Summary of Judgment

1. Introduction

The proceedings were an application for interim relief pendente lite in the context of pending divorce proceedings, brought in terms of Rule 43 of the Uniform Rules of Court. The applicant (the wife) sought interim maintenance for herself, ancillary interim relief (including medical expenses and transport of furniture), a contribution towards legal costs, and an order permitting a departure from the limitations in Rule 43(7) and Rule 43(8).

The parties were M I J V V as applicant and A J J V V as respondent. The respondent was described as a medical practitioner and businessman, while the applicant was described as a suspended municipal councillor and political party member receiving monthly honoraria.

The procedural history reflected that the application was initially launched as an urgent application on 18 December 2008, but it was struck from the roll for lack of urgency, with no costs order made at that time. The matter was later postponed on 7 May 2009 to 25 May 2009, when it was argued before the court and judgment was reserved. The present judgment was delivered on 29 May 2009.

The general subject-matter of the dispute concerned the appropriate level of interim maintenance, the extent of interim medical expense responsibility, the proper quantum of a contribution towards legal costs, and whether the case justified allowing additional material beyond the usual confines of Rule 43 procedure, including the question of costs consequences in relation to supplementary affidavits.

2. Material Facts

It was common cause that the applicant was 48 years old and that she earned monthly honoraria totalling R10 519.87 (being R8 968.50 from the Kungwini City Council and R1 551.37 from the Metsweding District Municipality). The respondent disclosed that the applicant held academic qualifications, namely a BCom and a BSc (genetics).

It was also not in dispute that the respondent was a medical practitioner, that he was not without financial resources, and that he continued to provide materially for the parties’ children. The respondent admitted that he paid R25 000 per month for the daughters “over and above their education,” and he admitted that he drove a Range Rover. He further admitted that he had purchased a “big house,” though he did not disclose its value or what he expended on it.

A substantial aspect of the factual dispute related to the extent of the respondent’s wealth and income. The applicant alleged that the respondent’s estate was substantial (said to be about R30–R31 million in 2006) and relied on an attached statement of assets and liabilities (annexure “JVV1”). She further alleged the respondent had sold a hospital belonging to one of his companies for R24 million, and she relied on further material (annexure “JVV2”) said to be a consolidated statement reflecting an investment at ABSA in his name amounting to R14 million. She also alleged significant recurring expenditures by the respondent, including monthly payments on properties in Silverlakes and Bloubergstrand and high levels of maintenance for the children.

The respondent disputed the accuracy and relevance of these allegations. He denied that “JVV1” was a true reflection of his estate or income and contended that the monies reflected were those of various trusts, listed under his name but not belonging to him personally. He also denied the allegation regarding the R24 million hospital sale and asserted that information about it was unnecessary for the application. Notwithstanding these denials, the respondent did not place before the court positive evidence setting out his “true financial means” by way of disclosure sufficient to meet the applicant’s case.

As to the applicant’s needs, she asserted that she faced a monthly shortfall and set out expenses said to total R49 000 per month, including accommodation in the range of R13 000 to R15 500 per month and R10 000 for furniture. She sought R40 000 per month in maintenance for herself, “reasonable and fair” medical costs, and R50 000 as a contribution towards costs. The judgment records that relief concerning the parties’ daughters (initially sought) was no longer pursued at the hearing.

3. Legal Issues

The central legal questions the court was required to determine were whether the applicant had shown (a) insufficient means to maintain herself pending the divorce and (b) that the respondent had the ability to pay the maintenance and contributions sought, taking account of the parties’ circumstances and standard of living. These questions required the court to assess the parties’ competing factual assertions regarding financial means and expenses, and then to apply Rule 43 principles to those facts.

A further legal issue concerned the appropriate quantum of a contribution towards legal costs: specifically, what amount would be “adequate” to enable the applicant to present her case, without amounting to an entitlement to unlimited litigation funding.

The court also had to determine costs consequences arising from the filing of supplementary affidavits in a Rule 43 application, and whether the matter justified a departure from the limitations prescribed in Rule 43(7) and Rule 43(8).

The dispute therefore involved questions of fact (means, expenditure, and needs), the application of law to fact (Rule 43 requirements and the standard for interim relief), and evaluative determinations (what was “adequate,” “reasonable,” “fair,” and “equitable” in interim maintenance and costs funding).

4. Court’s Reasoning

The court approached the matter on the footing that Rule 43 interim relief depends materially on (i) the applicant showing insufficient means and (ii) establishing that the respondent can afford to meet the amount sought. The court accepted that interim maintenance is influenced by the standard of living enjoyed by the parties, but it also emphasised that interim relief is directed to needs rather than wants.

On the respondent’s means, the court regarded it as significant that the respondent did not place before the court evidence reflecting his true financial means, despite disputing the applicant’s figures. The court held that it was insufficient for the respondent merely to place the applicant’s monetary allegations in dispute; he was expected to “go an extra mile” and produce evidence countering the disclosed figures. In those circumstances, the court considered itself entitled to draw an inference, consistent with authority relied upon, that the respondent was a person of substance and could afford to contribute.

In evaluating the respondent’s explanation that the monies shown under his name belonged to trusts, the court considered that even on the respondent’s version it would have expected disclosure of what he received in return for the use of his name. The court reasoned that the probabilities suggested that the funds did not in truth belong to the trusts but to the respondent. This reasoning supported the court’s conclusion that the respondent had the capacity to pay interim maintenance, medical expenses, and a contribution towards legal costs.

In turning to the appropriate quantum, the court accepted that the parties had enjoyed a luxurious lifestyle, but it distinguished between maintaining the applicant at that prior level and meeting her reasonable interim needs. The court reasoned that the applicant could not expect to live at the same level as during the marriage at its “optimum platonic warmth,” given the reality of divorce proceedings and the separation of households. The court took into account that the applicant would need to lease accommodation for herself but expressed the view that she did not require accommodation costing R13 000 per month when staying alone. The court also took into account that the respondent still provided her with a motor vehicle and that she earned R10 519.87 per month.

Balancing these considerations, the court concluded that R25 000 per month was adequate as maintenance pendente lite for the applicant. It also held it fair and equitable that the respondent be ordered to pay the applicant’s reasonable and necessary medical costs, having regard to her circumstances.

On the contribution to costs, the court applied the principle that a spouse is entitled to an amount that places her in a position adequately to present her case, but not to unlimited litigation expenditure, and that the award is a contribution rather than full funding. The court accepted that the respondent’s trust-related assertions would likely require investigation and that preparation and consultation would be required for trial. However, it noted that the applicant had not provided evidence explaining how she arrived at the claimed R50 000. Exercising its evaluative discretion on adequacy at the interim stage, the court fixed a contribution towards legal costs at R35 000.

Regarding procedure and affidavits, the court reiterated that Rule 43 applications discourage prolix affidavits and that supplementary affidavits are generally not consonant with Rule 43 practice. It recognised the general position that filing additional affidavits without prior leave can lead to an adverse costs order. Nonetheless, because the applicant was substantially successful, the court declined to mulct her with the costs occasioned by her supplementary affidavit.

Finally, the court concluded that the circumstances justified a departure from the limitations in Rule 43(7) and Rule 43(8) and made an order to that effect.

5. Outcome and Relief

The court granted interim relief in favour of the applicant. The respondent was ordered to pay R25 000 per month as maintenance pendente lite to the applicant, to pay the applicant’s reasonable and necessary medical costs, and to pay R35 000 as a contribution towards the applicant’s legal costs.

On costs, the respondent was ordered to pay the costs of the application on the party and party scale, excluding the costs occasioned by the applicant’s supplementary affidavit.

The court further ordered that there be a departure from the limitation prescribed in Rule 43(7) and Rule 43(8).

Cases Cited

| Citation |
|---|
| Levin v Levin 1962 (2) SA 330 (W) |
| Grauman v Grauman 1984 (3) SA 447 at 379E |
| Greling v Greling 1959 (3) SA 967 |
| Senior v Senior 1999 (4) SA 955 (W) at 961H |
| Glazer v Glazer 1959 (3) SA 928 (W) at 932A |
| Dodo v Dodo 1990 (2) SA 77 (W) at 98F |
| Nicholson v Nicholson 1998 91) SA 48 (W) at 511 |
| Greenspan v Greenspan 2000 92) SA 283 at 288 A-B |

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 43; Uniform Rules of Court, Rule 43(7); Uniform Rules of Court, Rule 43(8).

Held

The court held that the applicant had demonstrated insufficient means to maintain herself at an adequate level pending the divorce when measured against her income and reasonable needs, and that the respondent could afford to pay interim maintenance. In circumstances where the respondent disputed the applicant’s figures but failed to make sufficient financial disclosure, the court was entitled to infer that he was a person of substance.

The court held that interim maintenance should meet needs rather than preserve the full pre-separation luxury standard, and it fixed maintenance pendente lite at R25 000 per month. The court held it fair and equitable that the respondent pay the applicant’s reasonable and necessary medical costs. It further held that an adequate contribution towards legal costs at the interim stage was R35 000, rather than the R50 000 sought, particularly given the absence of evidence substantiating how the claimed figure was computed.

The court held that although supplementary affidavits are generally discouraged in Rule 43 proceedings and may attract costs consequences, the applicant’s substantial success justified not penalising her with the costs occasioned by her supplementary affidavit. The court also held that the circumstances justified a departure from Rule 43(7) and Rule 43(8).

LEGAL PRINCIPLES

Interim relief under Rule 43 requires the applicant to show insufficient means and that the respondent has the ability to pay the maintenance or contribution sought, with reference to the parties’ living standard but constrained by the distinction between needs and wants.

Where a respondent disputes allegations of wealth or expenditure but fails to place before the court evidence of his or her true financial means, the court may draw an inference on the available material that the respondent is a person of substance capable of meeting interim obligations.

A contribution towards costs in matrimonial interim litigation is aimed at placing the applicant in a position adequately to present her case, and it is not an entitlement to unlimited expenditure or full indemnification of all trial costs. The quantum is assessed with regard to the nature of the litigation, the manner and scale on which the respondent litigates, and the respondent’s financial position, assessed at the interim stage.

Rule 43 procedure discourages prolix affidavits and generally disfavors supplementary affidavits without leave. While filing additional affidavits may attract an adverse costs consequence, the court retains a discretion on costs and may withhold such a sanction where the filing party is otherwise substantially successful and the circumstances justify that approach.

Where circumstances warrant it, the court may order a departure from the limitations in Rule 43(7) and Rule 43(8).