Y.B v L.B (5413/2020) [2023] ZAGPPHC 185 (28 March 2023)
The premise was that the disadvantaged litigant should be assisted to get to a position of equality of arms with her husband or wife as the case may be. The basis for this was that the court was bound by section 9(1) of the Constitution of the Republic of South Africa to guarantee both parties the rights to equality before the law and equal protection of the law.
BACKGROUND
The parties had been married for 24 years. They had two major sons who were not yet fully self-sufficient. It was not disputed that the Respondent had entered into an extra-marital affair with another woman, with whom he lived. The Respondent moved out of the parties’ former common home on 11 January 2020.
It was not disputed that throughout the parties’ marriage the Respondent had been the main breadwinner. He continued to maintain the Applicant and their sons after he left the common home, yet he strategically started to reduce his contributions to the Applicant.
No proper explanation had been provided by the Respondent for the reductions in his contributions. He did not aver that he did not have the financial means to maintain her in the manner he did before. It appeared that the Respondent was deliberately acting to cripple the Applicant financially.
APPLICANT’S CASE
In her founding affidavit, the Applicant set out in detail the claim and counterclaim the parties filed in the pending divorce action. The court did not delve into those for purposes of this application unless necessary or relevant.
The Applicant submitted that the parties had maintained a high standard of living. The houses that they lived in in Midstream Estate were all luxurious, and they drove luxury vehicles. Since 2015 they had travelled to various African countries for camping holidays. They had visited Namibia, Zambia, Zimbabwe, Tanzania, Kenya, Angola, and more over the years. Some of these overland trips had cost between R250 000 and R300 000.
Since the commencement of the divorce, the Respondent had systematically reduced his contributions to the Applicant and the children. He had actually promised her that he would ensure that she walked out of the divorce with nothing and had stealthily shut her out of his bank accounts and facilities.
Following a letter of demand from the Applicant’s attorneys, the Respondent paid R20 000 per month towards maintenance of the Applicant since approximately February 2020. Applicant had utilised this amount for food, groceries, cleaning materials, clothes, and other incidental expenses. From May 2020 however, the Respondent abruptly reduced this to R10 000 per month and informed her that he was paying the boys directly an amount of R5 000 each since they were no longer minors.
During May 2020 the Respondent stopped payment of the Applicant’s domestic worker’s salary, her fuel expenses, and he also stopped payment of the DSTV premium.
During August 2021 he stopped payment of Applicant’s cell phone expense, and during March 2022 he stopped paying the one son’s “maintenance money”.
During June 2022 both children started working for the Respondent in LJR Project Costing and Management CC, which was when they started receiving a salary as employees. The Applicant was left in dire straits.
The Applicant had stated that her health had deteriorated significantly since her separation from the Respondent. She had been diagnosed with thyroid cancer on 26 January 2020, and during that year, the doctor partially removed her thyroid. The remainder was removed during 2021, and she was prescribed medication. The cancer was in remission. She became extremely depressed and struggled to cope with the trauma caused by the physical and mental abuse that she had suffered at the hands of the Respondent during their marriage. Furthermore, she had to deal with the fear and uncertainty that her cancer diagnosis caused. She thus required treatment from a Psychologist to date.
The Applicant had still worked at Eljen Kitchens as a sales representative. She had earned a 10% commission on completed work for cupboards excluding installation costs. She had also done marketing for and sold blinds for Quantum Blinds. Her income from both endeavors had been meager. The Applicant had sourced an Industrial Psychologist’s report wherein her earning capacity had been assessed and reported on. This report had been disclosed to the Respondent. The picture painted by the report had been rather gloomy. Her current total combined income had been R15 489.63.
The Applicant had filed a Financial Disclosure Form (“FDF”) with this application. Therein she had listed her maintenance needs. She had stated that she had been living on the bread line because she had been unable to pay her normal expenses since the maintenance that the Respondent paid had been wholly insufficient to cover her monthly shortfalls. She had stated further that she had been currently living way below the standard of living that she had become accustomed to during their marriage, which had been very unfortunate, since the Respondent himself had not decreased his standard of living one bit.
The Applicant had listed her monthly maintenance needs (excluding the expenses that had been paid for by the Respondent directly and excluding the amounts that she had spent on their two children and their expenses) as amounting to R39 047.99 per month, leaving her with a shortfall of R23 557.37. It had therefore been evident that the R10,000 per month maintenance that the Respondent paid her had no longer been sufficient to maintain her properly and should have been increased to R23,500.00 per month.
The Applicant had finally submitted that the Respondent had been more than able to pay the maintenance that she had requested and the contribution towards her legal costs. She had accused the Respondent of embarking on a disinformation process about the extent of his income and his estate and of ignoring her requests to be provided with proper documentation regarding his business dealings. She had listed examples to support her claim.
In her founding affidavit, the Applicant provided evidence that the Respondent failed to provide proper information or documentation regarding his financial position, and instead gave her the runaround. The Applicant alleged that the Respondent was concealing his assets and refusing to account properly for the state of the accrual. This led to the Applicant incurring unnecessary legal fees and costs of forensic experts.
The Respondent’s FDF summary of his capital was said to be totally understated. He declared his net asset value to be R6 425 956,62, which was incorrect if his assets and liabilities declared in this form were calculated. The assets included an investment account at ABSA Bank, 2,600 shares in Prospect SA, a total surrender value of policies, the total value of personal belongings, 100% membership in LJR Projects Costing and Management CC, and other assets.
The total value of the Respondent’s assets declared in his FDF was R11 707 326,70, excluding the value of the 2,600 Prospect SA Shares. If these shares were the same asset as the “membership interest in Prospective Tyre Company Investment” declared in the Respondent’s Section 7 reply, valued at R1,9 million, then his total assets would have amount to R13 607 326,70.
The only debt declared by the Respondent in his FDF was a loan of R400 000,00. His net assets, therefore, amounted to either R11 307 326,70 (without considering the shares in a company), or R13 207 326,70 if the shares in the company were the same asset as the one declared in his Section 7 reply.
On 3 March 2022, the Applicant’s attorney caused another Section 7 notice to be served upon the Respondent’s attorney, and also caused a notice in terms of rule 35(3) to be served upon the Respondent’s attorney on 2 March 2022.
The Respondent’s reply to the Section 7 notice was only forthcoming on 30 June 2022. From this declaration of the value of Respondent’s estate, it was apparent how it differed significantly from his last declaration. For example:
The R5 001 380,98 that was previously held in an Absa Investment account did not appear on his section 7 reply and seemed to have disappeared.
The 2 600 Shares that were still declared in the first FDF filed by the Respondent, and declared to have a value of R1,9 million in the Respondent’s first Section 7 reply, were all of a sudden reduced to only 600 shares, and a value of only R210 000,00 was placed on these shares.
The Respondent’s membership in a CC, which the Respondent declared as having a value of R4 603 370,00 in his first FDF, was now declared at a reduced value of R1 294 089,00.
Furthermore, the Respondent declared to be involved in a joint venture in respect of 2 immovable properties, however, no documentation had been discovered in respect of these alleged joint ventures, nor was any information given.
RESPONDENT’S CASE
The Respondent applied for condonation for the late filing of its answering affidavit, the Applicant did not oppose this and condonation was accordingly granted by the court.
The Respondent denied the allegations levelled against him by the Applicant. He asserted that he paid maintenance of close to R47 000.00 per month. He stated that he had done so since May 2020 and had always been willing to reasonably maintain the Applicant pendente lite and had continued to do so.
In his answering affidavit, the Respondent gave details of his business activities and dealings. He elaborated on how he allocated and withdrew certain amounts into different accounts for investment and preservation, etc.
He was evasive as regards the question whether he could or could not afford the amounts she demanded and was silent as regards his spending patterns as alleged by the Applicant.
The Respondent rejected, in sweeping terms, the Applicant’s allegations concerning the standard of living that he and the Applicant enjoyed when living together as a married couple.
ANALYSIS OF THE FACTS AND SUBMISSIONS AND THE LEGAL POSITION:
In Taute v Taute 1974 (2) SA 675 (E) it was held that “relief under rule 43 is intended to be interim and temporary and cannot be determined with the degree of precision and exactitude afforded by detailed evidence.”
In this application, the Applicant also sought an order compelling the Respondent to make a contribution for her legal costs because as things stood, she was litigating at a disadvantage against the Respondent. She already owed her attorney over R368 722,06 as at 22 September 2022, inclusive of costs of experts. The experts were a forensic accountant, a Industrial Psychologist, sworn valuers and a financial adviser.
The Applicant had also attached an estimate of the legal fees and costs that she would likely have to incur up until the first day of trial. These costs included the estimated fees of her attorney, her counsel, as well as the experts. The arrear costs, together with the estimated costs up to the first day of trial, added up to R772 602,06.
The criteria used to determine interim maintenance had been laid down by our courts as being three-fold, namely – (a) The standard of living of the parties during the subsistence of the marriage; (b) The Applicant’s actual and reasonable requirements and (c) the income of the Respondent.
The Judge was of the view that the Applicant was entitled to be maintained at the same standard of living that she enjoyed during the subsistence of the parties’ marriage, subject to the Respondent being able to afford to keep them at that standard of living. It was not expected of her to reduce her standard of living just because the Respondent refused to pay her proper maintenance. After all, the Respondent admitted that because they were still married to one another, he had a duty to maintain her.
The standard of living of the parties was a matter for evidence. In casu, plenty of evidence had been presented. From the Respondent’s bank statements and income and spending patterns, it was clear that he was a man of considerable means. The Respondent continued to conduct his life at a very high standard. It could therefore not be denied that during the days when all was well in the marriage, the Applicant asked for nothing that she could not get. The Applicant’s standard of living had plummeted drastically, all due to the Respondent’s deliberate withholding of proper and reasonable financial assistance from the Applicant.
The Respondent had displayed clear reticence to disclose his financial affairs to the court. He went to the extent of ordering his auditor to withhold financial statements and related documents. All documents disclosed by the Respondent were done so after much cajoling and service of numerous Rule 35(3) notices.
A cursory glance at his bank statements, however, revealed a different picture from the one he sought to paint. It was clear that he spent time and money in clubs and was not averse to taking a flutter on the slot machines when he so fancied.
On behalf of the Respondent, counsel referred to the matter of Taute where it was held that a claim supported by reasonable and moderate details carried more weight than one which included extravagant or extortionate demands. Further, that more weight should be attached to the affidavit of a respondent who evinced a willingness to implement his lawful obligations than to that of one who sought to evade them. The Judge agreed with those assertions, even though ironically, the Applicant’s demands appeared to him to be reasonable and moderate in the circumstances and the Respondent was seeking to evade them.
As regards the contribution for legal cost, the law was clear. The premise was that the disadvantaged litigant should be assisted to get to a position of equality of arms with her husband or wife as the case may be. The basis for this was that the court was bound by section 9(1) of the Constitution of the Republic of South Africa to guarantee both parties the rights to equality before the law and equal protection of the law.
Justice Victor J observed in HS v. H [2022] ZAGPJHC 904; [2023] 1 SA 413 (GJ) at Para 82.
“…In respect of rule 43 applications, Van Rippen, was old authority for the rule that the discretion in determining quantum of contribution to costs must be exercised such that ‘the wife must be enabled to present her case adequately before the Court.'” Referring to Van Rippen v. Van Rippen 1949 (4) SA 634 (C) at 639-40.
The Judge was satisfied that the Applicant had made out a compelling case for the Respondent to pay maintenance to the Applicant pendente lite as prayed for in the notice of motion and for the Respondent to make a contribution to the Applicant’s legal costs.
In the result, the Judge made the following order:
- that the Respondent pay the amount of R23 500.00 per month on or before the 1st day of the month as maintenance for the Applicant. The said payments were to commence on the 1st day of the month following this order.
- that the Respondent make a contribution towards the Applicant’s costs in the amount of R650 000.00 payable in instalments of R100 000.00 per month. The said payments are to commence on the 1st day of the month following the order.
The case was summarized by Bertus Preller, a Divorce Law and Family Law Attorney at Maurice Phillips Wisenberg in Cape Town.
Read the case here: