HIGH
COURT OF SWAZILAND
CIVIL
CASE NO.370/03
In
the matter between:
JACQUELINE
TAFT (BORN GRAY) APPLICANT
AND
NIGEL
ALFRED TAFT RESPONDENT
IN
RE:
NIGEL
ALFRED TAFT PLAINTIFF
AND
JACQUELINE
TAFT (born Gray) 1ST DEFENDANT
COLIN
KEEL 2ND DEFENDANT
CORAM SHABANGU
A
J
FOR
THE APPLICANT MS. VAN DER WALT
FOR
THE RESPONDENT MR. FLYNN
RULING
ON RULE 43 APPLICATION
22nd
August 2003
In
this application which is brought in terms of Rule 43 of the Rules of
this Court the applicant, one Jacqueline Taft (born Gray)
(hereinafter referred to as the applicant) claims the following,
pending the finalisation of divorce proceedings which her husband has
instituted against her. She claims -
1. That
custody of the minor child be awarded to the applicant subject to the
Respondent's rights of reasonable access.
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2. That
the Respondent be directed to contribute to the maintenance of the
applicant and the minor child in the amount of El2,500.00 on a
monthly basis.
3. That
the Respondent be directed to pay all school expenses relating to the
minor child.
4. That
the Respondent be directed, in the event of the Land Rover, being
taken away from the applicant, to forthwith provide the applicant
with an equivalent four wheel drive vehicle, alternatively to pay
forthwith to the applicant an additional E7,000-00 per month for the
payments on the purchase of an equivalent vehicle.
5. That
the Respondent be directed to retain the applicant and the minor
child on his United Kingdom medical plan.
6. That
the Respondent be directed to contribute to the applicant's legal
costs in the amount of E25,000.00.
7. That
the respondent be ordered to pay the costs of this application,
including the costs of counsel as certified in terms of the High
Court Rule 68(2).
8. Such
further and/or relief as the court may deem fit.
The
principles which govern the courts approach in relation to Rule 43
applications are well set out by applicant's counsel in her heads of
argument and they are largely not dispute. In fact such principles
are fairly trite.
This
Rule allows for allegations to be made in an affidavit, which is in
the nature of a declaration. The respondent is also required to file
within the time prescribed in the Rule, a reply in the nature of a
plea. Nevertheless it has been said in the case of TAUTE V. TAUTE
1974(2) SA 675 (E) that,
"a
claim supported by reasonable and moderate details carries more
weight than one which includes extravagant or extortinate demands.
Similarly more weight will be attended to the affidavit of a
respondent who evinces a willingness to implement his lawful
obligations than that of one who is seeking to evade them."
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It
has also been said sufficient details should be given to enable the
court to deal with the matter, if possible, without recourse to viva
voce evidence. See NATHAN, BARNETT AND BRINK, UNIFORM RULES OF COURT
3RD EDITION at 272. Furthermore, as Ludorf J., observed in the case
of LEVIN V LEVIN & ANOTHER, 1962(3) SA 330 (W) page 33 1D, the
court is entitled and obliged to draw inferences and to look to the
probabilities as they emerge from the papers;
"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."
The
nature of the maintenance being interim and temporary cannot be
determined with the degree of precision and closer exactitude which
is afforded by detailed evidence. (See TAUTE V. TAUTE supra at 676.)
wherein Hart A
J
described the principles which should guide the court regarding
maintenance pendete lite as follows:
"The
applicant spouse (who is normally the wife) is entitled to reasonable
maintenance
pendente
lite dependant 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. I
have found nothing however in the decisions to which I have been
referred which justify in such maintenance the inclusion of extras
ordinary or luxurious expenditure even in the case, for example, of
GLAER
VGLAZER
1959(3)SA
928 (W), where the husband is described by Williamson J, (as he then
was), as being "very wealthy" or "very rich." The
quantum of maintenance payable must in the final result depend upon a
reasonable interpretation of the summarised facts contained in the
founding and answering affidavits as indeed is contemplated and
intended by Rule 43. It is also in my view helpful to take cognizance
of the approach made in the affidavits by the applicant and the
respondent respectively, bearing in mind that it is not the practice
in these matters (although permissible) to test the evidence viva
voce"
Turning
to the forms of relief claimed by the applicant I deal first with the
first prayer of the notice of motion, namely, the custody of the
minor child. In respect of this prayer the parties agree that the
interim custody of the minor child be awarded to the applicant,
subject to the Respondent's right of reasonable access. The
Respondent states that such reasonable access should be as follows:
(a) every second weekend, commencing at 18.00hrs on the Friday and
terminating at 18.00hrs on the Sunday following:
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(b) Half
of each school holidays, the commencement of which shall alternate
from one holiday to the next, between each of the parties equally;
The
applicant submits these to be reasonable except that the applicant
further submits that it is extremely undesirable that the minor child
should overnight with Respondent, regard had inter alia to the
factors set out in paragraphs 12.1 to 12.5 of the applicant's
founding affidavit, which includes alcohol abuse, violent
disposition, suicidal tendencies some of which have been threatened
in the presence of the child, the keeping of irregular hours by the
respondent sometimes not returning home.
I
am not satisfied that it would be in the interests of the minor child
to allow the Respondent, who has not denied the aforementioned
allegations against him overnight access to the minor child.
In
so far as prayer three the applicant claims that the Respondent be
directed to pay all school expenses relating to the minor child. This
the Respondent does not oppose, except that the Respondent submits
that he should be ordered to pay such expenses to the school directly
and indeed with all expenses that such be paid directly to the
provider of the service.
Turning
to prayer four, the Respondent has undertaken that the Landrover the
applicant is currently driving will not be taken away from her and
that she "may continue to have use of the vehicle pending the
divorce action." In this regard I refer to paragraph 23.2 of the
Respondent's answering affidavit.
In
so far as prayer five of the notice of motion, the claim, as already
observed is that Respondent be directed to retain the applicant and
the minor child on his United Kingdom medical plan. Nothing at all is
said in the body of the applicant's affidavit regarding this prayer.
It is
5
not
clear, how if at all, such claim is related to the claim for medical
aid and medical expenses amounting to E500.00 forming part of
E12,350.00 claimed as monthly maintenance. In the circumstances I am
unable to make any order in respect of the said claim.
In
so far as prayer two of the notice of motion is concerned the
applicant claims that the Respondent be directed to contribute to the
maintenance of the applicant and the minor child in the amount of E
12,500.00 on a monthly basis. The claim is quantified and details
given in paragraph 20 of the applicant's affidavit as follows:
ITEM
CLAIMED AMOUNT CLAIMED REASONABLY ACCORDING
TO
RESPONDENT TO RESPONDENT
"20.1 Monthly
rental E 2,500.00 E3,000.00
20.2 Water
& Electricity 300.00 600.00
20.3 Telephone
& Cellphone 600.00 300.00
20.4 Petrol 2,000.00
20.5 Groceries 1,000.00 835.00
20.6 Fruit
& vegetables 200.00 NIL
20.7 Milk
& bread 200.00 NIL
20.8 Meat,
fish & poultry 500.00 NIL
20.9 Magazines,
books,
newspapers 100.00 NIL
20.10 Clothing
for self & child 1,500.00 1,000.00
20.11 Haircuts,
personal
Hygience
& health care 250.00
20.12 Entertainment
including
Weekend
excursions 1,500.00
20.13 Domestic
servant 400.00 200.00
20.14 Medical
aid & medical
Expenses 500.00 500.00
20.15 Flowers,
gifts & general
Miscellaneous
expenses 500.00 NIL"
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It
appears to be common cause that the applicant who is employed by the
company in which the Respondent is a Director and manages, earns a
monthly salary of El,610.00. She says this amount together with an
additional amount of El,600.00 which the Respondent has been paying
to her since the separation is not sufficient, due regard being had
the standard of living the minor child and herself had grown
accustomed to during the subsistence of the marriage. She states that
the Respondent is financially able to pay the amount she requires and
claims as maintenance. She says she has no personal knowledge of the
Respondent's monthly income which she has always been kept in
ignorance by the Respondent. She says that most of the family
expenses were financed through the company Conway Nyman which she
states is a very successful business in the country. The family
lifestyle was such that the family enjoyed at least one annual
holiday of four weeks during December and has during each of these
holidays gone to Namibia, United States of America, Botswana,
Mozambique and various other places in Southern Africa. It is also
common cause that the family generally spent a weekend in
Johannesburg, approximately once every month. The family dined out
just about every night in what both parties describe to be expensive
restaurants with friends and relatives, and that on each of those
occasions the Respondent paid for everybody.
Inspite
of the assertion by the Respondent that he is not financially able to
support the applicant and the minor child at the rate claimed it
appears that it is at this rate that the Respondent was able to
provide for the applicant and the minor child before separation. Now
that the parties are living in separation however one must take into
account the fact that other than providing for his wife and the minor
child the Respondent still has to provide for himself. In a way he
will be required to provide for two separate households, which must
mean
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that
his ability to provide for and maintain the family at the same level
might be affected.
In
the circumstances, one has to attempt as best as he can on the
affidavits to ensure that the applicant and her minor child are
provided for at a reasonable scale due regard to the lifestyle they
had grown accustomed to and the fact that the applicant still has to
provide for himself.
Above
I have indicated next to the amount claimed by the applicant the
amounts which the respondent has stated to be the reasonable
requirements of the applicant and his minor child. The respondent has
agreed to pay for the minor child's school fees, educational and
medical related expenses direct to the school, and proposes in
relation to other expenses to the service providers.
Regarding
accommodation, built into the applicant's claim, is the sum of inter
alia E2,500.00 for the rental of the dwelling she and the minor child
are currently residing in. The respondent's response to this is that
he has tendered that the applicant may return to the former common
dwelling and he would move out and find alternative accommodation,
even though he had evicted the applicant earlier on from the common
home. He states however in annexure "NT6" that E3,000-00
per month is a reasonable amount of rental, whereas the applicant is
only claiming E2,500.00. This amount of E2,500.00 claimed by the
applicant in respect of rental ought to be allowed.
The
applicant claims E300.00 for water and electricity, and E600.00 for a
phone and cellular phone, to a total of E900.00. The respondent's
response thereto is, boldly, that these sums are grossly inflated.
However in annexure "NT6" he avers that E600.00 for water
and electricity and E300.00 for a telephone is reasonable.
Applicant's
8
counsel
submits that this total of E900 corresponds with what the applicant
is claiming and should be allowed for that reason.
The
applicant further claims petrol at the amount of E2000-00. However
even though the respondent has tendered the vehicle what is not clear
is whether the tender of the vehicle includes the tender of petrol
which was supplied by Conway Nyman. Since there is no indication that
the previously existing arrangement will be stopped I do not find it
necessary that an order needs to be made requiring the respondent to
pay the amount of E2000-00 (two thousand Emalangeni) except to order
that since such petrol is supplied by Conway Nyman as a benefit of
the respondent under his employment contract with the company, the
respondent should not disturb this benefit accruing to the vehicle
driven by his wife.
As
regards to groceries, again it shoud be observed as submitted by
applicant's counsel that the applicant's claim for E1000-00 is only
E185-00 above what the respondent states to be reasonable in respect
of the minor child alone. It seems to me that the applicant's claim
for groceries plus E500-00 in respect of additional claims for meat,
fish, poultry, milk and bread is reasonable. I will allow E800-00 in
respect of clothing for applicant and minor child. The claims in
respect of (1) magazines, books, newspapers etc, (2) haircuts,
personal hygiene and health care, (3) entertainment including weekend
excursions (4) flowers, gifts and general miscellaneous expenses are
refused. The medical aid and medical expenses claim is reduced to
E250-00 in accordance with the submission by applicant's counsel due
regard being had to the fact that the respondent has agreed to pay
all medical expenses for the minor child.
The
applicant's monetary claim for a monthly contribution for maintenance
is allowed as follows:
Monthly
maintenance E 2500-00
9
Water
& electricity 300-00
Telephone
& cellphone 600-00
Groceries 1500-00
Clothing
for applicant 8b minor 800-00
Domestic
servant 400-00
Medical
aid medical expenses 250-00
E
6350-00
Finally,
turning to prayer six of the notice of motion which is for an order
that respondent be directed to contribute to applicant's legal costs
in the amount of E25,000.00.
As
a matter of principle where a husband and wife are married out of
community of property, a wife's right to a contribution towards costs
is based upon the husband's duty, where he is able to do so, to
support her with the necessaries of life. See GLAZER V GLAZER 1959(3)
SA 928 at 931. The applicant is entitled to litigate on a scale
commensurate with the means of the parties, yet she is not obliged to
realise all she possesses in order to finance her action where her
husband is able to support her with a contribution towards costs.
(See Glazer's case supra) In the Glazer's case supra the learned
Judge Williamson J, as he then was, observed that the wife was
entitled "to litigate upon the basis you would expect rich
people to litigate". The applicant says that she has "already
incurred legal expenses in the sum of E20,000.00 including
consultations with my attorney, senior counsel and drafting of
settling of initial Rule 43 application". The applicant goes on
to present expenses which are still to be incurred by her which she
places at E117,000.00. Included is an amount of E10,500.00 for the
services of a clinical psychologist for purposes of examining the
minor child and bringing out a report in respect thereof. A further
amount of E50,000.00 for the services of a forensic auditor to
investigate the financial position of respondent and reporting
thereon. The amount of E10,500.00 for the services of a clinical
psychologist is clearly excessive and I am not persuaded that
10
it
is necessary in any event. Similarly the amount of E50,000.00 for
engaging services of a forensic auditor seems to me to be
unnecessary. The applicant seeks to justify this by arguing that the
true financial position of the respondent will have a material
bearing, inter alia, on the amount of custody (sic) to be paid in
respect of the minor child". I believe that what the applicant
intended to argue in this respsect is that the true financial
position of the respondent will have a bearing on the amount of
maintenance to be paid in respect of the minor child. It does not
appear to me that the true financial position of the respondent in so
far as this may have a bearing on his ability to maintain the
minor
child requires the services of a forensic auditor. What is clear from
the papers is that the respondent has always been able to maintain
the applicant and the minor child at a scale at which the family was
not in want for anything, to put it modestly for the respondent. It
is also clear that most of these family expenses were, as the
applicant put it, channelled through the company Conway Nyman.
I
do not propose to deal with the rest of the items of the estimated
future costs to be incurred by the applicant. Suffice it to say that
an amount of E25,000.00 in respect of costs incurred on a civil
matter in this court is reasonable. In Glazer's case supra and in
SERVICE V SERVICE 1968(3) SA 538 D & CLD, VAN RIPPEN V RIPPEN
1949(4) SA 634 © at 640-1, it was laid down that the applicant
should receive not all her anticipated costs but a substantial
contribution towards them.
With
this in mind and having regard to the means of the parties, I think
an amount of E20,000.00 as a contribution towards the applicant's
costs by respondent would be appropriate.
In
the circumstances, I make the following order:
1.
Pending the final determination of the divorce proceedings;
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(a) The
interim custody of the minor child is awarded to the applicant
subject to the respondent's rights of reasonable access, to be
exercised as follows: between the hours of 0900hrs to 18.00hrs on the
Saturday and Sunday of every second weekend.
(b) The
respondent is directed to contribute to the maintenance of the
applicant and the minor child in the amount of E6,350.00 per month
payable monthly in advance not later than the 7th day of each month.
(c) The
respondent is directed to pay all school expenses relating to the
minor child.
(d) The
respondent is directed to ensure that the Landrover and petrol
expenses in respect of the Landrover currently being used by the
applicant is not disturbed, but that in the event it becomes
necessary for any reason that the applicant should be deprived of the
Landrover and the provision of the petrol in respect thereof, the
respondent shall approach this Court before the implementation of any
such new arrangement or otherwise, for variation of this aspect of
the order.
(e) The
respondent is directed to contribute to the applicant's legal costs
in the amount of E20,000.00 (twenty thousand Emalangeni).
(f) The
costs of this application shall be costs in the cause.
A.S.
SHABANGU
Acting
Judge
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(a) The
interim custody of the minor child is awarded to the applicant
subject to the respondent's rights of reasonable access, to be
exercised as follows: between the hours of 0900hrs to 18.00hrs on the
Saturday and Sunday of every second weekend.
(b) The
respondent is directed to contribute to the maintenance of the
applicant and the minor child in the amount of E6,350.00 per month
payable monthly in advance not later than the 7th day of each month.
(c) The
respondent is directed to pay all school expenses relating to the
minor child.
(d) The
respondent is directed to ensure that the Landrover and petrol
expenses in respect of the Landrover currently being used by the
applicant is not disturbed, but that in the event it becomes
necessary for any reason that the applicant should be deprived of the
Landrover and the provision of the petrol in respect thereof, the
respondent shall approach this Court before the implementation of any
such new arrangement or otherwise, for variation of this aspect of
the order.
(e) The
respondent is directed to contribute to the applicant's legal costs
in the amount of E20,000.00 (twenty thousand Emalangeni).
(f) The
costs of this application shall be costs in the cause.
A.S.
SHABANGU
Acting
Judge
