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[2013] ZAGPPHC 188
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R.B v A.B.B (8127/2013) [2013] ZAGPPHC 188 (2 July 2013)
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT.
PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE NO: 8127/2013
DATE:02/07/2013
In
the matter between:
R
B
...............................................................................................
Applicant
and
ABB
.............................................................................................
Respondent
JUDGMENT
MOTHLE
J
1.
RB (“the Applicant’) launched an application against ABB
(“the Respondent”) for payment of maintenance
and
contribution towards legal costs, pendente lite in terms of Rule 43
of the Uniform Rules of Court.
2The
Applicant and the Respondent were married on 10th April 1999 out of
community of property in terms of an ante nuptial contract,
wherein
the accrual system, was specifically excluded. From the marriage, one
minor child was born, namely T B, a female, born
on 31 October 2000.
T presently resides with the Applicant in the erstwhile common home
since, according to the Applicant, the
Respondent left the common
home on 2 September 2011.
3.
On 26 March 2012 the Applicant issued divorce summons under case
number 17327/2012 against the Respondent. Attached to the divorce
summons is a settlement agreement which was concluded and signed by
the Applicant and the Respondent. In the summons, Applicant
requests
the divorce Court to incorporate the settlement agreement as part of
the order sought as relief.
4.
It is further common cause between the parties that two most
important and relevant terms of the settlement agreement are that:
4.1
The Respondent would pay to the Applicant, an amount of R400 000.00
in lieu of maintenance. This is to be a once-off payment;
4.2
The Applicant undertook to make no further claims for maintenance
from the Respondent.
5.
It is further common cause between the parties that the Applicant has
not been working and has been wholly dependent on the Respondent
for
her sustenance. To this end, the Respondent has retained the
Applicant and the minor child in his medical insurance, and is
paying
for all the expenses of the common home in which they all lived
together which is now occupied by the Applicant and the
minor child.
The Applicant further concedes that the Respondent does pay, as
agreed, full maintenance for the minor child.
6.
The essence of the Applicant’s complaint is that she now wants
to resile from the settlement agreement where she undertook
not to
claim any maintenance for herself. She institutes these proceedings
after the Respondent had, in compliance with the settlement
agreement, made part payment of R200 000.00 to her which she spent on
various items, including a payment of R94 000.00 towards
legal fees.
7.
At the commencement of the hearing, the Respondent raised a point in
limine, objecting to the adjudication of the Rule 43 application,
on
the grounds that to do so, would cause the Court to ignore the terms
of the settlement agreement which, according to the Respondent,
is
still binding on both parties. It is further argued by the Respondent
that he intends to oppose the unilateral decision by the
Applicant to
resile from the settlement agreement, more so that the Applicant is
not in a position to refund the advanced R200
000.00 which was part
payment of the R400 000.00 agreed to, in the settlement agreement.
8.
As pointed out above, the Applicant undertook in the settlement
agreement not to claim any maintenance against the Respondent
in lieu
of payment of an amount of R400 000.00. Half of that amount has
already been paid to her and she has already spent it.
The Respondent
further argues that he holds the Applicant to the terms of the
settlement agreement and any attempt to resile therefrom
will be
challenged including raising the defence of estoppel, if need be.
9.
Having considered the issues relating to this matter, it seems to me
that the dispute concerning the settlement agreement is
inextricably
interwoven with the issues raised in this Rule 43 application. It is
indeed so that before dealing with the merits
of the claims by the
Applicant for maintenance pendente lite, the dispute concerning the
validity of the settlement agreement needs
to be resolved. I am in
full agreement with the Respondent that the Rule 43 application
cannot be heard and properly adjudicated
prior to the dispute
concerning the settlement agreement is resolved. I am further
informed by the parties that the pleadings have
closed and what is
left is to secure a date of trial where the dispute around the
settlement agreement will be the subject of adjudication.
10.
There are, however, two issues that this Court needs to deal with.
Firstly is the question whether pending the resolution of
the dispute
concerning the settlement agreement, the Applicant is properly
maintained and has sufficient funds to engage legal
representatives
to prosecute her divorce action. In regard to maintenance, even
without traversing the merits of her claim, it
seems to me that by
her own admission, the Applicant is being adequately maintained. The
question whether she must enjoy the luxury
of spending for example,
R3 000.00 a month on fuel while she is unemployed is another matter.
I get the sense in considering her
affidavit that the whole
application is not based on the need for the Applicant to be
maintained but rather on the allegation that
the Respondent is a
wealthy man and therefore needs to pay for the excessive luxuries of
the Applicant.
11.
In Taute v Taute
1974 (2) SA 675
the Court held that a claim
supported by reasonable and moderate details carries more weight than
one which includes extravagant
or extortionate demands. Similarly,
Van Den Heever J in Nilsson v Nilsson
1984 (2) SA 294
(C) writes as
follows: “Primarily Rule 43 was envisaged to provide temporary
assistance for women, who had given up careers
or potential careers
for the sake of matrimony with or without maternity, until such time
as at a trial and after hearing evidence,
maintenance claims and, if
children had been born, custody claims could be properly determined.
It was not created to give an interim
meal-ticket to women who quiet
clearly at the trial would not be able to establish a right to
maintenance.”
12.
In regard to contribution towards costs, I fail to understand how she
could pay an amount of R94 000.00 to her legal representatives
for
pre-trial processes in a divorce action. The matter has not been to
Court as yet and she now wants an additional R50 000.00
as
contribution towards legal costs.
13.
It seems to me that the payment of an amount of R94, 000.00 towards
legal fees is rather excessive, considering that the matter
has not
been to Court. In the agreement itself, in addition to the R400
000.00 the Respondent undertook to pay the legal costs
of the
Applicant. The Respondent concedes that the legal costs, for which no
amount was stated, are not part of the R400 000,00.
The payment of
R94 000,00 for legal fees out of the advance payment of R200 000,00
was therefore not in accordance with the terms
of the settlement
agreement.
14.
It would appear that the Respondent is still liable for payment of
legal fees. In the absence of an agreement on what should
be paid as
legal fees, I am of the view that a contribution in an amount of R15
000,00 will be a fair and reasonable amount for
legal fees, pending a
final ruling by the divorce court: These are matters that will be
tried in the court which will be seized
with the dispute concerning
the settlement agreement.
15.
I am therefore of the view that the point in limine raised by the
Respondent should partially be upheld and the question of
the
Applicant’s maintenance be referred to the proceedings that
will adjudicate the dispute concerning the settlement agreement.
16.
In the premises I make the following order:
i.
The Applicant’s claim for her own maintenance pendente lite is
refused and the question of her maintenance is referred
to the Court
that will adjudicate on the dispute concerning the settlement
agreement between the parties;
ii.
The Respondent is ordered to pay R15 000.00 contribution towards the
Applicant’s legal costs;
iii.
Each party is ordered to pay its own costs.
MOTHLE
J
Judge
of the North and South Gauteng High Court
PRETORIA.
9/07/2013