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2024
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[2024] ZAECQBHC 53
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H.C v C.C (1661/2024) [2024] ZAECQBHC 53 (3 September 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
DIVISION, GQEBERHA)
NOT
REPORTABLE
CASE
NO: 1661/2024
In
the matter between:-
H[…]-C[…]
C[…] (born P[…])
Applicant
And
C[…]-S[…]
C[…]
Respondent
In
re:
H[…]-C[…]
C[…] (born P[…])
Plaintiff
and
C[…]-S[…]
C[…]
First
Defendant
C[…]-S[…]
C[…] N.O.
Second
Defendant
H[…]-C[…]
C[…] N.O.
Third
Defendant
CRAIG
HILTON KILLIAN N.O.
Fourth
Defendant
THE
MASTER OF THE HIGH COURT, CAPE TOWN
Fifth
Defendant
JUDGMENT
MATEBESE
AJ
[1]
The applicant apoproaches this court by way of rule 43 of the Uniform
Rules of court seeking an order,
pendente lite,
in the
following terms:
1.1 That the
respondent be ordered to pay directly to the applicant an amount of
R20 000.00 (twenty thousand rand only) each
month as interim
maintenance, with the first payment to be made on the 25
th
day of the month following the grant of the order and thereafter on
the 25
th
of each month and such amount to increase by
11.25% per annum on the anniversary of the granting ot this order.
1.2 That the
respondent be directed to make payment of the minor children’s
(L[…] C[…] (“LC”)
and R[…] C[…]
(“RC”) ) school fees directly to the service provider as
and when they fall due.
1.3 That the
respondent be directed to make payment of the minor children’s
additional school costs, including but not
limited to, extra mural
activities, extra lessons, school uniforms, sports uniforms and
transport, as and when they fall due.
1.4 That the
respondent be directed to retain the minor children on his medical
aid and to make payment of the monthly premiums
thereof.
1.5 That the
respondent be directed to purchase a suitable replacement motor
vehicle being a 2023 Nissan Magnite 1.0 Visia
MT or the like, (to be
registered in the applicant’s name), within 30 (thirty)
ordinary days of the granting of an order
to the effect, the cost of
which is to be partially covered by the amount/s received from the
trade-in of the applicant’s
current motor vehicle, with the
respondent being liable for the payment of the monthly re-payment/s
(as and when they fall due)
in respect of the balance of the
pourchase price in the event of the mortor vegicle being financed.
1.6 That the
respondent be ordered and directed to pay an amount of R1 712 554.38
(one million seven hindred and twelve thousand
five hundred and
fifty-four rand and thirty eight cents) towards the legal costs of
the applicant.
[2]
The parties hereto got married to each other on 2 December 2008 at
Cape Town. They presently reside in Gqeberha and have
business
interests in Gqeberha and around the Eastern Cape.
[3]
The parties hereto are going through a divorce with the plaintiff
having instituted divorce proceedings in the above honourable
court
under case number 2469/2022. The divorce proceedings are pending.
This application is instituted as an interlocutory application
and
the order above is sought pending the said divorce proceedings.
[4] The application
is opposed by the respondent. Before I deal with the merits of the
application and the grounds of the
respondent’s opposition
thereof, it is imperative that I set out the following brief
background.
Background:
[5]
The parties hereto got married to each other on 2 December 2008 in
community of property and of profit and loss. They
later, in 2013,
through an order of court and by way of a post nuptial contract
registered with the Registrar of Deeds, Cape Town,
changed their
marital regime to a marriage out of community of property and profit
and loss with an accrual system.
[6]
The applicant says much about how she was subjected to duress leading
to the change of her marital regime. I do not think
this is important
for the purposes hereof. The factual position, as things stand now,
is that the parties are married out of community
of property and
subject to an accrual system. In these proceedings I am not called
upon to decide on the legal validity and effect
of the change of the
marital regime. Accordingly, I do not intend to say anything more on
this issue.
[7]
On 23 August 2023 the applicant instituted divorce proceedings in the
above court against the respondent. In the divorce
proceedings the
applicant, plaintiff therein, has also cited the second to fifth
defendants, above.
[8]
The said defendants are cited, apparently, because the applicant
seeks, in the divorce proceedings, a declaratory order
that the Trust
in which they act as trustees is
void ab initio
or
alternatively that the said trust is the
alter
ego
of
the respondent and the assets of the trust are therefore, so the
contention goes, the assets of the respondent. This is an issue
that
also dominates the applicant’s papers in this application.
[9]
Tempting as it may be to air my view on this issue, I refrain from
doing so because this is an issue that must still be
determined by
the trial court hearing the divorce proceedings. In this judgement I
make every effort not to be influenced by same,
one way or the other.
[10]
There are two minor children born of the marriage between the
parties, LC and RC both boys born on 11 June 2009 and 31
October
2013, respectively. As per the arrangemnet between the parties, which
appears to have been approved by the Family Advocate
both parties
share joint custody and care of the children whilst the divorce
proceedings are still pending. The applicant does
complaint though
that the respondent does not spend much time with the children.
However, I do not think that has relevance to
the issues that I have
to decide in this application.
[11]
The anger and bitterness between the parties is clear from the
papers. The volume of the papers and the irrelevant fraud
and other
allegations made by the parties against each other in this
application is also evidence of this. The founding papers,
in
particular, appear to be influenced by emotions. The application
extends to over 370 pages. The founding affidavit consists
of more
than 60 pages with annexures spanning over 240 pages. The
respondent’s sworn reply consists of 33 pages with 31 pages
of
annexures.
[12]
This is an issue that the respondent has taken as a point
in
limine
in his sworn reply. The respondent has also made an
application for upliftment of the automatic bar imposed by rule
43(3)(c) or
condonation for his failure to timeously file his sworn
reply. I deal with these later in this judgement.
[13]
Turning to the relief sought in the Notice of Motion, it appears from
the papers that the respondent is solely responsible
for the
children’s school expenses and medical aid. This was confirmed
by both counsel during the hearing of the matter.
However, what
appears to have triggered the relief in 1.2, 1.3 and 1.4 above, at
least from the application papers, is that there
was a time when the
school account was in arrears. It does not appear that this is a
matter that lasted for long, even on the version
of the applicant.
Furthermore there is no indication on the papers that the respondent
has, at any stage refused to pay school
fees for the children. He may
have, at the time when the fees were in arreas, invited the applicant
to assist, if she can, which
invitation was rejected by applicant but
nowhere in the papers does is appear or is it alleged that he has
refused to assume or
accept responsibility for the children’s
school fees and school expenses.
[14]
The respondent has in fact tendered to continue to pay the school
expenses for the children. He has never indicated an
intention to
remove the children from his medical aid. He has also tendered that
the applicant can continue to use the vehicle,
with registration
number 16858 EC, that she currently uses. That is in response to the
relief in 1.5 above. Accordingly, I do not
think I need to detain
myself with these issues as they do not present live disputes between
the parties. Suffice only to mention
that to the extent that the
applicant still insists on an order that the respondent be directed
to purchase a vehicle for her,
that order, in my view, falls outside
the purview of rule 43 and is refused. In any event and for
completeness I hold the view,
and accordingly find, that the offer or
tender made by the respondent in this regard is reasonable in the
interim pending finalisation
of the divorce proceedings. Accordingly,
an order will be made in terms of the undertaking.
[15]
What remain for determination therefore are the following issues:
15.1 the upliftment
of the bar or condonation application by the respondent (“the
condonation”);
15.2 the
respondent’s point in limine (“abuse of process”);
15.2 the
applicant’s claim for interim maintenance in the sum of R20
000.00 (twenty thousand rand); and
15.3 the
applicant’s claim for contribution to costs in the sum of R1
712 554.38 (one millio seven hundred and twelve
thousand five hundred
and fifty four rand thirty eight cents.
Condonation
[16]
It is common cause that the respondent’s sworn reply was filed
outside the ten day period envisaged in rule 43(3)(a).
The respondent
was therefore, according to rule 43(3)(c), automatically barred from
delivering the sworn reply when he delivered
the reply.
[17]
The respondent has cited the bulky nature of the documents filed by
the applicant and the consequent difficulty he encountered
to respond
thereto as a reason for the delay in filing the sworn reply. He also
states that he attempted to obtain an agreement
from the applicant to
file same outside the ten day period but no response was received
from the applicant.
[18]
It is trite that courts grant condonation or a relaxation of the
rules where it is in the interests of justice to do
so and where no
prejudice is caused to the other party and to the administration of
justice. I am of the view that the interests
of justice dictate that
I grant condonation for the late delivery of the sworn reply. I have
already stated herein above, that
the applicant’s papers are
bulky. In my view it would not have been prudent for the respondent
to simply ignore the allegations
in the applicant’s papers. He
had to answer thereto or risk being taken to have admitted same.
Above that, the condonation
application is not opposed and the
applicant has not pleaded or shown any prejudice occasioned by the
late filing of the reply.
[19]
In any event the nature of these proceedings demand that a speedy
resolution thereof must be achieved or sought to be
achieved.
[20]
For these reasons I grant condonation for the late filing of the
sworn reply. No costs order will be made in this regard.
Abuse
of process
[21]
The respondent argues,
in
limine
,
that the application, by reason of its bulkiness, constitutes an
abuse of the process in rule 43 and that it deserves to be dismissed
with costs. The respondent relies for the argument on
MVN
v ALN
[1]
and other authorities referred to therein.
[22]
The respondent argues that the process in rule 43 is designed to
provide a just and expeditious result and that the filing
of a
voluminous application, as done by the applicant herein, defeats that
purpose. I agree with the respondent in this regard.
[23]
However, I do not agree that the application must be dismissed on
this basis alone. My view is that the point advanced
by the
respondent may, at best, lead to the matter being struck off the
roll.
[2]
[23]
I do not intend to take that route in these proceedings. This
application, unlike other rule 43 applications has been
set down in
the opposed motion court and was specifically referred to the opposed
motion court for hearing. The reason for such
referral, I suppose,
was the number of pages. It was also, for the same reason subjected
to case Flow Management. It must thefeore
be heard in this court. The
cases referred to by the applicant were dealt with in the unopposed
motion court. I find them distinguishable
from the present. In any
event, courts have entertained rule 43 applications where the number
of pages exceeded 800 pages.
[3]
[24]
This, however, should not be construed or interpreted as condoning
the cynical conduct of filing voluminous papers by
parties in rule 43
applications. Attorneys have a duty to ensure due compliance with the
provisions of rule 43.
[25]
Accordingly the respondent’s point
in limine
is
dismissed. No costs order is made in this regard.
Interim
maintenance
[26]
The respondent, on the papers before me, appears to be a man of some
means. He is a successful businessman involved in
various business
ventures. Above all, he receives, at least on a consideration of his
version, great support buinesswise from his
family and his friends.
[27]
The applicant also earns a decent income from her employment. She is
not destitute. She has always been employed during
the marriage
period and is still employed, albeit that she is now employed by a
different employer. On her version she earns a
net salary of about
R38 000. 00 per month.
[28]
Though denied by the respondent, it is clear from the papers that the
parties lived a decent upper middle class lifestyle
during their
marriage. They had several sources of income, the businesses, which
were used for their joint benefit during the time
they were staying
together as husband and wife. This assistance is no longer available
to the applicant.
[29]
The applicant used to receive an amount of R6000.00 from the
respondent as contribution for the maintenance of the two
minor
children. The respondent stopped making the payment to the applicant
around March 2024. The respondent admits this in his
sworn reply. He
argues that the children are in both their care for equal time
periods and that he incurs the same expenses when
the children are in
his care. On enquiry it was explained that the children spend one
week with the applicant and another week
with the respondent,
interchangeably.
[30]
I do not find this to be a good enough reason for not contributing
towards maintenance where there is a need established.
In my view a
contribution to maintenance has nothing to do with the amount of time
one spends with a child but more to do with
whether one spends money
towards the welfare of the children and with whether there is a need
for maintenance. To this end the
respondent has not furnished any
information that would justify the termination of the payment. Above
that, I believe that parents
in the position of the applicant and the
respondent must strive to give their children the same or almost
similar maintenance benefits
irrespective of whether they are with
one parent of the other. This, in my view works well for the children
and their relationship
with both parents. Accordingly, if that means
one parent must contribute towards maintenance to the other,
depending on need being
established, that must be done in the
interests of the children.
[31]
The Notice of `motion is not specific on whether the maintenance
contribution is sought for the applicant personally
or for both
herself and the minor children or for the minors alone. During
argument Ms Morgan for the applicant confirmed that
the maintenance
contribution if for the minor children.
[32]
The applicant’s need for maintenance has been detailed in the
application papers. The detail shows that the applicant
even with the
contribution sought herein will still remain with a deficiency. This
to me shows a need for assistance by way of
contribution. The
argument by the respondent that the expenses are overstated is to me
untenable.
[33]
The applicant’s income of R38000.00 is, in my view, not
sufficient for her to live, maintain the minor children
and litigate
with the respondent fairly in the divorce proceedings. The respondent
on the other hand, regard being had to his finances,
has, in my view,
sufficient financial resources to meet the applicant’s and the
children’s reasonable needs without
being exposed to financial
hardship.
[34]
I consider the amount of R 20000.00 per month claimed by the
applicant reasonable in the circumstances of this case.
That she is
prepared to live with a deficit is clear indication of her
reasonableness in this regard. I, however, find no basis
to order
escalation on the said amount. The respondent must therefore pay the
applicant an amount of R 20000.00 (twenty thousand
rand) as interim
maintenance on the 25
th
of each month from the date of
this order until finalisation of the divorce proceedings.
Contribution
to costs
[35]
It has been stated by our courts that the rationale behind rule 43
contribution for costs is to ensure that neither party
is prejudiced
during the divorce proceedings by a lack of resources to pursue his
or her case in the main action. The helping hand
that the rule
provides must, however never be interpreted to encourage litigation
ad
nauseam
,
nor should it permit malicious attempts to drain the pockets of the
contributing spouse. The rule is essentilally designed to
achieve
equalilty of arms during divorce proceedings.
[4]
[36]
In order to do justice to the spirit and the purpose of the rule, a
court must, in my view, in the exercise of its discretion
under the
rule, consider whether the circumstances of the case demand a full or
part contribution to the costs of the party seeking
such
contribution. Importantly, the rule must not be interpreted to mean
or encourage a risk free litigation.
[37]
The applicant is employed and is earning a decent salary. She also
has some other means as well to access finance. This
is clear from
the documents. She is accordingly in a position to make some
contribution towards her own legal costs. It may be
that she needs
some assistance in this regard. But I do not believe that she needs
full assistance with such costs. A reasonable
part contribution
suffices.
[38]
I must also take into account that the respondent, from his finances,
must still pay his own costs of the divorce proceedings.
In any event
I hold the view that the costs as appear in the Bill of costs
attached are exaggerated and some items are unnecessarily
inflated to
make the amount bigger.
[39]
The amount claimed by the applicant for the contribution to
costs is, in my view, unreasonable.
[40]
In my view an amount in the sum of R 750 000 – 00 (seven
hundred and fifty thousand rand) is reasonable for contribution
towards the costs.
Costs
[41]
The general principle on costs is that costs follow the result. The
applicant has achieved substantial success in the
application.
[42]
I am however not minded to award the applicant the costs,
notwithstanding her substantial success in the application.
[43]
I have stated herein above that the application is unnecessarily
prolix. It includes annexures that are not relevant.
It also
traverses issues that are raised in the action proceedings which the
applicant knows, or ought to know, cannot be determined
in these
proceedings. I believe all this was done to unnecessarily increase
the costs of this matter. For this reason I am not
inclined to award
costs in favour of the applicant. The respondent also argued that the
applicant’s attorneys deserve to
be denied their fees for the
rule 43 application. I do not wish to go that far.
[44]
I also hold the view that the respondent acted reasonably by
tendering part of the relief sought by the applicant. His
actions of
defending the rest of the relief are not unreasonable in my view.
[45]
In the circumstances it appears just that each party should pay its
own costs.
[46]
In the result the following order is made.
1.
Condonation for the late filing of the respondent’s
sworn reply is granted with no order as to costs.
2.
It is noted that, pending finalisation of the divorce
proceedings, the respondent has tendered, and is accordingly
directed:
2.1.1
to make payment of the school fees for the minor children,
L[…] C[…] and R[…] C[…], directly to the
service providers as and when they fell due;
2.1.2
to pay for the minor children’s additional school costs
as and they fall due which costs shall include, but are not limited
to, extra mural activities, extra lessons, school uniforms, sport
uniforms and transport.
2.1.3
to retain the minor children in his medical aid and to make
monthly premiums therefor.
2.1.4
to allow the applicant full use and enjoyment of the motor
vehicle (16858 EC) currently in the possession of the applicant.
3.
The
respondent shall pay directly to the applicant an amount of R20
000.00 as interim maintenance pending finalisation of the divorce
proceedings.
4.
The
respondent shall pay an amount of R750 000.00 (seven hundred and
fifty thousand rand only) as contribution towards the applicant’s
costs for the divorce proceedings payable in four (4) monthly
instalments with effect from thirty (30) days from the date of this
order and on the 30
th
of each successive
month until fully paid.
5.
Each
party shall pay his or her own costs.
Z.Z.
Matebese
Acting
Judge of the High Court
Appearances:
For
the applicant:
Adv
M. Morgan
Instructed
by:
Kamal
Natha Attorneys
For
the respondents:
Adv
L. Ellis
Instructed
by:
Kaplan
Blumberg Attorneys
Date
Heard: 29 August 2024
Date
delivered: 03 September 2024
[1]
(094387/23)
[2024] ZAGPPHC 402 (22 April 2024)
[2]
KT
v AT and others
2020 (2) SA 516
(WCC); SM v NM unreported case
number D6667/2024 (KZN) (28 August 2024)
[3]
For
example SH v MH
2023 (6) SA 279
(GJ) and other cases referred to in
KT v AT, above.
[4]
SH,
supra, and the authorities referred to therein.