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[2013] ZAGPPHC 253
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P.L v B.L (43989/10) [2013] ZAGPPHC 253 (16 August 2013)
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Certain
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REPORTABLE
NORTH
GAUTENG HIGH COURT PRETORIA (REPUBLIC OF SOUTH AFRICA)
Case
number: 43989/10
DATE:16/08/2013
In
the matter between:
P
L
...............................................................................................
APPLICANT
AND
B
L
...............................................................................................
RESPONDENT
JUDGMENT
BAQWA
J
[1]
This is a Rule 43(6) application, the origin of which is an
application which was issued out of this court by the current
respondent
on 28 July 2010.The parties are Mr P L who is the
applicant and the respondent is Mrs B L who are husband and wife
Background
[2]
The parties were previously married to each other on 31 May 1994
which marriage ended in divorce proceedings during the year
2000. On
9 November 2001 they became remarried out of community of property
wherein the accrual sharing system, as provided for
in Chapter 1 of
the
Matrimonial Property Act 84 of 1984
was made applicable.
[3]
On 28 June 2010 the respondent caused divorce summons to be issued
under case number 3730/10 . The divorce action was defended
by the
applicant and the pleadings have closed. The trial date was set for
28 November 2012 but the matter was postponed on that
date.
[4]
In the interim and on 28 July 2010 respondent caused a Rue 43
application to be issued wherein she asked for pendent lite
maintenance
for herself. At that time K, a son born of their first
marriage on 22 January 1995 was residing with the applicant on his
farm.
He moved to the respondent during the 2011 March/April school
holidays and still resides with the respondent.
[5]
Applicant filed an answering affidavit in the
Rule 43
application and
made a tender to maintain respondent pendete lite, which tender was
accepted and in terms of which the
Rule 43
application became
settled.
[6]
Thereafter applicant caused an application to be brought against the
respondent under the case number 75207/10 wherein he asked
for the
following relief:
"1.
That the 2010 model Toyota RAV 4 motor vehicle with registration
number MABEAR GP be returned to the applicant within 48
hours of
service of this order.
2.
That the respondent shall pay the outstanding levies payable in
respect of Unit 54 situated at Les Chenils, Summer way Street,
Lakefield, Benoni, within 48 hours of service of this order and that
the respondent shall continue to make further payment of future
levies on due date.
3.
That the respondent pays the costs of this application.
4.
Further and/or alternative relief. ”
[7]
This application served before my brother Mr Justice Bertelsmann on
14 June 2011. Pursuant thereto he issued two orders, the
first of
which reads as follows:
l,2.
That the applicant complies with the settlement agreement reached in
terms of the
Rule 43
application and that he makes payments in terms
of this agreement which contains the following terms:
2.1.
That the applicant pays the respondent the amount of R1500.00 per
month pendente lite from 1 September 2010;
2.2.
That the applicant pays the bond payments in respect of the immovable
property where the respondent resides.
2.3.
That the applicant pays the instalments in respect of the 2010 model
Toyota RAV 4 motor vehicle with registration number MABEAR
GP which
the respondent has in her possession as well as the insurance
premiums in respect thereof
2.4.
That the applicant keeps the respondent as a dependent on his medical
aid funds (sic) the Discovery Classic Comprehensive "Plan”.
2.5.
That the applicant pays the respondent’s insurance premiums. ”
[8]
The order referred to above is the order which the applicant seeks to
amend. During or about May 2013 he established that the
respondent
has since March 2011 not resided at the erstwhile common home namely
Les Chenils 54, Summer Way Street, Lakefield, Benoni
and that she had
moved in with a certain Scott Pringle at 2nd Road, 45 Sanford Gleen
Complex, Boksburg, as husband and wife.
[9]
Respondent had not informed the applicant of her changed
circumstances and had unilaterally installed her mother as the
occupier
of the former common home.
[10]
Applicant submits that the material change referred to in
Rule 43(6)
finds application in the respondent’s personal circumstances
since the
Rule 43
application was settled and the settlement
incorporated as an order of court on 14 June 2011.
[11]
Relying upon judgments such as Carstens v Carstens 1985(2) SA 351SE
at
353F
Mr Smith SC argued both in court and in his heads of argument that it
would be against public policy for a woman to be supported
by two men
at the same time. The Carstens decision states the following:
"
It is in my view against public policy that a woman should be
entitled to claim maintenance pendente lite from her husband
when she
is flagrantly and deliberately living as man and wife with another
man. Not only is applicant in the present case living
in adultery,
but she and her lover are maintaining a joint household complete with
the addition of an adulterine child. She has
by her conduct accepted
the support of Clarkson in lieu of that of her husband. The fact that
Clarkson is unable to support her
to the extent that she may have
been accustomed in her matrimonial home with respondent does not
appear to me to affect the position.
”
[1]
Mr Smith further finds support for his argument in the case of SP v
HP 2009(5) SA 223 (OPD) which was a
Rule 43
application brought by a
wife cohabiting with another man pendente lite. In elaborating on the
Carstens case Musi JP states the
following:
‘’
[10]
With respect, I do not see what is the difference between a woman who
has given birth to a child by her extramarital lover
with whom she
lives, and one who has simply moved in with her lover and is living
with him. They are both cohabiting with their
lovers and it matters
not whether or not a child has been born out of the illicit love
affair. It has been laid down that it is
contrary to justice and
equity that a person in the applicants position should at the same
time collect support from her husband
as well as from her ‘putative’
second husband (Carstens at 3531 citing Hahlo). The objection is not
so much about the
moral turpitude attaching to the illicit
cohabitation but more about the notion of a woman being supported by
two men at the same
time. I hold therefore that the dictum in
Carstens is applicable in the instant case. ”
[2]
On the contrary applicant’s counsel Ms Vermaak Hay, submits
that the respondent’s submissions are bad in law in
that both
the Carstens and SP v HP decisions were overruled in the Supreme
Court of Appeal matter of EH v SH 2012(4) SA 164 (SCA).
On page 167
E-G the following was said:
‘’
Relying
upon judgments such as Dodo v Dodo 1990(2) SA 77(W) at 89G; Carstens
v Carstens 1985(2) SA 351 SE at 353F; and SP v HP 2009(5)
SA 223(0)
paragraph 10, it was argued, both in the High Court and in the
appellant’s heads of argument that it would be against
public
policy, for a woman to be supported by two men at the same time.
While there are no doubt members of society who would endorse
that
view, it rather speaks of values from times past and I do not think
in the modern, more liberal (some may say more ‘enlightened’)
age in which we live, public policy demands that a person who
cohabits with another should for that reason alone be barred from
claiming maintenance from his or her spouse....”
Also
at p 167 it is stated:
‘’
Under
the common law, the reciprocal duty of support existing between
spouses, of which the provision of maintenance is an integral
part,
terminates upon divorce. ”
[14]
Respondent’s counsel further submits that applicant does not
aver that the man with whom the respondent lives maintains
her. She
only alleges that he provides her with accommodation and pays for her
food. In paragraph 46 of the Respondent’s
opposing affidavit
she alleges the following:
‘’
Mr
Pringle only gives me free accommodation and does not maintain me or
K. I have to pay for all our expenses as set out hereinabove.
I am
still married to the applicant and he still has an obligation to
maintain me. There exists no reason why he should be exempted
from
this obligation. He is financially more than capable of maintaining
us. ”
It
is further submitted and I accept that applicant has not denied these
allegations in the papers before me.
[15]
Having considered facts and the law applicable, I have come to the
conclusion that applicant has failed to make out a case
for the
relief sought in his application.
Respondent’s
counterclaim
[16]
Respondent has filed a counterclaim for a substantial contribution
towards her legal costs as well as an increase of maintenance
for
herself and Kuene.
[17]
Before dealing with the substance of the counterclaim, applicant’s
counsel seeks to challenge the counterclaim as an
abuse of the
process of court in that the documents filed are excessively lengthy
and not in compliance with
Rule 43(3).
[18]
The respondent’s affidavit is neither in the form of a plea
and/or declaration and it comprises 54 pages.
In
Du Preez v Du Preez 2009(6) SA 28(T) at 30 E-J Murphy J stated the
following:
*74]
The applicant’s papers are anything but brief and the
respondent’s reply is less than succinct. The tendency by
parties, aided by their legal representatives, to engage in prolixity
in
Rule 43
proceedings has been criticised more than once by courts
across the country. Yet the criticism has been insufficiently heeded.
I align myself with the remarks made by Kroon J in Visser v Visser
1992(4) SA 530 (SE) at 531 D, where he observed:
‘’
It
is my experience and I understand that my brothers to be the same,
that there is a tendency for the provisions of
Rule 43
to be
disregarded and for the applications and reply thereto to assume
voluminous proportions. That practice must be firmly discouraged
and
the present is an appropriate cause where the discouragement will
commence. ”
[5]
Prolixity in a
Rule 43
proceeding is an abuse of process because it
defeats the purpose or object of the rule- Smit v Smit 1978(2) SA
720(W) at 722G.
[6]
In Patmore v Patmore 1997(4) SA 785 W at 788D, Epstein AJ elaborated
on the undesirable nature of prolixity in
Rule 43
applications as
follows:
‘
In
this division, where there are so many
Rule 43
applications on the
roll each week, the abuse of the process of this court (by
frustrating and/or defeating the purpose or object
of
Rule 43)
places
an unnecessary burden on the Judges who have to read prolix
affidavits containing matter irrelevant to the
Rule 43
proceedings. ”
[7]
In Patmore (supra) the application was struck from the roll because
the applicant’s papers ran to 47 pages. In Smit (Supra)
the
application suffered the same fate because the complete set of papers
ran to 69 pages. In the present matter the papers total
192 pages."
[19]
I align myself with the comments of my brother Murphy in the Du Preez
decision. I do so because the present application consists
of 145
pages which is certainly not in the spirit of a
Rule 43.
In my view
an order uplifting the provisions of
Rule 43(7)
and (8) should only
be made after properly considering whether or not the parties have
properly complied with the provisions of
Rule 43.
[20]
In considering respondent’s counterclaim, the onus is upon her
to demonstrate a material change in her circumstances
with regard to
her personal claim for maintenance and the amendment of the
maintenance order with regard thereto.
[21]
In the application under case number 75207/2010 the respondent filed
an affidavit and in paragraph 1 thereof she stated the
following:
"1.1. I am a major female currently unemployed and residing at
54 Les Chenils, Summer Way Street, Lakefield, Benoni.
I am the
respondent in this application. ”
This
affidavit was deposed to and signed before a Commissioner of Oaths on
11 August 2011.
[22]
In the present application respondent deposing to her affidavit
states regarding Scott Pringle’s invitation to cohabit
with
him.
‘’
...we
accepted the invitation with open arms and during March 2011 we moved
in with him. ”
Applicant
submits in this regard that respondent perjured herself thus
demonstrating a tendency to be mendacious. Applicant’s
counsel
refers to the dicta of Murphy J in the Du Preez case (supra) at 32B
where the following is stated:
‘’
Parties
should at all times remain aware that the intentional making of a
false statement under oath in the course of judicial proceedings
constitutes the offence of perjury and, in certain circumstances, may
be the crime of defeating the course of justice. Should such
conduct
occur in
Rule 43
proceedings at the instance of the applicant, then
relief should be denied. ”
[23]
I was referred further to p32 of the Du Preez judgment in which the
following is stated:
‘
A
misstatement of one aspect of relevant information invariably will
colour other aspects with the possible (or likely) result that
fairness will not be done. Consequently, I would assume there is a
duty on applicants on
Rule 43
applications seeking equitable redress
to act with the utmost good faith (uberrimae fidei) and to disclose
fully and all material
information regarding their financial affairs.
Any false disclosure or material non-disclosure wouldmean that he or
she is not
before the court with ‘clean hands’ and, on
that ground alone, the court will be justified in refusing relief. ”
[24]
In the present case it has become clear that the respondent has not
always disclosed all material facts to this court. On her
own
evidence, when she declared under oath that she was still resident at
the previous matrimonial home, she was not telling the
truth. She had
already moved in with Mr Scott Pringle.
[25]
She would have this court believe that her circumstances have altered
in such a manner that she deserves an increase in her
personal and
her son’s maintenance in the sum of R30 270.00.
[26]
It is pertinent to consider the amounts currently expended by the
applicant in support of the respondent.
Maintenance................................................
R15,000.00
Bond
payments............................................R7,159.93 Monthly
instalment for
Toyota
RAV 4 motor vehicle.........................R8,933.97 Short terms
insurance for
Toyota
RAV 4 motor vehicle........................ R2,274.04
Medical
Aid scheme payments....................R3,086.00
Long
term insurance................................... R3.025.52
TOTAL.........................................................R39.479.46
[27]
The above amounts represent a package contribution made by applicant
in support of the respondent. Not all the amounts are
included in the
order of my brother Bertelsmann referred to above but it is common
cause that respondent is paying these amounts.
[28]
I have considered the submissions on behalf of the respondent and I
accept that her circumstances have changed. In my view
however her
condition has changed for the better. Whereas she had lived by
herself in the erstwhile common home, she was later
joined by her son
K. She formed a relationship with another man with passage of time
the relationship became more intimate and
in March 2011 they moved
into Mr Pringle’s home and bedroom and they cohabit as man and
wife.
[29]
It is trite that the reciprocal duty of support existing between
spouses, of which the provision of maintenance is an integral
part,
which terminates upon divorce. Taking into account the financial
support that applicant is currently contributing for the
support of
the respondent and their son, I do not consider that respondent has
demonstrated a need for a further maintenance order.
Contribution
towards costs
[30]
Respondent has also filed a substantial application for a
contribution towards her legal costs.
In
the matter of Cary v Cary 199(3) SA 615(C) it was held that:
‘
The
claim for contribution towards costs in a matrimonial suit was sui
generis. The basis of such claim was the duty of support
which the
spouses owed to each other In assessing the quantum of the
contribution to enable the party seeking the contribution
to present
her case adequately before the court, the court had to have regard to
the circumstances of the case, the financial position
of the parties
and the particular issues involved in the pending litigation. The
question of essential disbursements was a material
factor to be
considered, as was the scale on which the party from whom the
contribution was required was litigating. In exercising
its
discretion in the determination of the quantum towards costs to be
awarded, the court was bound by Section 9(1) of the Constitution
of
the Republic of South Africa Act 108 of 1996 to guarantee both
parties the right to equality before the law and equal protection
of
law. This has to be interpreted in context to mean that the applicant
was entitled to a contribution towards her costs which
would ensure
equality of arms in the divorce action against the respondent. The
applicant would not be able to present her case
fairly unless she was
empowered to investigate the respondent’s financial affairs
through forensic accountant appointed by
her. ”
[31]
What is clear from the facts of this case thus far is that the main
disputes will revolve around the issue of accrual and the
nature and
value of the applicant’s assets and whether or not he has made
a proper disclosure thereof. It is quite clear
that considering the
value of applicant’s farm and his shares in Motrade 252(Pty)
Ltd to mention just a few, the applicant
is the owner of substantial
assets.
The
applicant is litigating on a considerably higher scale which can be
judged from his employment of senior counsel who was briefed
in this
Rule 43(6) application.
[32]
Upon weighing these facts it becomes clear that the respondent is
entitled to a contribution towards her costs which would
ensure
equality of arms in the divorce action against the applicant.
[33]
Counsel for the applicant has handed two draft orders marked "A”
and "B”. In draft "A” applicant
would support
respondent as ordered by Justice Bertelsmann without paying for her
personal maintenance. In draft "B”
he would similarly
contribute to her support but also contribute the sum of R7840.07 to
respondent’s personal maintenance.
This
tender is made by applicant despite his initial stance of seeking to
wholly withdraw his personal maintenance for her because
of her
involvement with another man.
Further,
applicant offers (in the draft) to continue paying maintenance for
the child K as he had been doing without a court order
for him to do
so.
[34]
The responsible attitude conveyed through the medium of these draft
orders by applicant is commendable in that he recognises
that they
need not to bring in the emotional issues between himself and
respondent to cloud his responsibilities towards his spouse
and their
child K.
[35]
Consequently in formulating the order in the current application I am
going to factor in all these considerations.
[36]
There are two matters which have been raised by the applicant which I
need no comment on. The first one is the fact that that
the son, K,
has reached the age of majority which puts a question mark on the
respondent's locus standi in applying for maintenance
on his behalf.
As matters stand, I do not have to address the matter as applicant
offers through his draft order to continue paying
maintenance for
him.
The
second matter is the issue of respondent’s mother occupying the
matrimonial home without paying rent and without his consent
as joint
owner of the property. I am not called upon to resolve such matters
in a Rule 43 application. It is open to both parties
to resolve the
matter by either getting her to pay rent or vacate the premises. An
arrangement can be made inter partes or through
the courts. I say no
more about the matter.
[37]
In the result, it is ordered :
37.1.
That the applicant in so far as he seeks to revoke payment of
maintenance in terms of Rule 43(6) is dismissed.
37.2.
That the applicant complies with the settlement agreement reached in
terms of the Rule 43 application and that he makes payments
in terms
of this agreement which contains the following terms:
37.3.
That the applicant pays the respondent the amount of R15,000.00 per
month pendente lite, 7 September 2010.
37.4.
That the applicant pays the bond payments in respect of the immovable
property described as Les Chenils, no 54, Summer Way
Street,
Lakefield, Benoni.
37.5.
That the applicant pays the instalment in respect of the 2010 model
Toyota RAV 4 motor vehicle with registration number: MABEAR
GP which
the respondent has in her possession as well as the insurance
premiums in respect thereof.
37.6.
That the applicant pays the respondent’s insurance on a monthly
basis.
37.7.
That the applicant continues paying the respondent’s medical
aid premiums on a monthly basis.
37.8.
That the applicant contributes to the maintenance of the major child
K as follows:
37.8.1.
By the payment of R3,000.00 per month payable on or before the 7th
day of each month;
37.8.2.
By paying one half of the school fees pertaining to K’s school
attendance;
37.8.3.
By retaining K on the applicant’s medical aid scheme and paying
all medical expenses reasonably incurred for and on
behalf of K;
37.9.
That the respondent’s counter application in so far as it
relates to an increase of her maintenance and that of the
parties’s
son K is dismissed.
37.10.
That the applicant is ordered to make a contribution towards the
respondent’s legal costs in the amount of R100,000.00
which
should be paid in monthly instalments of R20,000.00 per month, the
first payment to be made on/before the first day of the
month
succeeding the order, and on/before the first day of every month
thereafter until the amount is fully paid;
37.11.
That the costs of this application and counterclaim be costs in the
cause.
It
is so ordered.
BAQWA
,
(JUDGE
OF THE HIGH COURT)
Counsel for the applicant: Adv D.A
Smith SC
Instructed
by: Venn & Muller Attorneys
Counsel
for the respondent: Adv I Vermaak-Hay
Instructed
by: Arthur Channon Attorneys