In the case of B.R v D.R (14189/2022) [2023] ZAWCHC 59, Kusevitsky J found that Rule 43 proceedings was not meant to provide a meal ticket for interim maintenance pending divorce.
Facts
The Defendant in the divorce action, who was also the Applicant in these proceedings, sought interim maintenance relief from the Plaintiff in the amount of R 21,000.00 and an initial contribution to his legal costs in the amount of R 200,000.00. It was noted that Rule 43 proceedings were interim in nature and pending the resolution of the main divorce action.
The court observed that the original purpose of the rule was to assist claimants, usually women, who found themselves in a weaker financial position than their spouse in divorce proceedings. However, in recent times, the rule has been abused by applicants who make unrealistic and inflated claims, which has led to unintended consequences such as delaying the finalization of the main divorce action. The court emphasized that the basic tenets of the rule had been forgotten and, in some instances, abused.
In Taute v Taute 1974 (2) SA 675 (E), the court stated that there is no general principle upon which an application under Rule 43 can or must be based. Each case must depend on its own particular facts. Taute also reiterated that a claimant for maintenance pendente lite was not entitled, as of right, and without more, to maintenance sufficient to keep him or her in the same lifestyle as that enjoyed during the marriage. Hart AJ stated thus: ‘The applicant spouse (who is normally the wife) is entitled to reasonable maintenance pendente lite dependent upon the marital standard of living of the parties, her actual and reasonable requirements and the capacity of her husband to meet such requirements which are normally met from income although in some circumstances inroads on capital may be justified’.
Taute also referred to LUDORF, J. in the case of Levin v Levin and Another 1962 (3) SA 330 (W) at p 331D, who said the following:
“To decide the issues I am compelled to draw inferences and to look to the probabilities as they emerge from the papers. Obviously my findings are in no way binding on the trial Court and indeed after hearing the evidence it may emerge that some or all of the inferences I have drawn are wrong. On this basis I now turn to the issues as they emerge from the papers.”
The judge in this case was required to draw inferences from the papers presented, as there were no witnesses. The parties were married on August 3, 2018, but no children were born during the marriage. The Plaintiff initiated divorce proceedings in April 2021. During the hearing, the Defendant’s counsel argued that the court did not need to consider the allegations made in the Plaintiff’s summons regarding the reasons for the marriage breakdown. However, the Plaintiff’s counsel argued that such allegations were relevant since the Plaintiff was seeking a forfeiture order based on the Defendant’s conduct.
As these were interim proceedings, the judge recognized that the allegations raised by the Plaintiff would be fully explored during the trial. In light of the precedent set by Levin, the judge concluded that these allegations could be disregarded at this stage. The judge also believed that a potential forfeiture claim by a party against whom interim maintenance was sought should be considered when deciding whether or not to grant an interim maintenance order.
In the Defendant’s application, he stated that he was an adult handyman living in a wendy house on a farm in Rooi Els, Western Cape. He claimed that he was unable to support himself and relied on the Plaintiff, who owned a guesthouse and generated income from it, to support him financially. The Plaintiff lived in a four-bedroom, double-story guesthouse, which she fully owned. The Defendant had also resided there until he was ejected from the home.
According to his affidavit, the Plaintiff had paid for the couple’s holidays, weekends away, dining at restaurants, day spas, and upgrades to their former home. The Defendant claimed that he had no significant assets and had earned a monthly income of R 6,983.37 over the past 14 months. He had always worked as a handyman in the informal sector.
In response to the Defendant’s application, the Plaintiff argued that the term “wendy house” was misleading, and the dwelling in question was actually a fully equipped, furnished wooden eco-cabin located outside of Betty Bay in the Western Cape. She stated that they had lived there together from November 2021 until March 6, 2022, when she fled the home in fear for her safety.
The Plaintiff also contended that the Defendant was not just a handyman. She stated that when she met him, he ran a business offering various services, such as garden maintenance, pool cleaning, painting, general renovations, and motor repairs. She further claimed that before their separation, he was employed as an estate agent, indicating that he had the ability to earn an income and support himself.
The Plaintiff went on to explain that, at 52 years old, she had no means to support herself aside from rental income from a two-bedroom self-catering unit in her home and an investment inherited from her late husband. She had no other assets or funds to liquidate to support either herself or the Defendant.
In her opposing affidavit, the Plaintiff stated that the Defendant had not been unlawfully ejected from their shared home. She explained that less than three months after they were married, the Defendant physically assaulted her, dislocating her right-hand middle finger by bending it over backwards. Two months later, he violently smashed his fist through a window after she locked herself in the home to protect herself from his drunken and abusive behavior. Four months after that, he violently threw her against a door and held her in a chokehold, prompting her to obtain a protection order against him. His final assault occurred on March 6, 2022, when he head-butted her in the face, forcing her to flee their home in the middle of the night.
The Plaintiff claimed that, in reliance on the forfeiture order, the Defendant had damaged the property by breaking objects, throwing bricks through glass doors, and cutting the security gate with a grinder to gain access to her. She further stated that she had used the money she inherited to fund the legal costs in the divorce action, the domestic violence proceedings, and now the Rule 43 proceedings. She believed that, by the time the Rule 43 proceedings concluded, all of her money would have been depleted.
The Plaintiff argued that the Defendant had a substantial customer base in the area, was a strong and healthy 32-year-old man capable of generating his own income, and had wealthy parents who could also assist him with his legal fees.
The Plaintiff’s particulars of claim alleged that the Defendant had stopped working and refused to pursue his career as a full-time handyman. When they met, he conducted his business with a Bantam bakkie worth R 30,000. However, he now claimed that the Plaintiff had to maintain the Ford Ranger bakkie that she bought for him. The Defendant’s main argument was that the Plaintiff had more assets and earning capacity than him, and she paid for everything while still enjoying a luxurious lifestyle, including massages and dining out. He believed that the Plaintiff owed him a contribution in line with their family’s expenses. However, in Strauss v Strauss 1974 (3) AD, the court ruled that simply being able to afford more was not enough to justify a claimant receiving higher maintenance. Moreover, a claimant did not have an automatic right to enjoy the same standard of living as their spouse. In the present case, the Defendant had not explained how he had been supporting himself for ten months since their separation. He had also failed to disclose whether he had taken steps to supplement his income, and on the Plaintiff’s version, he had deliberately omitted to mention that he was working at an estate agency. As in Strauss, the Defendant had failed to provide a convincing reason as to why his maintenance could not be supplemented by his own income. The judge found no grounds for awarding the Defendant maintenance pendente lite and nothing to suggest that he was completely incapable of supporting himself.
With regard to the Defendant’s claim of R 200 000 for a contribution to costs, the Defendant submitted that the paramount consideration was that a claimant must be placed in a financial position adequately to place his case before the court, taking into account the circumstances of the case, the financial position of the parties and the particular issues involved in the pending litigation. The Defendant submitted that the court in rule 43 proceedings could direct payment of legal costs that a party had already incurred. In the judge’s view, such an approach would be manifestly unjust, given the particular allegations raised on the papers of serious domestic violence abuse, and where it was the Plaintiff that had had to incur legal expenses in order to protect her life and her rights. The Defendant also claimed that he had a fair and reasonable prospect of success with his claim, and that this justifies his entitlement to interim maintenance and costs. The judge was not persuaded by this argument. In her view, a fair and reasonable prospect of success was a general contention and as factor entitling a party, as of right, to interim maintenance was misguided. In her view, the probabilities lay more in favour of the Defendant having a reasonable prospect of success in her forfeiture claim, which was a factor that she took into consideration to refuse a contribution of costs. The judge stated, “Even if my approach is strong on this score, for the reasons advanced above, I am of the view that the Defendant has not persuaded me that a contribution to costs is justified in this instance.”
Regarding the Defendant’s claim for R 200,000 as a contribution to costs, he argued that the paramount consideration was ensuring that a claimant could adequately present their case, taking into account the circumstances of the case, the financial position of the parties, and the particular issues involved in the pending litigation. The Defendant also claimed that the court in rule 43 proceedings could direct payment of legal costs that a party had already incurred. However, the judge found this approach to be unjust given the serious allegations of domestic violence and abuse raised on the papers, and the fact that it was the Plaintiff who had incurred legal expenses to protect her life and rights.
The Defendant also argued that he had a fair and reasonable prospect of success with his claim, which justified his entitlement to interim maintenance and costs. However, the judge did not find this argument persuasive. She viewed the fair and reasonable prospect of success as a general contention that did not entitle a party to interim maintenance as of right. In her opinion, the probabilities were more in favor of the Defendant having a reasonable prospect of success in her forfeiture claim, which was a factor she considered in refusing a contribution to costs.
The judge concluded that even if her approach was incorrect on this point, the Defendant had not convinced her that a contribution to costs was justified in this instance.
As stated in Nilsson v Nilsson 1984 (2) SA 294 (C) at 295F, a rule 43 order is not meant to provide an interim meal ticket to a person who quite clearly at the trial would not be able to establish a right to maintenance. Finally the judge took the view that it would also be manifestly unfair to expect the Plaintiff to fund the Defendant’s legal fees from the investment that she received from her late husband’s inheritance.
For all of the reasons, the judge made the following order:
1. The application is dismissed with costs.
Case summary by Bertus Preller, Family and Divorce Law Attorney at Maurice Phillips Wisenberg in Cape Town, South Africa.