M.C.M v B.M (D12093/2023) [2024] ZAKZDHC 100 (12 November 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN

THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL LOCAL DIVISION, DURBAN

CASE NO: D12093/2023

In the matter between:

M[...] C[...] M[...]

PLAINTIFF/APPLICANT

and

B[...] M[...]

DEFENDANTIRESPONDENT

ORDER

The following order shall issue:

1. The orders in paragraphs 1, 2, 3, 4, 5 and 7 of the notice of motion are granted.

2. The order in paragraph 6 of the notice of motion is not granted.

JUDGMENT

GWAGWA AJ

Introduction

[1] The applicant is M[...] C[...] M[...], an adult female businesswoman, who reside at 1[...] B[...] Road Parkhill, Durban North, KwaZulu-Natal.

[2] The respondent is B[...], M[...], an adult male businessman, who resides at 2[...] C[...] C[...] P[...], Roswell Georgia, United States of America.

[3] The parties were married to each other out of community of property and subject to the accrual system, on 26 October 2013 and such marriage still subsists.

Nature of the case

[4] This is an application in terms of rule 43, pendente lite where the applicant seeks maintenance from the respondent in an amount of R26 544 per month.

[5] The applicant has also filed a detailed list of maintenance which is referred to herein as the "Maintenance Schedule", estimated at R56 499. The Attorney's costs estimated at R49 420. Whereas Annexure "C" consists of estimated legal costs post rule 43 application to case flow management which is estimated at R100 000, which appears from page 17 to 21 of the applicant's founding affidavit.

[6] The respondent has vehemently opposed such application for maintenance pendente lite.

[7] The applicant states that, she owns a catering company called Kitchen Confident, which is a sole proprietorship, and the income received from the company varies between R20 000 R40 000 per month. She also pays R800 for the chef and R300 for other staff members.

[8] However the applicant concedes that she has no claim to lodge for her son J[...] against the respondent who is enrolled as a student at the University of Stellenbosch.

[9] According to the applicant's heads of argument, the stand out claim amount against the respondent is the sum of R21 793.

[10] The applicant further argues that the respondent has usually made payment of R27 874 towards the applicant's monthly living costs, which are listed in the sworn affidavit of the applicant

[11] The respondent has been paying at least R25 948 for the applicant's monthly expenses for at least two years.

[12] The respondent contends that he earns a sum of R112 996 per month, however the respondent has not provided a single pay slip to the court in order for the court to make its determination.

[13] The respondent further argues that applicant should find an accommodation worth R1 000, however the applicant argues that it is the respondent who has spent more money on accommodation, which is approximately R13 500 a month.

[14] The applicant has also incurred a sum of R49 420 for legal costs. The applicant also concedes that she is not entitled to all her legal costs, nevertheless a certain substantial amount towards her legal costs should be considered.

[15] The total earnings of the respondent according to the applicant's calculations is the sum of R797 721.68 per annum, which equates to a monthly income of R66 476.81, whereas the respondent has claimed to earn approximately R55 707 per month.

[16] The respondent further alleges that he was in the process of extending his contract with his employer, as it was expiring towards the end of June 2024. The respondent did some work oversees for a period of approximately eight years in Australia.

Issue to be decided

[17] The issue to be decided by the court is whether the applicant has made a prima facie case for maintenance pendente lite or not, and if so whether the respondent can afford the amounts claimed by the applicant. The court will therefore exercise its discretion and apply the law accordingly.

Case law

[18] In the case of Van Rippen v Van Rippen[1] the court held that "in the exercise of that discretion the court should have the dominant object in the view that having considered the circumstances of the case, the financial position of the parties, and the particular issues involved, the wife must be enabled to present her case adequately before court".

[19] In Lourens v Lourens,[2] the court refused to order the husband to pay legal costs that had already been incurred by the wife. It held that '... such an order should have been applied for in advance, otherwise there would be, or might be, no control over the costs to be incurred.'[3] The court was of the view that it did not have the power to retrospectively award already incurred costs.

[20] In Z.G v J.G.C.G[4] the court highlighted that:

'The applicant, as the financially weaker spouse who is allegedly struggling to pay for her legal fees, must demonstrate her lack of means by fully and frankly disclosing all elements that make up the broad overview of her financial situation. By so doing, the applicant will be demonstrating the need for financial support.. .'[5]

[21] Furthermore in A.LG v L.L.G,[6] the court recognised that there is a need to consider and apply constitutional ideals when interpreting rule 43, it correctly cautioned that:[7]

'It is an approach that recognises that a contribution towards costs is not the same as a warrant to litigate at any scale of the applicant's choosing if that is disproportionate to the apparent reasonable requirements of the case or the means of the parties and the scale upon which the respondent is litigating. An entitlement to a contribution towards costs should also not be seen as equating to a licence to risk-free litigation.. .'

Analysis

[22] First and foremost, the applicant was entitled to bring an application pendente lite, by virtue of the marriage entered into between the parties. In terms of rule 43 the applicant is entitled to bring such application for maintenance. According to the applicant's Advocate , Camp the applicant claims maintenance in an amount of R26 544 per month.

[23] The applicant further claims an amount of R21 793 as per the heads of argument.

[24] The court has already taken into consideration that the applicant has made a prima facie case in establishing that she is entitled to receive maintenance from the respondent. In fact the respondent concedes that he has made certain contributions towards maintaining

the applicant.[8]

[25] Although no specific amount has been mentioned in the respondent's answering affidavit, he concedes to having contributed a certain portion of maintenance towards the applicant. The respondent further confirms that he was employed by Magic Orange on a fixed term contract until June 2024 and was on the verge of extending his contract. When his matter was argued in court, there was no indication whether the respondent was gainfully employed or whether his contract was extended by his employer.

[26] The court has taken into consideration that the respondent has not attached his salary advice in order to assist the court with ascertaining his salary.

[27] It is also not in dispute that the applicant owns Kitchen Confident and the earnings or income derived therefrom varies from R20 000 to R40 000. The fact remains that the respondent is aware of the existence of the company. The respondent works in the information technology (IT) sector as an IT Architect.

[28] The main issue that the court should determine is whether the applicant is entitled to the order prayed for in her notice of motion regarding maintenance considering that there are two different amounts mentioned in her notice of motion and heads of argument. In her notice in terms of rule 43, she has claimed for R26 544, but in her heads of argument she has claimed for a sum of R21 793 which is regarded as reasonable expenses by the applicant.

[29] The respondent concedes earning approximately R 112 996. Per month.

[30] The court has firstly established that first the applicant has made a prima facie case for maintenance and secondly that the respondent is able to maintain the applicant, to a certain degree.

[31] Counsel for the respondent, Advocate Skinner, argued that the applicant has not made out a case for maintenance pendente lite as he argued that the figures (R26 544.00) mentioned in the applicant's notice in terms of Rule 43, were not supported by bank statements. However, there is no dispute as to the existence of the applicant's business, which is a sole proprietorship and where her income varies from R20 000 to R40 000. However the court has to exercise its discretion regarding the exact amount to be granted in favour of the applicant considering that two different amounts were being claimed by the applicant, in line with the principle applied in the case of Van Rippen mentioned in paragraph 18 above.

[32] Nonetheless the draft order suggested a sum of R21 793 per month, which is reasonable under the circumstances. The court is also inclined to agree with this amount considering the earnings of the respondent.

[33] However, the court is not inclined to grant legal costs already incurred by the applicant, which was the principle applied in Lourens v Lourens. This court is not convinced that the respondent should be directed to pay the initial contribution of legal costs in the sum of R49 420 which has already been incurred by the applicant.

Order

[34] The following orders shall issue:

1. The orders in paragraphs 1, 2, 3, 4, 5 and 7 of the notice of motion are granted.

2. The order in paragraph 6 of the notice of motion is not granted.

[1] 1949 (4) SA 643 (C).

[2] Lourens v Lourens (1928) 49 NPD 412.

[3] Ibid at 413.

[4] Z.G v J.G.C.G [2024]

ZAGPPHC 18.

[5] Ibid para 63.

[6] A.L.G v L.L.G [2020]

ZAWCHC 83.

[7] Ibid para 19.

[8] See page 34 para 18 of the respondent's sworn affidavit.