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[2012] ZAGPPHC 193
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A.C.C v A.L.C (27058/2012) [2012] ZAGPPHC 193 (24 August 2012)
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 27058/2012
DATE:24/08/2012
In
the matter between:
A
C
C
............................................................................................................
Applicant
and
A
L
C
…......................................................................................................
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
This is an opposed application in terms of rule 43 of the Uniform
Rules of Court. The parties were married out of community
of property
on 8 April 1989. The children born of the marriage are all major and
self-supporting. The applicant claims from the
respondent pendente
lite: (i) maintenance for herself in the amount of R14 080; (ii) that
the respondent continue paying her an
amount of R2500 per month in
respect of her motor vehicle (iii) that the respondent maintain her
as a dependent on his medical
aid (iv) that the respondent pay the
rental in respect of her rented property (v) a contribution of R5 000
towards her legal costs.
A divorce action is pending in this court.
[2]
Both parties are salaried employees. There is a dispute about each
party's extra income. For the present purposes, I assume
the parties'
respective earnings to be what has been disclosed, namely R3 935 (the
applicant) and R39 391.03 (the respondent) respectively.
The parties
no longer live together. The applicant estimates her monthly expenses
in the amount of R18 015. The dispute between
the parties centres
around the following: the principle of interim maintenance for the
applicant; payment of the applicant's rental;
and contribution to her
legal costs.
[3]
There is a need in rule 43 applications to set out briefly, the
dispute between the parties in the divorce action. That can
only be
achieved through succinct reference to the pleadings. The necessity
therefor is to ensure that such issues have been genuinely
raised
with a bona fide intention that they be properly ventilated by the
trial court. Put differently, this is to ensure that
sufficient facts
are alleged, which if proven at the trial, would entitle the
applicant to the relief claimed. In Carstens v Carstens
1985 (2) SA
351
(SE) Mullins J said:
"Without
laying down any rule of practice in this regard, and despite the
desirability of keeping the costs of Rule 43 applications
as low as
possible, I am of the view that the Court should not be required to
search for and peruse another file of papers. I am
not informed of
the case number of the divorce proceedings, nor even whether process
was issued out of this Court. Furthermore
Rule 43(2) requires the
applicant's sworn statement to set out "the relief claimed and
the grounds therefor". This suggests
that Rule 43 proceedings
should be self-contained...."
[4]
Experience has shown that in some instances, a party armed with an
interim order, frustrates the finalization of the divorce
action,
with full knowledge that the financial benefits derived in terms of
the interim order, are unattainable at the divorce
action. It is
therefore necessary to interrogate whether the disputes are genuinely
raised, regard being had to the purpose of
rule 43, which is worth
restating. In Nilsson v Nilsson 1984 (2) 294 (C) at 295F, the
following was said:
"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 quite clearly at the trial
would not be able to establish a right to maintenance. The grey area
between the two extremes causes
problems."
[5]
In the present case, the only aspect in dispute in the main divorce
action is the amount of maintenance for the applicant. There
is no
issue between the parties as to division of the joint estate as the
parties are married out of community of property without
the accrual
system. The only issue therefore is the principle of maintenance for
the applicant, post divorce. No basis is set forth
in the application
why the applicant would be entitled to maintenance from the
respondent, post divorce.
[6]
It is important to know such basis, since, as a general statement of
law, the reciprocal duty of support, which is one of the
invariable
consequences of marriage, comes to an end when the marriage
terminates. However, s7 of the Divorce Act 70 of 1979 (the
Act)
empowers the Court granting a decree of divorce to make an order of
maintenance in favour of one of the spouses after considering
the
following jurisdictional facts: the existing or prospective means of
the parties; the parties' respective earning capacities;
their
financial needs and obligations; their ages; the duration of the
marriage; the standard of living of the parties prior to
the divorce;
the parties' conduct insofar as it may be relevant to the breakdown
of the marriage; an order for the division of
assets and any other
factor which, in the court's opinion, should be taken into account.
[7]
In each of the cases I have considered where maintenance was granted
post divorce, the spouse in whose favour it was granted,
was not
earning an income as at the date of divorce. See for example Nilsson
(supra); Kroon v Kroon
1986 (4) SA 616
(E) Carstens v Carstens
(supra); Pillay v Pillay
2004 (4) SA 81
(SE) and Koorvertjee v
Koorvetjee
2006 (6) SA 127
(C). In all these cases, what tipped the
scales in favour of awarding maintenance seemed to be that there were
minor children and
the recipient spouses were unemployed.
[8]
The general approach of our courts seems inclined to award little or
no maintenance at all where one or more of the following
factors are
present:
(a)
the woman is young or reasonably young;
(b)
she is well-qualified;
(c)
she has no children;
(d)
she has worked throughout her married life and/or is working at the
time she applies for maintenance;
(e)
she is in good health;
(f)
the marriage was not of long duration.
(See
Nel v Nel
1977 (3) SA 288
(O); Qoza V Qoza
1989 (4) SA 838
(CK) and
Pillay v Pillay
2004 (4) SA 81
(SE) at 87A-B. See however, Brink v
Brink
1983 (3) SA 217(D)).
[9]
In Kroon (above) the court stated three broad principles: First, no
maintenance would be awarded to a woman who can support
herself.
Second, in considering whether maintenance should be ordered post
divorce, the court's aim should be to ensure a 'clean
break' between
the parties. Third, the court may, however, award 'rehabilitative'
maintenance to middle-aged women who have for
years devoted
themselves full-time to the management of the household and the care
of the children of the marriage. Such maintenance
is awarded for a
period sufficient to tide them over while being trained or retrained
for a job or a profession.
[10]
The applicant is clearly excluded from the category of spouses for
whom maintenance, post divorce, was meant for: (i) she has
not been a
housewife; (ii) there are no minor children; (iii) she is 51 years
old); and (iv) she is employed. In any event, and
principally, the
applicant has not alleged any of the jurisdictional facts upon which
maintenance, post divorce, could be granted
in her favour. I put it
to counsel that the issue of maintenance is unlikely to proceed to
trial, to which counsel readily conceded.
I see no reason why the
divorce action should not be settled immediately. The parties' estate
is too small to incur any further
unnecessary costs in litigation.
There shall therefore be no interim maintenance for the applicant to
the extent she has not made
out a case for such to be a triable
issue.
[11]
Next I consider the applicant's rental amount. The lease agreement is
in the name of one Mr. Van der Riet, and the rental amount
is debited
against his account. The applicant's explanation, in a supplementary
affidavit, is that Mr. Van der Riet is her friend,
who signed the
lease agreement on her behalf because she was not credit-worthy. Mr.
Schoeman, for the respondent, rejected this
explanation and urged me
to find that the applicant and Mr. Riet have an intimate
relationship. I tend to agree with that supposition.
I take a dim
view that the applicant was not upfront with the Court on this issue.
Her explanation only came up after the respondent
raised it in his
opposing affidavit. She should have disclosed it herself, if the
relationship was that innocent. The only reasonable
deduction I can
make on all the facts, is that the applicant and Mr. Van der Riet are
romantically involved and the latter is paying
the rental amount on
behalf of the applicant. It is therefore not her expense.
[12]
With regard to contribution towards costs, similarly no basis has
been laid for a proper consideration. Apart from mentioning
this in
her prayers, it is not motivated at all, save for an en passant
reference in the body of the affidavit. The applicant has
therefore
not informed the Court the basis of the R5 000 she claims, e.g. how
it is are arrived at; what unpaid costs have already
been incurred,
the projected amount up to and including the first day of trial, etc.
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. This is how the Courts considering
applications for
contribution towards costs have, over the years, approached the
matter (See for example Van Rippen v Van Rippen
1949 (4) SA 634
(C);
Service v Service
1968 (3) SA 526
(D); Micklem v Micklem
1988 (3) SA
259
(C); Nicholson v Nicholson
1998
(1)
SA 48
(W); Cary v Cary
1999 (3) SA 615
(C); Greenspan v Greenspan
2001 (4) SA 330
(C).
[13]
In Van Zyl v Van Zyl
1947 (1) SA 251
(T) it was held that to succeed
in an application for contribution towards costs, the applicant must
set out sufficient facts which
if established by her at the trial on
the hearing of the evidence would justify the court in granting an
order for restitution
of conjugal rights1. In the present case, I
have already found that the applicant has not set out any facts which
would justify
the court in granting her rehabilitative maintenance.
[14]
In the recent past a trend has developed in this Division, in terms
of which excessive and unmotivated amounts for contribution
towards
costs are claimed in rule 43 applications. The idea clearly is
underpinned by the hope that the court would simply order
an amount
midway the high and the low. It is even common for counsel to submit
that "the practice in this Division is to allow
an Rx amount for
contribution towards costs." I am not aware of such 'practice'.
If it indeed exists, it is manifestly wrong.
A blanket, proximate,
'one size fits all' approach, encroaches on the Court's discretion to
consider each case on its own facts.
[15]
To sum up: the applications for interim maintenance, the applicant's
rental and contribution towards costs should all be refused.
No case
has been made out in respect therefor. I intend to make an order in
respect of the issues which the parties are agreed
on.
[16]
In the result, the following order is made pendente lite:
1.
The respondent is ordered to maintain the applicant as a dependent on
a medical aid scheme to which he is a member, at his cost,
and to pay
all excesses which are not covered by the medical aid scheme;
2.
The respondent is ordered to pay to the applicant an amount of R2500
per month in respect of the applicant's motor-vehicle;
3.
The costs of this application are costs in the divorce action.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 20 AUGUST 2012
JUDGMENT
DELIVERED : 24 AUGUST 2012
FOR
THE APPLICANT : ADV AR VENTER
INSTRUCTED
BY : HENNING ATTORNEYS, LYNNWOOD
FOR
THE RESPONDENT : ADV Z SCHOEMAN
INSTRUCTED
BY : KRAUEVICH & JANSE VAN VUUREN INC., CENTURION