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
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 18151/24
In the matter between
L[...] S[...] V[...] Z[...] APPLICANT
AND
A[...] E[...] V[...] Z[...] RESPONDENT
Date of Hearing: 28 October 2024
Date of Judgment: 12 November 2024 (to be delivered via email to the respective
counsel)
JUDGMENT
THULARE J
[1] This is an application for maintenance pending divorce. Some of the claims are not
disputed at all, whilst in some the claims remain in dispute, but the respondent made
tenders. For the purposes of this judgment, I will deal only with the disputed clai ms. I
record my appreciation for the effort put in by the parties and their legal representatives
to narrow the issues and move closer to resolution of the disputes. The applicant’s claim
ran 4 pages. The issues that remain are only four. These are the cas h payable per
month. The applicant sought R73 250 -00 per month and the respondent offered R27
500-00. The second is the payment of expenses in respect of rental at R30 000-00. The
respondent tendered that the applicant continues to reside free of charge at the parties’
common home or alternatively at a house in a security estate or in the family’s holiday
home. The third is the contribution towards costs at R450 000 -00. The respondent
tendered R100 000-00. The third is the costs of the application.
[2] The standard of living of the parties was not in dispute. The means of the respondent
was also not an issue. The case only require d an assessment of the applicant’s needs.
The nature and content of the expenses was also not substan tially in dispute , save for
arts and crafts . It is the scope and extent of the expenses that in the main course was
disputed. The respondent preferred to pay for water and electricity, rent, multichoice,
internet, cellphone, tv licence, and gym membership directly to the providers. For that
reason, in his calculations, the amounts for these expenses should not be added to the
total to assess the applicant’s need. The respondent did not dispute the amounts
claimed for lunches including with friends, clothing, clothing including shoes and
accessories and for golf and gym, entertainment and eating out, presents, books and
stationery, gold membership and games, ballet , personal care, toiletries and beauty
products. There were also expenses for which the respondent paid or was prepared to
pay for and did not take issue with the amounts claimed and these were groceries,
cleaning materials, domestic worker, gardener, parki ng, appliances and repairs, pets,
arts and crafts and over the counter purchases. I was able to trace only two items on
general monthly expenses where the parties are very far apart. On groceries the
applicant claims R15 000, and the respondent offered R75 00. On fuel the applicant
claimed R4500, and the respondent offered R1500.
[3] During the subsistence of the marriage the respondent provided the applicant with
an amount of R25 000 monthly maintenance, and when necessary, the applicant made
additional grocery purchases through Sixty Sixty which the respondent paid. In addition,
the respondent paid for motor vehicle insurance, medical expenses, domestic worker
and gardener services including refuse removal, koi and pond services, rates and taxes,
water and electricity, car related expenses , multichoice, internet, tv licence , ballet, gym
membership, fuel, parking , appliance and repairs, golf membership including games. It
seems that in the main these expenses were paid directly by the respondent to the
service providers, or through a credit card provided to the applicant. The respondent
also provided accommodation.
[4] The applicant should be able to maintain an acceptable standard of living to which
she was accustomed to as the mar ital standard of living, pending the divorce. The
applicant was accustomed to the respondent making direct payments to service
providers for some expenses and providing a cash amount for the other monthly
expenses. There is therefore nothing untoward, on th e facts, with the respondent
making the payment for rental directly to the service providers . In my view, the amounts
claimed by the applicant for the rent , fuel and grocer ies are reasonable. There is
nothing wrong with the respondent continuing to pay for the other expenses for which
he paid and those he also tendered to pay for. It will be up to the respondent to provide
a credit card to the applicant as he previously did, or to elect to directly p ay these
expenses. What matters is that he pays for the expenses. I am not inclined to the view
that the applicant’s life, to which she was accustomed, should be limited or in some
respects even come to a halt simply because a divorce is pending. It is not the moral
watch or economic sense of an individual judge , but the need, means and standard of
living of the parties that should determine whether a holiday , including overseas
holidays, is manifest luxury or something that the parties were accus tomed to during
their marriage. I am unable to agree with the view s expressed in S v S (7392) [2010]
ZAWCHC 162 (24 June 2010) and AL v LG (9207/2020) [2020] ZAWCHC 83 (25 August
2020) to the extent that they sought to limit provision for holidays as a special item of
expenditure as unwarranted in rule 43 applications . I don’t think the interim nature of a
rule 43 application warrants such serious inroads into an applicant’s maintenance claim.
Affluence and extravagance are and should remain distinct including in rule 43
application.
[5] The applicant was 70 years old and had not worked for the past 20 years. Even
when she was earning an income, she was not required to make any contribution to the
expenses of the household . She had always been financially dependent on the
respondent who took care of her financially at an affluent standard of living. She did not
have an income and did not own sufficient assets to utilize towards her maintenance
and costs of the divorce action. She held a Capitec fixed term savings account with R32
000-00 and had R225 764 -51 in a savings account which she was from a small
inheritance and pension payouts. The applicant claimed R450 000 -00 for legal costs
and the respondent tendered R100 000 -00. There was a difference of R350 000 -00.
Where the respondent was a person of means, it was not expected of the applicant to
utilize her meagre assets to fund litigation. The respondent was expected to support her
fully including in relation to expenses necessary to put her case before a court [Glazer v
Glazer 1959 (3) SA 928 (W) at 931 G -H]. The respondent ’s case was that the case
should be mediated and that there was no need for counsel to be involved. In his view
there was no need for a forensic accountant to be appointed and there was no need for
interlocutory issues and that the applicant had inflated her contribution claim. The
applicant’s case was that the respondent did not provide her with full insight into his
financial affairs. After a subpoena was issued and the accounts obtained, it appears that
the respondent’s financial affairs were inextricably linked to that of the Carpe Diem Trust
and various entities owned by the Trust . The applicant was advised that it would be
necessary to appoint a forensic accountant to conduct a preliminary investigation into
the respondent’s resources , access to funds and assets and liabilities. The applicant’s
stance was that mediation was premature . She declined the respondent’s invitations to
mediation only as a result of not having sufficient financial information in order to
properly consider any settlement proposals made by the respondent . The proposals
made thus far had been wholly insufficient to ensure that the applicant would be cared
for until her death, on a reasonable level. She was amenable to mediation only once full
financial discovery was made. The applicant owed her attorneys R112 389-50 for fees
and disbursements. A necessary forensic investigation came at a cost of R37 500 -00.
The costs to be incurred in the action has a total amount required at R467 979-50.
[6] I am inclined to the view that in matrimonial matters, the first push should be towards
readiness to an effective mediation of the dispute. The proper resolution of the
disagreement around the true financial position of the respondent will be informed by a
forensic investigation. It is only an expert accountant who may assist the parties resolve
the complexity of the relationship between the respondent, the Trust and its related
entities. The costs for a forensic accountant are reasonable. The amount owed to the
attorneys is allowed. The applicant will still require advise and where needs be counsel
in perusal, consideration of the facts and the necessarily required route towards
resolution of the divorce. I am persuaded that the amount of R250 000 -00 as a
contribution to costs, at this stage, is reasonable. For these reasons I make the
following order:
1. Respondent is directed to maintain the Applicant pendente lite as follows:
1.1 By paying a cash maintenance amount of R 30 000-00 to the Applicant,
the first such payment to be made within 7 calendar days of this order
and thereafter monthly in advance on or before the first day of every
month, such payment to be made by way of electronic bank transfer to
reflect in the Applicant’s bank account as nominated by her from time to
time on the first day of each month, free of deduction or set-off;
1.2 By continuing to pay the Applicant’s medical aid premiums and by
paying her reasonable medical costs not covered by the medical aid,
including all of the reasonable medical expenses incurred in private
healthcare, such costs to include all reasonable medical, dental,
pharmaceuticals (including levies), surgical, hospital, orthodontic and
ophthalmic (including spectacles and/or contact lenses),
physiotherapeutic, psychotherapeutic, occupational therapeutic,
homeopathic, chiropractic and further medical expenses not covered by
her medical aid. The Respondent shall reimburse the Applicant for all
expenses referred to above in respect of which she has made payment,
or shall make payment directly to the service providers, as the case may
be, within 7 calendar days of the Applicant providing the Respondent
with proof of payment and/or the relevant invoice;
1.3 By continuing to provide the Applicant with the motor vehicle currently in
her possession, free of consideration and further by paying all
reasonable expenses in respect thereof including its instalments (if
applicable), insurance premiums, its reasonable services and repairs (in
the event of it not being covered by a motor plan), its yearly vehicle
license fee and the cost of replacement of tyres when required;
1.4 In the event of the Applicant having to rent a property pendente lite, by:
1.4.1 paying the monthly rental in respect of a property of the
Applicant’s choice to the Applicant or to the rental agent or
lessor, to a maximum amount of R 30 000,00 per month;
1.4.2 entering into a lease agreement in respect of such property in
the event of the Applicant failing to qualify to do so herself;
1.4.3 paying a once off deposit to a maximum of two months rental,
repayable to the Respondent upon cancellation of the lease
agreement; and
1.4.4 paying the applicant’s reasonable relocation costs.
1.5 By providing the Applicant with the use pendente lite, of the items of
furniture listed in annexure “LZ3” to the Applicant’s Founding Affidavit.
1.6 By paying the following expenses of the applicant:
1.6.1 water and electricity
1.6.2 fuel to applicant’s vehicle to a maxim um of R4500 litres per
month
1.6.3 multichoice, internet, tv licence, gym membership, reasonable
cellphone costs and golf membership
1.6.4 reasonable top -up to groceries and neces sary domestic
consumables reasonably required and purchased from
Checkers via Sixty Sixty delivery service
1.6.5 domestic worker
1.6.6 gardener
2. Respondent is directed to make an initial contribution to the Applicant’s costs in
the divorce action in an amount of R 250 000,00, which amount shall be paid into
the Applicant’s attorney of record’s trust account, within 7 calendar days of this
order, free of deduction or set-off;
3. Respondent shall pay the costs of this Rule 43 Application as taxed or agreed.
______________________________
DM THULARE
JUDGE OF THE HIGH COURT