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[2004] ZAWCHC 4
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J.M (born W) v H.W.M (9626/2003, 9326/2001) [2004] ZAWCHC 4 (29 January 2004)
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IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
CASE NO: 9626/2003
And 9326/2001
In
the matter between:
J[...]
M[...] (born
W[...])
Applicant
and
H[...]-W[...]
M[...]
Respondent
JUDGMENT
DELIVERED ON 29 JANUARY 2004
BUDLENDER
AJ:
This
is an application in terms of Rule 43 of the Uniform Rules of Court.
The
parties were married in 1972. The applicant, the wife, is the
plaintiff in the divorce action. In that action she
seeks
inter
alia
maintenance in the sum of R10 000 per month, and an order
directing the defendant to transfer to her 50% of the nett assets
acquired
by him during the subsistence of the marriage.
The
trial is set down for 8 April 2004. In this application, which
was launched on 18 November 2003, the applicant seeks maintenance
of
R10 000 per month, and a contribution to costs of R50 000.
The
applicant states that she is unemployed as a result of ill-health.
She is presently living with her son in England.
She is
dependent on him and on a small income from a testamentary trust in
which the capital sum is R115 000. This previously
yielded
between R800 and R1000 per month. It is now being re-invested
in the United Kingdom where it will yield no more than
GBP 40 (or
about R500) per month.
The
Respondent is not able to dispute any of this. It was suggested
in argument that the applicant’s move to the UK
had
unnecessarily increased her living costs. While the move has
probably increased her living costs, it also reduced the
applicant’s
de facto
dependence (if not her
de jure
dependence) on
the respondent, because her son with whom she now lives is assisting
her and sharing her costs. The move was
apparently also
intended to enable her to obtain social security benefits in
England. As Ms Bartman for the applicant pointed
out, if this
is successful it will actually reduce the respondent’s ultimate
liability to her for maintenance, assuming that
liability is
established at the trial. In any event, the applicant
could with the same degree of validity assert that
the respondent’s
move to Ireland, where he is now living, has unnecessarily increased
his own living expenses.
Ms
Maas for the respondent suggested that the proposed re-investment in
the UK of the funds in the testamentary trust was not a
wise
investment, given the reduced income it will apparently generate.
Given the continuing fluctuation in interest rates
and currency
exchange rates, none of us can say, except with the benefit of
hindsight, whether this is so. Certainly there
is no basis for
finding that it is reckless or imprudent.
Even
assuming for the respondent that the applicant should have remained
in South Africa and kept her money here, then she would
have had a
total income of a maximum of R1000 per month. It can hardly be
suggested that this is adequate for her maintenance.
On the
facts before me, she plainly needs maintenance. The question is
whether the respondent is in a position to provide
it, and if so in
what amount.
It
is here that I encounter some difficulty. While the respondent
has answered the allegations made by the applicant, he has
been
rather unforthcoming as to his own situation. Affidavits in
rule 43 proceedings are required to be brief. His
is indeed
brief, to the point of being almost cryptic. The section of his
affidavit which actually deals with the facts runs
to three pages.
His allegations as to his own circumstances consist of two
paragraphs. The respondent says that he
is currently
unemployed; that he is being assisted by a friend (whom he does
not identify) until he receives the weekly unemployment
benefit
of approximately GBP 500 per month; and that he obtains
approximately 320 Euros (R2500) per week when he is
employed on
contract work through an agency. He does not say how often he
is so employed.
The
applicant says that the respondent is living with a German woman with
whom he shares living expenses. He does not respond
to this
except though a general denial of the allegations in the relevant
paragraph of the applicant’s affidavit. The
respondent
gives no explanation or account of what his living expenses are, and
of how he meets them.
I
therefore have great difficulty in determining whether the respondent
is able to pay maintenance, and if so, what amount he is
able to
pay. Fortunately the trial is imminent. The applicant
has, with the assistance of her son, coped through the
period since
December 2002, when she became unemployed for health reasons.
During
the first six month after the respondent left the family home during
November 2000, he paid her R2000 per month. He
does not explain
in what manner his circumstances have changed since then, but he does
provide some limited information as to what
his current circumstances
are. The previous amount provides me with some sort of a
benchmark. Since those six months
passed, the respondent has
coped without any maintenance from him - presumably through the
assistance of her son. On the
basis that this order will in any
event be of very limited duration, I will order the respondent to pay
the applicant R1500 per
month. This will provide rather limited
benefit to the applicant, but will similarly do limited harm to the
respondent.
In April the matter can be properly considered by
the trial judge, who will no doubt have much more comprehensive
information available.
This interim order will, as requested in
the notice of motion, be with effect from 1 October 2003, demand
having first been made
on 12 September 2003.
My
reference to the ability of the trial judge more fully to consider
the question of maintenance brings me directly to the second
leg of
the claim, which is the claim for a contribution towards costs.
It
is essential that the applicant should be able effectively to present
her case. In
Cary v Cary
1999 (3) SA 615
(C),
Donen
AJ
referred in this regard to the constitutional imperative of
equality before the law and equal protection of the law.
Section
34 of the Constitution guarantees the right to a ‘fair public
hearing’ before a court or other independent and
impartial
tribunal or forum. In
Bernstein and others v Bester and
others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC), Ackermann J
pointed out at 805C
(without making a finding in this regard) that it could be argued
that the formulation of section 22 of the
interim Constitution Act
No. 200 of 1993 reflected a deliberate election by the framers not to
constitutionalise the right to a
fair trial. This is
because the framers of that Constitution guaranteed the right to have
justiciable disputes settled
by a court of law or another independent
and impartial tribunal, but did not describe the nature of the
hearing which was thereby
guaranteed.
Now,
the converse applies. By contrast with the interim
Constitution, our current Constitution guarantees the right to a
‘fair public hearing’. The framers thus adopted the
formulations of the European Convention on Human Rights and
the
Namibian Constitution, which
Ackermann J
had contrasted with
section 22 of the interim Constitution. I do not think there
can now be any doubt that section 34 constitutionalises
the right to
a fair civil trial. The European Court of Human Rights has held
that this entails a right of access to court
-
Golder v UK
[1975] ECHR 1
;
1 EHRR
524
(1975)
- and the right to be able to present one’s case
properly and effectively -
Airey v Ireland
[1979] ECHR 3
;
2 EHRR 305
(1979)
.
The principle of ‘equality of arms’ is implicit in the
right to a fair trial:
Bernstein v Bester (supra) at 805 I
(footnote 154).
It
is not necessary or appropriate for me to attempt to define in this
judgment the full ambit and extent of those rights and the
obligations they create, which is a complex matter. However,
the existence of the right is relevant to the exercise of my
judgment
in this matter. The respondent is under a common law duty to
make a contribution to the applicant’s costs,
if it is needed
and he is able to do so. This is part of the duty of support
which spouses owe each other (
Chamani v Chamani
1979 (4) SA 804
(W) at 806 F-H)
. The applicant’s right under section
34 of the Constitution is relevant to the exercise of my discretion
when a claim
is made in this regard, because under sec 8(2) of the
Constitution the applicant’s right has some ‘horizontal’
application having regard to the nature of the right and the duty
imposed by the right, which in this instance has a common law
foundation.
It
appears that the respondent will be represented at the trial by an
attorney and counsel. The applicant wishes to be similarly
represented, which is hardly unreasonable. On the facts before
me, she does not have the resources to make this possible.
The
question then is whether the respondent has such resources.
The
applicant says that the respondent owns a share in certain flats in
Dresden, Germany, and that she is not aware of any other
assets owned
by him. The respondent does not either disclose other assets,
or say that he does not have any. He does
however acknowledge
that he is the owner of a one-ninth share of a property in Dresden.
The applicant says that she believes
it is worth 3.5 million Euros.
The respondent says that it is worth not more than 1.5 million Euros.
Accepting the latter
figure for present purposes, his share in the
property is worth about R1,3 million. It seems to me
overwhelmingly likely
that even if he does not have any other assets,
the respondent will be able to borrow a relatively modest amount
against his share
of that property for a limited period.
The
applicant claims a contribution of R50 000 towards costs. Ms Bartman,
in analysing the likely costs up to and including the
first day of
trial (
Service v Service
1968(3) SA 526 (N) at 528G),
suggested that they were likely to be of the order of R30 000.
The
applicant is not entitled to payment in full of the costs which she
will incur:
Micklem v Micklem
1988 (3) SA 259
(C) at 262
I. It seems to me that justice will be done if I order the
respondent to make a contribution of R20 000 towards
the applicant’s
costs at this stage.
I
accordingly order as follows:
1
The respondent is ordered
pendente lite
to pay to pay
maintenance of R1500 per month to the applicant, with effect from 1
October 2003.
2
The respondent is ordered to make a contribution of R20 000 towards
applicant’s
legal costs.
3
The costs of this application will stand over for determination in
the divorce
action.
G
M BUDLENDER