W v W (8010/2017) [2017] ZAGPPHC 1139 (7 August 2017)

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

(GAUTENG DIVISION, PRETORIA)

(1) NOT REPORTABLE.

(2)

NOT OF

INTEREST TO OTHER JUDGES

(3)

REVISED

CASE N0 :8010/2017

7/8/2017

In the matter between:

T

A W

Applicant

and

T W

Respondent

Date of Hearing

:

20 July 2017

Date of Heads of Argument

:

27.July 2017

Date of Judgment

:

07 August 2017

JUDGMENT

MANAMELA, AJ

Introduction

[1] The applicant seeks an order, pendente lite, in this application based on Uniform Rule 43, in terms of which the respondent is allowed contact with their two minor children only every other weekend and ordered to pay maintenance towards her in an amount ofR12 000.00 per month and the children in an amount of R9 000.00 per child per month, and initial contribution towards her legal costs in an amount of R30 000.00. The application is opposed and the respondent also filed a counter application of his own primarily with regard to his contact rights with the children. The parties are involve d in what appears to be a vigourously contested divorce action.

[2] The application was enrolled for hearing on 19 July 2017, but was stood down to the following day on 20 July 2017 due to scheduling problems. At the hearing, Ms K Potgieter appeared on behalf of the applicant and Ms G Kyriazis appeared on behalf of the respondent. Both counsel agreed, or so it appeared to me, that the costs for 19 July 2017 will have to be costs in the divorce act ion. I consider this to be an appropriate order under the circumstances and it will be so ordered.

[3] At the commencement of the hearing, counsel for the respondent raised from the bar two points in limine from the bar. The first point in limine was with regard to the prolixity attaching to the volume or size of the applicant papers. The second point in limine was for striking out what is considered privileged information contained in the applicant's papers regarding material coming from the discussions the parties and their attorneys had at some meeting. Counsel for the respondent had prepared heads of argument overnight which also dealt with the aforementioned points in limine. There was an objection to the timing of these points in limine and also the production of the heads of argument. Although, I found the latter objection rather pointless, in the interests of justice, I directed that the applicant be allowed an opportunity to file heads of argument and the respondent to supplement his heads of argument in reply. This, in my further view, saved time and allowed the hearing to continue unhindered and with both counsel and their clients having an·ample opportunity to address me on the issues. This judgement had to be reserved to allow the respondent to file the heads of argument by not later than Monday, 24 July 2017 and the respondent to supplement his heads of argument by not late r than Thursday, 27 July 2017. I am grateful to counsel for the detailed heads of argument, although I still have to pronounce on the point in limine regarding prolixity or verbosity in the applicant' s papers.

[4] The raft of the main orders sought by the applicant are essentially as stated in the first paragraph above, being for: maintenance of the minor children in an amount of R9000.00 per month per child and the applicant in a mount of RI2 000.00 per month; parental responsibility of the minor children to be retained by both parents, with the care and primary residence of the children awarded to the applicant; rights of reasonable contact with the minor children awarded to the respondent, but with no physical contact of

the children with the respondent during the week and only every alternative weekend, and initial contribution towards the applicant'

s legal costs in an amount of R30 000.00.

[5] The parties are in agreement with regard to the parental responsibilities and care and primary residence of the minor children. The disputes to be resolved are with regard to the nature and extent of the rights of contact by the respondent with the minor children; the appropriate a mount of maintenance and liability regarding the initial contribution towards legal costs.

[6] Further, the applicant prays as part of the order to be made for the respondent to be ordered to pay the children's school fees and school-related expenses; retention of the children on the respondent's medical aid; payment for the DSTV and insurance on household contents; and payment of her motor vehicle monthly instalment and insurance premium. As also indicated above, the respondent filed a counterclaim in terms of which he seeks contact with the minor children over the weekend and during the week.

[7] I will deal with the issues under the following three main headings: contact rights; maintenance and initial contribution towards legal costs. But, first I tum my attention to the points in limine and a brief narration of the background issues relevant for current purposes.

Prolixity or verbosity in the applicant's [first point in limine]

[8] It is contended in this regard that the respondent objects to the length or size of the applicant's papers. The actual sworn statement

comprises 23 pages and with annexures 55 pages. It is submitted that this constitutes abuse of the process of Court and the application

ought to be struck or " dismissed"[1] on this ground. The respondent also mentioned that, as a result, he was compelled to also lengthen his affidavit, although he tried his earnest to avoid verbosity. His statement is m de up of 43 pages, in the main text, and 54 pages by way of annexures.

[9] I agree that the applicant could have performed better in the limitation of the amount of annexures attached to her papers. However, I do not consider the material included in her papers to have unnecessarily added to the volume and I am actually of the view that, the material positively contributed towards the determination of the issues in the application. On the other hand, this is not to say that the rules and practice of this Court ought not to be observed and I, for that reason, consider the respondent's concerns to have been justified. However, in the circumstances, whilst I dismiss this point in limine, I will not make any order as to costs.

Privileged information or application to strike out [second point in limine

[10] The respondent also complained about the inclusion of some paragraphs in the applicant' s sworn statement supporting the application. It is submitted that the material which arises from the roundtable meeting held between the parties, was exchanged on a without prejudice basis and therefore it is considered unethical that same have been included in the papers. The Court was requested to discard the material from the applicant' s affidavit.[2]

[11] The applicant also objected to this point in limine, mainly on the ground that same was raise d in the bar and not in the papers. Much was submitted in the heads of argument about whether Rule 43 does allow applications to strike out or not. I do not intend dealing with this, as I do not consider the debate to be warranted for current purposes.

[12] As to whether the material is privileged or not, I have this to say. Both parties appear to have used the material from the so-called without prejudice round-table meeting. The respondent himself refers to the discussions at the impugned roundtable meeting in his affidavit. Further, as it will become clear in the order to be granted with regard to the contacts rights of the respondent, the Court benefitted from the material. Therefore, a fitting ruling with regard to this point in limine will be that nothing will be struck from the applicant' s papers. I will also not order any costs with regard to this objection. This is not to say that the material is not privileged. I do not consider a ruling necessary in this regard.

Relevant Brief Background

[13] The applicant is currently a housewife. The respondent is businessman and managing director of a technology company and a director of a raft of other companies.

[14] The applicant and respondent were married to each other on 7 February 2009 out of community of property, with the inclusion of the accrual system. Two children were born from the marriage, one in April 2009 and the other in February 2014. Evidently, the children are currently minor children and are residing with the applicant at the matrimonial home.

[15] The respondent has been residing with his mother since February 2017, after he left the matrimonial home, due to the unbearable relationship between the parties arising out of the breakdown of the marriage. The pleadings in the divorce action have closed and a pre-trial conference has been held.

Contact rights

[16] According to the applicant, following the round-table meeting held on 22 February 2017, the parties agreed that subject to the intervention of a social worker and a report on the age-appropriate contact rights, the following contact rights shall be exercised by the respondent:

"12.3.1. Every Tuesday after school and returning them to our matrimonial- home at 17h00;

12.3.2. Every Thursday after school and returning them to our matrimonial home at 19h00;

12.3.3. Every alternative Friday after school, for the weekend, and returning them at 17h00 that Sunday." [3]

[17] According to the applicant, the respondent has been exercising the above-mentioned contact rights since the beginning of March 2017. Further, according to the applicant after finding the weekly visits to be disruptive, she informed the respondent of the change in schedule and the respondent has been exercising his rights in terms of the changed schedule. The applicant further alleges that the respondent has not been very careful with the well-being of the minor children and state incidents of alcohol use and lack of attention to schoolwork when the minor children are with the respondent. One of the minor children has a medical condition requiring the daily use of medication and extra support in school work. It is primarily for the aforementioned reasons that the applicant submits that the respondent should be only allowed contact with the minor children every alternative weakened, from Friday after school until Sunday at 17:00 hours and only telephonic contact during reasonable hours of the day. This is further to other arrangements with regard to school holidays; December holidays; public holidays and birthdays.

[18] The respondent denies that the respondent applicant agreed with to the change m contact rights and submit that the applicant's decision was unilateral in this regard. It is submitted he has strong bonds and good relationship with the minor children and that the children enjoy spending time with him. He submitted that it is not in the best interests of the minor children that contact with them only be every alternative weekend.

[19] I have considered, in this regard, the submissions made on behalf of both parties. It is common cause that the parties had adopted some interim arrangements from the beginning of March 2017. This appears, to me, to have worked well for, the parties and the minor children, until the applicant unilaterally changed the situation as she considered it disruptive to the children. The applicant did not precisely say why she found the arrangements to be disruptive to the minor children, due to the age. What she disclosed was her perception of the respondent's lack of the necessary attention to the health and scholastic needs of the children. It is common cause that there was an incident involving the use of alcohol by one of the children; problem involving medication needs of one of the children and lack of persuasion of the children or one of them to do their schoolwork, whilst the children were with

the respondent. However, in my view, serious as these allegations are viewed by the Court, they do not show a pattern or persistent conduct on the part of the respondent to warrant imposition of the contact rights regime suggested by the applicant. For if the respondent, as a father, cannot be trusted with the children, it is quite difficult to understand how this will be avoided when the respondent is give n access to the children every alternative weakened. The parties are common cause that the respondent ought to have contact with the children. Therefore, in my view, an appropriate order to make in this regard will be the restoration of the contact rights which existed from March 2017 before the unilateral change by the applicant. However, I will slightly vary the arrangement in order to avoid any possible disruption to the children's lives, by limiting midweek contact to only one day (Thursdays), whilst allowing an extended weekend up to Monday morning for the alternative week in which the respondent has rights of contact with the children. I will also take advantage of the moment and urge the parties to seek professional intervention with regard to the issues of contact, as soon as possible, in order to ensure some normalcy and permanency in the children's lives.

Maintenance

[20] With regard to maintenance the applicant submits that the respondent has always been paying the following expenses to as the household: rent; medical aid for both the applicant and the children; mobile phone the applicant; DSTV; insurance; rates, water and electricity; data for the house; food and other household needs for the applicant and children, and school fees for the children.

[21] It is submitted that these expenses had been acknowledged by the respondent in an electronic mail. Further from the aforementioned expenses, the applicant submitted that the respondent has also paid for the following expenses: Hyundai vehicle; garden services; domestic worker; fuel; tracker; bank charges for the overdraft; credit card bank charges and all groceries and household contents.

[23] It is also submitted that the respondent reneged from the aforementioned agreement in May 2017 and indicated that he will only be paying for the children's school fees, their medical aid contribution and rent in an amount of R8000 .00 and maintenance in amount of R4000.00 for both children .

[24] Further, the parties agreed that the respondent will move out of the matrimonial home and that the applicant and the children will continue staying in the matrimonial home until finalisation of the divorce action. The monthly rental for the matrimonial home is R16 069.00. It is submitted that the respondent has always accepted responsibility for payment of this expense.

[25] Counsel for the applicant further submitted that, the applicant is unemployed and looking for employment. She is a qualified long-term insurance broker. She previously got employment from February 2016 to December

2016 and again in 2017 on a temporary basis and after she was assaulted she resigned from the latter employment. She earned an

amount of R4000, which is disputed by the respondent. She has had some stints of employment between February 2004 and April 2009; April 2011 and January 2014, before her recent stint in 2016. She was a stay-at-home mother between May 2009 and March 2011, and again from February 2014 to January 2016. Her work experience includes being a receptionist, the insurance broker or consultant administrator and general manager.

[26] The applicant submits that having regard to the monthly expenses, an amount of R65 000.00 per month, which is inclusive of rental, school fees and medical aid and other main expenses will be sufficient for the applicants and children' s needs or requirements. This amount is for maintenance in an amount of R9000.00 a month per child and RI2 000.00 per month for the applicant, provided the respondent continues to pay the above-mentioned rental amount, children's educational needs; children's medical aid and other specified expenses. She estimated the respondent's income to be in the region of R110 000.00 per month and she said this was what was disclosed during the roundtable meeting held in February 2017.

[27] On the other hand, the respondent is employed and his monthly expenses are stated as in an amount of RI 12,467.88. According the respondent his net income is in the amount of R84 030.21, depending on some advances. The respondent' s tenders maintenance in an amount of R31422.07 per month. The respondent submits that although he is a director of few companies, he does not earn any other income from the companies or the trusts, beside his monthly salary from his employer.

[28] The applicant submits that the following be deducted from the respondent 's monthly expenses: medical aid; golf membership, as it is luxurious; Ilanga insurance, as it is not explained; refunds for trust; duplicated expenses and whole range of other expenses.

[29] Counsel for the respondent submitted that some deductions be effected on the applicant' s and the children' s expenses. This was traversed in oral and written argument and I do not intend repeating same. It is also submitted that the respondent cannot afford the required maintenance amounts.

[30] I considered the submissions made on behalf of the parties. I have also noted the

challenges mounted on behalf of the respondent towards the applicant's and children's expenses as reflected on annexure "TA

W7'' to the applicant' s papers. I agree that, for current purposes, the applicant's household, just like the respondent, would have to make some adjustments to the lifestyle and daily needs, in order to accommodate some reductions to their requirements. Apart from the amount of R5 800.00 or so, suggested by the respondent, I will also effect some further reductions to the expenses in an amount of R4 690.00. I will not disclose which of the expenses are affected in this regard, due to the ongoing disputes in the divorce action. Consequently, the amount allowed for these expenses will be R20 000.00, which will be added to the rental amount of R 10 000.00. The collective amount of R30 000.00 will be divided into maintenance in an amount Rl2 000.00 for the applicant and R9 000.00 per child per month. This will be additional to the requirements that the respondent is liable for the educational and school-r elated expenses and medical requirements of the minor children, as well as, the monthly instalment and insurance relating to the applicant's motor vehicle expenses.

Contribution towards legal costs

[31] As indicated above, the applicant submits that an amount of R30 000 is required as initial contribution towards her legal costs. The primary objective of this part of the Rule 43 is that the applicant ought to be placed in a position adequately to present his or her case.[4] Regarding the meaning of or what constitutes "adequate", this would differ from matter to matter and is significantly influenced by the nature of the litigation; the respective scales at which the respondent, as the other contending party, is litigating and applicant intends to litigate , with due regard to the respondent' s financial position.[5] the aforementioned clearly suggest that the process of determining the need and appropriate amount for contribution is fact sensitive.

[32] The applicant provided the following factors as her submission grounding her prayer for initial contribution by the respondent towards legal costs:

"Furthermore, I am not in the possession of any investments and/or assets that I can surrender or realize , to make payment of my legal expenses. I am, definitely not in the same a financial position to pay for my own legal costs and cannot litigate on the same scale as I foresee that the Respondent would be able to do. I have been advised that it would be fair and just that the Respondent be ordered to make an initial contribution towards my legal costs in the amount of R30,000.00. I therefore request the Honourable Court to order the Respondent to make an initial contribution towards my legal costs in the amount of R30 000.00. The necessary legal arguments in this regard will be addressed to the above Honourable Court at the hearing of this application."[6]

[33] At the hearing of this application, her counsel suggested that the R30 000.00 contribution can be paid off in instalments. On the other hand, the respondent contentions are that the applicant is dragging of feet over the divorce and refuses to amicably resolve the dispute through settlement. The respondent flatly denies liability in this regard.

[34] Counsel for the respondent bemoaned the fact that there is nothing by way of submissions with regard to the expenses or costs incurred or to be incurred by the respondent. It is also pointed out that as pleadings in the divorce action have closed, the applicant ought to have indicated to the Court how she has so far managed to deal with her legal costs. The respondent relies in this regard on the unreported decision of Makgoka J in support of the contention that the applicant to have disclosed the relevance facts regarding her legal costs in order to justify her need for contribution.

[35] I agree that the applicant did not provide the court with the necessary relevant facts for determination of, firstly the need for initial contribution to be made and secondly the extent of that need, which is naturally dependent on the requirements of the applicant. This has been the incessant call by the Court to an applicant for contribution, including in the unreported decision of this Division

by Makgoka J in MCE v JE.[7] The learned judge held in the following decision that there "can be no better manner of placing such information before court than a draft bill of costs, or at the very least, a summary of fees schedule."[8]

[36] In the absence of such information, my conclusion, would in most instances be that the applicant has not established its case in this regard. However, from the facts of the matter or submissions made with regard to the other parts of this application, including that the applicant is currently unemployment, there is clearly a need for initial contribution. I haven't found anything anywhere to suggest that the applicant has access to another source of income in the current state of unemployment. However, to have a need for contribution is one thing and the extent of such a need is another. I'm in the dark as to how the amount of R30 000.00 is constituted and this is equally the lamentation of the respondent. Therefore, under the circumstances I will order what I consider to be an appropriate contribution in amount of R1 0000.00. I need to emphasise that there is no precision in the constitution of the aforementioned amount, but same is based on the other issues in the matter, including the ability of the respondent to make the required payment. l will also order that this amount be paid in three instalments of R3000.00.

Costs

[37] In as far as costs are concerned, I consider an appropriate order to be that all costs hereof, including those for the 19 July 2017, be costs in the divorce action. I will add to that, the upliftment or waiver of the restrictions in Rules 43(7) and 43(8).

Order

[38] For the abovementioned reasons, I will grant an order in terms of the attached draft, which I initialled and include some insertions and amendments in manuscript.

K. La M. Manamela

Acting Judge of the High Court

07 August 2017

Appearances:

For the Applicant

: Ms K Potgieter

Instructed by

: Machobane Kriel Inc

Brooklyn , Pretoria

For the Respondent

: Ms G Kyriazis

Instructed by

: Boshoff Smuts Inc

Lyttelton, Pretoria

[1]See par 1.3 on indexed p 59.

[2] See par 9 on indexed p 61

[3] See pars 12.3.1 to 12.3.3 on indexed p 12.

[4] See Muhlmann v Muhlmann 1984 (I) SA 413 (W) at 4180, cited with approval in Dodo v Dodo l 999 (2) SA 77 (WLD) at 98C-E. See further Mick/em v Mick/em 1988 (3) SA 259 (C) at 262H-263A.

[5] See Muhlmann v Muhlmann at 4180

[6] See par 37 of the applicant's sworn statement on indexed pp24-25.

[7] (13495/2011) (2011J ZAGPPHC193 (14 September 2011).

[8] See MCE v JE at par 12.