C.L.H v P.L.H (364/2009) [2009] ZAKZPHC 54 (21 September 2009)

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[2009] ZAKZPHC 54
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C.L.H v P.L.H (364/2009) [2009] ZAKZPHC 54 (21 September 2009)

IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
Case No:
364/2009
In the matter
between:
C L
H Applicant
and
P L
H Respondent
JUDGEMENT
Govindasamy AJ:
This
is an application for a contribution towards costs. The trial has
been set down for hearing on the 18
th
,
19
th
and 20
th
November 2009.
In
the divorce proceedings the Applicant claims
inter
alia
payment of a sum representing the claim under section 7(3) of the
Matrimonial Causes Act, 33 of 1985 (Zimbabwe) and damages for

assault.
The Applicant
applied in February 2009 for a contribution towards costs but was
unsuccessful.
She
claims a contribution of R65,000-00 (sixty five thousand Rand). Her
estimates are set out in paragraph 12 of the statement
as follows:-
“
12.1 Payment
of PETER DUNCAN’S existing account in the sum of R31,828-80.
Payment
for PETER DUNCAN for three hours consultations, and attendance at
court – R30,000-00.
Consultations
with Senior Counsel (5 hrs at R1,800-00) – R9,000-00.
Senior
Counsel first day fee – R18,000-00.
Consultations
with my attorney.
She
alleges she is unemployed and sets out a list of her monthly living
expenses as well as a statement of assets and liabilities
The
Respondent tendered an amount of R30,000-00 which he described as “an
advance payment of any order that the trial court may
make …”
The
Applicant rejected that tender. He draws attention to certain credit
balances in respect of the Clover Bay property which is
jointly owned
between himself and the Applicant. In addition he states that there
is a credit facility of R12,5747-02 on that
property which could be
used by both of them to fund the litigation.
He denies that the
Applicant is unemployed and states that she and her boyfriend work
together in a photography business. She also
has an interest in a
“Thai massage business” and a distribution company.
The
Respondent further attacked her statement of income and expenditure
and assets and liabilities. In so far as the assets and
liabilities
are concerned he drew attention
inter
alia
to certain insurance policies that were cashed.
It is clear to me:
That
t
he
Applicant is in need of a contribution towards costs; and
That
t
he
Respondent is in a position to make a contribution.
I
am not satisfied, however, that the Applicant has no funds at all to
litigate. In this regard there is every likelihood that
she is
earning some income and that there may be proceeds from some of her
policies still available. In any event she is entitled
to fifty
percent (50%) of the credit standing in the bond account of the
Clover Bay property.
The
Respondent has conditionally tendered R30,000-00. I do not believe
he is entitled to make a conditional tender. Accordingly
any order I
make shall be on the basis that no tender has been made. Having
regard to the papers and submissions made by counsel
I make the
following order:
The
Respondent is directed to pay the Applicant the sum of R50,000-00
(fifty thousand Rand) as a contribution towards the Applicant’s

costs.
The costs of this
application are reserved for determination by the trial court.
M GOVINDASAMY
AJ
Date
of Hearing : 17
th
September 2009
Date
of Judgment : 21
st
September 2009
Counsel for
Applicant : Advocate A. Stokes SC
Instructed
by : Shepstone & Wylie
c/o
Tomlinson Mnguni James
Counsel for
Respondent : Advocate SI Humphrey
Instructed
by : King Essack & Associates
c/o Stowel &
Co.