Greenspan v Greenspan

• Jurisdiction: South Africa
• Citation: 2000 (2) SA 283 (C)

Greenspan v Greenspan
2000 (2) SA 283 (C)

2000 (2) SA p283

Citation	2000 (2) SA 283 (C)
Case No	4540/99
Court	Cape Provincial Division
Judge	Hlophe Djp
Heard	August 17, 1999; August 18, 1999
Judgment	September 6, 1999
Counsel	S B van Embden for the applicant.; O L Rogers for the respondent.

Flynote : Sleutelwoorde G

Husband and wife — Divorce — Maintenance — Maintenance pendente lite — Application for under Rule 43 of Uniform Rules — Lump sum payment — Court having no jurisdiction under Rule 43(1) of Uniform Rules to award lump sum payments, but limited to award of periodic payments. H

Husband and wife — Divorce — Contribution towards costs — Application for in terms of Rule 43 of Uniform Rules — While wealthy party in divorce proceedings, who conducts litigation on luxurious scale, not to be punished for his wealth, other party entitled to conduct litigation on a similar basis — Wealthy party to make contribution towards other party's costs to enable latter to litigate on scale commensurate with former. I

Headnote : Kopnota

The only category of relief contemplated in Rule 43(1) of the Uniform Rules which might justify lump sum payments is Rule 43(1)(a), namely 'maintenance pendente lite'. However, the term 'maintenance pendent lite' clearly connotes periodic maintenance payments and does not include lump sum J

2000 (2) SA p284

payments. This view accords with the position under the Maintenance Act A 23 of 1963, which defines a maintenance order as 'any order for the periodical payment of sums of money towards the maintenance of any person made by any court. . .'. It also accords with the meaning of the words 'for any period' in s 7(2) of the Divorce Act 70 of 1979, the effect of which is to preclude the award of lump sum payments. Rule 43 is designed to afford an expeditious and inexpensive procedure for the granting of interim relief. The parties to Rule 43 proceedings are B limited in the material they might place before the Court. There is no distinction in principle to be made between the interpretation of the relevant words in s 7(2) of the Divorce Act and Rule 43(1)(a). The framers of Rule 43(1) would not have contemplated the making of an order under Rule 43 which a Court could not competently make under either the Maintenance Act or the Divorce C Act. Moreover, the framers of Rule 43 clearly contemplated orders which are capable of variation. That is so because of the provisions of Rule 43(6) in terms of which the Court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party or a child. However, once a lump sum payment has been made, it can hardly be varied. Therefore a Court has no jurisdiction under Rule 43(1) to award lump sum payments. D (Paragraphs [10] - [12] at 287E - 288F, paraphrased.)

While a wealthy party in divorce proceedings who conducts litigation on a luxurious basis is not to be punished for his wealth, the other party is entitled to conduct litigation on a similar scale. The wealthy party must therefore make a contribution towards the other party's costs to enable the latter to litigate on a scale commensurate with the former. E (Paragraphs [17] - [18] at 290D/E - H, paraphrased.)

Cases Considered

Annotations

Reported cases

Cary v Cary [1999] 2 B All SA 71 (C): dictum at 76 - 7 applied F

Glazer v Glazer 1959 (3) SA 928 (W): dictum at 932 applied

Grauman v Grauman 1984 (3) SA 477 (W): applied

Martin v Martin 1997 (1) SA 491 (N): dictum at 491I - J applied

Micklem v Micklem 1988 (3) SA 259 (C): applied

Nicholson v Nicholson 1998 (1) SA 48 (W): dictum at 52 applied

Schmidt v Schmidt 1996 (2) SA 211 (W): dictum at 219J applied G

Zwiegelaar v Zwiegelaar 1999 (1) SA 1182 (C): applied.

Rules Considered

Rules of Court

The Uniform Rules of Court, Rule 43: see Barrow The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 12th ed (1999) Part A at 81 - 2. H

Statutes Considered

Statutes

The Divorce Act 70 of 1979, s 7(2): see Juta's Statutes of South Africa 1998 vol 5 at 2-152

The Maintenance Act 23 of 1963, s 1: see Juta's Statutes of South Africa 1998 vol 5 at 2-137. I

Case Information

Application for relief in terms of Rule 43 of the Uniform Rules of Court. The facts appear from the reasons for judgment.

S B van Embden for the applicant.

O L Rogers for the respondent.

Cur adv vult. J

2000 (2) SA p285

Postea (September 6).

Judgment

Hlophe DJP:

A. Introduction

[1] This is an application for relief in terms of Rule 43 of the Uniform Rules of Court. The applicant seeks relief under three heads. B The first is for an increase in maintenance pendente lite, raising the maintenance from R13 500 per month in terms of an existing Court order to R37 535,64 per month with effect from 1 October 1998. Secondly, the applicant has asked for various lump sum payments in terms of prayers 2 - 5 of the notice in terms of Rule 43(6). And, thirdly, the applicant is asking for an order that the respondent C pays a contribution of R250 000 towards the applicant's costs in the divorce action.

[2] It is not in dispute that this is the third Rule 43 application brought by the applicant. The first was in July 1996 before Farlam J (as he then was). He made an order which was annexed to the D applicant's affidavit as annexure 'A' thereto. The second Rule 43 application was before Lategan J on 19 December 1996. Lategan J varied Farlam J's order in terms of Rule 43(6). In essence Lategan J increased the respondent's contribution towards the costs of the applicant's accommodation to R8 000 per month. The rest of Farlam J's order was confirmed in every material respect. E

[3] The applicant instituted a divorce action against her husband under case No 5127/96 in this Division. The parties were married to each other on 12 July 1993 out of community of property and by antenuptial contract and that marriage still subsists. There is one minor child born of the marriage between the parties, a girl named F Lanoy, aged 7 years. The applicant also has a daughter from a previous marriage, Tai, aged 11 years, who lives with the applicant and who has been cared for by the respondent as if she were his own child. The applicant alleged in her affidavit that by September 1998 she could not stand intimidation, assault and distress and decided, with the respondent's full consent, that at least temporarily she should return G to Rehovot, which is a town near Tel Aviv in Israel where she was born. She felt that she needed the support of her family. Her parents still live in Israel, as does her older brother, who is married and has two children who are approximately the same ages as her own children, and her younger brother. The respondent has visited the children on a number of occasions in Israel. H

[4] The gravamen of the applicant's case was that as a result of such temporary relocation to Israel her circumstances changed materially due to, inter alia, different lifestyles between Israel and South Africa. Furthermore it was difficult to implement orders 2 - 7 inclusive of the order made by...