Equality of Arms Upheld: Court Orders Husband to Contribute R805,903 Towards Wife’s Legal Costs in Rule 43 Proceedings.

Y.M v T.J.M (26526/2022) [2023] ZAGPPHC 582 (13 July 2023)

The case involved a dispute between two parties identified as Y.M. and T.J.M. This was an application in terms of Rule 43 specifically regarding interim maintenance, a contribution towards legal costs and parental responsibilities and rights under the Children’s Act 38 of 2005.

The applicant sought the following relief pendente lite (pending the ongoing litigation):

• Both parties retain their parental responsibilities and rights in terms of sections 18, 19, 20 of the Children’s Act 38 of 2005 in respect of the minor children.
• Primary residency and care of the minor children be awarded to the applicant.
• The respondent be entitled to specific parental responsibilities and rights with regard to contact with the minor children as contemplated in section 18(2) (b) of the Children’s Act 38 of 2005.
• The respondent be ordered to contribute towards the maintenance of the minor children and the applicant.
• The respondent to make a contribution towards the applicant’s legal costs.

Factual background

The parties married on 17 September 2016, and the marriage was out of community of property subject to accrual. They had three minor children born out of the relationship. The applicant (the wife) had moved out of the marital home on 21 November 2021 following an alleged altercation she had with one of the respondent’s (the husband’s) sisters. She then resided with her parents along with the minor children. Divorce summons were issued on 20 September 2022. The applicant had instituted the current Rule 43 application on 2 December 2022.

The applicant had been struggling to find employment since she no longer resided with the respondent. She had been attempting to manage her own material printing business called Fat Quarter, which was not generating any profit at that time. She was staying at her parental home with the parties’ three young children in Centurion, which was approximately 280 kilometers away from where the respondent resided.

She had approached the court for relief, alleging that the respondent had refused to reconsider his current maintenance contribution in light of the birth of the third child. She alleged that there had been a substantial accrual in the respondent’s estate, which was hidden behind the veil of a company and a Family Trust. To her knowledge, the respondent, his two sisters, and his brother were the beneficiaries of the Trust which owned shares in the company.

The wife alleged that the husband had substantial assets hidden in a company and a trust, and she was seeking the court’s intervention to secure financial support for herself and their three minor children.

The respondent claimed that he did not receive assistance from the Company or Trust. However, the court found this claim to be unconvincing and improbable, especially considering the respondent’s financial obligations. The respondent listed his needs, including food, toiletries, laundry, lunches, telephone and cell phone, clothing, school uniforms, and personal care, among others. He alleged that he was using a loan from his father to meet his financial obligations but failed to indicate the terms of repayment, if any.

The applicable legal principles

The court discussed the principle of “equality of arms” in divorce litigation. It stated that the applicant should be allowed to litigate fairly and competently. The court found that the applicant had shown the need for legal costs and that the interest of justice permitted the applicant to litigate on the same level as the respondent. The court also mentioned that the respondent should not view the applicant as a “meal ticket” but should rather view the maintenance claim in light of the marital relationship and the standard of living during the marriage. See: Nilsson v Nilsson 1984(2) SA 294 (C) at 295F. The court also emphasised the fact that the purpose of maintenance pendente lite is to supplement expenses which the applicant could not need and referred to the case of Botha v Botha 2009 (3) SA 89 (WLD) at 106C. In addition the court also placed emphasis on the fact that another purpose of rule 43 years to provide an inexpensive remedy primarily for the benefit of women and children. See: S v S and Another [2019] ZACC 22.

The court explained that Rule 43 requires parties to fully disclose all material information regarding their financial affairs to enable the court to make an order that is just and expeditious. The court also referred to the case of S v S, which enjoins courts to ensure that the financial burden is alleviated by ensuring that the legal framework operates effectively. The court stated that in a Rule 43 application, the onus is on the applicant to make out a case with regard to the need for the maintenance pendente lite and the respondent’s ability to pay. See EH v SH 2012 (4) SA 164 (SCA). One of the fundamental principles for an award of maintenance is the ability to pay on the spouse from whom the claim for maintenance is sought. The court referred to the case of Levin v Levin 1962 (3) SA 330 (W), which articulated the approach to such applications and where the following was held “To decide the issue I am compelled to draw inferences and to look to the probabilities as they emerge from the papers.”

The court referred to the case of MC v JC (29301/2020) [2021] ZAGPJHC 373 (8 September 2021) para [4], where it was held that the aim of any Rule 43 order is to avoid substantial prejudice to either party pending divorce. It is not to provide a precise account of what is due to or from either party, according to the parties’ or the court’s sense of morality, propriety, the blameworthiness of the parties’ conduct during the marriage, or their habits of living after the separation. The court discussed the principle in respect of contributions towards legal costs, stating that it is based on the duty of support that spouses owe to each other. The assessment of the quantum is at the discretion of the court at the scale commensurate with the means of the parties. See: Glazer v Glazer 1959(3) 928(W). There are constitutional considerations in such applications. Section 9 of the Constitution of South Africa of 1996 provides that everyone is equal before the law and has the right to equal protection and benefit of the law. Once an applicant has shown that there is a need for support, in order to determine whether the maintenance sought is reasonable, various factors are taken into account such as:

• Applicant’s actual and reasonable requirements or needs;
• The standard of living of the parties during the marriage;
• Respondent’s ability to pay the maintenance that is required.

Submissions

Counsel for the applicant (the wife) argued that the respondent (the husband) was not being truthful about his financial situation. The counsel pointed out that the respondent’s lifestyle and the standard of living he provided for his family during the marriage were not consistent with his claimed financial status.

The counsel argued that the respondent was able to provide for all the needs of the family, including the provision of a vehicle for the applicant’s personal use. The withdrawal of this vehicle, according to the counsel, was a denial of the applicant’s right to dignity, as it affected her basic standard of living.

The counsel further argued that the respondent had the means to provide maintenance for the applicant and their children, and that the respondent’s claim of financial incapacity was not credible. The counsel pointed to payments made into the applicant’s bank account as evidence of the respondent’s ability to provide financial support.

The court discussed the respondent’s (the husband’s) financial situation. The court found it improbable that the respondent was not receiving assistance from the company or trust, given the lifestyle he was able to provide for his family. The court referred to the case of SC v SC (A263/2016) [2017] ZAGPJHC 289 (1 August 2017), where it was held that the court must look at the probabilities when assessing the respondent’s financial situation. The court discussed the applicant’s financial needs. The court found that the applicant had shown a need for maintenance and that her parents were financially assisting her. The court found it improbable that the applicant, who was experiencing a financial shortfall, would want to be a financial burden to her parents. The court also found it unacceptable that the applicant’s parents should be burdened to provide her with financial support, as the duty of support lies with the respondent. The court discussed the applicant’s housing situation. The court found the applicant’s reasons for moving out of the marital home to be persuasive and probable. The court held that the applicant has the right to proper housing not only for herself but for the minor children. The court referred to sections 26 and 28 of the Constitution of the Republic of South Africa, 1996, which guarantee the right to adequate housing.

Evaluation

The court found that the applicant had proven her need for maintenance, as she was not self-sufficient and was being financially assisted by her parents. The court found it improbable that the applicant, who was experiencing a financial shortfall, would want to be a financial burden to her parents. The court also found the respondent’s claim that the applicant earns an income in cash or in kind from several businesses to be improbable. The Applicant’s initial financial disclosure form had reflected that she had capital liabilities in the amount of R82 265, which were credit cards. She had listed a printing business as her business interest and initially indicated that she did not generate any income from it. She had disclosed that she was a beneficiary to two Family Trusts, which were both dormant. She had disclosed that she had received an amount of R11 250 (eleven thousand two hundred and fifty rand) for contract work.

The court accepted that the applicant had proven that she was in need of maintenance and that her parents were financially helping her. The court found it illogical and improbable for the applicant, who was experiencing a financial shortfall, to want to be a financial burden to her parents. The court also found the respondent’s claim that the applicant earns an income in cash or in kind from several businesses to be improbable.

The court then moved on to determine whether the respondent had the means to provide the maintenance that the applicant needed. The court noted that the applicant had been provided with a Toyota Fortuner for her personal use while she resided with the respondent. The court found it illogical that the provision to use this vehicle was withdrawn, forcing the applicant to borrow her parents’ vehicle. The court viewed this as a denial of the applicant’s right to dignity, as guaranteed in section 10 of the Constitution.

The court also noted that there was no real dispute that the parties had lived a comfortable lifestyle. The only issue was who provided the lifestyle. The applicant alleged under oath that the standard of living she and the respondent enjoyed was such that they only needed to buy basic groceries because the business paid for all of their needs. She also stated that it was the agreement they reached with the respondent that she must not work but instead look after the children. The court found these allegations to be substantiated by the payments made into the applicant’s account.

The court discussed the respondent’s financial situation. The court noted that the respondent had not provided any evidence to substantiate his claim that he was not receiving any financial assistance from the company or trust. The court found it improbable that the respondent was not receiving any financial assistance, given the lifestyle he was able to provide for his family. The court also noted that the respondent had not provided any evidence to substantiate his claim that the applicant was earning an income in cash or in kind from several businesses. The court concluded that the respondent had the means to provide the maintenance that the applicant needed.

Order

The court made the following pendente lite orders:

1. Both parties retain their parental responsibilities and rights in terms of section 18, 19, 20 of the Children’s Act 38 of 2005 in respect of the minor children, subject to the conditions below.
2. The primary residency and care of the minor children is awarded to the Applicant.
3. The Respondent (the husband) is entitled to specific parental responsibilities and rights with regard to contact with the minor children as contemplated in section 18(2) (b) of the Children’s Act 38 of 2005. The Respondent is entitled to contact under the supervision of the Applicant or a person nominated by her every alternative weekend on Saturday from 09H00 to 12H00 and Sunday from 12H00 to 15H00 at the Applicant’s parents’ place of residence.
4. The Respondent is ordered to contribute towards the maintenance of the minor children and the Applicant as follows:

• By paying an amount of R42 600 per month from the 1 August 2023.
  • The Respondent pays the school/day care/pre-school fees of the minor children within seven days when such fees are due.
  • The Respondent pays the expenses in respect of the minor children’s school requirements (including uniforms, stationary, aftercare, clothing, extra mural activities, and all clothing and equipment in respect of the extra mural activities).
  • The Respondent is to continue the monthly medical aid premium payments as well as any expenses not covered by the medical aid.
  • The Respondent is to make available the Toyota Fortuner or a roadworthy motor vehicle of a similar nature to the Applicant for her use pendente lite within 15 days of this order.
  • The Respondent is to contribute towards the Applicant’s legal costs in the amount of R805 903.
  • The Respondent’s counter application was dismissed.

Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.