S.K v J.L.K (3198/23) [2023] ZAWCHC 62 (24 March 2023) – THULARE J
The requirement in Rule 43 for a just order places a duty not only on the courts but also on applicants to base their applications and their conduct on what is morally right and fair. It required a dispassionate approach to the application, guided by truth and reason. Over four months, the applicant spent approximately R186,524.92 on online gambling.
This case involved a contested rule 43 application where the applicant sought maintenance for herself and her two minor children pending divorce, including monthly vehicle payments, home maintenance costs, retention of movable items in the house, and an amount of R439,940 for legal costs without deductions or set-offs. An interim order was in place, with the children spending equal time with both parents, and the respondent covering certain expenses for the children. The respondent agreed to continue these payments for child maintenance. Regarding the jointly-owned matrimonial property, the respondent argued that they could not afford to keep it and proposed selling it, dividing the net proceeds equally. The respondent also claimed that the applicant could afford her own maintenance and legal costs.
The question at hand was whether the requested order was a just and expeditious decision to be made.
THULARE J addressed this matter in the urgent court, primarily due to his interpretation of the order issued by Cloete J on February 16, 2023. The relevant provision stated:
“5. The applicant shall cooperate with any child-care expert appointed by the respondent if the respondent chooses to appoint her own expert, who must be appointed within 3 weeks of this order, if any.”
The applicant chose to appoint her own expert and urgently needed funds to engage an expert who would represent her interests and those of the children in the care and contact dispute within the timeframe specified in the court order. The identified expert required a deposit, which the applicant claimed she was unable to provide.
The parties got married in April 2016 under an ante-nuptial contract that excluded community of property and accrual. The couple had twin children born in 2019. The respondent served the applicant with divorce summons on January 23, 2023, and initiated an urgent application for care and contact with the children. In his particulars of claim, the respondent requested that both parties contribute to the children’s maintenance according to their respective means. The applicant actively obstructed the respondent from having regular contact and care for the children as he had done previously and insisted on limiting his contact with them. The applicant even informed the principal of the preschool that she would do everything in her power to exclude the respondent from the children’s lives. This behavior prompted the respondent to seek a care and contact order from the High Court. The applicant also filed a pending domestic violence application.
During the marriage, the respondent paid for the applicant’s car insurance and short-term insurance. In January 2023, the respondent canceled these policies, and the applicant moved them to her own policy. The respondent was previously the primary member of the family’s medical aid scheme, with the applicant paying the premiums. The applicant removed herself and the children as beneficiaries of the respondent’s plan and stopped paying the premiums. She then enrolled herself and the children in a separate medical scheme. The respondent covered the levy, rates, and taxes, but the applicant later requested the managing agents to send these bills to her. The interim domestic violence order required the respondent to leave the shared home, so he moved in with his parents and was in the process of securing rental accommodations.
The parties have historically had equal earning capacities and have always contributed to household expenses in equal shares. The applicant earned around R58,000 before switching jobs to become an independent broker in January 2023. In January, her fee income was R26,784.58. The applicant changed positions due to the new job’s significant earning potential, which could reach R100,000 per month, resulting in increased income as she established herself in the new role. The respondent’s gross income was R73,170.29. Occasionally, he bought goods at auction and resold them for profit, earning between R10,000 and R15,000. He had a pension fund valued at R873,538.08 and a retirement annuity worth R442,493.85. His savings were depleted due to ongoing litigation and relocation. The respondent’s vehicle, valued at R400,000, was fully paid off. The applicant had a retirement annuity worth R200,000, a provident fund valued at R173,190.04, and had refinanced her vehicle to the value of R450,000.
The parties’ shared home was worth around R4,000,000, with approximately R254,833 still owed to the bank on a mortgage. During their marriage, the parties divided responsibilities for their monthly household expenses. The applicant covered groceries and toiletries, internet, clothing for the family, medical aid premiums for the entire family, monthly mortgage repayments, and extracurricular activities for one child. The respondent paid for bulk meat, which was considered separate from groceries, the children’s school fees, levies, rates and taxes, vehicle and short-term insurance premiums, gardener and house helper’s salaries, extracurricular activities for one child, and one child’s lift club.
The true liabilities for each party were about R300,000. This figure was considered “true” by the Judge because, among other things, the applicant listed an R80,000 loan from a friend, which bank statements showed had been repaid. The applicant also included R100,000 in attorney fees in her liabilities, but bank statements revealed that this amount had been paid and was not outstanding. Additionally, there were amounts on both the overdraft and revolving credit plans that had been repaid, resulting in lesser amounts than those stated in the applicant’s founding affidavit. A concerning pattern of gambling by the applicant was revealed in the bank statements, with credit card spending on online gambling of R23,613.51 in September 2022, R48,136.69 in October, R69,592.52 in November, and R45,182.02 in December 2022. Over four months, the applicant spent approximately R186,524.92 on online gambling. She claimed to be indigent, but her application to refinance her vehicle on February 15, 2023, indicated a disposable income of R24,145.93.
The Judge commented: “The applicant needs accommodation, but not that which may be beyond her means. Just like every average South African on finances, she must cut her cloth to the size of her dress. Where the parties have equal, although not similar earnings, and they share care and contact equally, without more, in my view it was not established that the applicant deserved to be paid anything by the respondent for the period that the children are with her. The respondent paid for water, electricity, rates and taxes for the property. I fail to see the wisdom of redirecting that expense from the respondent to her through the managing agents, and then claiming that amount in a rule 43 application. This kind of conduct, where on the eve of divorce or immediately after service of divorce summons the role of a party in the maintenance of the spouse or the children was sought to be erased or the effect thereof scraped out, whilst the liabilities and expenses are inflated or amassed ostensibly to make up a case for a rule 43 application, need not be encouraged. The applicant cannot claim for the transport of the son, for which the respondent was paying.”
The judge had remarked, that the inclusion of these kinds of expenses, including medical expenses at R1000 per month per child, when the respondent was paying and had tendered to continue paying such expenses, suggested that the items were included simply to inflate and increase the expenditure on the children. It was not for the court to tell the applicant how to run her life and what to do with her earnings. As a result, it was generally none of the court’s business that she elected to pay R6000 for life cover and R10,000 per month for an annuity. However, when she used that to advance a case that she couldn’t afford her lifestyle and wanted the court’s intervention for the respondent to pay for it, it became the court’s business. These amounts were excessive when considering the parties’ earnings. This was even more so when one considered that the life cover was taken out over the life of the applicant’s father. This was an expense that was not only excessive but also unnecessary.
The requirement in Rule 43(5) for a just order, in the judge’s view, placed a duty not only on the courts but also on applicants to base their applications and their conduct on what is morally right and fair. It required a dispassionate approach to the application, guided by truth and reason. As much as family law matters were inherently emotionally charged, it is expected of an applicant to strive not to be influenced by strong emotions or affected by personal bias. This would allow some measure of calm, enabling them to think rationally and make good decisions. A Rule 43 application remained a process of balancing the scales for a just divorce process and provided temporary assistance for the support of the spouse and the children and to enable a party in an unfair position to present its case adequately before the court.
The Judge was further of the view that Rule 43 was not created to provide an interim meal ticket Nilsson v Nillson [1984] 1 All SA 520 (C) at p. 520. The rule was enacted to ensure justice, in that the parties were treated fairly vis-à-vis one another. The Judge added that the rule was also not intended to result in an order which would, for all intents and purposes, be a certificate of exemption for legal practitioners from some risk, namely, that their fees were covered in advance. The totality of what was covered by the rule had its basis in the duty of support that the spouses owed each other Carry v Carry 1999 (3) SA 615 (C) at 619H-I and parents owed to their children.
The applicant had exaggerated her expenses and understated the support that the respondent provided to her and the children. This was dishonorable conduct, according to the Judge which had no place in judicial proceedings Du Preez v Du Preez 2009 (6) SA 28 (TPD) at 32D-E. The parties in rule 43 proceedings had a duty to act in utmost good faith and to disclose fully all material information regarding their financial affairs, and failure to carry out this duty would justify refusal of the relief sought Du Preez, at 32G-H. The needs of the parties and their respective available means did not persuade the Judge that the order as prayed for would have been fair vis-à-vis the parties under the circumstances.
In the Judge’s opinion, the rule was not envisioned for the parties to have identical means. If that were the case, experience has taught that some divorce actions would last for the lifetime of the parties involved and as long as the legal practitioners’ fees were covered in advance. The rule was intended for the parties to have equal means, allowing them to engage with the issues between them on an equal footing. Equality encompasses the paradox of similarities and differences in one whole. It was necessary to note that equality was sometimes a logically self-contradictory concept, which can run counter to other people’s expectations. The Judge commented: “Equality may involve contradictory yet interrelated elements. I understand equality, in the context of a rule 43 application, to accept the difference between available means between the parties, for as long as that difference does not amount to an unfair advantage for one party at the expense of the other and lead to unjust divorce proceedings.”
For the above reasons, a just decision was to dismiss the application with costs, such costs to include costs of counsel.
Authored by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town, Bertus was recognized by Business Day in 2023 as one of the leading lawyers in his field.
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