A G v L G

High Court adopted a holistic approach in exercising a discretion when considering the approach to the husband contributing to the costs but cautioned that an equality of arms must be ‘balanced with maintaining an equitable exposure of both of the adversaries to the risks of the chilly consequences of the ill-considered incurrence of costs’ and both parties are required to be realistic about the litigation and be incentivised to focus on reaching early and mutually beneficial settlements.

Essence

In matrimonial disputes Uniform Rule 43 provides a useful device to ensure that a holistic approach is adopted but is not equated with a licence to risk-free litigation.

Decision

(9207/2020) [2020] ZAWCHC 83 (25 August 2020)

Order:

See below.

 

Judges

Ashley Biins-Ward J.

Hearing: 19 August 2020
Judgment: 25 August 2020

“[17] The purpose of the remedy has consistently been recognised as being to enable the party in the principal litigation who is comparatively financially disadvantaged in relation to the other side to ‘adequately place [his or her] case before the Court’. Devising the measures necessary to achieve that object have long since been recognised as ‘the paramount consideration’ in such matters. Describing the rationale for the remedy in terms of ‘constitutional imperative’ does not, in my view, really add anything of substance to its historical character in the Roman Dutch common law; cf. the references to Merula, Manier van Procedeeren, Wassenaar, Practyk Judiciëel and Leyser, Meditationes ad Pandectas in Van Gorkum and Noonan supra, at p. 575, and in Boezaart & Potgieter v Wenke 1931 TPD 70 at 84-85.

There is indeed much in the Bill of Rights that is essentially a codification and entrenchment of the common law and the rules of natural justice. The significance of their constitutional entrenchment is to preclude any law or conduct inconsistent with them and to impose an obligation on the state (including, of course, the courts) to respect, protect, promote and fulfil the rights conferred thereby, including by interpreting any legislation mindful of those obligations, and to constrain Parliament’s powers of amendment.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

[1] The applicant, who is the defendant in the principal proceedings in which her husband, the respondent in these proceedings, has sued for the dissolution of their marriage by divorce, claims interim relief pendente lite in terms of rule 43.

. . . .

[15] Nearly two thirds of the applicant’s claim for a contribution towards her costs relates to costs that she says that she has already incurred. The applicant’s counsel referred me to the judgment of Davis AJ in AF v MF 2019 (6) SA 422 (WCC); [2020] 1 All SA 79 (WCC), which supports the court granting a cost contribution for legal expenses already incurred, and which, with reference to the judgment of Donen AJ in Cary v Cary 1999 (3) SA 615 (C), emphasised the importance of the court’s duty in such matters ‘to promote the constitutional rights to equal protection and benefit of the law, and access to courts [and] requires that courts come to the aid of spouses who are without means to ensure that they are equipped with the necessary resources to come to court to fight for what is rightfully theirs’.

As observed in those judgments, the authorities are far from unanimous on whether a contribution towards costs in terms of rule 43 should cover costs already incurred. There are many judgments suggesting they should not. I am in respectful agreement with the observation by Davis AJ that in the main they are conspicuous in their lack of persuasive reasoning in support of the proposition.

[16] My own time-limited, and therefore superficial, enquiry into the basis for that approach suggests that the reason might have been founded in the view that it would be contrary to the Roman Dutch law principles concerning the marital power to hold that the wife, apart from any order of court, could render the husband liable for costs incurred by her without his authority; cf. the judgment of Wessels J in Van Gorkum and Noonan v Davies 1914 TPD 572 at 577.

That may have informed the established practice in Natal reported in Lourens v Lourens (1928) 49 NPD 412 that an application should be made in advance of the principal litigation for a contribution toward costs. Times and mores have changed, however, and the marital power has been abolished.

Whilst rule 43 predates the abolition of the marital power, it falls to be construed and applied in the context of the modern legal environment. I cannot conceive in the circumstances why there should be any obstacle to the making of an order for a contribution towards costs that includes costs already incurred. On the contrary, allowing for the interim payment of accrued, as well as anticipated, costs in the principal proceedings would better promote achieving the relevant objects of the rule 43 procedure.

[17] The purpose of the remedy has consistently been recognised as being to enable the party in the principal litigation who is comparatively financially disadvantaged in relation to the other side to ‘adequately place [his or her] case before the Court’. Devising the measures necessary to achieve that object have long since been recognised as ‘the paramount consideration’ in such matters.

Describing the rationale for the remedy in terms of ‘constitutional imperative’ does not, in my view, really add anything of substance to its historical character in the Roman Dutch common law; cf. the references to Merula, Manier van Procedeeren, Wassenaar, Practyk Judiciëel and Leyser, Meditationes ad Pandectas in Van Gorkum and Noonan supra, at p. 575, and in Boezaart & Potgieter v Wenke 1931 TPD 70 at 84-85.

There is indeed much in the Bill of Rights that is essentially a codification and entrenchment of the common law and the rules of natural justice. The significance of their constitutional entrenchment is to preclude any law or conduct inconsistent with them and to impose an obligation on the state (including, of course, the courts) to respect, protect, promote and fulfil the rights conferred thereby, including by interpreting any legislation mindful of those obligations, and to constrain Parliament’s powers of amendment.

[18] The proper approach to the determination of such applications is well established.

Ogilvie Thompson J described it in the following terms in Van Rippen at p. 639:

‘… the quantum which an applicant for a contribution towards costs should be given is something which is to be determined in the discretion of the Court. In the exercise of that discretion the Court should, I think, have the dominant object in view that, having regard to the circumstances of the case, the financial position of the parties, and the particular issues involved in the pending litigation, the wife [or husband, as the case might be] must be enabled to present her [or his] case adequately before the Court.’

The essence of the approach encapsulated in those words has been reiterated in countless other reported cases.

[19] 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.

To quote once again from Van Rippen:

‘By ordering a contribution the Court does provide the sinews of war; but, so far as I am aware, the Court has never under the contribution procedure provided the applicant’s attorney with complete advance cover for all his fees.’

That the provision of an equality of arms be balanced with maintaining an equitable exposure of both of the adversaries to the risks of the chilly consequences of the ill considered incurrence of costs is a factor to be borne in mind in the exercise of the court’s discretion. It will encourage a realistic approach by both parties to the litigation and incentivise them to focus on reaching early and mutually beneficial settlements where that is reasonably possible.

[20] The current matter does not strike me as one of particular complexity. The respondent’s source of income is identified. His local and foreign assets appear to be known, or readily identifiable. Whether or not the applicant would be able, or might reasonably be expected to obtain employment after the dissolution of the marriage can hardly be described as an arcane or especially difficult issue.

The question of whether or not the trust to which the respondent donated his pension money pay-out when he left Cathay Pacific should be treated as his alter ego, or as a fund effectively under his control, for the purposes of determining the proprietary consequences of the marriage, more especially the terms of any order that might fall to be made in terms of s 7(3) of the Divorce Act 70 of 1979, also does not strike me as a matter that is likely to give rise to particular difficulty in this case should the action have to go trial.

The respondent is availing of the services of a silk in the litigation, while the respondent is represented by a senior junior counsel. My own assessment is that the case looks to be well within the competence of a middle to senior ranking junior counsel experienced in matrimonial work.

[21] In the circumstances I consider that an order directing the respondent to contribute R200 000 towards the applicant’s costs in the principal case would meet the justice of the case, as far as I am able to determine it on the rather opaque information that the parties have made available.

[22] The applicant’s counsel drew attention to a suggestion made in passing by Rogers J in CT v MT and Others 2020 (3) SA 409 (WCC) that consideration might be given to putting a time limit on rule 43 orders so as to avoid the obligated spouse who might be advantaged by ‘an unduly parsimonious’ interim order being tempted to abuse the resultant situation by improperly dragging out the litigation. Counsel appeared to suggest that such a time limit might come to be regarded as a standard feature of orders made in terms of rule 43. I do not understand the learned judge to have intended to go that far in his obiter remarks.

While I agree that there is nothing to preclude courts incorporating such a provision where thought appropriate, caution should be exercised in attaching conditions that could bring the parties back to court for further interim determinations irrespective of whether the prevailing circumstances warranted or necessitated that. In my opinion, rule 43(6) would adequately avail a party able to demonstrate that he or she was being disadvantaged by a demonstrably abusive protraction of the main proceedings to approach the court for amended interim relief. As noted by Rogers J, the scope for such abuse should in any event be limited in the ordinary course by proper judicial case management. I am not persuaded that there is any reason to attach a time limit to the order to be made in the current matter.

. . . . 

[25] The applicant has achieved substantial success in the rule 43 application and is entitled to her costs. For the reasons mentioned earlier, I am not disposed, however, to make a special order, as prayed, that her costs should include counsel’s fees charged at the rates allowed on taxation for senior counsel.

[26] The following order is made:

1. Pending the determination of the divorce action between the parties, the respondent shall maintain the applicant and the minor child born of the parties’ marriage, as follows:

1.1 by payment to the applicant of an amount of R20 000 per month, in respect of the applicant’s and minor child’s general living expenses not otherwise specifically provided for below, effective as of 1 July 2020, without deduction or set off on the first day of every month, by way of electronic funds transfer or debit order, into such bank account as the applicant may nominate from time to time;

1.2 by bearing the costs of retaining the applicant and the minor child as dependant members of the current medical aid scheme and by bearing the costs of all reasonably incurred medical expenses in private health care which are not covered by the medical aid scheme, including but not limited to, medical, dental, surgical, pharmaceutical (including levies and all required supplements) hospital, orthodontic and ophthalmic (including spectacles and contact lenses) expenses, any sums payable to a physiotherapist/chiropractor, psychiatrist, therapist (including psychotherapist or occupational therapist), practitioner of holistic medicine, and other medical expenses including vitamins and supplements which are not covered by the aforesaid medical scheme. The respondent shall reimburse the applicant for any such costs incurred by her or pay the relevant service provider within 5 days of receipt of the relevant invoice or receipt;

1.3 by bearing all the costs incurred in respect of the minor child’s education, such costs to include all secondary education fees, including school fees (in private education), additional tuition and tutor fees and the cost of all extra mural activities in which she may participate, including coaching, camps, tours and outings, as well as the costs of all books, stationery, uniforms, equipment (including computer hardware, tablets and software and printing consumables), attire relating to her education and the sporting and/or extra mural activities engaged in by her;

1.4 by bearing the costs incurred in respect of two horses to be kept by the applicant and the minor child, including livery costs, veterinarian fees, insurance, food and supplements, tack and grooming, farrier fees, and the costs of licensing, maintaining and insuring the horse box;

1.5 by bearing, with effect from the time that he is able to return to fulltime employment with Qatar Airways, the reasonable additional costs relating to the applicant’s and the minor child’s horse-riding, including: lessons and shows, the costs relating to admission fees to championships and events, equipment, travel and subsistence costs relating to all championships and events entered by the applicant and the minor child and the costs of annual CVRC, SASJ, SAEF and ESA memberships for them;

1.6 by payment of the following expenses in respect of the applicant’s residence (currently the Noordhoek property) and related expenditure:

1.6.1 the monthly bond instalments;
1.6.2 rates and services due to the relevant municipality (including water, refuse removal and sewage);
1.6.3 electricity costs to a maximum of R2 000,00 per month which shall be paid monthly, upon submission by the applicant to the respondent of the relevant invoices;
1.6.4 the premiums in respect of the current comprehensive homeowners, household contents and all risk insurance, and the excess on any claims that fall to be made in terms of such insurance;
1.6.5 the cost of telephone landline rental and calls and fibre internet;
1.6.6 the premiums in respect of the full bouquet DSTV-PVR subscription, which shall become payable once the applicant has provided the respondent in writing with the details of the relevant account;
1.6.7 the cost of maintaining the burglar alarm and security, including ADT armed response security and CMR medical response;
1.6.8 the reasonable costs of repairs and maintenance to any household equipment or appliances and the improvements to the property, including the swimming pool and irrigation system and any electrical or plumbing work, which shall be arranged by the respondent promptly upon being advised by the applicant of the need therefor;

1.7 by payment of the wages of the domestic employee, three times per week, and the gardener, once per week, as well as the annual bonus payable to the domestic staff;

1.8 by payment of the applicant’s and the minor child’s cellular telephone contracts and call costs;

1.9 by payment of the applicant’s Momentum retirement annuity contribution;

1.10 by payment of the amount of R500.00 (five hundred Rand) per month to the minor child in respect of her allowance, without deduction or set off, on or before the first day of the month;

1.11 by payment of the following costs in respect of the applicant’s Ford Ranger motor vehicle:

1.11.1 comprehensive vehicle insurance (including excess);
1.11.2 the costs of the tracker, licensing, maintenance, repairs and servicing, including replacement of tyres and wheel balancing when necessary;

2. The amounts referred to in paragraphs 1.1, and 1.10 above shall be adjusted annually in July of each year in accordance with the percentage adjustment in the headline inflation of the Consumer Price Index as published by Statistics South Africa during the preceding year, the first such adjustment to be effective as of 1 July 2021;

3. The respondent shall pay to the applicant’s attorneys of record a contribution towards the applicant’s legal costs in the amount of R200 000 (two hundred thousand Rand) on or before 30 September 2020;

4. The following passages in the respondent’s opposing affidavit, jurat 30 July 2020, including the annexures therein referred to, are struck out:

4.1 That part of paragraph 57 following after the words ‘minor issues’;
4.2 The last sentence of paragraph 94; and
4.3 Paragraph 183.

5. The respondent shall pay the applicant’s costs of suit in the rule 43 application.