About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 157
|
|
S.K v E.B.K (1228/2024) [2024] ZAFSHC 157 (24 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable: NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
no
:
1228/2024
In
the matter between:
S[…]
K[…]
And
Applicant
E[…]
B[…] K[…]
Respondent
CORAM:
JP
DAFFUE J
HEARD
ON:
16
MAY 2024
DELIVERED
ON:
24
MAY 2024
This
judgment was handed down electronically by circulation to the
parties' representatives by email and release to SAFLII. The
date and
time for hand-down is deemed to be 09h00 on 24 May 2024.
Introduction
[1]
On 16 May 2024
I heard oral argument in rule 43(6) proceedings launched by Ms S[…]
K[…] against her husband, Mr E[…]
B[…] K[…];
I shall refer to the parties hereinafter as the applicant and
respondent respectively.
Adv S Grobler
SC appeared for the applicant and Adv PJJ Zietsman SC for the
respondent. Mr Zietsman filed heads of argument, but
Mr Grobler
decided not to do so
.
Instead, he
presented me from the bar with applicant's bundle of authorities
consisting of 271 pages. Yet, he never referred to
anyone of the
authorities during his oral argument. In all fairness to him, I came
across the well-written and persuasive judgment
of Victor J to which
I shall refer later herein.
[2]
On 12 October 2023 Baloyi-Mere AJ granted orders in terms of rule 43
(the rule 43 order). I do
not intend to quote the orders, but shall
deal with alleged material changes since then.
Relief
sought in terms of rule 43(6)
The
applicant seeks the following relief in the present application:
a.
she and her
daughter, R[…], be afforded alternative accommodation in
Bloemfontein on the basis that the respondent shall
pay an amount of
R 28 000 per month;
b.
she be
entitled to remove certain household items from the farm and that
respondent be ordered to pay relocation costs in the amount
of R70
200;
c.the
respondent be ordered to provide her with a BMW X5 or similar motor
vehicle;
d.
the respondent
be ordered to increase R[...]'s maintenance to R 20 000 per month and
ordered to pay several other expenses relating
to R[…];
e.
Adv Rudie
Cronje be appointed as parenting coordinator;
f.
the respondent
be ordered to make a further contribution towards the legal costs in
the amount of RS00 000;
g.
the respondent
be ordered to pay the costs of the application.
Rule
43(6) and relevant authorities
[3]
The
purpose of rule 43(1) is to obtain maintenance
pendente
lite,
a
contribution towards the costs of the divorce action, interim care of
any child and interim contact with any child. It is trite
that these
kind of applications should be dealt with as inexpensively and
expeditiously as possible. Therefore, prolixity and unnecessary
proliferation of papers and affidavits should be avoided.
[1]
The rule 43(1) application consisted of 180 pages and the present
application of 125 pages.
[4]
Rule 43(6)
reads as follows
:
'The
court
may, on
the same procedure,
vary its
decision in the event of a
material
change
occurring
in the
circumstances
of either
party or a child, or the contribution towards costs proving
inadequate.' (emphasis added)
[5]
I
emphasise that 'material change' relates to the circumstances
of
either party, or a child. It does not apply to a possible further
contribution towards costs as it may turn out at a later stage
during
divorce proceedings that the contribution granted earlier proved to
be inadequate. Mr Zietsman relied on
Grauman
v Grauman,
[2]
in
submitting that the applicant had failed to prove a material change
in circumstances, but this judgment does not support his
case. The
learned judge merely pointed out that rule 43(6) should be strictly
interpreted in respect of whether or not a material
change has taken
place in the circumstances of either party, or child
.
Having
said this, this court does not sit as a court of appeal or review,
giving it authority to interfere with the rule 43 order
granted
herein on 12 October 2023.
The
appointment of a parenting coordinator
[6]
This
relief sought by the applicant is not the result of a material change
in circumstances. The parties have been fighting like
cat and dog
before the rule 43 proceedings in 2023. The applicant pointed out
that a plethora of correspondence has been sent by
her attorneys to
the respondent's attorneys pertaining to practical arrangements and
issues concerning the rule 43 o
r
der
.
[3]
In
order to prevent further unnecessary costs as a result of the
parties' inability to communicate properly with each other, and
bearing in mind the consequent financial liabilities, she requested
that Adv Cronje, an accredited mediator and parenting coordinator
(PC), be appointed as PC in the interim. Adv Cronje is willing to
accept the appointment. The matters to which Adv Cronje must
attend,
if appointed, have been set out in paragraph 1.5 of the notice of
motion and cover five typed pages.
[7]
I
accept that
section 6(4)(a)
of the
Children's Act 38 of 2005
stipulates that
.in
any
matter concerning a child an approach conducive to conciliation and
problem solving should be followed and a confrontational
approach be avoided. Section 28(2) of the Constitution stipulates
that a child's best interests are of paramount importance in
every
matter concerning the child. In
P.S.D
v
C.G.
V
and Others
[4]
I
considered the practice that had evolved in the Western Cape in terms
whereof parenting coordinators are appointed as part of
parenting
plans incorporated in deeds of settlement entered into
between
divorcing
parents
.
I
agreed
in
principle
with
the
dicta
in
TC
v
SC.
[5]
Parenting
coordination by making use of a PC to assist 'high-conflict parents'
in implementing their parental plans is a worthwhile
exercise. The
most important limitation on the appointment of a PC is that the
parties must already have reached an agreement on
a parenting plan
and the PC's role should be limited to the implementation of an
existing court order. I agree with the learned
judge in
TC
v SC
[6]
that
the appointment of a PC should be done with the consent of both
parents. Parenting coordination is still a new alternative
dispute
resolution process and courts should recognise that the process
cannot be forced upon a non-consenting parent.
[8]
There
is no approved parental plan adopted by the parties
in
casu.
The
respondent is vehemently against the appointment of a PC at this
stage of the proceedings.
[7]
I
also pointed out during argument that it would be premature to
appoint a PC at this stage without a report from the Family Advocate.
I indicated that Hefer AJ had already directed in October 2023 that
such a report shall be obtained and notwithstanding a period
of seven
months, it had not been forthcoming. I accept that Adv Cronje is an
experienced mediator and PC, but in the absence of
an approved
parental plan he will face exactly the same problems than the
parties'
attorneys
.
There
will not be a decrease in costs and Adv Cronje will be confronted
with numerous aspects on a regular basis by either the one,
or the
other, or both parties. The parties are involved in an acrimonious
divorce action which not only involve the children, but
financial
issues
.
Consequently,
I made it clear to the parties that I was not prepared to appoint a
PC in the present circumstances
.
The
report of the Family Advocate should be awaited. It is in any event
high time that the parties sit back and consider what they
are doing
to themselves and their children. A bleak future awaits the children
if the acrimony cannot be terminated soon.
[9]
It would be
open to anyone of the parties to apply afresh in terms of rule 43(6)
for any variation if it appears from the Family
Advocate's report to
be justified. It may just be possible for the Family Advocate to
convince the parties to work together and
adopt a parental plan which
would be in the best interests of the children
.
Material
change in circumstances
[10]
During the
rule 43 proceedings the applicant made it clear that she wanted to
stay on the farm. The respondent insisted that she
relocates and even
offered to pay relocation costs in the amount of R 75 000. The court
did not accept the respondent's offer and
orders were made on the
assumption that the applicant and R[...] would stay on the farm
pendente
lite.
Obviously,
their stay would include all amenities incidental and associated with
their stay as was the case earlier, including free
access to water
and electricity.
[11]
I am satisfied
that there was a material change in circumstances since the rule 43
order. The most important change is the respondent's
attitude
pertaining to electricity supply. He decided unilaterally to
disconnect the electricity supply to the farm house and to
install a
prepaid electricity meter. As a result, the applicant, who had the
use of electricity all the time without paying therefore,
had to
start paying for electricity.
[12]
This
attitude of the respondent
is
regrettable.
I have had occasion to deal with the restoration of electricity
supply in
Harrismith
lntabazwe Tsiame Residents Association (Pty) Ltd and Others v
Maluti-A-Phofung Local Municipality and Another.
[8]
I
concluded in that judgment with reference to
Eskom
Holdings
SOC
Ltd
v Masinda (Masinda),
[9]
Impala
Water Users Association v Lourens NO and Others (lmpala)
[10]
and
Makeshift
1190 (Pty) Ltd v Cilliers
[11]
that
the consumers' rights to the supply of electricity in that case were
incidental and so closely connected to their rights to
occupation of
the particular business premises that these could be considered as
the subjects of
quasi-possessio.
[12]
Therefore,
spoliation
of such
quasi-possessio
were
acts of spoliation in relation to the respective premises
.
The
same principle applies
in
casu.
Obviously,
the respondent cannot be equated to a municipality, but he unlawfully
dispossessed the applicant and R[...] from their
peaceful
quasi-possessio
of
electricity. He resorted to self-help and the applicant could have
approached the court in relying on the mandament van spolie.
[13]
The parties
also had access to a generator to provide power in the case of
electricity cuts during lockdown or otherwise. The mere
fact that the
respondent refuses to repair the generator and allow undisturbed
electricity supply at his costs is no doubt a material
change in the
circumstances. During argument Adv Zietsman obtained instructions
whereupon he informed me from the bar that the
respondent would be
willing to pay for the supply for electricity notwithstanding the
installation of the prepaid meter. In my
view he should also repair
the generator and such order will be made.
[14]
I am prepared
to accept that R[...]'s medical condition deteriorated after the rule
43 proceedings.
Insofar as the
respondent
does not want
to admit this, he is entitled to obtain a second opinion from a
psychiatrist, or like expert. It is not for him as
lay person to make
the call. In order to provide for excess payments, bearing in mind
that medical experts often charge fees in
excess of the rates allowed
by medical funds, the applicant has made out a case for an increase
in respect of R[...]'s maintenance
.
The respondent
pays maintenance in respect of R[...] in the amount of R7 000 per
month in terms of the existing order.
I
noted that
R[...] does not take dance classes anymore which brought about a
saving, but that she wants to take up horse riding and
compete in
competitions.
Extra costs
will be
incurred
in this
regard. The respondent is liable for payment of the fair and
reasonable extramural costs of the children. The payment for
the
extra activities should be left to the respondent to consider what is
fair and reasonable in this circumstances. The expenses
claimed in
annexure F to the founding affidavit in the amount of R 29 951 per
month is exorbitant. R[...] has also changed schools
which causes the
applicant to travel a further distance per day. Bearing in mind the
material change in R[...]'s circumstances,
I am satisfied that her
maintenance should be increased to R 10 000 per month.
[15]
The applicant
advanced reasons why she wants to relocate from the farm to
Bloemfontein. These are not sufficient to be regarded
as a material
change in circumstances. She elected to stay on the farm a few months
ago and her change of heart should not be adhered
to. She has not
convinced me. This is in any event temporary and
pendente
lite.
There
is no reason why the divorce proceedings cannot be set down for
hearing during the fourth term of 2024, or the first term
of 2025. I
have considered the pleadings
in
the divorce
matter, case no 4699/2023, and also put my views forward to counsel
during oral argument. Both parties are apparently
kicking for touch
all the time, keeping themselves busy with skirmishes relating to the
well-being of the children, instead of
considering to finalise the
divorce. The pleadings closed in November 2023. Contrary to the
provisions of rule 36(9), both parties
failed to file notices of
expert evidence to be led, as well as the summaries of their experts.
In this regard, I do not necessarily
consider expert reports
pertaining to the well-being of the children as the Family Advocate's
report will probably deal with this
aspect. I have in mind the asset
value of both estates.
Further
contribution towards costs
[16]
The
right to access in terms of section 34 of the Constitution is one of
the central issues to be considered in rule 43 applications.
Victor
J dealt with contribution to legal costs in
H
v
H.
[13]
I
agree whole-heartedly with her sentiments insofar as it is still
evident that gender-based inequalities characterise rule 43
applications. It is the more financially vulnerable spouses, usually
the wives, who are unable to meet the costs of litigation and
to
effectively place their cases before a court of law. There should be
'equality
of
arms' in order to ensure that the right to equality in section 9 of
the Constitution
is
achieved.
Constitutional imperatives apply nowadays, but the principle has been
established decades ago in
Van
Rippen v Van Rippen
[14]
where
the court stated that, having regard to the circumstances
of
the case and the financial position of the parties,
'the
wife
must be enabled to present her case adequately before the court.'
[15]
Nowadays
the roles have changed in some cases insofar as some wives are
wealthy and professional people, whilst their husbands are
relatively
poor, but the principle remains the same: there must be 'equality of
arms'.
[17]
It
is evident that the respondent is a wealthy man. The applicant
inter
alia
claims
an order in terms of
section 7(3)
of the
Divorce Act 70 of 1979
in
terms
whereof
50%
of the respondent's
nett
assets be transferred to her, either in cash, or in equivalent value
by means of transfer of movable and/or immovable assets.
Although the
parties were married out of community of property with the exclusion
of the accrual system long after the promulgation
of the
Matrimonial
Property Act 88 of 1984
, the Constitutional Court
has
recently
held
[16]
that
persons
in
the position
of
the
applicant
have a right to claim in accordance with the aforesaid sub-section as
if they were married out of community of property
before the
promulgation of the
Matrimonial Property Act.
[18
]
Both counsel
indicated that there was just no possibility of a settlement between
the parties and that mediation was not even considered.
When the
initial
rule 43
proceedings were conducted, the respondent filed
financial records of his close corporation for the financial year as
at the end
of February 2023. Obviously, a new financial year has now
come and gone, the effect being that the financial statements
presented
to the court previously are now outdated. The applicant
would be fully entitled to
·appoint
an auditor or
forensic analyst to do a proper investigation to establish
the
respondent's
nett worth.
Further
costs
will be
incurred
as
her counsel
·
and
attorney would obviously
have to be
involved in
the
investigation
as well.
[19]
A
contribution
towards
the
applicant's
costs
was
awarded
in
the
amount of R 100 000 in the
rule 43
order. Although the applicant
indicated that this contribution has been used to a large extent to
settle the acrimonious correspondence
and communication between the
parties, I am satisfied that the applicant is entitled to a further
contribution. The respondent
has now made it clear in no uncertain
terms
in
his
answering
affidavit
that the applicant is not lawfully entitled to claim anything from
his estate due to the marriage out of community of
property with the
exclusion of the accrual system.
[17]
Consequently,
much more litigation will probably follow. The respondent is also of
the view that he has made a full and frank disclosure
of the close
corporation's financial position and that there is no basis for any
investigation
into
its affairs.
[18]
I
do not agree. I indicated earlier that the financial statements are
outdated. No financial statements have been presented to the
court in
the present proceedings. It is not my intention to deal with any of
the financial statements attached to the answering
affidavit in the
previous
rule 43
proceedings and this should be left for a forensic
analyst. Fact of the matter is that it is apparent that much has
changed from
February 2023 to date hereof pertaining to the housing
complex development in Bloemfontein. Also, a forensic analyst will be
able
to establish whether or not the immovable and movable properties
referred to in the financial statements are valued at fair value.
[20]
According to
the close corporation's draft financial statements, it sustained a
loss of about R1.5 million for the financial year
ending 28 February
2023. It is evident that the close corporation has already sold
several housing units built in Woodlands and
that the remaining few
would probably be sold and transferred to purchasers in due course.
These
are
all
aspects to
be
properly
considered by the applicant's experts.
[21]
Both parties
make use of senior counsel and there is no reason why the applicant
should not be allowed to participate in the litigation
on the same
footing as the respondent.
Costs
of this application
[22]
It is
customary to order the costs of a
rule 43
application to be costs in
the main action. Adv Zietsman submitted that the applicant's
application was an abuse of court process
and should
be dismissed
with costs
on the scale
as between
attorney
and client. I
do not agree. I indicated herein that the respondent must also be
blamed for the
conflict
that
has
arisen
after
the
rule
43
order.
He
not
only
disconnected
the
electricity
and inserted
a
prepaid meter,
but without
obtaining
a second
opinion
from a medical
expert, decided on his own that his daughter did not require the
prescribed treatment. In
the exercise
of my discretion I shall order that the costs of the application
.
be costs in
the main action.
Order
[23]
The following
orders are made:
1.
The rule
43
order of 13
October 2023 issued under case no 4228/2023 is amended in accordance
with the provisions of
rule 43(6)
to substitute the amount of R 7 000
in
paragraph
8 with the
amount of R 10 000. In addition:
2.
The respondent
shall
forthwith
repair the
generator
on
the farm in order to be used by the applicant as and when required.
3.
The respondent
shall forthwith ensure that the prepaid electricity meter installed
by him on the farm be provided with sufficient
credits to enable the
applicant and R[...] to enjoy constant electricity supply when
required, save in such cases when electricity
is not available as a
result of official load-shedding.
4.
The
respondent
shall make
a
further
contribution
of
R
100
000
towards
the
applicant's legal costs, such costs to
be paid in
four
instalments of R 25 000 each, the first instalment to be made on/or
before 7 June 2024 and further instalments before the 7
th
of
each and every successive month.
5.
The costs of
this application shall be costs in the divorce action.
JP
DAFFUE J
On
behalf of the Applicant:
Adv
S Grobler SC
Instructed
by:
Phatshoane
Henney Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv
PJJ Zietsman SC
Instructed
by:
Muller
Gonsior Inc
BLOEMFONTEIN
[1]
Henning
v
Henning
1975
(2)
SA
787
(O)
at
789 E,
Andrade
v Andrade
1982
(4)
SA
854
(O)
at
855 F and
Grauman
v
Grauman
1984
(3)
SA
477
(W)
at
478
I
to
479
A
and
several
other
a
uthoritie
s.
[2]
Loe
cit
at
479 H
to
480
D
[3]
Founding
affidavit, para 12,
p
31 & 32.
[4]
(4120/2020)
[2021]
ZAFSHC
175
(19
August2021)
paras
12
&
13.
[5]
2018
(4) SA
530
(WCC)
paras
50,
66,
67, 69
&
71.
[6]
Ibid
para
71.
[7]
Answering
affida
vit,
paras
31
&
32,
pp
91
& 92.
[8]
(567/2022)
[2022]
ZAFSHC
151
(14
June
2022).
[9]
20
19
(5)
SA
386
(SCA).
[10]
2008
(2)
SA 495
(SCA).
[11]
2020
(5)
SA
538
(WCC).
[12]
Masinda
loc cit
para
16;
Impala
loc
cit
paras
18
-
21;
and
see
also
Firstrand
Ltd
t/a Rand Merchant
Bank
v Scholtz NO
and
others
2008
(2)
SA
503
(SCA)
paras
12
&
13.
[13]
(44450/22)
[2022]
ZAGPJHC
904;
[2023]
I
All
SA
413 (GJ);
2023 (6) SA 279
(GJ) (30
September
2022)
para
70
and
further.
[14]
1949
(4) SA 634 (C).
[15]
Ibid
639.
[16]
EB
v
ER
NO and others
and
a similar matter 2024 (2)
SA
1
(CC).
[17]
Answering
affidavit
para
158, p 83.
[18]
Answering
affidavit
para
159, p
83.