for a period of time but ended this. She re-joined Annique
in April 2011 so as to benefit from her personal use of the products.

This was for a few months but she could not recall what income she
derived from Annique.
38.
When she separated from the plaintiff and whilst in Gauteng she
continued as a consultant
but this income dwindled as she found it
difficult to secure new clients and maintain existing ones given the
distance. She testified
that since her separation from the plaintiff
in July 2012, she had no employment and was totally dependent
financially on her brother
for 14 months until the rule 43 order.
39.
She was “employed” at an optometrist for 3 days and this
is how she was able
to “pay” for her contact lenses as
the plaintiff had removed her as a beneficiary from the medical aid
scheme.
40.
She had made attempts to secure employment and had approached friends
who offered her employment
but this was not in her view offers of
formal employment. This was as a cashier at a busy butchery earning
approximately R3500,00
per month and as a manageress at a Wimpy
restaurant earning between R7000.00 and R8000.00 per month. She
testified that she did
not have the courage to seek employment in the
formal sector and did not seek employment in such sector, as she felt
she did not
have the necessary expertise and felt “uncomfortable
thinking about it”.
41.
However, during cross-examination, it became evident that she was
being economical with
the truth and was not being entirely candid
with the court. Her attention was pertinently drawn to the affidavits
she filed in
the various rule 43 applications and how they differed
from what she said during her evidence in chief. For example, if one
considers
her affidavit of 23 April 2013,
[11]
she indicates that she baked on consignment for Pomander Home
Industry and earned a not too significant amount, she was employed
by
Denise Eysell Estate Agents earning R3000.00 per month.
42.
She confirmed having been employed as a sales consultant for Annique
and this continued
after her separation. She in fact confirmed that
in Gauteng during her first three month at Annique as a novice, she
was the top
sales lady. She received prizes for her performance and
received an award at an evening ceremony. During cross-examination
she
testified that after her separation from the plaintiff she earned
an income but did not think to mention it in her evidence in chief
as
“it was hardly worth mentioning” and that “it
slipped my mind that I was a consultant”. She in fact
indicated
that it was” not a big deal in her life and she was not earning
a substantial income”.
43.
It also became evident that she had also not been candid about other
places she had been
employed at during the marriage and that
subsequent to her separation from the plaintiff she had not made any
real effort to seek
employment and become self -supporting. She
testified that despite the offer of employment at the butchery she
did not take up
the offer as “I have a standard and I don’t
believe that is where I belong.”
44.
In March 2013, she was still an Annique’s agent yet chose not
to disclose this in
her evidence in chief. She also she testified
that she chose not to renew her contract as she was not certain
whether her income
would justify the fees that she would pay to renew
her subscription as a consultant. However, it became evident that her
real motivation
was the rule 43 application. She in fact acknowledged
that she was applying for maintenance and did not want to jeopardise
such
application.
45.
She admitted she refused to attend the meeting of the Trust on 24 May
2013, when the trustees
resolved to pay her the sum of R25 000.00
towards her maintenance. When such tender was communicated to her
attorneys, such
tender was rejected. She testified she did so as such
monies were “trust” monies and did not want to jeopardise
her
Rule 43 application.
46.
When questioned as to what she would like to do she displayed a
reluctance to consider anything
and when pressed by Mr Stokes that
she did not make any effort to find employment not because she lacked
skills, confidence or
training but rather because she felt she was
entitled to be supported by the plaintiff, she in fact said “I
don’t feel
entitled to it I feel I deserve it.” She
refused the offer of retraining suggested during cross-examination by
Mr Stokes
based on the recommendations in the report of her expert
and said “I will not do so”. When asked a direct question
as to whether she “point blank refused to undergo retraining”
her response was “Yes, I refuse.”
47.
In addition it became evident that she was selective about her income
during her marriage
and that she may have derived some income other
than what she disclosed in court and in her affidavits more
specifically during
her separation from the plaintiff.
48.
Of relevance to the first defendant’s ability to earn an income
and the aspect of
what is colloquially termed “notional earning
capacity”, the evidence of an industrial psychologist, Lance
Marais was
led to give an opinion on her employability and potential
future earning capacity until her date of retirement.  After
assessing,
the first defendant on 16
September
2014 he compiled the report dated 22 September 2014, exhibit “K”.
49.
Mr. Marais was of the opinion that the first defendant had retained
some employability and
earning potential. He opined that given her
age, level of education, long absence from the formal labour market,
the requirement
for re-training and marketability and the fact that
South Africa was experiencing high unemployment levels, a depressed
economic
climate in conjunction with the affirmative action policies,
it would be extremely difficult to near impossible for her to
re-enter
the
labour
market.
50.
His findings in his report were based on the interview with her and
her personal circumstances
as she reported them to him and the tests
he performed. He testified that the first defendant obtained an
excellent score on the
Ravens test which is indicative of her
excellent ability. She would not have difficulty when she was
required to learn additional
and new tasks provided that she had the
desire and motivation to succeed.
51.
Her score on the Ravens test indicated an ability to learn new
concepts and material. Due to her
lack of occupational experience he
was of the view that she would require re-training for a period of at
least 3 (three) years
to sharpen her skills, improve her knowledge,
and to market her ability and knowledge to compete in the formal
labour market.
52.
Given the depressed state of the labour market because of her age and
lack of experience Marais
was of the view that she would obtain
employment from someone who knows her rather than in the open labour
market. He estimated
that depending on the geographical area she is
able to obtain employment, she could secure an income of between
R5 700.00
(five thousand seven hundred rand) to R11 200.00
(eleven thousand two hundred rand per month). The higher figure was
based
on her re-training.
53.
Among the factors emphasized by Marais, was that the first defendant
had to be motivated and had
to have the desire to succeed. Her
scoring on the Raven’s test demonstrated her ability as long as
she has the motivation
and desire to do so.
54.
During cross examination he acknowledged that the first defendant had
not been totally honest
with him about inter alia the fact that she
had been employed after 2010, her income derived as an Annique
consultant nor her accolades
and success arising from such
employment, the attempts she made to secure employment and that she
in fact did secure offers of
employment at a butchery or as a
manageress, her “employment” at an optometrist.
The Moore Family Trust
being a scam and the alter ego of the Plaintiff
55.
The first defendant joined the trustees of the Moore Family Trust, in
my view to bolster
her claim for maintenance. The effect of this
would be that the court would regards the assets of the trust as the
plaintiff’s
in determining the size of his estate.
56.
I was referred to a number of authorities dealing with this issue and
the instances when
the courts looked “behind” the trust
and determined that it was the alter ego of the party and trust
assets were in
fact his.
[12]
Terms
of the Trust Deed
57.
It is not in dispute that the purpose of the trust was to benefit the
beneficiaries being
the first, fifth, sixth, seventh and eighth
defendants,
[13]
to meet their
maintenance needs
[14]
.
58.
The manner in which income and capital payments were to be made were
catered for in the
trust deed
[15]
and
the powers of the trustees were clearly defined therein.
[16]
59.
The difficulty which arises in this matter is the fact that the first
defendant has not
been candid with her expert regarding her
employment history, nor has she been candid regarding her income. In
addition she has
also exaggerated her expenses and has also included
the expenses of her major sons in the calculation of her monthly
expenses.
60.
She has also argued that she has become accustomed to a certain
lifestyle whilst married
to the plaintiff, and is therefore justified
in requiring  him to meet all her monthly expenses without her
having to meet
any of them herself as he has a huge estate from which
he meet such obligation.
61.
To justify this she has alleged the Moore family trust and its assets
are in essence the
plaintiff’s assets and form part of his
estate and that the trust is a sham and the alter ego of the
plaintiff. She has relied
on her expert Neil McHardy, a chartered
accountant to provide an opinion in this regard. He has done so after
considering the trust
deed and accessing all documentation in
relation to the Moore family trust, annual financial statements and
the other business
interests of the plaintiff. He concluded that
there was a “strong” argument to be made to support the
contention that
the Moore family trust is a “veneer” and
“ultimately the alter ego of Mr M.J. Moore”.
62.
His reasons for concluding this with the documents at his disposal
can be summarised as
follows:
62.1
The trust did not maintain a separate bank account which is
required in terms of
the trust deed and the Trust Property Control
Act;
62.2
Decisions were taken without consultation with other trustees and in
the absence of resolutions by trustees,
specifically in respect of
the sale of trust investments and distributions made to
beneficiaries;
62.3
The trust deed made provision for two trustees to constitute a
quorum. However, instances involving
the sale of trust investments
and the distribution of the entire trust capital ought to have
involved all trustees at a properly
constituted trust meeting where
all trustees would have participated in such   resolutions;
62.4
All trustees would have been expected to participate in important
decisions specifically relating to the
sale of trust investments and
the distribution of the entire trust capital to only two of the five
beneficiaries during the financial
year end 28 February 2014;
62.5    No
independent trustees have been appointed which could possibly have
averted what appeared to be unilateral
decision making;
62.6    It
is questionable as to whether there is a separation of ownership of
the trust assets from those of the
founder, Mr M. J. Moore as the
trust property control act requires trust property to not form part
of the personal estate of a
trustee except in circumstances where the
trustee is a trust beneficiary and is entitled to trust property
there must be a separation
of control or ownership of assets from
benefits;
62.7
The loan made to the founder Mr M.J. Moore does not have any formal
terms and conditions save for being interest
free, despite a
resolution in September 1999. As a consequence thereof it appears as
though the founder of the trust M J Moore
has benefited from trust
property and moreover has control over trust property.
63.
The complete details and further instances upon which he relies for
the opinion are contained
in exhibit “A” which is his
report dated 25 September 2014.
64.
Having regard to the report it is clear that the monies of the trust
emanated solely from
Mr M.J. Moore. In light of the fact that the
trust did not maintain a bank account the transactions and loans are
regularised by
means of journal entries.  The annual financial
statements reveal that all the beneficiaries of the trust benefitted
from
the Moore family trust. For example in respect of Sean and
Graeme their educational expenses and a vehicle were funded and paid

for by the trust as too were holidays as well as medical expenses of
the first defendant.
65.
In addition the properties occupied by the plaintiff and first
defendant were purchased
and paid for by the trust. The various
entities like for example Dataqwip Rentals (Pty) Ltd and Prop-Plus 39
(Pty) Ltd were entities
from which monies generated were “paid”
to the trust and these funds were used to support the plaintiff,
first defendant
as well as their children and the plaintiff’s
children from a previous marriage. The funds were generated solely by
the plaintiff
and not by the first defendant in any way.
66.
He accepted that the trust never received funds. Its assets were
shares it held in companies
and a shareblock and a loan account
through the plaintiff. Its “income” consisted of
dividends and donations made by
the plaintiff- no actual funds were
exchanged or “paid” over to the trust.
67.
His conclusion that the trust was required to open a bank account
with a banking institution
was based on the terms of the trust deed,
clause 14.5 and the Trust Property Control Act. During his evidence
he conceded that
from his examination of the documents no funds were
exchanged with the trust and the trust did not receive any monies.
68.
That decisions and resolutions were taken without discussion,
participation or knowledge
of all the trustees was based on the
documents he considered and because he was not presented with any
evidence in this regard
which created an appearance of lack of third
party participation.
69.
He acknowledged the contents of pages 17 and 18 of exhibit “B”,
which were resolutions
taken in 1999 and 2007 by all the trustees of
the Moore Family Trust, significantly all three trustees signed
these. Paragraph
2 of the 1999 resolution dispenses with the need for
the trust to open a banking account. It also specifically authorized
M. M.
, the plaintiff to deal with the shares held by the trust in
Dataqwip, Quyn Capital and Pro-plus 39 and to negotiate for the
purchase
and sale of moveable and immoveable assets of the Trust.
70.
He further acknowledged that as at 2012, there were no distributions
made by the trust,
no sale of assets and donations or receipts by the
trust were from the plaintiff which were debited to his loan account.
71.
The first defendant when she testified attempted to create the
impression that in so far
as the trust was concerned, no meetings or
discussions took place in which she participated. She in fact
indicated that the plaintiff
and Sean Moore made decisions without
her knowledge, hence this court ought to “pierce the veil”
of the trust and find
that the assets of the trust were in fact the
plaintiff’s. This also formed the basis of the application in
the Gauteng High
court for the removal of them as trustees and for an
amendment to the trust deed.
72.
This was not borne out by the evidence of Sean Moore and the
documents seem to suggest otherwise.
The resolutions in Exhibit B,
which are signed by all three trustees including the first defendant,
indicate that she in fact participated
in the decision making process
or at the very least was aware of the resolutions taken certainly in
1999 and 2007. She may not
have been an astute business person, but
certainly she would be familiar with resolutions and the reasons they
were taken, she
was present when it was discussed and she was aware
what the purpose of the trust was. Sean Moore who testified during
the first
defendant’s case, testified that at times formal
meeting of trustees were held save that in light of the fact that
this was
a family trust for purposes of all beneficiaries including
the first defendant discussions concerning the trust and assets and
distributions as well as loans and monies to be expended was often
discussed at family gatherings. This was not something disputed
by
Mrs Moore.
73.
Once the litigation had commenced, she received notification of
subsequent meetings of the
trust and was made aware of items to be
discussed and possible resolutions to be taken. She made an informed
decision, no doubt
guided by her legal representatives not to attend
the meetings.
74.
The first defendant as well as the plaintiff held Money Market
accounts with banking institutions
in respect of funds generated by
the companies “owned” by the trust. In my view it is
disingenious of her to say she
knew nothing of the business affairs
of the trust.
75.
During cross examination Mr McHardy conceded that having regard to
the terms of the Trust
Deed decisions taken by the trustees in
relation to the transactions of the trust were properly made in terms
thereof. Every single
transaction of the trust was properly made
pursuant to a meeting and notice of such meetings and done within the
terms of the trust
deed. He confirmed that the 1999 resolution of the
trustees, including the first defendant authorises the plaintiff to
be shareholder
for the trust and also the trust administrator.
76.
The trust document makes provision for a separate banking account to
be opened if trustees
and the trust are to receive monies. Neither
the Trust Property Control Act nor the trust deed stipulates that
such bank account
must be in the name of the trust. It also became
apparent that the terms of the trust deed authorises the resolutions
take specifically
appointing the plaintiff as “administrative
trustee”.
77.
The trust property control act does not regulate when meetings must
be held. The trust deed
does so
[17]
.
He acknowledged that in practice a minute book of resolutions is kept
but given the situation as in the present matter especially
when one
is dealing with a family trust this is not unusual. There is also
nothing in the act or the trust deed which said that
resolutions must
be recorded.
78.
He acknowledged that the resolution taken also indicates that a
quorum constitutes two out
of three trustees and that there is
nothing wrong with this. The consequence is that decisions taken by
the two trustees for the
net capital distributions to be made to
Lorna Moore and Sean Moore are regular and there is nothing untoward.
79.
Having regard to the meeting of May 2013
[18]
this appeared to regularise the position in accordance with the trust
deed. Prior to 2013, he acknowledged that the plaintiff took
on the
whole responsibility for the loan account and all beneficiaries
benefited because the trust retains assets. He acknowledged
that this
in some way was for the benefit of the beneficiaries and in another
may have prejudiced the plaintiff. He further acknowledged
that the
amounts expended on beneficiaries should have been debited as against
a beneficiary’s loan account.
80.
In 2013 the plaintiff owed the trust in excess of R15 000 000.00
for all monies
expended including those of all the beneficiaries of
the trust as opposed to each individual beneficiary’s loan
account being
debited. He further acknowledged that in terms of the
trust deed all the beneficiaries were taken care of and all their
expenses
and needs met by the plaintiff debiting his loan account
with the trust.
81.
The 2014 annual financial statements are drafts statements and from
the information at his
disposal the trust owns nothing and earns no
income and has no assets. He agreed with Mr Stokes that the only
thing inaccurate
is the shares being sold whereas the shares were
distributed as capital distributions.
The
Submissions of the parties
82.
Mr Stokes SC argued that a divorce ends the reciprocal duty of
support which spouses owe
each other. He conceded that section 7 (2)
of the Divorce Act confers a discretion on the court to make an order
for payment of
maintenance if it is satisfied that the claimant
spouse discharges the onus to show why an order for maintenance
should be made
in her favour having regard to the factors set out
therein
83.
Ms Liebenberg submitted that having regard to the provisions of
section 7 (2) of given the
fact that the word “just” was
used in the section meant that one must be fair and make such award
having regard to
all the evidence in a reasonable and proper manner.
In circumstances where the parties enjoyed a high standard of
living
and where money was no object there would be no reason why in
appropriate circumstances a wife could not continue to enjoy the same

standard of living whilst her marriage subsisted after her divorce,
and there would be no reason why a former husband who could
easily
afford to do so ought not to be ordered to see to it that such state
of affairs continues and that he now pays for his ex-wife
to enjoy
the same standard of living after the divorce.
84.
Even if the court were to find that the first defendant had an
ability to earn an income
this ought not to disentitle her to an
order directing the plaintiff to pay maintenance to her. She
submitted that given the circumstances
of this matter despite the
fact that the children born of the marriage were majors sufficient
evidence had been adduced to show
that both children were full time
students and remain financially dependent on the parties for all
their financial needs.
85.
She submitted that in certain instances the assets of the trust maybe
taken into account
by a court to determine the extent of a spouse’s
estate
[19]
.
Given the circumstances of this matter, this must be extended to
claims in terms of section 7 (2) of the Divorce Act as the court
was
justified in piercing the corporate veil of the trust to determine
whether or not the Moore family trust was in fact the alter
ego of
the plaintiff. There was sufficient evidence on record having regard
to the evidence of Mr Wehmeyer, Sean Moore and Neil
McHardy to
conclude as such.
86.
The plaintiff created the trust as a vehicle to provide for him and
his family in what she
termed a “tax effective” and
financially beneficial manner. The trust had no independent trustees
and despite submissions
to the contrary the plaintiff was and
remained in de facto control of the trust. All the resources of the
trust emanated from the
plaintiff and it never operated a separate
banking account. The source of income from the trust was dividends
generated from companies
of which the plaintiff was the director at
all relevant times. All income was deposited into accounts held in
the plaintiff’s
name or under his control and in light of the
fact that the trust never maintained a separate banking account a
loan account in
the books of the trust enabled the plaintiff to use
the income of the trust for both he and his family’s benefit.
Evaluation
of the Evidence
87.
The first defendant did not impress me as a witness. I accept that
she was married to the
plaintiff for a considerable period of time
and had grown accustomed to a certain standard of living. However,
her evidence and
the manner in which she testified, in my view, left
me with a lasting impression of the words often quoted “
hell
hath no fury like a woman scorned
”. When she testified she
painted a picture of the plaintiff as being the controlling, dominant
individual who adopted a dictatorial
role in their marriage, who
preferred her to adopt a subservient, docile role, accepting what he
said and being in no way involved
in the decision making during their
marriage. She also wanted to create the impression as a consequence
of this that he may have
been largely responsible for the breakdown
of the marriage. However, during cross examination a different
picture emerged. The
first defendant struck me as being anything but
docile and subservient.
88.
The plaintiff certainly appears to have the means to satisfy any
maintenance claim which
the court may make in favour of the first
defendant. The first defendant has as already placed on record, not
been candid with
the court regarding her earnings during the course
of the marriage and more particularly since her separation from the
plaintiff.
It appears that she is able to generate an income albeit
on her version an immodest one.
89.
The parties were married for a period in excess of 20 years and at
present she is 51 years
old, it being common cause that the plaintiff
is much older than her. The parties appear to have enjoyed a high
standard of living
prior to the divorce. Having regard to the reasons
for the breakdown of the marriage, it appears that there may have
been problems
in the marriage for a period of time and 2012 was the
catalyst for the final separation of the parties. Having regard to
the first
defendant’s evidence it is clear that both parties
are equally to blame for the breakdown of the marriage and that this
should
not be a factor which should weigh heavily with the court.
90.
The first defendant from her evidence appears to be intent on holding
the plaintiff responsible
for her maintenance needs and “making
him pay”. She was of the view that despite the fact that she
was able to secure
employment and generate some income for herself
she was not prepared to do so as she considered the plaintiff
responsible for maintaining
her for the remainder of her life. As I
have already said included in her monthly expenses are those expenses
of her major sons.
91.
It is trite the first defendant bears the onus to meet the
requirements of section 7 (2)
and to also establish what her monetary
needs are in respect of the quantum of such maintenance. I find
myself in respectful agreement
with the authorities that maintenance
ought not to be a “bread ticket” for life. This would be
consistent with the
clean break principle and also given the fact
that the first defendant is able to generate an income for herself
and on the evidence
of her own expert certainly has the acumen and
intelligence to do so.
92.
The fact that she expresses no desire to do so is something which
weighs heavily with the
court and certainly is a factor which I have
considered in determining the period of time for which I intend
making an order for
rehabilitative maintenance specifically for her
to retrain herself and better equip her in the formal labour market.
I am not in
agreement that I should exercise my discretion in favour
of the first defendant and hold the plaintiff completely liable for
her
maintenance for the rest of her life or until she remarries.
94.
Given the nature of the evidence of the first defendant and the fact
that she has been able
to generate an income
albeit
a limited
income from her employment as an Annique consultant; and given the
fact that she only made enquiries insofar as two job
offers were
concerned with friends, in my view she has the potential given
re-training to market herself and earn an income to
eventually
maintain herself.
95.
Given the pattern of non-disclosure in these proceedings, least of
all to Mr Marais, I cannot
exclude the possibility that she has not
been candid with the court about her income. During the evidence
reference was made to
bank accounts and income earned and I cannot
exclude the possibility that this was not the only income she
earned.
[20]
Reference was only
made to one bank account and not an access account which she
controlled and into which a number of transfers
were made.
96.
Her responses to questions during cross-examination reveal a refusal
to be retrained or
to seek employment at all as she believes that she
“deserves” to be maintained by the plaintiff for the
remainder of
her life. The impression she left the court with, was
that to be employed as a manageress or a cashier was “beneath”

her and she expressed an unwillingness to be retrained at all and to
do anything for herself.
97.
In addition the first defendant did not assist the court in advancing
her cause for maintenance.
She was not frank with the court, at times
very vague and I often gained the impression was not very
forthcoming. Her lack of candour
regarding her employment history and
income derived therefrom especially with her expert, Lance Marais did
not assist in any way
for the court to assess her true maintenance
requirements and her earning potential. I also accept that in matters
involving maintenance
there is a tendency especially in rule 43
applications to exaggerate ones expenses. In this matter I do not
view these as mere
exaggerations or an over inflation of expenses- in
my view there was an element of dishonesty.
98.
Her failure to take Mr Marais into her confidence resulted in him
being hampered in providing
a report which would be of assistance to
the court. In fact she failed to disclose to him that during her
marriage to the plaintiff,
save for a short period of time she was a
successful Annique consultant and derived an income from this, that
she was recognised
as such at a particular function and received
prizes in recognition of her success as a sales person.
99.
Even after her separation from the plaintiff she derived an income
from this. She also failed
to disclose that she had been offered
employment as a cashier at a butchery and as a manageress at a Wimpy
by friends but failed
to take up any of these offers and her reasons
for doing so. This would have given him some indication of her
earning potential,
income earned and the real efforts made by her to
obtain employment. Her lack of candour with him in this regard must
certainly
affect the conclusions he comes to based on the incorrect
factual premises.
100.
Of significance is that even though she secured an interim
maintenance order before Nzimande AJ, she conceded
that she in actual
fact only needed an amount of R27 000.00  per month to meet her
expenses. She had managed to save some
of this money to pay legal
fees. This amount in my view is as accurate a figure one can come to
in determining her needs given
her lack of candour.
101.
When questioned by Mr Stokes as to whether she would be willing to be
retrained in order to capacitate her
to supplement her income, and to
enable her to market herself and compete in the labour market to be
gainfully employed so as to
support herself, she was unwilling to
even consider this and flatly refused the offer. In response to
questions put to her during
cross-examination, her answers often were
“
I deserve it
”, “
I am not prepared to do
so
”, “
Michael must pay”.
102.
As sympathetic as I may be to the plight of married women who devote
their time and effort to their marriages,
and who also become
accustomed to a certain lifestyle, maintenance is not a “
bread
ticket
” and in line with the “clean break principle”
women cannot expect to be supported for the remainder of their
lifetime. A classic example of this is the first defendant.
103
Given the evidence of Marais, I am of the view that to award
rehabilitative maintenance to the first
defendant for a period of 5
years would be sufficient. She needs 3 years to retrain and a further
two to find her feet and enter
the labour market. In the interim she
has the ability to supplement her income as an Annique consultant
should she need to do so.
104.
I am also satisfied that a contribution to her medical expenses in
the form of the plaintiff paying to her
a sum equivalent to the
instalment she will be required to pay to Discovery is warranted.
Such amount can increase in line with
the annual premium increases
imposed by Discovery.
Compliance with the
ante-nuptial contract and orders for lump sum payments
105.
Having regard to the evidence presented and the documents filed, when
the first defendant vacated the matrimonial
home in July 2012, she
took her personal items, the 2006 and 2012 Pajero motor vehicles,
other items of crockery and cutlery and
kitchen appliances and bed
linen. She also removed cash and had access to monies in her bank
account and used the Diner’s
club card.
106.
When the sale in respect of the Manhattan property was concluded,
certain  items of furniture and other
movables were sold by her
and she was paid the sum of R100 000.00 by the purchasers of the
property which payment was made into
her bank account and which
monies she utilised. She also testified that when she and the
plaintiff experienced problems in their
marriage they concluded a
“reconciliation” agreement.
107.
She acknowledged that in terms of this agreement she received the
Manhattan property as a consequence and
that the furniture in the
Manhattan property which was paid for by the plaintiff was sold by
her and she received the proceeds
thereof. She also received the
occupational interest from the Manhattan property until the transfer
was registered. The plaintiff,
she acknowledged, over the years
purchased the items referred to in the ante-nuptial contract many
times over and that the insurance
policy is no longer in force.
[21]
108.
In my view the plaintiff has more than complied with the terms of the
ante-nuptial contract and the first
defendant is not entitled to any
orders in relation thereto. The fact that she considered the
reconciliation agreement as something
in addition to what she was
entitled to in terms fo the ante-nuptial contract is of no
consequence. In any event, this court has
a discretion to make a just
award in terms of section 7(2).
109.
As she has had access to furniture, which she sold and has in the
interim purchased further items I am not
inclined to make such an
order as requested. She also has the proceeds of the Manhattan
property. Even though she has two vehicles
at her disposal I am
inclined to make an order for some contribution by the plaintiff to
enable her to acquire a new vehicle, although
not in the amount
requested as she testified that she can trade in the one towards the
purchase price.
110.
I now turn to the issue of the trust. Whilst I accept that there may
be instances in which the courts are
inclined to “pierce”
the corporate veil and go behind the trust and to determine whether
or not the assets are in fact
those of a plaintiff I am of the view,
that on the facts of this matter this is not one instance where that
should be done.
In any event the first defendant in my
view has not established in any way that should she be successful in
her claim for maintenance
the plaintiff is not in a possession to pay
any maintenance due to the first defendant.
111.
In declining to do so,
I
am not satisfied that the first defendant has discharged the onus
that the trust was the alter ego of the plaintiff or that it
was
merely a sham. The evidence seems to suggest that the Moore family
trust was setup for the benefit of the beneficiaries including
the
Plaintiff, the first defendant, their children and the plaintiff’s
children of his former marriage. I am of the view
that the purposes
behind adopting the stance and alleging this was to justify the first
defendant’s claim that the plaintiff
ought to meet all her
maintenance needs and obligations for the remainder of her life.
There is simply no bases for doing so.
112.
On the evidence presented I must accept that the trust drew up a
separate set of financial statements every
year this separately
recorded the trusts activities, its income and expenses and its
assets and liabilities. The first defendant
as trustee signed off on
the financial records and did not in her evidence or that of Neil
McHardy attempted to suggest that the
financial statements were
inaccurate or were fraudulent. Separate records were kept of the
trust assets, and that of the plaintiff.
The trust and the plaintiff
separately paid their own tax in accordance with their income and
expenses.
113.
In addition the first defendant attempted to show that she knew
nothing of the trusts activities, resolutions,
financial statements
or the operations of the trust. However it is clear that she was
present when family meetings occurred discussing
the business of the
trust. She refused to attend any meetings of the trust specifically
when she and the plaintiff had separated.
What is more apparent is
the fact that she was aware that the purpose of the trust was for the
benefit of not only her and the
plaintiff but also their children and
the plaintiff’s children of his former marriage.
114.
The trust was the vehicle through which they survived and through
which they enjoyed a high standard of living.
In addition the
plaintiff appears to have been an astute business man and utilised
his monies generated for purposes of the trust,
to meet all their
maintenance and living expenses.
115.
I agree with the submission of Mr Stokes that this case is on all
fours with that of
Maritz.
116.
During the course of the trial I issued orders and indicated that my
reasons for such order would follow
in the judgment. I propose to do
so briefly.
117.
In respect of the rule 43(6) application of 8 October 2014, the
orders I issued were the following:-
117.1.
The respondent, M. M.  is directed to make a contribution to the
applicant L. M. ’s costs in the sum of R150 000.00
(one
hundred and fifty thousand rand).  Such amount is payable by
close of business on Thursday, 9
October 2014.
117.2.
The cost limitations imposed by the provisions of rules 43(7) and
43(8) will not apply.
117.3.
The costs of the application in terms of rule 43(6) are reserved for
determination by the court hearing the divorce action.
118.
In such application the first defendant had included a pro forma of
what her estimated legal fees were.
She acknowledged that she
had received a contribution to costs in a previous rule 43 order in
the sum of R 80 000.00. Ms Liebenberg
argued that the bill was in
respect of the first defendant’s anticipated costs and that she
was not seeking a contribution
to all her costs but only those
relating to the trial, despite this being a trial essentially about a
maintenance claim. She submitted
that a contribution of R 800 000.00
was reasonable to enable the first defendant to pursue her claim
against the plaintiff.
119.
The basis for an order for the contribution to costs is the duty of
support spouses owe each other.
[22]
An applicant for a contribution to costs must show that he or she is
defending the action in good faith and that he/she has insufficient

means of his/her own.
[23]
120.
An order in respect of contribution to costs is toward the costs of
the action and costs of interim applications
are excluded. In
Service
v Service
[24]
the argument advanced by the applicant was that she should be able to
litigate on the same scale as her husband and was entitled
to the
payment of the whole amount of her estimated costs. The court was of
the view that the applicant was not entitled to be
paid in advance
the full estimated amount of her future legal costs and in
considering the bill of costs took the view that as
the bill included
costs of interim applications the amounts claimed were on a generous
scale and some of them were included on
the assumption that certain
expenses would have to be incurred.
121.
In
Nicholson
vs Nicholson
[25]
,
the court opined that an applicant was entitled to a contribution to
costs. The court was of the view that it is well recognised
that such
contribution would not cover all an applicant’s costs nor would
it cover her attorney and client costs and all
that an applicant in
an application for contribution to costs was entitled to is to have
those estimated costs covered or
substantially
(my emphasis) covered. The court was of the view that costs already
incurred are not covered by a contribution to costs and also
scaled
down the costs claimed
[26]
.
122.
In
Micklem
vs Micklem
[27]
the court also reaffirmed the principle that an applicant was not
entitled to payment of her full costs or costs incurred to date.
The
court indicated that an applicant was entitled to costs which would
adequately place her before the court and among the issues
to be
considered in deciding this was the question of essential
disbursements.
123.
The amount awarded to an applicant in such application depends on the
court’s view of that amount necessary
for an applicant to
adequately put her case or present her case to the court. An
applicant is not entitled to all her anticipated
costs even though a
respondent may be able to afford them but its only entitled to a
substantial contribution towards them.
124.
It has also become practice for the court to adopt the view that an
attorney must bear some risks with regard
to fees and this is a
factor which is considered when deciding an application for a
contribution to costs.
125.
Given that the trial of the matter was at an advanced stage and that
the costs awarded previously were to
enable the first defendant to
litigate to the first day of trial, I was of the view that some
contribution was warranted to enable
the first defendant to at least
proceed with her claim for maintenance rather than delay matters
further. It was for these reasons
that the order for such
contribution was issued.
126.
The next application was the rule 35(3) application in which I issued
the following orders:
126.1.
The application is dismissed.
126.2.
The applicant, L. C. M., is directed to pay the costs occasioned by
the application, including the costs consequent upon
the employment
of senior counsel.
127.
Prior to the trial commencing the First Defendant sought an order
compelling the Plaintiff to “reply
further and more
comprehensively to the applicant’s Rule 35 (3) notice within
five (5) days from date of this court order
being granted.”
128.
The additional documents in respect of which the First Defendant
sought to compel discovery are set out as
items 1 to 34 of the Rule
35 (3) notice annexed to the founding affidavit to the application as
“FA1”
129.
The plaintiff filed an affidavit dated 29 July 2014 in response to
the Rule 35(3) request. On receipt thereof,
by way of a letter dated
1 September 2014, addressed to the plaintiff’s attorneys, the
first defendant’s attorneys
raised complaints in relation to
the response filed.
130.
Rule 35 (3) reads as follows:
“
If
any party believes that there are, in addition to documents or tape
recordings disclosed as aforesaid, other documents (including
copies
thereof) or tape recordings which may be relevant to any matter in
question in the possession of any party thereto, the
former may give
notice to the latter requiring him to make the same available for
inspection in accordance with sub-rule (6), or
to state on oath
within ten days that such documents are not in his possession, in
which event he shall state their whereabouts,
if known to him”.
131.
The provisions of the rule are intended to provide a procedure for a
party dissatisfied with the discovery
of another party or in
circumstances where he alleges discovery is inadequate. In
determining whether or not to grant such an order,
the court would
have regard to the relevance of the documents requested. Relevancy
must be determined from the pleadings and the
party can only obtain
inspection of the documents relevant to the issues on the
pleadings.
[28]
132.
The test for relevance was referred to in
Rellams
(Pty) Ltd vs James Brown and Hamer Ltd
[29]
.
In such decision the court referred to Brett LJ in
Compagnie
Financiere et Commerciale du Pacifique vs Peruvian Guano co
(1882) 11
QBD 55
when the court held as follows:
“
It
seems to me that every document relates to the matter in question in
the action which, it is reasonable to suppose, contains
information
which may – not which must – either directly or
indirectly enable the party requiring the affidavit either
to advance
his own case or to damage the case of his adversary. I have put in
the words either directly or indirectly because,
as it seems to me, a
document can properly be said to contain information which may enable
the party requiring the affidavit either
to advance his own case or
to damage the case of his adversary, if it is a document, which may
fairly lead him to a train of inquiry
which may have either of these
two consequences.”
133.
A document must be described with sufficient accuracy to enable it to
be identified. In doing so, a document
can be described within a
“genus” enabling it to be identified if it cannot be
specifically identified
[30]
.
In responding to a request in terms of Rule 35 (3), a litigant must
state on oath that the documents are either irrelevant to
the issues
in the action or that they are privileged from disclosure or state
where they are if not in his possession.
135.
In dealing with the application and the case which the plaintiff was
required to meet, the rule makes it
clear- a party is entitled to an
order if the documents are relevant to the issues in the proceedings
and they are in the possession
of the person they are being sought
from.
136.
The plaintiff has indicated the following. He has indicated that the
documents are not in his possession
and what has happened to them
like for example the bank statements and a schedule has been put up.
[31]
Where the documents are
not in his possession he has stated in whose possession they are and
has consented to the third party making
them available.
137.
All documents evincing the
causa
for payment are couched too wide these are not described nor are they
are of a “genus”.
[32]
Ms Liebenberg submitted that the applicant does not know what these
documents were and was not in a position to describe them.
I
was not satisfied that the first defendant had sufficiently described
these documents or that they fell within a “genus”.
138.
In addition, the authorities are clear the rule in
Plascon
Evans
applies and the application must be adjudicated with that in mind.
Once a respondent has indicated that the documents are not in
his
possession and has stated in whose whereabouts they are if known to
him he has complied with the rule.
[33]
139.
The next issue is that of costs.
Costs
140.
The divorce act contains a provision dealing with the aspect of costs
in a divorce action. Section 10 reads
as follows:
“
In
a divorce action the court shall not be bound to make an order for
costs in favour of the successful party, but the court may,
having
regard to the means of the parties, and their conduct in so far as it
may be relevant, make such order as it considers just,
and the court
may order that the costs for proceedings be apportioned between the
parties.”
141.
It is trite that the court has discretion in awarding costs and such
discretion is to be exercised judicially
upon a consideration of the
facts in each case and the decision is a matter of fairness to both
sides. The general rule is that
a successful party is entitled to his
costs.
142.
In determining who is the successful party, the court looks at the
substance of the judgment and not merely
to its form. The court can
deprive a plaintiff of its costs where the whole trial turned on
issues in regard to which the ultimately
successful party has been
unsuccessful.
143.
In
Galion
(Pty) Ltd v Burger
[34]
the court ordered the defendant to pay the plaintiff’s costs up
to and including the first day of trial and thereafter the
Plaintiff
to pay the defendant’s costs.    De Villiers JP
in
Van
Vuuren v Jonker
[35]
said, “it is in the
magistrate's discretion whether or not he shall award costs, he must
exercise that discretion in a judicial
manner.” In other words,
when awarding costs, the principles of justice and equity should be
taken into account by the presiding
officer.
144.
On the first day of trial, the plaintiff consented to an order that
the first defendant was entitled to the
proceeds of the Manhattan
property without any admission of liability and tendered the sum of R
2 million rand towards the claim
for maintenance. This obviously has
an impact on the costs to be awarded as a consequence of the
litigation.
145.
Such tenders were not accepted by the first defendant. In addition
the plaintiff had all along denied the
first defendant’s claims
for maintenance and such tender in respect thereof was made on the
first day of trial.
Where
there is a gross disproportion between the amount claimed and the
amount awarded, the plaintiff should not necessarily be
deprived of
his or her costs.  In
Cohen
v Engelbrecht
[36]
,
De Villiers CJ said, “Because a plaintiff asks more than he is
entitled to recover, that is no ground for refusing him his
costs. …
A gross disproportion between the amount claimed and the amount
recovered might possibly affect costs…”
146.
The
circumstances of each case should be taken into account. This factor
reaffirms the wide discretion a court has. In
Kennedy
v Dalasile
[37]
,
Hutton said, “the question of costs is entirely in the
discretion of the Court… The Court on the question of costs

will be influenced by (a) the gross impropriety or otherwise of the
plaintiff's conduct; or (b) by the seriousness or otherwise
of the
charges which the defendant fails to justify; or (c) by both these
considerations.”
147
There are a number of applications in respect of which the issue of
costs
needs to be determined,
least of all being the various rule 43 applications as well as the
costs of the divorce action.
148.
In
respect of the
rule
43(6)
of
the 8 October 2014, as the first defendant was successful in her
application for a contribution to costs, there is no reason
for costs
not to follow the result, and the plaintiff must bear the costs
associated with the application.
149.
In
respect of the costs the first defendant submitted that she was
entitled to the costs of the interim interdict application granted
on
27 July 2012 as the plaintiff has consented to an order entitling her
to the proceeds of the Manhattan property. In addition
she submitted
that the first defendant was entitled to the costs of the divorce
action specifically in respect of her claim as
against the trust, and
also that the plaintiff be directed to pay the costs of the divorce
action including the costs of senior
counsel and the qualifying
expenses of the expert witness Neil McHardy and Lance Marais.
150.
I
agree that given the tender in respect of the Manhattan property even
though it was made without any admission or concession that
she was
entitled thereto, the plaintiff must bear the costs associated with
such application. In addition, in light of the order
it must follow
that the
rule
nisi
must be discharged.
Adjournment
of the trial 25 June 2014.
151.
The
parties representatives made submissions regarding who should pay the
costs of this adjournment. At first glance it would appear
that the
trial was adjourned at the instance of the first defendant as she
instituted an application to join the trustees and such
application
was brought at the eleventh hour even though she had sufficient
information at her disposal to have brought such application
earlier.
However, the court file is endorsed with an order  ”no
order as to costs”. It would thus appear that
an order relating
to the adjournment has already been made.
Rule
43 Application
(Case
Number 5474/2012 : Gorven J: 5 November 2012 )
152.
This
application served before Gorven J and the costs thereof reserved. It
is apparent from a transcript of the proceedings that
he expressed a
view that the applicant, L. M. , had not made full disclosure of her
income from Annique nor had she disclosed amounts
paid to her and
which had been in her bank account and consequently had not
approached the court with clean hands. A party approaching
the court
in rule 43 applications must do so with the utmost good faith and
disclose all material information relating to their
financial
affairs.
[38]
153.
In
addition she sought the respondent, M. M. , to contribute to the
maintenance of their major sons who were not residing with her.
A
further difficulty which is evident from the papers is the lengthy
affidavit filed in the application. Rule 43 proceedings are
intended
to be “quick and inexpensive”. Our courts have also
cautioned against parties filing lengthy and prolix affidavits.
It is
also intended that two affidavits are filed.
[39]
154.
Having
regard to the application papers filed in this application and the
nature of the non-disclosures, in my view the applicant,
L. M.  ought
to be directed to pay the costs occasioned thereby and the
limitations imposed by rule 43(7) and (8) be dispensed
with.
Rule 43(6) :
28 October 2014
155.
In
respect of the rule 43(6) application of 28 October 2014, I was not
satisfied that the first defendant had made out a case for
a further
payment in respect of a contribution to costs. Ms Liebenberg made
submissions from the Bar on behalf of the applicant.
I may add that
to facilitate the trial proceeding on the reconvened dates, the
plaintiff advanced the sum of R 30 000.00 from the
proceeds of the
sale of the Manhattan which had been tendered at the commencement of
the trial.
156.
In
her previous rule 43(6) on 8 October 2014, she had indicated what her
legal costs had been to date and this referred to all the
litigation
between the parties and was not restricted to the litigation in the
divorce action. In addition, the applicant had not
set out fully how
she had expended the monies paid in respect of contributions to legal
costs advanced to her on prior occasions.
Rule
43 Application
(4417/2013
:Madondo J: 31 May 2013)
157.
These
proceedings were set aside by Madondo J on 31 May 2013 as an
irregular step. After the applicant had instituted the proceedings,

the respondent’s attorneys filed a notice in terms of Rule
30(1). No response was received to such notice and the applicant’s

attorneys enrolled the rule 43 application for hearing. The
respondent’s attorneys despatched a letter to the applicant’s

attorneys that there had been no response and that the rule 43
application ought to be removed from the roll.
158.
The
response was that the rule 43 application would not be removed from
the roll and the respondent was invited to launch the rule
30
proceedings to be argued on the same day as the rule 43 application.
159.
The
grounds relied on by the respondent were that the application
constituted an abuse of process as the papers were unduly prolix
and
contained matters not  relevant to the claims for interim
maintenance.
160.
For
reasons already dealt with above rule 43 are intended to be “quick
and inexpensive” proceedings in which parties
are to succinctly
deal with the issues. There is authority for the proposition that
“prolixity” in such proceedings
constitutes an abuse of
process.
[40]
161.
There
is thus no reason why the applicant ought not to be directed to pay
the costs occasioned by such application.
162.
A
further matter which warrants some attention in this application in
particular relates to the conduct of the applicant’s
attorneys
of record. I have already in the exercise of my discretion when it
comes to costs ordered the applicant to pay the respondents
costs. In
an effort to ameliorate the position for the applicant, I am inclined
to disallow her legal representatives to recover
any fees from her in
respect of this application in line with the reasoning in the
Du
Preez
decision
and the line of cases referred to therein. It seems to be that such
order is warranted as correspondence was exchanged
prior to the
hearing of the application and the rule 30 application being brought
and formally enrolled for hearing.
Rule
43 Application
(7117/2013
:Nzimande AJ: 1 August 2013)
163.
The
applicant was successful in such application. There ought to be no
reason why I should depart from the normal rule relating
to costs
that she be awarded such costs.  Even though it was submitted
that the applicant was not honest, I cannot sit as
a court of appeal
and adjudicate the merits of such application. Consequently, the
respondent M. M. , is directed to pay the applicant
L. M. ’s
costs occasioned by the rule 43 application.
164.
On
28 October 2014, I also issued the following orders in the rule 43
(6) application:
164.1The
application is dismissed.
164.2
The
applicant, L. M. , is directed to pay the costs occasioned by such
application, including the costs consequent upon the employment
of
senior counsel.
164.3
The
cost limitations imposed by the provisions of rules 43(7) and 43(8)
do not apply.
165.
The
applicant had renewed her application for a contribution on the basis
that she needed to bring the rule 28 application and also
as she
needed to continue with the trial. What she failed to do was to
explain what she had done with the monies advanced to her
in respect
of the contribution to costs and why she needed a further
contribution. Ms Liebenberg made submissions from the bar
and did not
in my view provide an explanation  for how the monies advanced
were utilised.it was for these reasons the orders
were issued.
166.
In
so far as the costs of the action are concerned, I am of the view
that the plaintiff is liable for the costs thereof until 8
October,
the first day of trial when the tenders were made. In addition these
cannot include all the costs in relation to the experts
as these
formed the basis on which the application in terms of rule 43(6) was
granted on 8 October 2014. Included in the draft
bill of costs were
these amounts and consequently the first defendant would not be
allowed to claim for those twice.
167.
In
addition the court must also indicate its displeasure with the first
defendant in so far as she conducted her case. It is for
these
reasons that I intend only awarding costs up to 8 October and also
directing her to pay the costs of the joinder application
and the
costs of the defendants in reconvention in relation to her
counterclaim especially in respect of the Trust.
168.
She
was not candid with the court and in my view dragged the trustees
into the fray for no good reason. As she was unsuccessful
against
them and also as she was only partially successful in her claim for
maintenance, she cannot succeed in recovering all her
costs.
Conclusion
169.
One
final matter which requires mentioning is the rule 28 application for
the amendment of the first defendant’s claim in
reconvention,
which was opposed by the plaintiff and argued when the trial resumed
on 28 October 2014. A substantive application
was brought by the
first defendant which forms part of the record.   The
orders made in regard thereto are a matter of
record.
170.
The
parties are aware of the difficulties experienced due to the fact
that I do not have a registrar appointed to assist me and
that for
the October session, 2014 the court files were not endorsed in
consequence thereof. I had attempted to obtain the recordings
of the
trial to confirm any other orders I made for its duration but have
not been able to secure these and have had to rely on
my notes in my
bench book.
171.
Should
it become necessary a full transcript will have to be obtained and I
may need to supplement the judgment in respect thereof.
172.
In
the premises, the orders I issue are as follows:
A:
Rule 43 Application
(Case No: 5474/2012: 5 November
2012:Gorven J )
1.
The
applicant, L. M. , is directed to pay the costs occasioned by such
application, including the costs consequent upon the employment
of
senior counsel.
2.
The
cost limitations imposed by the provisions of rules 43(7) and 43(8)
do not apply.
B:
Rule 43 Application
(4417/2013 :Madondo J:
31
May 2013)
1.
The
applicant, L. M. , is directed to pay the costs occasioned by such
application, including the costs consequent upon the employment
of
senior counsel.
2.
The
cost limitations imposed by the provisions of rules 43(7) and 43(8)
do not apply.
3.
The
applicant’s attorneys are not entitled to charge and recover
any fees from her in respect of this application.
C:
Rule 43 Application
(7117/2013 :Nzimande AJ:
1
August 2013)
1.
The
respondent M. M. , is directed to pay the applicant L. M. ’s
costs occasioned by this rule 43 application.
D:
Application
under case number 7709/2012 (Interdict Application in respect of the
Manhattan Property)
2.
The
rule
nisi
issued
on 27 July 2012 is discharged.
3.
The
applicant, M. M.  is directed to pay the costs of the first
respondent, L. M. .
E:
Divorce Action
1.
A decree of divorce.
2.
An order directing the plaintiff to pay to the first defendant in
terms of section
7 (2) of the Divorce Act, Act 70 of 1979 the
following:
2.1.
The sum of R27 700.00 per month, for a period of 5 years, which
amount is to escalate annually
on the anniversary of the divorce
order at a rate equivalent to the Consumer Price Index. The first
payment in terms of this order
is payable by midday on 7 December
2015;
2.2.
The sum of R2 478.00 in respect of a monthly membership
contribution to the Discovery medical
aid scheme, for a period of 5
years from the date of this order. Such amount is to increase in
accordance with any increase imposed
by the Discovery medical aid
scheme. The first payment in terms of this order is payable by midday
on 7 December 2015;
2.3.
The sum of R250 000.00 as a contribution to the purchase of a
motor vehicle by the first
defendant. Such amount is payable by
midday on the 11December 2015.
3
An order directing the plaintiff to pay to the first defendant the
proceeds
of      the sale of the immovable
property known as “Manhattan” (together with interest
accrued
thereon) less the sum of R30 000.00 already advanced to
the first defendant.
4.
The plaintiff’s claims insofar as they are inconsistent with
the aforegoing orders
are dismissed.
5.
The first defendant’s claims-in-reconvention insofar as they
are inconsistent
with the aforegoing orders are dismissed.
6.
The
first defendant is directed to pay the costs occasioned by the
joinder application as well as the costs of the second, fourth,
fifth
and sixth defendants in the divorce action, such costs to include the
costs of Senior Counsel where so employed and the reserved
costs of 8
July 2014.
7.
The
plaintiff is directed to pay the first defendant’s costs
occasioned by the rule 43(6) application on 8 October 2014.
8.
The
first defendant is directed to pay the reserved costs of 26 September
2014 and 1 October 2014 in respect of the rule 35(3) application,

such costs to include the costs of senior counsel where so employed.
9.
In
respect of the costs incurred in the divorce action not covered by
the orders in paragraphs A to E above, the plaintiff is directed
to
pay the first defendant’s taxed or agreed costs, on a
party/party scale up to and including 8 October 2014. These costs
are
to exclude:
9.1.
the
qualifying fees and attendance at court of the first defendant’s
experts Lance Marais and Neil McHardy which were taken
into account
in the order made in the rule 43(6) application for a contribution to
costs on 8 October 2014;
9.2.
the
costs occasioned by the adjournment of the trial on 25 June 2014, in
which there was no order as to costs.
10.
Any
remaining costs incurred are to be borne by the plaintiff and the
first defendant.
_______________________
HENRIQUES
Plaintiff’s,Second,
Fourth, Fifth and Sixth Defendants  Attorneys:
Messrs
Shepstone & Wylie Attorneys
Ridgeside
Office Park
Umhlanga
Rocks
c/o

6
th
Floor, 35 Samora Machel Street
DURBAN
Reference:

EDW/DL/MOORE 23472.1
First,
Third, Seventh and Eighth Defendants Attorneys:
Messrs
Senekal Simmonds Inc.
Reference:

Micole Froneman/mc/M398MAT3556
c/o

Mooney Ford Attorneys
John
Murray
7
th
Floor, Permanent Building
343
Anton Lembede Street
DURBAN
Reference:

JMM/lm/S9050
Telephone:

031-304 9881
Facsimile:

0866 763 601
Email:
jmurray@mfp.co.za
Dates
of Hearing:
8,
9, 10,
28
to 31 October 2014
Plaintiff’s
Counsel:
Advocate
A. Stokes, SC
(Second,
Fourth, Fifth and Sixth Defendants Counsel)
First
Defendant’s Counsel:
Advocate
S. Liebenberg
(Third,
Seventh and Eighth Defendants Counsel)
[1]
The proceeds of
the sale of the Manhattan property is the subject matter of a
separate application under case no. 7709/2012. There
is an interdict
in place preventing the first defendant and the conveyancing
attorneys from dealing with the funds in any way.
[2]
For ease of reference this will be
referred to as the first defendant’s counterclaim and the
parties will be referred to
as in the divorce action.
[3]
Apart from
amending the amounts claimed in respect of the orders for
maintenance and lump sum payments, the first defendant sough
to
effect amendments to introduce claims at paragraphs 20 to 31 of the
proposed amended claim in reconvention, Annexure ACLR
in relation to
the Moore Family Trust and the trustees.
[4]
The plaintiff
disputes that his sons are financially dependent and indicates this
is a matter of their choice.
[5]
The
Plaintiff was required to cede the policy to the first defendant.
[6]
Kroon v Kroon
1986(4)
SA 616 ( E)
[7]
Grasso v Grasso
1987(1)
SA 48 ( C)
[8]
Botha v Botha
2009(3)
SA 89 (W);
Van Wyk v Van
Wyk
1954(4) SA 594 (W)
[9]
2011(6) SA 189 (KZP);
Kooverjee
v Kooverjee
[2006] 4 All
SA 369
( C )
[10]
Buttner v
Buttner
2006(3)
SA 23 SCA
[11]
Rule 43 application under case no
4417/2013
[12]
Maritz v Maritz
2005
JDR 0209 (T);
Beira
v Beira
1990(3) SA 802 (W);
Jordaan
v Jordaan
2001(3) SA 288 ( C )
[13]
Clause 3.2.1. of
the Trust Deed
[14]
Clause 3.2.4.
of
the Trust Deed
[15]
Clause 7
of
the Trust Deed
[16]
Clause 14
of
the Trust Deed
[17]
Clause 15.8
[18]
Page 253 exhibit C
2
[19]
MM and Others v
J M
2014
(4) SA 384
(KZP);
BC
v CC
2012 (5) SA 562 (ECP)
[20]
It was suggested to her that she
shared in commission with an estate agent to show houses.
[21]
The plaintiff in an opposing
affidavit filed in the matter indicated that the proceeds of the
insurance policy were paid out and
the funds used for their benefit.
[22]
Carey v Carey
1999 (3) SA 615
(C),
Lalla
v Lalla
1973 (2) SA 561 (D)
[23]
Engelbrecht vs
Engelbrecht
1944 NPD 186
;
Van
Broenbsen
1948 (1) SA 1194 (O)
[24]
1968(3) SA 526 (D)
@ 528 F
[25]
1998 (1) SA 48 (W)
[26]
Nicholson supra @
52 I
[27]
1988 (3) SA 259
(C) @ 262 I
[28]
Swissborough
Diamond Mines v Government of the RSA
1999 (2) SA 279
@ 310 - 311
[29]
1983 (1) SA 566
(NPD) @ 564
[30]
Swissborough
Diamond Mines v Government of the RSA
1999 (2) SA 279
@ 317 C-E
[31]
The first defendant has issued
subpoenas for such records.
[32]
Swissborough
Diamond Mines (Pty) Limited and Others v Government of the Republic
of South Africa and Others 1999(2) SA 279 (T)
at 321
[33]
Richardson’s Wool Washeries
Limited v Minister of Agriculture
1971 (4) SA 62
E
[34]
1972 (4) CPD 652
@
654 A
[35]
1910 TS 686
[36]
1898 15 SC 40
[37]
1919 EDL 1
[38]
Du Preez v Du Preez
2009
(6) SA 28
(T) at paragraph 16
[39]
Colman v Colman
1967
(1) SA 291
( C ) at 292 A;
Zoutendijk
v Zoutendijk
1975 (3) SA
490 (T)
[40]
Du Preez
supra
at paragraph 5