J.V.W v P.C.V.W (EL514/2025) [2025] ZAECELLC 9 (27 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

(EASTERN
CAPE DIVISION, EAST
LONDON CIRCUIT COURT)

Case
No.: EL 514/2025

Reportable:
YES/NO

In
the matter between:

J[…]VW[…]
                                                                      

Applicant

and

PC[..]VW[…]                                                                     

Respondent

JUDGMENT

Cengani-Mbakaza
AJ

[1]       
The parties are embroiled in a divorce action currently before a
different court,
with patrimonial benefits and the accrual system
being central to the proceedings. Before me is an application for a
further contribution
towards legal costs following invocation of Rule
43 (1) (b) and (6) of the Uniform Rules of Court, which reads,

‘(1) This rule
shall apply whenever a spouse seeks relief from the court in respect
of one or more of the following matters:

(a)
…

(b)
A contribution towards the costs of a matrimonial action, pending or
about to be instituted;

(c)
…

(d)…

(6) The court may, on the
same procedure, vary its decision in the event of a material change
occurring in the circumstances of
either party or a child, or the
contribution towards costs proving inadequate.”

[2]       
The relief sought in the notice of motion specifically pertains to a
contribution
of 75% of R278,070, intended to facilitate the
continuation of the trial scheduled for 02,03 and 04 June 2025. The
respondent opposes
the application. It is common cause that on 26
July 2023, the respondent was ordered to pay a contribution towards
legal costs
of the pending action in the amount of R132 000 (the
previous judgment). Furthermore, on 09 May 2024, the respondent was
ordered
to pay 75% of the amount of R62 790 per day for a period
of 02 and a half days towards the applicant’s litigation.

[3]       
At the heart of the application before me is whether the applicant
has proven that
there is material change in her circumstances and
that she has inadequate means of her own to fund the litigation.[1]
To resolve this dispute, the court is empowered by the provisions of
Rule 43(5) which reads,

‘(5)
The court may hear such evidence as it considers necessary and may
dismiss the application or make such order as it deems fit
to ensure
a just and expeditious decision.’

[4]       
A plethora of cases finds application and relevance in the
proceedings before me.
Mr Kotze, counsel for the respondent referred 
to the case of A.L.G
v L.L.G[2]
which sets out the correct approach to be adopted in determining a
contribution towards legal costs. The court emphasised that
the
quantum to be awarded to an application for a contribution towards
legal costs is a matter to be determined at the discretion
of the
court. In Rippen
v Van Rippen[3]
Ogilvie
Thompson J ( as he then was), articulated the guiding principle for
the exercise of that discretion as follows:

‘(T)he 
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, the wife must be
enabled to present her case adequately before court’.

[5]       
This guideline was recently dissected by Kumalo J in H.E.D
v D.D[4]
(H.E.D),
as follows:

‘[42]
This formulation neatly encapsulates the twin criteria of reasonable
needs and financial means which feature in the test for
ordinary
maintenance. When assessing a spouse’s reasonable litigation
needs, a court will have regard to what is involved
in the case, the
scale on which the parties are litigating or intend to litigate, and
the parties’ respective means.’

[6]       
In support of the applicant’s application, Mr Cole SC prepared
brief heads of
argument which were presented by Mr Wood in court.
Counsel referred to the previous judgment  and argued that the
respondent,
as the sole beneficiary of all income from the Close
Corporation, has a monthly income of R40 000, being the amount
he chooses
to draw for his own purposes. Put differently, so he
argued the respondent is fixated on a monthly income he chooses to
draw from
the business, while ignoring the extensive value of the
properties, which he could readily utilise to create liquidity.

[7]       
In support of this proposition, counsel further referenced to
paragraph 23 of the
previous judgment and averred that the position
remains unchanged. The relevant position which remains a point of
contention is
what the previous court highlighted which is as
follows: ‘Despite
the attention being drawn to the failure to disclose these financial
details, the respondent has persisted in seeking to
hide these
values: what income does AC motors generate? What does it own? What
is its overall value?’
Counsel’s argument therefore  is that the respondent’s
claim of lack of means to pay a further contribution towards
legal
costs is to be rejected particularly because he is demonstratable
able to pay his own legal representation.

[8]       
In her founding affidavit, the applicant avers that she is a
part-time contract worker
with Ronnies Motors where she assists in
dealership with finance and insurance for the purchase and sale of
motors. The applicant
indicates that she frequently travels to
England and America to visit her children and grandchildren. She
finances these trips
using the revolving credit card facility. She
explains that visiting her aunt, whose health is compromised
necessitates her trip
to England. Additionally, despite her son being
married, she considers it essential to visit her grandson to retain a
strong bond
with them.

[9]       
In contrast, the respondent avers that the applicant has said nothing
about her own
financial means, has made no disclosure of her monthly
income or her other sources of funding available. The respondent
further
notes that there has been a change in the applicant’s
employment capacity, notwithstanding this, no source of income has
been disclosed.

[12]     
I subscribe to the views expressed by Kumalo J in the recent judgment
in H.E.D[5]
where
he explained that in cases of this nature the parties’
respective means is one of the key considerations. Notably, in
a
broader context, the assessment should focus on whether the applicant
has proven that there is material change in circumstances
and that
she has inadequate means of her own to fund litigation. The enquiry
is fact-based hence Rule 43 (5) encompasses the discretionary
hearing
of evidence by the court.

[13]     
In this instance, Mr Wood reminded the court to consider that the net
value of the accrual system
is a point of adjudication in the divorce
action and may not reflect the true state of affairs. Notwithstanding
this, there are
significant conundrums in the applicant’s
application. She appears to rely on the previous judgment and orders
including
the findings that were made without reflecting her current
state of affairs, as typical in proceedings of this nature.

[14]     
I emphatically agree with the applicant that the bond between her and
family who live outside
the country deserves to be maintained.
However, the issues of full financial disclosure and the material
change in her own circumstances
which are at the heart of her
application lack detail. To illustrate this, her failure to disclose
the credit facility amount,
her bank statements, her monthly salary
and the source of repayment for her credit facility militate against
her case.

[15]     
I acknowledge the importance of providing a clear pathway for spouses
who cannot afford litigation,
in ensuring that they have the
necessary resources to assert their rights in court. In the present
matter, I am unable to assist
the applicant due to the lack of
significant information regarding her financial means. Therefore,
this application cannot stand.

[16]     
Mr Kotze argued that if the court rules against the applicant, she
should be mulcted  with
costs. However, this argument is not
persuasive, particularly in light of the provisions of s 10 the
Divorce Act 70 of 1979 which provides,

‘In
a divorce action, the court shall not be bound to make an order for
costs in favour of the successful party, but the court may,
having
regard to the means of the party, and their conduct in so far as it
may be necessary, make such order as it considers just,
and the court
may order that the costs of the proceedings be apportioned between
the parties.’

[17]     
As previously noted, these are interlocutory proceedings in a pending
divorce action. The applicant’s
lack of resources is a
contentious issue that she may revisit once she has obtained
sufficient information. Given the circumstances,
I find no basis for
a cost order against the applicant as there is no evidence  of
untoward conduct on her part.

Order

[18]     
In the result, the following order is issued:

1.
The application is dismissed.

2.
There shall be no order as to costs.

N CENGANI-MBAKAZA

ACTING JUDGE OF THE
HIGH COURT

APPEARANCES:

Counsel
for the Applicant   :          
Adv. S. H. Cole SC with Adv
C. Wood

Instructed
by                        

:           STIRK
YAZBEK ATTORNEYS

EAST LONDON      

Counsel
for the Respondent:        
Adv. Kotze

Instructed
by                        

:           ABDO
&ABDO ATTORNEYS

EAST
LONDON 

Date
Heard               
:          
13 May
2025              

Date
Delivered         
:           27
May
2025