Leigh-Ann Patricia Rudland (nee Schoeman) v Simon George Wilburn Rudland

### Preamble
1
HH 57-18
HC 5736/17
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LEIGH-ANN PATRICIA RUDLAND (nee SCHOEMAN)

versus

SIMON GEORGE WILBURN RUDLAND

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 21 November 2017 & 7 February 2018

Opposed Matter

R.M. Fitches, for the applicant

T. Mpofu, for the respondent

MUNANGATI-MANONGWA J: This is an application for contribution towards costs wherein the applicant seeks an order compelling the respondent to contribute

US$120 000-00 towards the applicant’s costs of suit in the divorce matter she instituted under case No. HC 10256/14. The application is opposed.

The background facts are as follows:

Sometime in 2014 the applicant instituted divorce proceedings against her husband the respondent herein. In her claim she sought post-divorce maintenance, maintenance for her minor child Emma Anne Rudland and a share of matrimonial or other assets belonging to the parties.

On 26 June 2017 this application was filed, meanwhile the divorce case had progressed to a stage where parties were awaiting a hearing date. It is common cause that the divorce matter was then set down and a trial ensued before this application was heard. On 30 October 2017 the trial proceedings were concluded and parties await judgment. Meanwhile, the registrar on 9 October 2017 had set this matter down for hearing on 21 November 2017.

At the hearing of this application Mr Mpofu for the respondent argued that given the stage at which the application for contribution towards cost was filed, days before the initial set-down of the divorce trial, the application is vexatious, driven by an improper motive and ought to fail. I disagree with these sentiments. It is common cause that the divorce proceedings only ended on 30 October 2017. As long as the divorce proceedings were pending nothing would bar the applicant from instituting the proceedings. As would be demonstrated later, instituting the claim for contribution towards costs at a late stage becomes a risky enterprise as the considerations change if trial is to conclude before the application is heard.

The whole essence of contribution towards costs for litigation is premised upon the reciprocal duty of support that spouses owe each other. Rule 274 sub rule (1) of the High Court Rules 1971 states as follows:

(1)	When a spouse is without means to prosecute or defend an action for divorce or judicial separation, the court may on application order the other spouse to contribute to his or her costs, and where necessary to his or her maintenance pendente lite, such sums as it deems reasonable and just.

Thus, this relief is available to enable a party to prosecute or defend an action for

divorce. In my view as long as the proceedings are still ongoing the litigant is either prosecuting or defending their case. As a corollary the institution of this application in June 2017 cannot be said to be out of order as the trial had not started and the applicant herein was still prosecuting her divorce case.

Mr Mpofu further raised an important argument that the relief sought by applicant was no longer competent as the divorce trial had been concluded and parties only awaited judgment. He referred the court to the case of Chamani v Chamani 1979 (4) SA 804 (W) at p 806 where Nestle J quoting Thompson J in Van Rippen v Van Rippen 1949 (4) SA 634 (C) (at pp 637-639) said:

“The claim for a contribution towards costs in a matrimonial suit … has been sanctioned … on our practice. But in my view the application for a contribution towards costs essentially remains what its name indicates; it is the making available of funds to the applicant for the purpose of enabling her adequately to place her case before the court. By ordering a contribution the court does provide the sinews of war; but, so far as I am aware, the court has never under this contribution procedure provided the applicant’s attendance with complete advance cover for all the fees.

It is stated elsewhere that “the wife is not entitled to payment in full of the total costs which will be incurred in presenting her case to court but that the court will award her such sum as it considers necessary to enable her to place her case adequately before the court.”

See The South African Law of Husband and Wife 3rd ed Juta & Co Ltd Wynberg 1969 @ p 509.

The issue that exercises the court’s mind at this juncture is whether the applicant is still prosecuting her case at this stage.

The answer is in the negative, judgment has been reserved in the divorce case and it is common cause that in that case plaintiff applied for ordinary costs against the respondent. If the purpose of contribution towards costs is to enable a litigant to adequately present her case before the court is that purpose being served at this stage? The court believes otherwise.

I would agree with Mr Mpofu’s argument that an order for contribution for costs is prospective and not retrospective. The language used in r 274 points to “need,” it refers to a spouse without “means” yet she seeks to prosecute or defend action for divorce. As of the date of hearing the applicant has already prosecuted her divorce action, she has managed to present her case before the court.

It could well be that the applicant has had to borrow money to finance her litigation. That evidence is not before the court, what is apparent is that she has placed her case before the court with due legal representation. There is no averment or evidence placed before the court that funds are owed to counsel or that there are outstanding financial obligations arising from the applicant prosecuting her case. Most important, at this juncture the applicant would be aware of her legal costs such that contribution sought should be linked to the costs incurred or obligations arising. This would in the court’s view necessitate seeking leave to file further affidavits to place before the court facts pertaining to developments in the divorce case. This explains my remarks at the onset that, the timing of the application can be problematic if the divorce trial finalises before the application for contribution is heard.

It is the court’s finding therefore that contribution towards costs being prospective, an application heard after prosecution of the divorce matter but instituted prior has to present that aspect to the court and openly declare the costs incurred during prosecution of the applicant’s claim or defence. This applicant failed to do.

The other pitfall for the applicant is the fact that in the divorce matter ordinary costs were claimed. In an application for contribution towards costs the court is dealing with an estimation of costs with particular regards to amount not necessarily scale. To then award applicant a figure where the trial judge is considering costs at an ordinary scale is likely to lead to conflicting judgments.

Note should be taken of the fact that the principles to be considered in awarding the actual sum have not been dealt with. This court concentrated on whether a competent order could be granted at this stage given the fact that the trial concluded before this application was heard. In this regard, no conclusion can be made as to whether the applicant would have succeeded in her claim for $120 000-00 contribution towards costs and if so, to what extent, as the merits of her claim were not dealt with.

On the issue of costs, two aspects come to the fore. The applicant applied for set down of the application on 23 August 2017 and the Registrar acknowledged same. The record was received in the judge’s chambers on 8 September 2017 and a notice of set-down served on 10 October 2017 for the 21 November 2017. Clearly the divorce matter had not finalised when notices were received by both parties. It is inconceivable that any one of them would have foreseen the divorce matter being concluded on 30 October 2017. Further, when both parties were concluding the divorce trial on 30 October 2017 whilst aware that the application for contribution had already been set-down, it was incumbent upon the legal practitioners as officers of court, to bring this to the attention of the trial judge. It may even have been proper and ideal to have the trial judge adjudicate upon this application.

As the setting down of this matter in terms of provision of actual dates was beyond the applicant’s control, coupled with what the court considers to be abrogation of duty by both parties legal practitioners in bringing this issue to the fore, it is my belief that the applicant cannot be burdened with an order for costs. Accordingly it is ordered as follows:

The application is dismissed.

Each party to bear its own costs.

Coghlan, Welsh & Guest, applicant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners