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[2013] ZAGPPHC 51
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E.M.M v T.S.M (33221/10) [2013] ZAGPPHC 51 (14 February 2013)
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA
(THE REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 33221/10
DATE:14/02/2013
In
the matter between:
E
M
M
…....................................................................................
APPLICANT
and
T
S
M
..........................................................................................
RESPONDENT
JUDGMENT
RAULINGA
J,
[1]
The applicant approaches this court in terms of Rule 43(1) and 43(6)
seeking relief for a contribution towards the costs of
a pending
matrimonial action. She also seeks a variation of the earlier
decision this court made. The respondent disputes the claim.
[2]
On 31 March 2011 the applicant launched a similar application to this
court and it was dismissed with costs. Another application
was set
down for the 13 April 2012, but was postponed sine die. The matter
was again set down for hearing on 22 November 2012 and
was postponed
sine die. On the 24 January 2013 the matter was heard before me.
[3]
The applicant and the respondent are married according to customary
rites in terms of the
Recognition of Customary Marriages Act 120 of
1998
. The said customary marriage was consummated on the 14 October
2008. There is one minor child born out of the marriage. It is common
cause that the proprietary consequences of the said marriage are
community of property and of profit and loss.
[4]
The applicant left the common home on the 9 December 2009 at the
instance of the respondent after he locked her out. She now
lives
with her parents. Since giving birth to their child the applicant
stayed at home after the respondent insisted that she must
be a
stay-at-home mom, Before she was chased from their common home, the
respondent used to provide for her and their child. He
used to give
her an allowance of R3500.00 per month and he would at times increase
it to R10 000 to R20 000 per month. He bought
her a C200 Mercedes
Benz and they would at times spend R45 000 a weekend. He even
absorbed her into his company, Bohlale Enterprises.
They lived a high
lifestyle. She has an income of R2000.00 per month. Although she is
still a member of certain close corporations,
she derives no income
from them, because most of them are dormant. The respondent earns
+-R31 581.85 per month as an engineer.
He also draws money from his
many companies. The respondent's assets are valued at more than R5
million. He has employed very expensive
lawyers.
[5]
On the other hand the respondent disputes that his assets are worth
more than R5 million. He also denies that he has hired expensive
lawyers. While he denies any knowledge of the financial status of the
applicant, he however admits that he was obliged to support
the
household given the applicant's precautious financial state. He
funded the applicant's studies and offered to support her business
ventures. He bought a town house cash and he owns other houses. He
admits that he was paying an allowance of R3500 per month to
the
applicant. He also registered her as an employee. He bought her C200
Mercedes Benz. He however denies that he gave her RI0.000
to R20.000
per month. He never lived a high lifestyle.
[6]
The standard of proof in
Rule 43
applications is based on a balance
of probabilities, and the onus is placed on the applicant. In casu,
the applicant has indicated
the amounts paid to the respondent's
attorneys. She has also annexed a cost towards her Auditors should
the court allow same. Her
legal costs have been calculated by her
attorneys, be they in the past, present or future. Her attorney's pro
forma tax invoice
reflects a fatal amount of r 209620,42.-She clams
an amount of RI80 000,00 contribution towards legal Cost. There an
indication
that from time to time the respondent draws money from his
companies. This was not disputed. It is also evident that the
respondent
lives a high lifestyle.
[7]
My perusal of the papers convinces me that the application is not
premature.
Rule 43(1)
and (6) clearly provided that two or more such
applications could be made before the first date of trial. As in
Dodo's case, the
applicant had to be put into a position to present
her case adequately and, in light of the fact that the respondent had
embarked
on litigation on a luxurious scale by paying exorbitant
amounts to his attorneys - Dodo v Dodo 1990(2)SA 77(WLD). ln deed, in
exercising
its discretion in the determination of the quantum of the
contribution towards costs to be awarded, the court was bound by
section
9(1) of the Constitution, Act 108 of 1996, to guarantee both
parties the right to equality before the law and equal protection of
the law - the equality of arms -Cary v Cary 1999(3) SA (CPD).
[8]
The applicant is a person of straw. She is a female person living
with the respondent's child. Respondent sold her motor vehicle
and
did not give her a cent. She lives with her parents and sister who
are maintaining her. She is not in a position to pay her
lawyers
unless assisted by the respondent. On the contrary, the respondent is
a rich man, with expensive cars and luxurious immovable
properties.
He can afford expensive lawyers. It is for that reason he must be
ordered to make a substantial contribution towards
the legal costs of
the applicant. Whether the costs are in the past or future is
immaterial. This is so because contributions towards
costs in
matrimonial suit are sui genesis.
[9]
I make the following order.'.
The
respondent is ordered to pay a contribution towards the applicant's
legal costs up to and including the first day of the trial
22 April
2013 in the amount of R120 000.00 payable as follows:
(a)
R60 000.00 on or before 28 February 2013;
(b)
R60 000.00 on or before 28 March 2013;
(c)
The restrictions of Rule 43(7) and (8) are not applicable
(d)Costs
of this application shall be costs in the cause.
T.
J. RAULINGA
JUDGE
OF THE HIGH COURT NORTH GAUTENG HIGH COURT