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[2014] ZAGPPHC 514
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K.D v M.J.D (71580/2013) [2014] ZAGPPHC 514 (13 June 2014)
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN THE NORTH GAUTENG
HIGH COURT
PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: 71580/2013
DATE: 13 JUNE 2014
In the matter between:
K [...]
D[...]
...........................................................................................................................
APPLICANT
And
M [...] J[...]
D[...]
..............................................................................................................
RESPONDENT
JUDGMENT
VILAKAZI, AJ:
(1) This is an opposed application in
terms of rule 43 of the uniform rules of court. The parties were
married in community of property
on 5 July 2002.
(2) The Applicant claims from the
Respondent pendete lite:
(2.1) Maintenance for herself and the
two minor children in the amount of R34 795.00.
(2.2) The primary residence of the
children shall be with the Applicant.
(2.3) That the Respondent retain the
Applicant and the minor children as dependants on is current medical
scheme and that he bear
the costs of all reasonable expenditure in
respect of medical, dental, surgical, hospital, orthodontic and
ophthalmological treatment
needed by the Applicant and the children
and not covered by the medical aid.
(2.4) A contribution of R25 000 towards
her legal costs.
(2.5) That the Respondent places
Applicant in possession of the BMW X5 motor vehicle and to pay all
monthly instalments, insurance,
and maintenance fees of the said
motor vehicle.
(2.6) Departure from the provisions of
rule 43(7) and 43(8) of the Uniform Rules of this Court
A divorce action is pending in this
court.
(3) The Applicant (36 years old) is a
housewife. The Applicant avers that the Respondent is an astute
businessman. The value of
the immovable property in which they reside
is approximately R4 million. The Applicant avers that the Respondent
drives a Porsche
Cayenne, a Mercedes Benz SLK and a BMW M6 motor
vehicle. She further avers that the Respondent has interests in two
immovable properties
in the Seychelles, the properties which cost an
excess of US$5 million each. He has interests in an immovable
property at [Z…..]
and [Z……]. The Respondent has
interests in a filling station in Groblersdal, a liquor store in
[K…..] Park
and [B……] [D…….]
boutique hotel in [M…… P…]. The Respondent
admits he drives a
Porsche Cayenne but averred that it is a company
car which belongs to P.G.C. The Respondent earns R66 861.79 net per
month as a
group financial director. The Respondent also earns
directorship fees in various companies. The Respondent says the
values of the
motor vehicles are accordingly irrelevant for the
purpose of this matter.
(4) What is significant is that the
Respondent has not placed any evidence reflecting his true financial
means. The Respondent pays
Rll 282.05 monthly levies on fractional
ownership of the Seychelles property. The Respondent must go an extra
mile and place before
the court evidence that gains the averments
made by the Applicant with regard to the figures she has disclosed.
If he does not
do so, the court in my view, is entitled to infer from
the evidence at hand that the Respondent is indeed a man of substance
and
can afford, vide Levin v Levin 1962(2) SA 330 (W).
(5) Counsel for the parties presented
me with a draft order and requested the draft order to be made an
order of court. The only
issues that were in dispute was maintenance
of the Applicant and the minor children, contribution of the
Applicants legal fees
and a claim of return of the BMW X5 motor
vehicle.
(6) The Applicant’s claim of
possession of a BMW X5 motor vehicle is an aspect which cannot be
resolved through a rule 43
application. It falls to be dealt with in
the process of division of the joint estate.
(7) With regard to the contribution
towards costs, no basis has been laid for a proper consideration. All
the Applicant states is
a bald allegation that the Respondent be
ordered to make an initial contribution towards the applicants’
legal costs in the
sum of R25 000.00 in equal monthly instalments of
R5 000.00 per month. The Applicant has not informed the court of the
unpaid costs
that have already been incurred, the projected amount up
to and including the first day of trial. There can be no better
manner
of placing such information before court than a draft bill of
costs, or at the very least, a summary of fees schedule. Counsel for
the Respondent submitted that the practice in this division is to
allow an amount between R3 000.00 to R5 000.00 for contribution
towards costs. I am of the view that a blanket proximate one size
fits all approach erodes on courts discretion to consider each
case
on its own facts.
(8) Counsel for the Applicant submitted
that Applicant is entitled to an amount that would enable her to
litigate on equal footing
with the Respondent. Respondent in this
matter engaged the services of senior Counsel. The essential
principle in determining this
issue appears from various authorities.
The fact that the Respondent may be wealthy does not entitle the wife
to unlimited spending,
there being a difference between what she
wants and what she needs. What is “adequate" would depend
on the nature of
the litigation, the scale on which the husband is
litigating and the scale upon which she intends to litigate, with due
regard
being had to the husband’s financial position. The
Respondent is not necessarily obliged to pay all costs of the
Applicant
even if he can afford to pay same. Not all her fees are
payable but the amount must be adequate to enable her to conduct
defence
and prepare her case. The Applicant has submitted that she
would have to cause a forensic investigation in respect of various
trusts
wherein the Respondent is enumerated as a trustee or
beneficiary.
(9) The Applicant is entitled to a
pendete lite order depending on the living standard of the parties,
vide, Gramman v Gramman
1984 (3) SA 447
at 379E. In applications of
this nature, the Applicant must show that she has insufficient means.
She must also show that the Respondent
can afford to meet the amount
she seeks from the Respondent.
(10) In the circumstances of this case,
I conclude that the Respondent is indeed a man of substance. In
arriving at this conclusion
I have further taken into account that
according to his version he is a director in various companies.
In the result I make the following
order pendete fite:
(1) Parental rights and
responsibilities over the two minor children, [L……] and
[T……..] are awarded
to both parents jointly, subject to
the following:
(1.1) The primary residence of the
children be with the Applicant
(1.2) The Respondent shall enjoy
reasonable rights of contact to them
(1.3) The Respondent shall be entitled
to remove the minor children on alternate weekends from Saturday, 1
0h00 until Sunday, 17h00
and for this purpose the child minder
presently in the employ of the parties shall accompany the children,
if available
(2) That the Respondent pays pendete
lite an amount of R6 000.00 per month towards applicants’
maintenance and the 2 minor
children.
(3) In addition to the maintenance
amount of R6 000.00 per month, the Respondent pays the following
further contributions:
(3.1) Water and electricity account for
the common home ….R3 900.00
(3.2) Municipal rates and taxes for the
common home...R2 500.00.
(3.3) The gardener’s salary
….R800.
(3.4) The domestic - child-minder’s
salary..R2 200.00
(3.5) Crèche fees for T [...]
-.R1 600.00
(3.6) Transport fees to and from
crèche....R400
(3.7) L [...]’s school fees at
Crawford College..R7 500.00
(3.8) DSTV x2 ….R1 000.00
(3.9) Premium on Old Mutual Policy for
Applicant and two children R810.00
(3.10) Mercedes Benz monthly
instalments..R10 000.00
(3.11) Petrol allowance..R1 500.00
(3.12) Extra-mural golf L [...].R650.00
(3.13) Extra-mural hip-hop L
[...].R200.00
(3.14) Extra-mural drama L
[...]..R200.00
(3.15) Monthly bond repayments...R9
757.00
Total R43 027.00
(4) The monthly contributions referred
to in the amount of R43 027.00 to be paid by the Respondent directly
to the service providers
thereof as well as any increases that may be
attendant thereon.
(5) The Respondent retains the
Applicant and the two minor children on his medical aid scheme and
pays Applicant’s and two
minor children’s reasonable and
necessary medical costs.
(6) That the Respondent pays
contribution towards Applicant’s costs in the amount of R15
000.00. Such payment to be effected
directly to the Applicant's
attorney of record.
(7) That it be departed from the
limitation prescribed in rule 43(7) and rule 43(8) of this court.
(8) No costs order is made with regard
to this application.
VILAKAZI AJ
APPEARANCES:
FOR APPUCANT: ADV N. ERASMUS
INSTRUCTED BY: SHAPIRO & LEDWABA
INC
FOR RESPONDENT: ADV DA SMITH SC
INSTRUCTED BY: HOGANS LOVELLS SOUTH
AFRICA