Case Law[2025] ZAGPJHC 307South Africa
M.C D.C.R v A.P.W.R (2024/075727) [2025] ZAGPJHC 307 (19 March 2025)
High Court of South Africa (Gauteng Division, Johannesburg)
19 March 2025
Headnotes
OF RELEVANT FACTUAL MATRIX PERTINENT TO THE APPLICATION [5] The parties were married to one another on 26 February 1999, out of community of property, with the application of the accrual system.[6] [6] There are two children (“the children”) born of the marriage between the parties, a son and a daughter, both of whom have attained the age of majority, and who are presently aged 22 and 20 respectively.[7] The children do not reside with the either of the parties and are students, with the son studying locally and the daughter studying in New Zealand.[8] The children are not self-supporting and are supported fully by the Respondent[9] The children left the former matrimonial home in and during 2023.[10] The Applicant pertinently states that the children do not form the subject matter of her application,[11] and the Applicant does not deal with the children’s maintenance requirements in her application. [7] The Applicant avers that she has been a stay-at-home mother and wife for the majority of the marriage and that she had fulfilled this role for 20 years, from 2002 to 2023.[12] The Applicant re-entered the job market, as it were, since approximately November 2023, as a freelance tour guide, operating as a sole trader.[13]
Judgment
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## M.C D.C.R v A.P.W.R (2024/075727) [2025] ZAGPJHC 307 (19 March 2025)
M.C D.C.R v A.P.W.R (2024/075727) [2025] ZAGPJHC 307 (19 March 2025)
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sino date 19 March 2025
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: 2024/075727
1.
Reportable
– No
2.
Of
interest to other Judges – No
3.
Revised
– No
Date
od the Order: 19.03.2025
In the matter between:
R:
M.C. D.C.
Applicant
and
R:
A. P. W.
Respondent
JUDGMENT
PRETORIUS AJ
INTRODUCTION
[1]
This is the
reserved judgment in respect of an application brought in terms of
the provisions of Rule 43(1)(a) and 43(1)(b) of the
Uniform Rules of
Court, and wherein the Applicant, who is the wife, is seeking an
order for spousal maintenance
pendente
lite
,
with retrospective effect from
01
December 2024
,
for a contribution towards her costs in respect of the pending
divorce action, in the sum of R1,900,000.00, and for an order that
the Respondent pay the costs of the Rule 43 application on the scale
as between attorney and client, on Scale C, as provided for
in
Uniform Rule of Court 69.
[1]
[2]
Whilst it
is common cause that the Respondent has tendered to continue making
payment of most of the direct expenses historically
paid for by him,
the quantum and extent of the interim maintenance to be paid is in
dispute, as is the Applicant’s claim
for a contribution to
costs, with the Respondent denying that the Applicant is entitled to
any contribution towards costs at all.
[2]
Equally, the aspect of who is to be liable for the costs of this Rule
43 application, is in dispute.
[3]
The
Respondent served and filed his Sworn Reply
[3]
out of time, on
21
December 2024
.
[4]
The Respondent has sought condonation in his Sworn Reply for the late
filing thereof.
[5]
No issue was
raised in regard to the condonation at the hearing of the matter and
the respective Counsel proceeded to argue the
matter before me. To
the extent, however, that same may be required, the late filing of
the Respondent’s Sworn Reply is condoned.
[4]
Given that this judgment contains references to the parties’
personal and financial information I have, in the interests
of
protecting such information, redacted the parties’ full names
in the heading of this judgment.
SYNOPSIS
OF RELEVANT FACTUAL MATRIX PERTINENT TO THE APPLICATION
[5]
The parties
were married to one another on
26
February 1999
,
out of community of property, with the application of the accrual
system.
[6]
[6]
There are
two children (“
the
children
”)
born of the marriage between the parties, a son and a daughter, both
of whom have attained the age of majority, and who
are presently aged
22 and 20 respectively.
[7]
The
children
do not reside with the either of the parties and are students, with
the son studying locally and the daughter studying in New Zealand.
[8]
The
children
are not self-supporting and are supported fully by the Respondent
[9]
The
children
left the former matrimonial home in and during
2023
.
[10]
The Applicant pertinently states that
the
children
do not form the subject matter of her application,
[11]
and the Applicant does not deal with
the
children’s
maintenance requirements in her application.
[7]
The
Applicant avers that she has been a stay-at-home mother and wife for
the majority of the marriage and that she had fulfilled
this role for
20 years, from
2002
to
2023
.
[12]
The Applicant re-entered the job market, as it were, since
approximately
November
2023
,
as a freelance tour guide, operating as a sole trader.
[13]
[8]
The
Respondent is an aircraft pilot and Captain.
[14]
The Respondent left South Africa in
2006
to pursue his career with various airlines.
[15]
Since
11
September 2007
,
the Respondent has been in the employ of Qatar Airlines, taking up
residence in Qatar, the Middle East, in
2007
,
and where he has been residing since.
[16]
[9]
The parties
are estranged from one another.
[17]
The Respondent avers that the parties have effectively been separated
for more than 20 years and that their relationship came to
an end
during
2004
,
when they elected to start sleeping in separate bedrooms.
[18]
The Respondent states that in his mind, he and the Applicant were
separated since such time and only went on holidays with
the
children
“
to
save face and try and appease them
”,
albeit that
the
children
actually knew that the relationship between the parties was over.
[19]
[10]
The
Applicant avers that, notwithstanding the Respondent’s taking
up of residence in Qatar since
2007
,
the parties continued with the marriage and conducted themselves as
husband and wife until at least
2023
,
[20]
being when, as stated above,
the
children
left the matrimonial home. The Applicant has continued to reside in
the matrimonial home, which is situated in Lonehill, Sandton.
[21]
The Applicant lives alone in the matrimonial home, with the family
pets, presently 6 dogs.
The
children
visit her from time to time.
[22]
[11]
The
Respondent, as Plaintiff, instituted divorce proceedings against the
Applicant, as Defendant, in and during
July
2024
.
[23]
Needless to say, the divorce proceedings are contested and the
pleadings therein have closed.
[24]
The issues in dispute in the divorce proceedings include the accrual,
the Applicant’s claim for spousal maintenance until
her death
or re-marriage, whichever is the sooner, and the costs of the divorce
action.
[25]
CLAIM
FOR INTERIM MAINTENANCE IN TERMS OF RULE 43(1)(a)
Catalyst
for this application
[12]
The
Applicant says that the Respondent has, throughout the marriage, been
the primary, if not sole, breadwinner and that the Respondent
has
maintained her “
virtually
in toto
.”
[26]
The Applicant details the extent of the Respondent’s support in
her Sworn Statement and describes same as “
the
marital maintenance agreement”
.
[27]
[13]
Whilst the
Respondent, on the one hand, denies the existence of the alleged
marital maintenance agreement,
[28]
on the other hand, the Respondent states that: “
even
though we were separated since 2006, I wholeheartedly continued to
support the Applicant and her demands
.”
[29]
[14]
It was
submitted on behalf of the Applicant that the facts in this
application follow a pattern often seen in Rule 43 applications
where
the Applicant did not work for most of the marriage and was
maintained by the Respondent who was the primary, if not sole
breadwinner. After instituting the divorce action, the Respondent
starts to reduce the financial support historically provided
to the
Applicant, resulting in the Applicant having to institute a Rule 43
application.
[30]
[15]
As stated
above, the divorce action was instituted in
July
2024
.
The Respondent defended the action, filing her Notice to Defend on
06
August 2024
and delivered her Plea and Counterclaim, on
16
September 2024
.
[31]
[16]
According
to the Applicant, since the beginning of
September
2024
,
the Respondent refused to settle the amount outstanding in respect of
the Applicant’s credit card and which he historically
used to
pay for by the 10
th
of every month,
[32]
said
amount, as at the date of the Applicant deposing to her Sworn
Statement, being the sum of R49,707.87.
[33]
In addition, on or about
01
November 2024
,
the Respondent implemented a “
new
regime
”
in line with his tender and in terms whereof he paid to the domestic
worker her salary directly and paid to the Applicant
the sum of R15,
000.00.
[34]
[17]
The
Applicant states that the Respondent has therefore drastically
reduced, by at least half, the level of maintenance that he provided
to the Applicant prior to her filing a Notice of Intention to Defend
the divorce proceedings and her Plea and Counterclaim thereto,
as the
expenses which the Respondent used to pay in regard to the
Applicant’s credit card would historically amount to
approximately
R30, 000.00 per month.
[35]
[18]
The
Applicant further avers that, by virtue of the Respondent neglecting
to tender payment of a significant number of other expenses,
whether
directly to the relevant creditors or otherwise, and which the
Respondent historically paid for, this leaves the Applicant
to make
payment of such expenses herself from the amount of R15,000.00, as
tendered by the Respondent.
[36]
The Applicant avers that this is not only financially unsustainable
for her but that it is also telling of the attitude of the
Respondent.
[37]
[19]
It was
submitted by the Applicant’s Counsel
[38]
that the Respondent has not alleged any change in his circumstances
to show that his income has reduced,
[39]
in justification of his unilateral reduction in the level of
maintenance he provided to the Applicant prior to her defending the
divorce proceedings.
[40]
From
the facts before me, as contained in the Sworn Statement, the Sworn
Reply as well as in the
FDFs
filed on behalf the parties, I am in agreement with the submission.
The Applicant alleges that this conduct on the part of the
Respondent
is malicious and unreasonable,
[41]
and in the absence of any change in the Respondent’s
circumstances, this does suggest an element of malice on the part of
the Respondent.
[42]
I am
inclined to agree. The Respondent denies that there is any malice on
his part.
[43]
.
The
Respondent’s Tender
[20]
It is
common cause that, in respect of certain of the Applicant’s
claims for maintenance
pendente
lite
,
the Respondent has tendered to continue making payment in regard to
certain of such expenses, pending the finalisation of the
divorce
proceedings.
[44]
[21]
The
Respondent’s tender appears to have evolved, with slight
nuances thereto, from the initial tender contained in his Sworn
Reply,
[45]
to the Respondent’s
proposed Draft Order, filed on
20
February 2025
,
[46]
and to the Respondent’s Comparative Table, filed on
25
February 2025
,
being the day preceding the allocated date for the hearing of this
matter.
[47]
Certain of the
tenders made by the Respondent are not accepted by the Applicant and
these issues thus remain in dispute between
the parties.
[48]
[22]
To the extent, therefore, where there is no disparity between the
relief sought by the Applicant, on the one hand,
and the tender made
by the Respondent in regard thereto, on the other hand, these items
are accepted as not being in dispute between
the parties and will be
reflected accordingly as such in the order to be made herein.
[23]
The items which are thus not in dispute between the parties are
reflected in the following table:
NO.
EXPENSE
23.1
the
Applicant is to continue to reside and enjoy full and undisturbed
use of the matrimonial home situated in Lonehill, Sandton.[49]
23.2
the
Respondent is to continue paying the costs of water and
electricity consumption, rates, taxes, refuse, and sewage in
respect of the matrimonial home.[50] (
The
only area of dispute in this regard is that the Applicant wants
the Respondent to pay her directly in regard to these
expenses
whereas the Respondent wishes to pay the service providers
directly. I can see no reason why the Respondent should
not pay
the service providers directly and this will be reflected in the
order made herein
).
23.3
the
Respondent is to continue paying the armed response subscriptions.
[51]
23.4
the
Respondent is to continue paying the household and/or Homeowners’
insurance premiums. [52]
23.5
the
Respondent is to continue paying the internet subscriptions (
for
purposes of this Judgment it is assumed that the Internet
subscription is the same as the fibre as no issue in this regard
was made by either of the parties at the hearing of the matter
).
[53]
23.6
the
Respondent is to continue paying the salary of the domestic worker
employed at the matrimonial home, being Ms Elisa Madiba,
in the
sum of R5,000.00 per month.[54]
23.7
the
Respondent is to continue maintaining the Applicant’s
membership as a dependent of the medical aid scheme of which
the
Respondent is the main member, and to pay the monthly premiums in
respect thereof. [55]
23.8
the
Respondent is to pay for any excess and/or non-recoverable medical
expenses incurred by the Applicant which are not covered,
refunded
and/or discharged by the Respondent’s medical aid scheme,
the incurring of such expenses to be agreed beforehand,
save in
the event of an emergency, and excluding any cosmetic or aesthetic
surgeries [56] (
albeit
that the Applicant seeks for the Respondent to pay
any
excesses
not covered by the Respondent’s medical aid, the Respondent
has limited these excesses to exclude co-payments relating
to any
cosmetic or aesthetic surgeries. There is nothing before me to
suggest that the Applicant has in the past had, or
that she
requires, any of the aforegoing procedures and hence I am
satisfied that the limitations in regard to excesses in
the
Respondent’s tender in regard to excess expenditure not
covered by his medical aid is reasonable in the circumstances
and
will be reflected accordingly in the order to be made herein
).
23.9
the
Respondent is to continue paying the annual fees in regard to TV
licences. [57]
The
issues remaining in dispute in respect of claim for interim
maintenance
[24]
The issues which therefore remain in dispute between the parties
insofar as the Applicant’s claim for maintenance,
pendente
lite
, is concerned, are summarised in the below table, and I will
deal with, and make a determination in regard thereto, further below
in this Judgment:-
NO.
EXPENSE
24.1
The
account for the landline at the maatrimonial home[64]
24.2
DSTV
subcriptions [65]
24.3
any
excesses relating to any claims in respect of the household and/or
homeowners’ insurances[66]
24.4
Bonuses,
overtime, medical expenses and/or other charges associated with
the domestic worker,[67] and which the Applicant
quantifies as
being in the amount of R1,000.00 per month[68]
24.5
The
remuneration, bonuses and overtime in respect of the
gardener/handyman/driver and general helper employed at the
matrimonial
home,[69] and which the Applicant quantifies as being
in the amount of R1,000.00 per month.[70]
24.6
The
remuneration, bonuses and overtime in respect of the
gardener/handyman/driver and general helper employed at the
matrimonial
home, [70] and which the Applicant quantifies as being
in the amount of R1,000.00 per month.[71]
24.7
In
relation to the BMW X5 and Mercedes Benz motor vehicles, the cost
of licences, repairs, maintenance, tyre replacement and
services.
[72]
24.8
In
relation to the matrimonial home, the costs of the replacement of
any household furniture, appliances and/or other equipment,
with
an item of a similar and/or comparative standard, model and
features selected by the Applicant together with the costs
of any
repairs and maintenance required to the matrimonial home.[73]
24.9
Two
return international, and two return local, business class airline
tickets to destinations of the Applicant’s choice,
at times
selected by the Applicant. [74]
24.10
an
annual holiday allowance to cater for the cost of,
inter alia,
accommodation, transport, entertainment and general subsistence
whilst on holiday, in the amount of R250,000.00, the first
payment
commencing within five days of the date of an Order, and which
amount shall escalate on the anniversary of the date
of the
Order.[75]
24.11
Payment
of the sum of R30,500.00 per month, payable in advance, on or
before the first day of each and every month, retrospectively
with
effect from
01
December 2024
,
subject to an annual escalation. [76]
24.12
Payment
of the sum of R49,707.87, within five days of the date of the
Order, alternatively by way of three equal instalments,
payable at
intervals of one month, the first instalment being due and payable
within five days of the date of the Order.[77]
Determination
of issues in dispute in respect of Applicant’s claim for
interim maintenance
[25]
It is trite that an Applicant is entitled to reasonable maintenance,
pendente lite
, dependent upon:-
25.1. the marital
standard of living of the parties;
25.2. the
Applicant’s actual and reasonable requirements; and
25.3.
the
capacity of the Respondent to meet such requirements.
[78]
[26]
It is
further trite that the determination of each case is dependent upon
the facts and circumstances peculiar to that matter.
[79]
[27]
Maintenance
under Rule 43(1)(a) is intended to be interim and temporary in nature
and cannot be determined with the same degree
of precision as would
be possible in a trial where detailed evidence is to be adduced.
[80]
An order in terms of Rule 43 is not meant to provide an interim meal
ticket.
[81]
[28]
It is against the backdrop of the aforegoing principles that I shall
deal with the items in dispute in regard to
the Applicant’s
claim for interim maintenance.
[29]
Before I proceed to do deal with the remaining issues in dispute in
regard to the Applicant’s claim for interim
maintenance, it was
submitted on behalf of the Applicant that the very fact that the
Respondent has made the tender, as detailed
above, in itself
establishes and confirms that the Applicant has a need for
maintenance, it being only the quantum of such maintenance
which is
in dispute and which requires to be determined. I am in agreement
with this submission as logic dictates that if the Applicant
did not
need maintenance, the Respondent would not have tendered to continue
maintaining her in the respects in which he has, and
as dealt with
and detailed above.
[30]
In dealing with the items in dispute and making a determination in
regard thereto, I have, in addition to the Sworn
Statement and Sworn
Reply, had regard to the Financial Disclosure Forms (“
FDFs
”),
as filed by the parties.
[31]
The
Applicant’s
FDF
(“
the
Applicant’s FDF
”)
is dated
28
January 2025
,
i.e. effectively two months after she deposed to her Sworn Statement
in this application.
The
Applicant’s FDF
,
and the annexures thereto, was filed electronically on the Court
Online platform on
20
February 2025
.
[82]
[32]
The
Respondent’s
FDF
(“
the
Respondent’s FDF
”)
is dated
25
February 2025
,
i.e. just over two months after the Respondent deposed to his Sworn
Reply in this application and was filed electronically on
the Court
Online platform at around noon on the same date,
[83]
with certain annexures to
the
Respondent’s FDF
only being uploaded close to 23h00 on the evening preceding the
allocated date of hearing.
[84]
[33]
It is
common cause that this application was enrolled on the Opposed Family
Court Roll for the week
24
February 2025
to
28
February 2025
,
[85]
and was allocated for hearing by and before me on
26
February 2025
.
The
Respondent’s FDF
was uploaded to the Court Online platform the day before the hearing
of this matter, i.e. contrary to the provisions of the prevailing
Practice Directive in this Division. It is also noted in regard to
the
Respondent’s FDF
that the Respondent has failed to annex all the supporting
documentation as required in terms of
the
FDF
and, as such, has failed to make the full disclosure of his financial
affairs as required by the
FDF
.
I will revert to this aspect later in this Judgment.
[34]
The
Respondent’s Counsel submitted during argument that
the
Applicant’s FDF
was also filed late, having regard to the provisions of the
prevailing Practice Directive applicable thereto. During argument,
the Respondent’s Counsel also submitted that certain of the
Applicant’s credit card statements, as annexed to her
FDF
,
were illegible, and questioned whether this was not purposefully so,
and on the basis that “
statements
don’t lie
”.
By extension of the same argument in respect of the Respondent’s
failure to provide proper disclosure by providing
bank statements in
respect of, for example, his HSBC bank account, I am at liberty to
conclude that the Respondent’s non-disclosure
of such
information appears to be deliberate and aligns with submissions made
by the Applicant’s Counsel to the effect that
the Respondent
has adopted an approach of “
catch
me if you can
.”
[86]
Standard
Of Living
[35]
The
Applicant avers that the parties had an “
exceptionally
high
”/
a “
very
high
”
standard of living.
[87]
According to the Respondent the parties experienced a standard of
living which was “
comfortable
but always aware of spending and try to control/curb spending where
possible
”.
[88]
[36]
As dealt with hereinabove, the Respondent left South Africa in
2006
and has been living abroad since.
[37]
In
addition, the Respondent avers that once
the
children
had left the matrimonial home which, from the facts before me,
appears to be in
2023
,
the Respondent began explaining to the Applicant that he could not
afford her demands and that she did not have to reside in:
“
a
massive 4-bedroomed home, by herself, as well as have three vehicles
in her possession for one person
.”
[89]
[38]
On the facts before me, and despite the Respondent’s alleged
protestations, the Respondent, however, continued
to fund the
Applicant in the aforesaid lifestyle and, to a large extent, based on
what has been stated above, has tendered to continue
doing so, as
this was clearly the standard of living of the parties and this, the
Respondent continued to do despite
the children
moving
out of the matrimonial home in and during
2023
, and
further despite the Applicant re-entering the job market in
November
2023
.
[39]
On the papers before me, and having heard argument, it is fair to say
that the standard of living enjoyed by the
parties was more than the
“
comfortable
” standard of living which the
Respondent wishes to portray and appears to have been more in line
with the Applicant’s
averments in regard to the parties’
standard of living of being “
exceptionally high
”
to “
very high
”.
Parties’
Respective Means
[40]
As dealt
with above, the Applicant avers that she has been a stay-at-home
mother and wife for the majority of the marriage and that
after the
parties’ marriage in
1999
,
and by agreement with the Respondent, she stopped all forms of work
some 3 years later, during
2002
.
[90]
[41]
The
Applicant states that with what the Applicant terms the onset of the
breakdown of the marriage in
2023
,
she decided to re-enter the travel industry and to obtain freelance
work as a tour guide.
[91]
Since
November
2023
,
the Applicant states that she has obtained work as a tour guide and
that she is an independent contractor and that, as such, is
reliant
upon a tour operator to award her certain contract work.
[92]
The Applicant avers that she cannot predict her income with any
degree of certainty and that she cannot rely on such income for
purposes of discharging her reasonable maintenance requirements.
[93]
[42]
Her net
monthly income for the twelve month period preceding her deposing to
her Sworn Statement in support of this application,
on
27
November 2024
,
was the sum of R147,024.38,
[94]
which equates to the sum of R12,252,03 per month.
[43]
According
to
the
Applicant’s FDF
,
she receives a meal allowance in respect of her operating as a
freelance tour guide, which meal allowance has equated to
approximately
R20,000.00 “
in
the same last 12 month period
”.
[95]
This equates to R1,666.67 per month.
[44]
In
addition, the Applicant, in her
FDF
,
declares that she earned approximately R8,500.00 over the preceding
12 month period, said amount representing income from her
investments.
[96]
The aforesaid
income equates to R708.33 per month.
[45]
This
therefore means that, taking the aforegoing income into account, as
detailed above, the Applicant, on her version, earns a
total amount
of approximately R14, 627,03 per month. The Applicant states
that her monthly expenses, over and above the expenses
paid for the
by Respondent, amount to R30,535.07.
[97]
It is the Applicant’s contention that, given the Respondent’s
historic level of support of her and that she was never
required to
work and meaningfully contribute to her own maintenance, it would be
unfair to reduce the extent of the Respondent’s
contribution
towards her maintenance, having regard to her “
hope
of future income
”.
[98]
[46]
From
the
Applicant’s FDF
,
and more specifically, her maintenance requirements as detailed
therein, and which differs slightly from those contained in annexure
“MR2” to her Sworn Statement,
[99]
it appears that the Applicant has included therein the following
expenses:-
46.1. an amount of
R1,150.74, being in respect of the motor vehicle insurance for the
Hyundai motor vehicle, which it is common
cause is reserved for us by
the partes’ major daughter and which insurance is paid for by
the Respondent; and
46.2.
an amount
of R151.00 in regard to the Netstar tracking device pertaining to the
said Hyundai motor vehicle.
[100]
[47]
These two figures equate to R1,310.74 and must, in my view, be
deducted from the Applicant’s total alleged
expenditure of
R30,535.07, making the total expenditure R29,224.33. From this figure
must further be deducted the Applicant’s
monthly income in the
sum of R14,627.03, which leaves a balance of R14,597.30, which latter
figure represents the applicant’s
approximate monthly
shortfall.
[48]
According to the
Applicant’s FDF
:
48.1.
the total
value of her personal assets is R162,370.61;
[101]
48.2.
the total
value of her other assets is R5,676.53;
[102]
48.3.
the total
value of her liabilities is zero.
[103]
This is contrary to what is stated in the Applicant’s Sworn
Statement where she alleges that her only liability is the amount
outstanding on her credit card which the Respondent failed to
discharge;
[104]
48.4.
the value
of her assets, less her liabilities is the sum of R168,047.14.
[105]
[49]
Insofar as
the Respondent’s means are concerned, the Respondent, as dealt
with earlier in this judgment, is employed as a
Captain with Qatar
Airlines and has been so employed since
2007
.
According to the Respondent, his monthly salary is earned in the
currency of Qatar, being the Qatari Riyal, the Rand value of
which
obviously fluxuates depending on the exchange rate, from time to
time. The Respondent’s salary in Qatari Riyal is QAR52,281.00
which, converted to R282,968.14 per month,
[106]
as at the date of signature by the Respondent of his Sworn Reply,
being
21
December 2024
,
[107]
[50]
In
addition, having regard to
the
Respondent’s FDF
,
it appears that over and above his monthly salary, the Respondent, in
the 24 month period preceding his deposing to the
FDF
,
received bonuses or other occasional payments from his employer which
were not reflected in his gross and/or net income in the
total sum of
R316,407.03.
[108]
This
equates to an amount of R13,183,62 per month.
[51]
Furthermore,
and arising out of the Respondent’s employment, he receives
certain perks or other remuneration such as travel
payments,
accommodation, and/or meal expenses which, according to the
Respondent varies as per his flight schedule, but which equates
to
approximately R12,629.61 per month.
[109]
[52]
According to my calculations, therefore, the Respondent’s
income from his employment alone equates to R308,781.38
on a monthly
basis. By extension, when compared to the Applicant’s income as
dealt with hereinabove, this translates to 21
times the Applicant’s
income.
[53]
According to
the Respondent’s FDF
which, as
stated above, was filed on the eve of the hearing of this
Application, and in respect of which there are deficiencies
insofar
as the provision of supporting documentation is concerned, the
Respondent declares his total monthly expenditure to be
the sum of
R235,915.00, made up as follows:-
53.1. in respect of
himself, R55,650.00;
53.2. in regard to
the children
, R149,740.00;
53.3.
in regard
to the Applicant, R30,525.00 (
plus
the expenses paid for by him
).
[110]
[54]
It further
appears, however, from
the
Respondent’s FDF
,
that there are additional expenses, over and above the R235,915.00,
the quantum of which expenses have not been disclosed in his
FDF
,
being loan repayments for medication in respect of his son,
ad
hoc
expenses for
the
children
,
the Applicant and himself and the monthly premium for his son’s
medical aid.
[111]
In the
absence of any further particularity in regard to these alleged
additional expenses, it is of course difficult for this
Court to
assess what the true position is, and further against the backdrop of
the Respondent’s failure to provide the requisite
supporting
documentation as required by the provisions of the
FDF
.
Accordingly, these alleged additional expenses will be not be taken
into account.
[55]
In the premise, and based on the figures as provided by the
Respondent, on his own version, he has a monthly surplus
of at least
R72,866.38.
[56]
According to the
Respondent’s FDF
:
56.1.
the total
value of his interest in the matrimonial home is R6,000,000.00;
[112]
56.2.
the total
value of his personal assets is R592,159.50;
[113]
56.3.
the total
value of his pension interest is R419,627.24;
[114]
56.4.
the total
value of his liabilities is R180,000.00.
[115]
In this respect the Respondent states that the amount is made up of
an incremental loan from Derma Africa, taken in
2024
,
for the major son’s medication, in the sum of R90,000.00 and a
further similar loan, for the same amount, to be taken in
2025
;
[116]
56.5.
the total
value of his assets less his liabilities is R6,831,426.74, “
less
inheritance utilized above plus CPI thereon: (R5,408,385.09
),
being R1,423,041.65.
[117]
This aspect is not explained
in
the Respondent’s FDF
.
In his Sworn Reply, however, the Respondent states that he received
an inheritance of R3,000,000.00 and that the amount was used
to buy
the BMW motor vehicle currently in the Applicant’s possession
and to support the Applicant’s expenses.
[118]
No proof of the aforegoing is provided.
[57]
It is further clear from the Respondent’s Sworn Reply, read
together with
the Respondent’s FDF
that:-
57.1.
the
Respondent is a Trustee/Beneficiary of a Trust, ostensibly an
inter
vivos
Trust;
[119]
57.2.
the Trust
purchased, and owns, a light piston engine propeller aircraft;
[120]
57.3.
the Trust
is the 100% shareholder of a private profit company which purchased,
in and during
2022
,
a sizeable piece of land in Limpopo Province for an amount of
R14,000,000.00.
[121]
According to the Applicant the Respondent is constructing an
exclusive and luxurious game lodge on the aforesaid property;
[122]
57.4. it is not
clear from either the Respondent’s sworn Reply, or his
FDF
,
what precisely the Respondent’s beneficial interest in regard
to the Trust and/or the private profit company owned by the
Trust,
is, and this would be something that would need to be investigated
further for the purposes of the pending divorce proceedings,
and more
specifically, in relation to the determination of the accrual. I will
revert to this aspect further when I deal with the
Applicant’s
claim for a contribution towards her legal costs.
[58]
Given that which has already been stated hereinabove in this judgment
insofar as the Respondent’s means are
concerned, I am satisfied
that the Respondent has the capacity to continue to contribute to the
Applicant’s maintenance requirements,
pendente lite
,
subject to what is stated herein below in this regard.
Applicant’s
actual and reasonable requirements in so far as claim for a cash
contribution in relation to monthly expenses
is concerned
[59]
As stated
above, the Applicant avers that her expenses, i.e. her expenses which
are not paid for by the Respondent, either directly
or indirectly,
amount to R30, 535.07 per month.
[123]
[60]
lt is
common cause that the Applicant is claiming in this application a
cash contribution from the Respondent in the sum of R30, 500.00.
She states that she requires this amount to fund the balance of her
maintenance requirements and seeks that the Respondent pays
the same
to her on a monthly basis, subject to an annual escalation.
[124]
[61]
As dealt with above, the Applicant therefore wants this Court to
ignore the income she currently earns, together
with any future
income she may earn, for purposes of any order to be made herein. I
am not inclined to do so.
[62]
Given that I have determined that the Applicant’s actual
expenses are R29,224.33, and that her monthly shortfall
is the sum of
R14,597.30, I am therefore respectfully of the view that the tender
by the Respondent to pay the sum of R15,000.00
per month as a cash
contribution towards the Applicant is, in the circumstances,
reasonable, and will cover the Applicant’s
shortfall.
[63]
The Applicant has claimed that the cash component must be subject to
an annual escalation in terms of the Consumer
Price Index and I am
satisfied that, pending the finalisation of the divorce proceedings
between the parties, such escalation is
reasonable and necessary and
the Order I intend making herein will take this into account.
Applicant’s
actual and reasonable requirements in so far as claims for
maintenance in regard to remaining issues in dispute
is concerned
[64]
In regard
to the Applicant’s claim that the Respondent continue paying
the
account
for the fixed landline at the matrimonial home, whilst the Respondent
has tendered to make payment in respect of this expense,
he has only
tendered to do so up to and including
April
2025
.
[125]
No reason is provided by the Respondent for doing so and this cut-off
date seems arbitrary and further smacks of penny-pinching
in the
bigger scheme of this matter. It is my respectful view that there is
no basis for the Respondent to tender to only pay the
fixed landline
costs up to and including
April
2025
and that he should continue to pay for the same,
pendente
lite
,
directly to the service provider concerned. The order I make will be
reflective hereof.
[65]
It is
common cause that the Respondent has tendered to pay the DSTV
subscriptions up to and including
April
2025
.
[126]
The reason advanced by the Respondent for this is that, according to
him, there was a previous problem with the DSTV which he had
to sort
out and which “
locked
him in for a further year
”
which subscription ends in
April
2025
.
Accordingly, it is the Respondent’s view that the Applicant
should continue with the DSTV thereafter at her own expense.
[127]
In my view, for similar reasons expressed in regard to the expense
for the landline, the Respondent must continue to pay for this
expense,
pendente
lite
,
directly to the service provider concerned.
[66]
In regard
to the expense pertaining to any excesses relating to any claims in
respect of the household and/or homeowners’
insurances, as
stated above, the Respondent’s tender evolved from what was
initially stated in his Sworn Reply to what was
encapsulated in the
Respondent’s draft Order and the Comparative Table associated
with the Practice Note filed on behalf
of the Respondent. In the
Respondent’s Sworn Reply the Respondent did not draw a
distinction between the premiums, on the
one hand, and the excesses
on the other, and stated that he will continue to pay these expenses
directly.
[128]
No reason is
provided by the Respondent for excluding the excesses in his final
tender. In my view, the Respondent should continue
to be liable for
this expense,
pendente
lite
.
[67]
In regard
to the claim for bonuses, overtime, medical expenses and/or other
charges associated with the domestic worker,
[129]
in the sum of R1,000.00 per month, these expenses appear to be of an
ad hoc
and discretionary nature. The Respondent refuses to pay any
additional expenses in regard to the domestic worker, other than her
agreed monthly salary of R5, 000.00, which has been tendered by
him. The basis for his refusal is that
the
children
are
majors and are studying elsewhere and do not frequent the matrimonial
home often. Any overtime which was previously paid to
the domestic
worker was when
the
children
were
younger and when same would be paid in the event that the Applicant
needed extra assistance. The Respondent’s view is
that there is
no requirement for the domestic worker, in the circumstances, to even
work full-time, let alone overtime, as only
the Applicant resides in
the matrimonial home
.
The
Respondent view is that these further expenses should be for the
Applicant’s account.
[130]
I am persuaded by the aforegoing.
[68]
The
Applicant claims R1,000.00 per month for remuneration, bonuses and
overtime in respect of the gardener/handyman/driver and general
helper (“
the
gardener
”)
employed at the matrimonial home.
[131]
The Applicant provides no proof of this expense and does not provide
a breakdown and allocation of the expense. Based on what is
said
below in relation to the vehicles, it seems that the Applicant uses
the gardener to take her to the airport when she travels
and to run
errands for her. The Respondent makes no tender in respect of this
expense, averring that this expense is an “
absolute
fabricated claim
”
made by the Applicant in that the gardener and the parties had a
longstanding arrangement to the effect that the gardener
could reside
at the matrimonial home, rent-free, on the basis
that
he could work within the area and, on the weekends, assist the
parties with any extra garden work
in
lieu
of paying rent
.
[132]
I agree that this expense should be borne by the Applicant.
[69]
In
regard to the Applicant’s claim in respect of the BWM X5 and
Mercedes Benz ML 350 motor vehicles driven by her, more specifically
for the insurance, including any excesses, a
nd
the Netstar and/or Tracker subscriptions in respect of the
vehicles,
[133]
the
Respondent avers that the Applicant is in possession of three motor
vehicles, a BMW, a Mercedes Benz and a Hyundai i10, the
latter
vehicle being the vehicle driven by the parties’ major daughter
when she is in the country. The Respondent contends
that it is
unnecessary and excessive for the Applicant to be in possession of
three vehicles. The Respondent initially tendered
that the Applicant
should return either the BMW or the Mercedes Benz so that he can sell
one and, in turn, continue to pay the
insurance and Netstar, on an
interim basis, in regard to the vehicle which the Applicant elects to
retain.
[134]
The
Respondent’s aforesaid tender changed in the Respondent’s
proposed draft Order to the effect that the Applicant
could retain
the use and enjoyment of the BMW motor vehicle, with the Respondent
covering the costs of insurance, Tracker and the
annual licence fees
in respect of the BMW.
[135]
[70]
In
the
Applicant’s FDF
,
she admits that she has three vehicles in her possession, confirming
the position in regard to the Hyundai
[136]
She states that the BMW X5 is the vehicle she uses for everyday use.
She does, however, use the Mercedes regularly to transport
pets
(
currently
6 dogs
),
take items to the rubbish dump, and for the gardener to transport the
Applicant to the airport for travel and to run various
other errands
as she says that the Mercedes is far less reliable, being almost 20
years old, and suffers from leaks and overheating.
[137]
[71]
In
the
Respondent’s FDF
he states, in relation to the Applicant, without quantifying the
same, that he pays for the insurance, and the Netstar and/or Tracker
subscriptions in regard to the vehicles.
[138]
[72]
In relation
to the Applicant’s claim for the cost of licences, repairs,
maintenance, tyre replacement and services BMW X5
and Mercedes Benz
motor vehicles,
[139]
as
stated above, the Respondent’s tender evolved to the point
where it is his contention that the Applicant should remain
in
possession of only the BMW motor vehicle and in respect of which
vehicle the tender extends to the insurance, Tracker, and annual
licence fees for the BMW X5. The tender does not extend to the
remaining items claimed by the Applicant,
[140]
being repairs, maintenance, tyre replacements and services. In
the
Applicant’s FDF
,
she states that: “
recently,
the Respondent refused to pay for the BMW to be serviced unless I
effectively halt the legal proceedings
.”
[141]
[73]
It is
common cause that the Mercedes and BMW are older model vehicles which
have historically been used by the Applicant. In the
Respondent’s
FDF
,
he states that he pays these vehicle-related expenses, presumably
including the Hyundai, and attributes the sum of R4,000.00 per
month
to this expense.
[142]
[74]
In the circumstances, my view is that the
status quo
in
regard to the BMW X5 and Mercedes Benz vehicles should remain,
pendente lite
, and the order I make will be reflective
thereof.
[75]
Regarding
the claim for the costs of the replacement of any household
furniture, appliances and/or other equipment, with an item
of a
similar and/or comparative standard, model and features selected by
the Applicant together with the costs of any repairs and
maintenance
required to the matrimonial home,
[143]
same is disputed
in
toto
by
the Respondent. The Respondent states, in disputing this expense,
that he has contributed to the renovations of the matrimonial
home
even though he has not resided there since
2006
.
He further states that he has paid for a solar system and inverter
and that the whole house has been repainted and the external
wall
replaced. In the Respondent’s view, all furniture and household
equipment is in good working order and he cannot see
that anything
would require to be replaced. In the event, however, of something
requiring to be replaced, his view is that it should
be at the
expense of the Applicant.
[144]
[76]
It is
common cause that in the pending divorce proceedings, part of the
relief which is sought by the Applicant, in her Counterclaim,
is that
the Respondent must pay her the sum of R1,500,000.00, alternatively
certain periodical payments, in order for the Applicant
to acquire
furniture, appliances and other household effects.
[145]
[77]
I am thus not inclined to grant the claim for the replacement of
household items,
pendente lite
, as this aspect can be dealt
with in the pending divorce proceedings in due course. Insofar as
repairs and maintenance to the matrimonial
home are concerned, I am
of the view that any major issues in the interim would fall to be
covered by the household/homeowner’s
insurance, the premiums
and excesses in respect of which I have found the Respondent liable
to pay,
pendente lite
, and as such, I am also not inclined to
grant this claim.
[78]
The
Applicant claims two return international, and two return local,
business class airline tickets to destinations of the Applicant’s
choice, at times selected by the Applicant.
[146]
In my view, this claim does not fall within the purview of the relief
intended to be provided in the nature of interim maintenance
in terms
of Rule 43. The Respondent avers that, by virtue of his employment
with Qatar Airways, each family member receives one
free airline
ticket per annum to Doha, Qatar. The Respondent tenders such ticket
to the Applicant, on an interim basis, only for
so long as the
Respondent continues to be employed by Qatar Airways, and within the
parameters of what that free ticket entails
and when and how it comes
about, on the
proviso
that the Applicant shall be solely responsible for any additional
traveling expenses exceeding the annual free ticket as
aforesaid.
[147]
The order I
make will accordingly reflect the terms of the Respondent’s
tender.
[79]
In regard
to the Applicant’s claim for an annual holiday allowance to
cater for the cost of,
inter
alia,
accommodation, transport, entertainment and general subsistence
whilst on holiday, in the amount of R250, 000.00,
[148]
which amounts to R20,833.33 per month, this claim is rejected
outright by the Respondent as being excessive, unreasonable and
unaffordable.
[149]
The
difficulty with this claim is that it is couched in broad terms,
without any detail as to how the amount is computed. There
is no
breakdown to assist the Court to consider and evaluate this claim. In
the scheme of the facts of this matter, and in light
of the relief
intended to be provided by way of interim maintenance in terms of
Rule 43, I am not inclined to grant this relief.
[80]
Regarding
the Applicant’s claim for payment of the sum of R49, 707.87,
same pertains to the dispute in regard to payment of
the Applicant’s
credit card by the Respondent and which the Applicant avers the
Respondent stopped paying with effect from
September
2024
.
The
amount represents the outstanding balance on the Applicant’s
credit card as at the date of her deposing to her Sworn Statement
in
regard to this Rule 43 Application, being
27
November 2024
.
[150]
The Respondent rejects this claim outright and states that same
should be for the Applicant’s own account, further stating
that
the Applicant has failed to provide any statements for this credit
card yet expects him to pay for same.
[151]
[81]
In her
Sworn Statement, the Applicant states that her only liability is the
amount outstanding in respect of her credit card, as
aforesaid.
[152]
However, in
the
Applicant’s FDF
,
deposed to two months later, she declares that she has no liabilities
i.e. that she does not owe any money on credit cards.
[153]
In the Applicant’s list of monthly expenditure, in both her
Sworn Statement and her
FDF
,
she also does not budget for a monthly credit card repayment.
[154]
I am not inclined to grant the Applicant this relief as, in line with
the decision of
Greenspan
v Greenspan
,
the lumpsum claimed is in regard to interim maintenance, with Rule
43(1)(a) envisaging periodic payments in this regard, the Court
having no jurisdiction to award lumpsum payments in this
respect.
[155]
Retrospectivity
of Applicant’s claim for interim maintenance
[82]
The
Applicant seeks an order that the Respondent be ordered to pay her
claim for interim maintenance with retrospective effect from
01
December 2024
.
[156]
[83]
In light of my findings above, and further in light of the
Respondent’s tender to continue making payment
of certain
expenses directly, it being common cause that the Respondent has been
effecting payment of the sum of R15,000.00 per
month to the Applicant
as a cash component with effect from
November 2024
, in
my mind there is no basis,
in casu
, on the facts and
circumstances before me, to justify the retrospective order, as
sought by the Applicant.
APPLICANT’S
CLAIM FOR A CONTRIBUTION TO
COSTS IN TERMS
OF RULE 43(1)(b)
[84]
The
Applicant further alleges that she is unable to progress the divorce
action, (
in
respect of which it is common cause, as stated above, that the
pleadings have closed
),
due to a lack of funds and hence she has launched the Rule 43
Application, with the Applicant verily believing that her defence
to
the Respondent’s claims in the divorce action and her
Counterclaim thereto, have reasonable prospects of success.
[157]
[85]
It is common cause that the Applicant is seeking a contribution
towards her legal costs in the sum of R1,900,000.00,
and that the
Respondent has disputed such claim, stating that the Applicant should
not be entitled to any contribution whatsoever.
The parties are
therefore at polar opposites in regard to this claim.
[86]
In regard to her claim, the Applicant states that:-
86.1.
“
thus
far
”,
presumably being up to the date she deposed to her Sworn Statement in
support of this application, being
27
November 2024
,
she has managed to make payment of the legal costs that she has
incurred from her “
relatively
minimal earnings and/or savings
”;
[158]
86.2.
this is
“
clearly
not sustainable
”;
[159]
86.3.
she
requires a contribution towards her
future
legal costs
;
[160]
86.4.
the issues
in dispute in the pending divorce action are “
numerous
and complex
”
and relate,
inter
alia
,
to the Applicant’s claim that the Respondent maintain her post
the divorce, including relief ancillary to such claim, being
the
provision of accommodation, furniture, appliances, and/or other
household equipment and a motor vehicle, the determination
of the
accrual of the parties’ respective estates, and who should be
liable for the costs of the divorce action;
[161]
86.5.
having
regard to the issues in dispute and “
the
respondent’s unfortunate attitude towards
”
the Applicant, “
as
gleaned from
”
the contents of the Sworn Reply, she will unfortunately be required
to engage in extensive litigation at great cost, including
consulting
with counsel, attorneys and experts, which experts include an
industrial psychologist, an actuary, an accountant/auditor,
and an
appraiser;
[162]
[87]
In support
of her claim for a contribution to her future legal costs, the
Applicant has annexed to her Sworn Statement a Bill of
Costs, which
is headed: “
Memorandum
of Estimated Future Legal Fees and Disbursements to be incurred by
the Applicant/Defendant, in the above-mentioned matter
up to an
including the first day of trial, and due and payable to Steve
Merchak Attorneys for purposes of an assessment of a Contribution
towards Costs,
[163]
(“
the
Bill of Costs
”).
[88]
The
Bill of Costs
was prepared by an attorney, Mr Ray Gertzen, who further deposed to a
Confirmatory Affidavit in regard to
the
Bill of Costs
as prepared by him relation to the Applicant’s future legal
costs.
[164]
The grand total
reflected on
the
Bill of Costs
,
inclusive of fees, disbursements and VAT, is the sum of
R1,914,912.63.
[165]
[89]
The
Applicant further annexed to her Sworn Statement, Quotations/
Proforma
Invoices, from an Industrial Psychologist,
[166]
a
firm of Actuaries,
[167]
a
Chartered Accountant,
[168]
and
a Valuer/Sworn Appraiser.
[169]
[90]
I will revert to
the Bill of Costs
, and supporting
annexures further hereinbelow.
[91]
In his opposition to the Applicant’s claim for a contribution
to her future legal costs, the Respondent states
that:-
91.1.
the
Applicant should not be entitled to a contribution towards costs as
it is the Applicant who is insistent on proceeding with
litigation in
circumstances where, in the Respondent’s view, “
this
matter could easily be resolved
”
[170]
and where it is unnecessary to “
incur
such high legal fees
”;
[171]
91.2.
despite
requests made to the Applicant’s attorneys by his attorney to
mediate the matter, this was rejected by the Applicant’s
attorneys with a “
flimsy
excuse
”;
[172]
91.3.
he cannot
afford the Applicant’s legal costs “
of
an expensive attorney who is intent on litigation
”;
[173]
91.4.
prior to
the Respondent issuing Summons, and in an effort to avoid litigation,
he had entered into verbal settlement discussions
with the Applicant,
which were in his view, fair and reasonable. He was forced to issue
Summons as the Applicant was: “
disgusted
with the idea that she would be expected to work for the rest of her
life
”;
[174]
and
91.5.
legal
argument would be addressed at the hearing of the matter on the
“
excessive
nature
”
of the required fees which the Respondent submitted were “
excessive,
unnecessary and unaffordable
”.
[175]
[92]
Whilst the Respondent’s Counsel did address legal argument to
the Court at the hearing of the matter in regard
to the Applicant’s
claim for a contribution to costs, neither the Respondent, in his
Sworn Reply, nor his Counsel during
argument, interrogated
the
Bill of Costs
or raised an objection to any item in respect
of the fees and disbursements as reflected therein. The Respondent’s
failure
to interrogate
the Bill of Costs
is of no
assistance to the Court. This point was also made by the Applicant’s
Counsel, during argument, when she submitted
that one would have
expected the Respondent, if he opposed
the Bill of Costs
,
to state to which items therein he objected, and as one would have
done in a scenario when a Bill of Costs is to be taxed.
[93]
The legal principles applicable to a claim for a contribution to
costs, have been crystalised in various decisions
by our Courts over
the years, and the essence of which is the following:-
93.1.
a claim for
a contribution to costs is a claim
sui
generis
and has its basis in the reciprocal duty of support between
spouses;
[176]
93.2.
although
the rules of the duty of support between spouses are gender neutral,
in light of the traditional childcare roles and the
wealth disparity
between men and women, the norm has been that it is generally women
who seek relief from the Courts in terms of
Rule 43(1)(b);
[177]
93.3.
the purpose
of the remedy is therefore to enable the party in the pending divorce
action, who is comparatively speaking, financially
disadvantaged in
relation to the other party, to adequately put their case before
Court.
[178]
93.4.
as to what
is “
adequate
”
will depend upon the nature of the litigation, the scale on which the
husband is litigating and the scale on which the wife
intends to
litigate, with due regard being had to the husband’s financial
position;
[179]
93.5.
Rule
43(1)(b), and the remedy provided thereby, must be interpreted
through the prism of the Constitution, specifically in regard
to the
right to equality before the law and equal protection of the
law.
[180]
The contribution
towards costs should ensure that there is equality of arms for the
wife in the divorce action against her husband.
[181]
The Court is also bound to ensure access to Court as provided for in
Section 34 of the Constitution
[182]
A spouse’s right to dignity, as envisaged in Section 10 of the
Constitution, when that spouse is deprived of the necessary
means to
litigate and when she has to go cap in hand to family or friends to
borrow funds for legal costs or is forced to be beholden
to an
attorney, who is willing to wait for payment of fees and as such to
effectively act as her banker;
[183]
93.6.
the quantum
of the contribution to costs which a Court may order a spouse to pay,
lies within the discretion of the presiding Judge.
In this regard,
the Court should have regard to the circumstances of the case, the
financial position of the parties, and the particular
issues involved
in the pending litigation in order for the wife to be enabled to
adequately present her case before the Court.
[184]
[94]
I will therefore proceed to evaluate, and in the exercise of my
discretion, make a determination in regard to,
the Applicant’s
claim for a contribution to her future costs, against the backdrop of
the aforementioned legal principles.
[95]
Items 1
to 33, and 166 to 171 of
the
Bill of Costs
pertain to this Rule 43 application,
[185]
and the fees and disbursements, including Counsel’s fees,
associated therewith, together with VAT thereon and which amounts
to
R363,590.12. Given that the Applicant is also seeking an Order to the
effect that the Respondent pay the costs of this application,
at the
conclusion of the Applicant’s Counsel’s submission in
chief, I requested her to address me in this regard as,
in my view,
it is clear that the Applicant could not be entitled to both. The
Applicant’s Counsel conceded that if I were
to award the costs
of this Rule 43 application to the Applicant, then I should disallow
the contribution, as claimed in
the
Bill of Costs
,
and
vice
versa
.
[96]
There is of course a further option, which is that I neither grant
the claim for a contribution, as contained in
the Bill of
Costs
, in regard to the Rule 43 application, nor order the
Respondent to pay the costs of this application, but rather that I
make an
order, which is not uncommon in Rule 43 applications, for the
costs thereof to be costs in the cause of the divorce action.
[97]
In light of the view that I have taken, and as dealt with further
hereinbelow, in regard to the costs of this application,
the
contribution to costs in respect of the Rule 43 application, as
contained in
the Bill of Costs
, is disallowed.
[98]
Insofar as the balance of the claim for a contribution to future
costs, as contained in
the Bill of Costs
is concerned,
I have considered
the Bill of Costs
, bearing in mind
that this is a claim for an initial contribution to future costs,
albeit that
the Bill of Costs
reflects the estimated
costs up to and including the first day of trial, that the Applicant
is the Defendant in the divorce action
and that the Applicant can
bring a further application or applications for additional
contributions to costs if the need arises,
even during the trial. In
this context, I therefore have the following specific comments in
regard to the Bill of Costs:-
NO.
ITEM
NO
COMMENT
98.1
126[186]
If
regard is had to the Quotation of the industrial psychologist, the
fee for the Report is reasonable considering the Applicant’s
claim for spousal maintenance. The remaining items are reflected
as “
if needed
” and as such are disallowed at
this stage.
98.2
134[187]
If
regard is had to the cost estimate from the actuary, arising from
the Applicant’s claim for spousal maintenance,
the fee for
the Report, which includes consulting, is reasonable with the
remaining items being disallowed at this stage.
98.3
14.[188]
If
regard is had to the estimated fee indication of the chartered
accountant, who is required
inter alia
, for determining the
accrual, including forensic accounting, no detail is provided of
the hourly rate for the junior staff
referred to therein. It is
common cause that there has not been full disclosure by the
Respondent, that discovery has not
taken place, and that further
Subpoenae are yet to be served. The estimate of 90 hours at R2,500
per hour, excluding VAT,
is in my view, at this juncture,
premature and excessive in the circumstances. Half of the
aforegoing is reasonable, in the
circumstances of this matter, at
this stage. In regard to the further costs in paragraph 6 of the
fee estimate, same are
premature at this stage and the reference
to valuations of fixed property and land may overlap with the fees
of the registered
valuer and appraiser and could lead to a
duplication of fees/costs, and are accordingly disallowed at this
stage.
98.4
146[189]
If
regard is had to the Proforma Invoice of the valuer/appraiser, the
fee for the valuation of the matrimonial home is reasonable
considering that the accrual is required to be determined. The
remaining items are disallowed at this stage
98.5
172
TO 184[190]
These
items pertain to Counsel’s fees and amount to R362, 000.00,
excluding VAT. Half of this amount, as an initial
contribution, in
the facts and circumstances of this matter, is reasonable .
[99]
In regard to the remaining items on
the Bill of Costs
,
they pertain to fees and disbursements (
excluding the
disbursements referred to above
) of the Applicant’s
attorneys which, excluding fees and disbursements in regard to the
Rule 43 application, which have been
disallowed for the reasons dealt
with above, amount to approximately R587,000.00 (including VAT). In
my view, an amount of R250,000.00,
plus VAT thereon, as an initial
contribution to future costs in respect of the Applicant’s
attorneys, is reasonable in the
facts and circumstances of this
matter.
[100]
Insofar as the principle of equality of arms is concerned, it was
submitted by Respondent’s Counsel during argument
that there is
no equality of arms as the Applicant has a Senior Counsel and senior
attorney representing her, whereas the Respondent
does not. That
said, it was submitted that perhaps the Applicant should be the one
contributing to the Respondent’s costs.
I am not persuaded by
this submission. Albeit that often in matters which have come before
our Courts in regard to a wife seeking
a contribution for costs, the
husband was the one who had briefed Senior Counsel, and sometimes two
Counsel, in my view, and based
on the facts and circumstances
in
casu
, and specifically by virtue of the Respondent not playing
open cards in regard to his financial affairs and by not making full
disclosure in his
FDF
, that it is this conduct on the
part of the Respondent which is, with respect, dictating the scale on
which the Applicant is required
to litigate.
[101]
In my view, and for the above reasons, the sum of R700,000.00,
inclusive of VAT, represents an adequate initial contribution
to the
Applicant’s future costs in the pending divorce action.
COSTS OF THIS
APPLICATION
[102]
It is trite that this Court also has a
discretion when it comes to the issue of ordering costs, which
discretion must be exercised
judicially.
[103]
As dealt with hereinabove, the Applicant is
seeking the costs of this application on a punitive scale, being the
scale as between
attorney and client, and on Scale C, as provided for
in Uniform Rule of Court, 69. The Respondent, in turn, seeks an Order
that
the Applicant pay the costs of this Application, on Scale A.
[104]
On the facts before me, I am of the view
that the Applicant was entitled to launch this application, as was
the Respondent entitled
to oppose the same. Insofar as the
allegations pertaining to the Respondent’s lack of full and
frank disclosure, of which
this Court has also taken cognisance in
relation to
the Respondent’s
FDF
, as dealt with above, this
aspect has already been taken into account in dealing with the
Applicant’s claim for a contribution
towards her costs, which
claim included a contribution in regard to an auditor/accountant to
investigate the Respondent’s
financial affairs.
[105]
Both
parties have pointed fingers at one another for not actively
attempting to mediate the disputes between them. I accept that
the
Applicant would not be in a position to consider mediating
meaningfully, as she says, “
at
this stage only
”,
[191]
until she has received full and frank disclosure.
[106]
Both parties have been partially
successful, as it were, in this application, and I am therefore not
inclined, in the circumstances
of this matter, to award costs in
favour of either of the parties. I am accordingly of the view that
the usual order relating to
costs of an application under Rule 43
should apply, being that the costs of this application should be
costs in the cause of the
divorce action.
ORDER
In the circumstances, I
make the following order,
pendente lite
:-
[1]
the
Applicant
is to continue to reside in, and to enjoy full and undisturbed
possession of, the matrimonial home, situated in Lonehill,
Sandton
(“
the
property
”)’
[2]
the Respondent
is to continue paying the Applicant an amount of R15, 000.00 per
month, payable in advance on or before the first
day of each and
every month, with the next payment being due on or before
01
April 2025
.
The amount of R15, 000.00 shall escalate on the anniversary of the
date of the granting of this this Order, in accordance with
the
percentage rate increase in the Headline Consumer Price Index for the
preceding 12-month period, based on the statistics as
published by
Statistics SA, or its successor;
[3]
the Respondent
is ordered to continue paying the following monthly expenses directly
to the service providers concerned, either
via existing debit order,
or electronic funds transfer, or where applicable, within 5 (
five
)
days of the Respondent being placed in receipt, by the Applicant, of
the relevant invoice and/or statement of account in regard
to such
expense:
3.1
the costs of
water and electricity consumption, rates, taxes, refuse and sewage in
respect of
the
property
;
3.2
armed response
subscriptions in relation to
the
property
;
3.3
household
and/or homeowners’ insurance, including any excesses;
3.4
the
subscription in respect of the fixed landline at
the
property
;
3.5
internet/fibre
subscriptions;
3.6
the salary of
the domestic worker in the sum of R5,000.00 per month;
3.7
DSTV
subscriptions;
3.8
annual
subscription in respect of TV licenses;
3.9
in relation to
the BMW X5 and Mercedes Benz ML350 motor vehicles in the possession
of the Applicant (“
the
vehicles
”),
the Applicant being entitled to the full use and enjoyment of
the
vehicles
:
3.9.1
insurance,
including any excesses;
3.9.2
Netstar and/or
Tracker subscriptions;
3.9.3
annual vehicle
license renewal fees;
3.9.4
repairs,
maintenance, tyre replacement and services;
3.10
the
Applicant’s gym membership, currently in the sum of R1,370.00,
and any annual escalation in regard thereto, as levied
by the
relevant service provider;
3.11
the monthly
premiums in regard to the Applicant’s membership as a dependent
of the medical aid scheme of which the Respondent
is the main member;
3.12
any excess
and/or non-recoverable medical expenses incurred by the Applicant
which are not covered, refunded and/or discharged by
the
aforementioned medical aid scheme, the incurring of such expenses to
be agreed with the Respondent beforehand, save in the
event of an
emergency, and excluding any cosmetic or aesthetic surgeries;
[4]
in
the event that the Applicant makes payment of any costs referred to
above for which the Respondent is liable in terms of the Order,
the
Respondent shall reimburse the Applicant within 5 (
five
)
days of being provided with proof of payment by the Applicant of such
expense;
[5]
any and all
payments due to be made by the Respondent to the Applicant, as
provided for above, must be cleared, available and accessible
on or
before the due date of such payment;
[6]
the Respondent
shall allow the Applicant the use of the Respondent’s current
available travel perquisite, arising from his
employment with Qatar
Airlines, being one free international airline ticket per annum, from
Johannesburg to Doha, Qatar, within
the parameters of what such free
ticket entails, as dictated by the Respondent’s employer from
time to time in regard thereto,
commencing with effect from
2025
,
and for as long as the Respondent continues to remain in the employ
of Qatar Airlines. The Applicant shall be liable for all and
any
additional travelling expenses as may exceed the parameters the free
ticket, as aforesaid;
[7]
the Respondent
is ordered to continue paying the following expenses in respect of
the major dependent children born of the marriage
between the
parties,
in
toto
including, but not limited to:-
7.1
tertiary fees;
7.2
rental;
7.3
food, groceries, cleaning materials and toiletries;
7.4
motor vehicle insurance, Tracker, and annual license fees in respect
of the major daughter’s Hyundai motor vehicle;
7.5
clothing and shoes;
7.6
personal care;
7.7
books and stationary;
7.8
outings;
7.9
ad hoc
educational expenses;
7.10
the monthly premiums in regard to the major daughter of the parties’
membership as a dependent of the
medical aid scheme of which the
Respondent is the main member;
7.11
any excess medical expenses in respect of the major daughter not
covered by the Respondent’s medical
aid scheme;
7.12
retaining the major son of the parties on a separate medical aid
scheme, paying the monthly premiums in regard
to such membership and
any excess medical expenses not covered by said medical aid scheme;
7.13
pocket money; and
7.14
any further
ad hoc
expenses;
[8]
the Respondent
is ordered to pay the sum of R700,000.00 (
seven
hundred thousand rand),
which
amount is inclusive of VAT, to the Applicant and into a bank account
as nominated by her, as a contribution towards the Applicant’s
legal costs, payable in 2 (
two
)
equal monthly instalments in the amount of R350, 000.00 each,
the first instalment being due and payable on
01
April 2025
and the second instalment being due and payable on
01
May 2025
;
[9]
the costs of
this application are costs in the cause of the divorce action.
H.D.C PRETORIUS
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Electronically
submitted
Delivered: This Order
was prepared and authored by the Acting Judge whose name is reflected
herein and is handed down electronically
by circulation to the
Parties / their legal representatives by e-mail and by uploading it
to the electronic file of this matter
on Court Online/CaseLines. The
date of the Judgment is deemed to be
19 March 2025
.
Dates Of Hearing:
26
February 2025
Date Of Judgment:
19
March 2025
APPEARANCES:
For
Applicant
:
Advocate
A De Wet S.C
Instructed by:
Steve
Merchak Attorneys
For
Respondent
: Advocate K. Howard
Instructed by: Jennifer
Scholtz Attorney
[1]
Notice
in terms of Uniform Rule 43: prayers 1 (inclusive of the
subparagraphs thereto) and 4, CaseLines 007-2 to 007-6
[2]
Sworn
Reply: par 241, CaseLines 007-146
[3]
This is described as “Respondent’s Answering Affidavit”.
I will, however, refer thereto as the Sworn Reply
in accordance with
the terminology referred to in Uniform Rule of Court 43
[4]
Filing Sheet: CaseLines 007-88 to 007-91, read with Sworn Reply:
paras 5 to 15, CaseLines 007-94 to 007-96
[5]
Sworn Reply: paras 5 to 15, CaseLines 007-94 to 007-96
[6]
Sworn
Statement: par 7, CaseLines 007-10; Sworn Reply: par 19, CaseLines
007-104 and par 50, CaseLines 007-111
[7]
Sworn
Statement: par 9, CaseLines 007-11; Sworn Reply: paras 20, 20.1 and
20.1, CaseLines 007-104 and par 55, CaseLines 007-111
[8]
Sworn
Statement: par 9, CaseLines 007-11; Sworn Reply: paras 31 and 32,
CaseLines 007-106
[9]
Sworn
Reply: par 32, CaseLines 007-106 and par 56, CaseLines 007-111;
Respondent’s FDF: par 3, Schedule of maintenance requirements,
CaseLines 007-348 to 007-352, par 4.1.2, CaseLines 007-353, par 4.3,
CaseLines 007-353 to 007-354
[10]
Sworn
Reply: par 39, CaseLines 007-108
[11]
Sworn
Statement: par 9, CaseLines 007-11
[12]
Sworn
Statement: par 32, CaseLines 007-23; Sworn Reply: paras 190 and 191,
CaseLines 007-137
[13]
Sworn Statement: par 35, CaseLines 007-24, Applicant’s FDF:
par 2.15, CaseLines 007-187 and par 2.9, CaseLines 007-181
[14]
Sworn
Statement: par 3, CaseLines 007-9; Sworn Reply: par 47, CaseLines
007-110
[15]
Sworn
Reply: paras 22 and 23, CaseLines 007-104 to 007-105, par 52,
CaseLines 007-111
[16]
Sworn
Reply: par 22, CaseLines 007-104, read with par 51, CaseLines
007-111
[17]
Sworn
Statement: par 3.2, CaseLines 007-9; Sworn Reply: par 47, CaseLines
007-110
[18]
Sworn
Reply: paras 21 and 33, CaseLines 007-104 and 007-106
[19]
Sworn Reply: par 53, CaseLines 007-111
[20]
Sworn
Statement: par 8, CaseLines 007-11
[21]
Sworn
Statement: par 2.3, CaseLines 007-9; Sworn Reply: paras 44 and 45,
CaseLines 007-109 to 007-110
[22]
Sworn
Reply: par 45, CaseLines 007-110; Sworn Statement: Annexure “MR2”
thereto, CaseLines 007-42
[23]
Pleadings:
CaseLines
001-1 to 001-3; Sworn Statement: par11, CaseLines 007-11; Sworn
Reply: par 60, CaseLines 007-112
[24]
The
Respondent, as Plaintiff, filed his Plea to the Applicant, as
Defendant’s, Counterclaim, on 08 October 2024. CaseLines:
001-40; Sworn Statement: par 19, CaseLines 007-14; Sworn Reply: par
71, CaseLines 007-114
[25]
Pleadings:
CaseLines 001-1 to 001-44
[26]
Sworn
Statement: par 21, CaseLines 007-14
[27]
Sworn
Statement: par 22, inclusive of subparagraphs, CaseLines 007-14 to
007-16
[28]
Sworn
Reply: par 178, CaseLines 007-130
[29]
Sworn Reply: par 36, CaseLines 007-107
[30]
Applicants
Heads of Argument: par 7, CaseLines 007D-4
[31]
Pleadings:
CaseLines
002-4 to 002-6 and 001-23 to 001-39
[32]
Sworn
Statement: par 22.2, CaseLines 007-15
[33]
Sworn Statement: par 25, CaseLines 007-21
[34]
Sworn Statement: par 28, CaseLines 007-22
[35]
Sworn Statement: paras 27.1 and 29, CaseLines 007-22 to 007-23
[36]
Sworn Statement: par 27.2, CaseLines 007-22
[37]
Sworn Statement: par 29, CaseLines 007-22 to 007-23
[38]
Applicant’s
Heads of Argument: par 11.1, 007D-5 and as amplified during oral
submissions at the hearing of the matter
[39]
Applicant’s Heads of Argument: par 11.1, CaseLines 007D-5
[40]
Applicant’s
Heads of Argument: par 11.2, 007D-5 to 007D-6, and as amplified
during oral submissions at the hearing of the
matter
[41]
Sworn
Statement: heading [G], read with par 24, CaseLines 007-20
[42]
Applicant’s
Heads of Argument: par 11.2, 007D-5 to 007D-6
[43]
Sworn
Reply: par 177, CaseLines 007-130
[44]
Sworn Reply: paras 17 and 18, CaseLines 007-97 to 007-103;
Respondent’s Draft Order: CaseLines 007C-15 to 007C-21;
Respondent’s
Practice Note: Comparative Table, CaseLines
007B–16 to 007B–21; Applicant’s Practice Note:
annexure “A”
thereto, being Applicant’s
Comparative Table, CaseLines 007B–6 to 007B-11, Applicant’s
Heads of Argument: par
13 and the Table therein contained, CaseLines
007D-6 to 007D-13
[45]
Sworn Reply: paras 17 and 18, CaseLines 007-97 to 007-103
[46]
Respondent’s
Draft Order: CaseLines 007C-15 to 007C-21
[47]
Respondent’s
Comparative Table: CaseLines 007B-16 to 007B-21
[48]
Sworn Reply: paras 17 and 18, CaseLines 007-97 to 007-103;
Respondent’s Practice Note: Comparative Table, CaseLines
007B–16
to 007B–21; Applicant’s Practice Note:
annexure “A” thereto, Applicant’s Comparative
Table, CaseLines
007B–6 to 007B-11, Applicant’s Heads of
Argument: par 13 and the Table therein contained, CaseLines 007D-6
to 007D-13
[49]
Respondent’s Practice Note: Comparative Table, CaseLines
007B-20 to 007B-21; Respondent’s draft Order: prayer 2,
CaseLines 007C-17
[50]
Notice in terms of Rule 43: prayer 1.1, CaseLines 007-2 to 007-3;
Sworn Reply: par 17, including table therein, CaseLines 007-92;
to
007-98 Respondent’s draft Order: prayer 3 (inclusive of
prayers 3.1 to 3.4), CaseLines 007C-17; Respondent’s Practice
Note: Comparative Table, CaseLines 007B-16
[51]
Notice in terms of Rule 43: prayer 1.2.1.2, CaseLines 007-3; Sworn
Reply: CaseLines 007-98; Respondent’s draft Order: prayer
3.7,
CaseLines 007C-17; Respondent’s Practice Note, Comparative
Table, CaseLines 007B-17
[52]
Notice in terms of Rule 43: prayer 1.2.1.3, CaseLines 007-3; Sworn
Reply: CaseLines 007-98; Respondent’s draft Order: prayer
3.6,
CaseLines 007C-17; Respondent’s Practice Note: Comparative
Table, CaseLines 007B-17
[53]
Notice in terms of Rule 43: prayer 1.2.1.4, CaseLines 007-3; Sworn
Reply: CaseLines 007-98; Respondent’s draft Order: prayer
3.8,
CaseLines 007C-17; Respondent’s Practice Note: Comparative
Table, CaseLines 007B-17
[54]
Notice in terms of Rule 43: prayer 1.2.1.5, CaseLines 007-3; Sworn
Reply: par 17, including table therein, CaseLines 007-98;
Respondent’s draft Order: prayer 3.5, CaseLines 007C-17;
Respondent’s Practice Note: Comparative Table, CaseLines
007B-17
[55]
Notice in terms of Rule 43: prayer 1.2.4, CaseLines 007-4; Sworn
Reply: par 17, including table therein, CaseLines 007-100;
Respondent’s draft Order: prayer 4.5, CaseLines 007C-18;
Respondent’s Practice Note: Comparative Table, CaseLines
007B-18;
[56]
Notice in terms of Rule 43: prayer 1.3.3, CaseLines 007-5; Sworn
Reply: par 17, including table therein, CaseLines 007-101;
Respondent’s draft Order: prayer 4.6, CaseLines 007C-18;
Respondent’s Practice Note: Comparative Table, CaseLines
007B-19
[57]
Notice in terms of Rule 43: prayer 1.3.1.3, CaseLines 007-4; Sworn
Reply: par 17, including table therein, CaseLines 007-101;
Respondent’s draft Order: prayer 4.4, CaseLines 007C-18;
Respondent’s Practice Note: Comparative Table, CaseLines
007B-19
[58]
Notice in terms of Rule 43: prayer 1.2.3, CaseLines 007-4;
Respondent’s draft Order: prayer 4.1, CaseLines 007C-18;
Respondent’s
Practice Note: Comparative Table, CaseLines
007B-18
[59]
Sworn Reply: par 17, including table therein, CaseLines 007-100 and
CaseLines 007-102
[60]
Respondent’s draft Order: prayer 4.1, CaseLines 007C-18;
Respondent’s Practice Note: Comparative Table, CaseLines
007B-18
[61]
Respondent’s
draft Order: par 5.2, CaseLines 007C-19
[62]
Respondent’s draft Order: prayer 5.2 (inclusive of all
sub-sub-paragraphs thereto), CaseLines 007C-19; Respondent’s
Practice Note: Comparative Table, CaseLines 007B-21
[63]
AF
v MF:
2019 (6) SA 422
(WCC), at 438 G
[64]
Notice
in terms of Rule 43: prayer 1.1, CaseLines 007-2 to 007-3; Sworn
Reply:
par
17, including table therein, CaseLines 007-98
[65]
Notice in terms of Rule 43: prayer 1.2.1, CaseLines 007-3;
Sworn
Reply:
par
17, including table therein, CaseLines 007-98
[66]
Notice in terms of Rule 43: prayer 1.2.1.3, CaseLines 007-3;
Sworn
Reply:
par
17, including table therein, CaseLines 007-98C; Respondent’s
draft Order: prayer 3.6, CaseLines 007C-17; Respondent’s
Practice Note: Comparative Table, CaseLines 007B-17
[67]
Notice in terms of Rule 43: prayer 1.2.1.5, CaseLines 007-3; Sworn
Reply: par 17, including table therein, CaseLines 007-98 to
007-99;
[68]
Sworn
Statement: Annexure “MR2” thereto, CaseLines 007-39
[69]
Notice in terms of Rule 43: prayer 1.2.1.6, CaseLines 007-3; Sworn
Reply: par 17, including table therein, CaseLines 007-99
[70]
Sworn
Statement: Annexure “MR2” thereto, CaseLines 007-39
[71]
Notice in terms of Rule 43: prayer 1.2.2 (inclusive of
sub-sub-paragraphs thereto), CaseLines 007-4; Sworn Reply: par 17,
including
table therein, CaseLines 007-99 to 007-100
[72]
Notice in terms of Rule 43: prayer 1.3.2 (inclusive of the
sub-sub-paragraphs thereto), CaseLines 007-4 to 007-5; Sworn Reply:
par 17, including table therein, CaseLines 007-101
[73]
Notice in terms of Rule 43: prayer 1.3.1 (inclusive of the
sub-sub-paragraphs thereto), CaseLines 007-4; Sworn Reply: par 17,
including table therein, CaseLines 007-100
[74]
Notice in terms of Rule 43: prayer 1.3.4, CaseLines 007-5; Sworn
Reply: par 17, including table therein, CaseLines 007-101 to
007-102
[75]
Notice in terms of Rule 43: prayer 1.4.2, CaseLines 007-5; Sworn
Reply: par 17, including table therein, CaseLines 007-102
[76]
Notice in terms of Rule 43, prayer 1.4.1, CaseLines 007-5; Sworn
Reply: CaseLines 007-102
[77]
Notice in terms of Rule 43, prayer 1.4.3, CaseLines 007-6; Sworn
Reply: par 17, including table therein, CaseLines 007-102
[78]
Taute
v Taute:
1974 (2) SA 675
(E), at 676 E; Botha v Botha:
2009 (3) SA
89
(W), at 105 C to 106 J; J.K. v E.S.K
[2024] 1 All SA 775
(WCC),
at par [49]
[79]
Taute
v Taute: 1974 (2) SA 675 (E)
[80]
Levin
v Levin:
1962 (3) SA 330
(W), at 331 D;
Taute
v Taute:
1974 (2) SA 675
(E), at 676 C-D; Grauman v Grauman:
1984
(3) SA 477
(W), at 479 F
[81]
Nilsson
v Nilsson:
1984 (2) SA 294
(C), at 295 F
[82]
Applicant’s FDF: CaseLines 007-168 to 007-170, read with
007-201, 007-202, 007-204, 007-220, 007-247, 007-275, 007-304,
007-309, 007-311, 007-315, and 007-323
[83]
Respondent’s FDF: CaseLines 007-334, read with 007-356 and
007-148
[84]
CaseLines:
007-401 to 007-409
[85]
Notice of Final Set Down: CaseLines 007A-10 to 007A-11
[86]
Applicant’s
Heads of Argument: par 23, CaseLines 007D-18; Applicant’s FDF:
par 4.2, CaseLines 007-198
[87]
Sworn Statement: par 23, CaseLines 007-16
[88]
Respondent’s FDF: par 4.2, CaseLines 007-353
[89]
Sworn Reply: par 37, CaseLines 007-108
[90]
Sworn
Statement: par 32, CaseLines 007-23
[91]
Sworn
Statement: par 34, CaseLines 007-24
[92]
Sworn
Statement: paras 35 and 36, CaseLines 007-24
[93]
Sworn
Statement: par 36, CaseLines 007-24 to 007-35
[94]
Sworn
Statement: par 35, CaseLines 007-24, read with CaseLines 007-36
[95]
Applicant’s FDF: par 2.15, CaseLines 007-186
[96]
Applicant’s FDF: par 2.16, CaseLines 007-187 to 007-188
[97]
Sworn
Statement: Annexure “MR 2” thereto, CaseLines 007-39 to
007-42; In the Applicant’s FDF this figure is
slightly less,
being R35,415.07, CaseLines 007-197
[98]
Sworn
Statement: par 36, CaseLines 007-24 to 007-35
[99]
Sworn
Statement: Annexure “MR 2” thereto, CaseLines 007-39 to
007-42
[100]
Applicant’s FDF: par 3, more specifically 3.1 being the
schedule of monthly expenditure, CaseLines 007-193 and 007-194
[101]
Applicant’s
FDF: C1 to C6, CaseLines 007-180;
[102]
Applicant’s
FDF: F, CaseLines 007-182 to 183
[103]
Applicant’s
FDF: G, CaseLines 007-184
[104]
Sworn
Statement: par 40, CaseLines 007-26
[105]
Applicant’s
FDF: par 2.19, CaseLines 007-189
[106]
Sworn Reply: par 208, CaseLines 007-141 read together with annexure
“AA5” thereto, CaseLines 007-160
[107]
Sworn Reply: CaseLines 007-148
[108]
Respondent’s FDF: CaseLines 007-344
[109]
Respondent’s FDF: par 2.3, CaseLines 007-344
[110]
Respondent’s FDF: CaseLines 007-348 to 007-352
[111]
Respondent’s FDF: CaseLines 007-352
[112]
Respondent’s
FDF: par 2.1, CaseLines 007-337
[113]
Respondent’s
FDF: C1 to C6, CaseLines 007-340;
[114]
Respondent’s
FDF: F, CaseLines 007-342 to 007-343
[115]
Respondent’s
FDF: D, CaseLines 007-341
[116]
Ibid
[117]
Respondent’s
FDF: par 219, Caselines 007-347 to 007-348
[118]
Sworn
Reply: paras 238 and 239, CaseLines 007-145
[119]
Respondent’s FDF: par 2.2, CaseLines 007-344
[120]
Sworn Reply: paras 105 to 107, CaseLines 007-120
[121]
Sworn Reply: paras 213 and 214, CaseLines 007-41; Sworn Statement:
par 49, CaseLines 007-28
[122]
Sworn Statement: par 49, CaseLines 007-28
[123]
Sworn Statement: par 31, CaseLines 007-23, read together with
annexure “MR2”, CaseLines 007-39 to 007-42
[124]
Sworn Statement: par 31, CaseLines 007-23, read together with Notice
in terms of Rule 43: prayer 1.4.1, CaseLines 007-5
[125]
Notice in terms of Rule 43: prayer 1.1, CaseLines 007-2 to 007-3;
Respondent’s draft Order: prayer 4.8, CaseLines 007C-18;
Respondent’s Practice Note: Comparative Table, CaseLines
007B-16 to 007B-17
[126]
Notice in terms of Rule 43: prayer 1.2.1.1, CaseLines 007-2 to
007-3; Sworn Reply: CaseLines 007-92; Respondent’s draft
Order: prayer 4.7, CaseLines 007C-18; Respondent’s Practice
Note: Comparative Table, CaseLines 007B-17
[127]
Sworn Reply: CaseLines 007-98
[128]
Sworn Reply: CaseLines 007-98
[129]
Notice in terms of Rule 43: prayer 1.2.1.5, CaseLines 007-3; Sworn
Reply: CaseLines 007-98 to 007-99;
[130]
Sworn Reply: CaseLines 007-98 to 007-99
[131]
Notice in terms of Rule 43: prayer 1.2.1.6, CaseLines 007-3; Sworn
Reply: CaseLines 007-99
[132]
Sworn Reply: CaseLines 007-99
[133]
Notice in terms of Rule 43: prayer 1.2.2 (inclusive of
sub-sub-paragraphs thereto), CaseLines 007-4; Sworn Reply: CaseLines
007-99 to 007-100
[134]
Sworn Reply: CaseLines 007-99 to 007-100
[135]
Respondent’s draft Order: prayers 4.2 and 4.3, CaseLines
007C-18. This tender is echoed in the Respondent’s Practice
Note Comparative Table: CaseLines 007B-18
[136]
Applicant’s FDF: par 3, being table of maintenance
requirements, CaseLines 007-192 to 007-193
[137]
Ibid
[138]
Respondent’s
FDF: par 3, CaseLines 007-349
[139]
Notice in terms of Rule 43: prayer 1.3.2 (inclusive of the
sub-sub-paragraphs thereto), CaseLines 007-4 to 007-5; Sworn Reply:
CaseLines 007-101
[140]
Respondent’s draft Order: prayer 4.3, CaseLines 007C-18;
Respondent’s Practice Note: Comparative Table, CaseLines
007B-18
[141]
Applicant’s
FDF: par 4.4, CaseLines 007-199
[142]
Respondent’s
FDF: par 3.1, CaseLines 007-349
[143]
Notice in terms of Rule 43: prayer 1.3.1 (inclusive of the
sub-sub-paragraphs thereto), CaseLines 007-4; Sworn Reply: CaseLines
007-100
[144]
Sworn Reply: CaseLines 007-100
[145]
Sworn Statement: par 17.2.4, CaseLines 007-13
[146]
Notice in terms of Rule 43: prayer 1.3.4, CaseLines 007-5; Sworn
Reply: CaseLines 007-101 to 007-102
[147]
Sworn Reply: CaseLines 007-101 to 007-102
[148]
Notice
in terms of Rule 43: prayer 1.4.2, CaseLines 007-5
[149]
Sworn Reply: CaseLines 007-102
[150]
Sworn Statement: par 25, CaseLines 007-21
[151]
Sworn Reply: CaseLines 007-102
[152]
Sworn
Statement: par 40, CaseLines 007-26
[153]
Applicant’s
FDF: par 2.13, CaseLines 007-184
[154]
Sworn
Statement: Annexure “MR2” thereto, CaseLines 007-39 to
007-42, Applicant’s FDF: par 3, CaseLines 007-190
to 007-197
[155]
Greenspan
v Greenspan: 2000 (2) SA 283 (C)
[156]
Notice
in terms of Rule 43: prayer 1, CaseLines 007-2
[157]
Sworn Statement: paras 19 and 20, CaseLines 007-14
[158]
Sworn
Statement: par 57, CaseLines 007-31
[159]
Ibid
[160]
Ibid
[161]
Sworn
Statement: par 58, including the subparagraphs thereto, CaseLines
007-31 to 007-32
[162]
Sworn
Statement: par 59, including all subparagraphs thereto, CaseLines
007-32 to 007-34
[163]
Sworn
Statement: paras 60 and 61, CaseLines 007-34, read with Annexure “MR
7.1” thereto, CaseLines 007-72 to 007-83
[164]
Sworn
Statement: Annexure “MR7.2” thereto, CaseLines 007-166
to 007-167
[165]
Sworn
Statement: par 61, CaseLines 007-34, read with Annexure “MR
7.1” thereto, at 007-83
[166]
Sworn
Statement: Annexure “MR 6.1” thereto, being from
Jacobson Talmud Consulting, dated 05 November 2024, CaseLines
007-66
[167]
Sworn
Statement: Annexure “MR 6.2” thereto, being from Gilbey
Forensic & Financial Services (Pty) Limited, dated
05 November
2024, CaseLines 007-67 to 007-68
[168]
Sworn
Statement: Annexure “MR 6.3” thereto, being from Gary
Lewis, Chartered Accountant (SA), dated 07 November 2024,
CaseLines
007-69 to 007-70
[169]
Sworn
Statement: Annexure “MR 6.4” thereto, being from George
Taylor, dated 06 November 2024, CaseLines 007-71
[170]
Sworn
Reply: paras 241 and 242, CaseLines 007-146
[171]
Sworn
Reply: par 244, CaseLines 007-146
[172]
Sworn
Reply: par 243, CaseLines 007-146
[173]
Sworn
Reply: par 245, CaseLines 007-146
[174]
Sworn
Reply: par 246, CaseLines 007-146
[175]
Sworn
Reply: par 247, CaseLines 007-147
[176]
Cary
v Cary:
1999 (3) SA 615
(C); AF v MF:
2019 (6) SA 422
(WCC), at 428
E - F
[177]
AF
v MF:
2019 (6) SA 422
(WCC), at par [30]
[178]
Van
Rippen v Van Rippen:
1949 (4) SA 634
(C), at 638 and 639; SH v MH:
2023 (6) SA 279
(GJ) at par [74]
[179]
Dodo
v Dodo:
1990 (2) SA 77
(W), at par 98 C
[180]
AF
v MF: 2019 (6) SA 422 (WCC)
[181]
Cary
v Cary:
1999 (3) SA 615
(C) at 621
[182]
SH
v MH:
2023 (6) SA 279
(GJ) at paras [89] to [90]
[183]
AF
v MF:
2019 (6) SA 422
(WCC, par [42]; SH v MH:
2023 (6) SA 279
(GJ),
par [105]; J.K v E.S.K
[2024] 1 All SA 775
(WCC), par [53]
[184]
AF
v MF:
2019 (6) SA 422
(WCC, par [28], including the quotation from
Van Rippen v Van Rippen therein
[185]
Sworn
Statement: Annexure “MR 7.1” thereto, CaseLines 007-72
to 007-74 and 007-166 to 007-171
[186]
Bill
of Costs: 007-79, read with Annexure “MR 6.1” to the
Sworn Statement, CaseLines 007-66
[187]
Bill
of Costs: 007-80, read with Annexure “MR 6.2” to the
Sworn Statement, CaseLines 007-67 to 007-68
[188]
Bill
of Costs: 007-80, read with Annexure “MR 6.3” to the
Sworn Statement, CaseLines 007-69 to 007-70
[189]
Bill
of Costs: 007-80, read with Annexure “MR 6.4” to the
Sworn Statement, CaseLines 007-71
[190]
Bill
of Costs: 007-82
[191]
Sworn Statement: par 64, CaseLines 007-36
sino noindex
make_database footer start
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