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[2008] ZAWCHC 296
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Smit v Smit (15658/2008) [2008] ZAWCHC 296 (17 November 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 15658/2008
In
the matter between:
L
A
SMIT Applicant
and
C
A SMIT
Respondent
JUDGMENT
DELIVERED ON 17 NOVEMBER 2008
GAUNTLETT,
AJ
:
This
is an application in terms of Rule 43. The applicant seeks interim
retief which is disputed, excluding provision for medical
and
related expenditure, and for school expenses
an
d
related expenditure. Counsel for the parties are agreed on the
customary order in relation to the costs of this application,
namely
that these should stand over.
The
respondent is a building contractor and director of three private
companies in that industry. It is not in serious dispute
on the
papers that the industry, at least so far as it affects the
operation of what I shall term his companies, is in particular
difficulty at present, but equally it is not in issue that on his
own showing his assets exceed RSmiHion, that his monthly income
is
of the order of R45 000 and that he has in the past not disclosed
his full financial position to the applicant. In this application
he
has explained the unavailability of the companies' 2008 financial
statements, but not the absence of those for preceding years.
The
parties continue currently to live under the same roof with two
children aged 10 and 9. There is also a 21-year old child
in the
family.
It
is convenient to address the relief claimed in relation to the three
main categories in dispute: interim maintenance; use of
the
Mercedes-Benz Vito minibus vehicle; and a contribution to the costs
of the divorce trial proceedings.
As
regards interim maintenance the argument for the respondent is that
he continues to maintain the applicant and the two minor
children,
and that he tenders to maintain that position pending the resolution
of the principal divorce proceedings. The applicant,
it was argued,
is not entitled to the order sought because this would be at odds
with the fact that on the evidence, he is currently
supporting her
and the two minor children and is, as I have indicated, tendering to
sustain that position.
In
my view, the reasoning in this regard is not tenable. The parties
are in the throes of divorce proceedings, adequate support
pending
the resolution of those proceedings is now an issue, even if this
was not so before. Their relationship now is clearly
such that the,
one infers, at least relatively amicable
status
quo
which
existed previously, comprising regulation
inter
se
of
expenditure is over. The applicant is entitled to clarity as regards
the quantification of support she is entitled to receive
until the
divorce, and that claim is not validly deflected by a general tender
of continued maintenance, as the respondent seeks
to do. The very
fact that the parties differ so strongly, as they have done in this
application, as regards the quantification
of that interim support,
points to the existence of a dispute which must be resolved.
In
the order I
intend
to make in this regard however I have also had regard to the
respondent's financial position. Clearly hfs disposable income
is
limited. If however the opposed divorce proceedings oblige him, as a
consequence, to realise certain of his assets, he must,
by law, do
so. The repeated
non
possumus
attitude that since this claim cannot be met out of income, and is
not readily to be obtained out of capital, the claim cannot
be met,
is not one which is supportable in law.
As
regards the vehicle, however, I am unpersuaded that the applicant
requires the interim use of the Mercedes Benz minibus. As
counsel
for the respondent pointed out, he uses this is the course of his
business, and moreover undertakes the burden of transporting
the
children to and from school. In all the circumstances it seems to me
equitable that that state of affairs should continue.
Lastly
there is the question of a contribution to costs. The respondent's
stance is once more that he can afford nothing. Therefore,
the
implicit argument again runs, the applicant should receive nothing
from him to make the divorce possible. That stance is
not open to
him; on his own say-so, his estate, as I have noted, is significant,
and can meet the costs, even if this is at the
unfortunate cost to
itself of liquidation of capital assets best preserved intact.
Liquidation of assets is the unfortunate consequence
of the fact
that he and the applicant find themselves embroiled in opposed, and
therefore expensive, divorce proceedings. The
respondent's
uncontested lack of full disclosure expensive, divorce proceedings.
The respondent's uncontested lack of full disclosure
in the past,
and the fact that his estate appears to be substantially entwined
with his thee companies, with the likelihood of
at ieast some
forensic accounting investigation costed at a minimum of R30 000,
unfortunately conduce to a larger cost contribution
than might have
been a position in a simpler matter.
Regard
being had to all the circumstances, the order I accordingly make is
one in terms of the draft which was handed to me with
the insertion
of the amount of R10 000 per month in the first paragraph as regards
maintenance
pendente
lite,
the
deletion in paragraph 4 of the words same Mercedes Benz Vita and
substitution with the words
u
die
Corsa bakkie" and the insertion in paragraph 5 as regards
contribution to legal costs of the sum of R70 000.
GAUNTLETT,
A J