Third time unlucky for former president who claims he can’t afford estranged wife’s maintenance
It was third time unlucky for lawyers acting for a former president when they yet again attempted to overturn a court order that he pay his estranged wife R95,000 a month as interim maintenance ahead of their divorce.
His application for leave to appeal was dismissed with punitive costs on Tuesday.
The initial order was made in terms of rule 43 (interim maintenance) proceedings by Pietermaritzburg high court acting judge Barry Skinner on March 11.
This was after the judge scrutinised his bank accounts - subpoenaed by lawyers for the wife - which showed large cash deposits, indicating he had not been truthful about his financial affairs.
The former president had claimed his sole source of income was his pension of about R145,000 a month, and from that he had to pay a bond of R66,000 and support other relatives.
He claimed he could only afford to pay his estranged wife R20,000.
Rule 43 applications cannot be appealed. They can only be varied if there has been a material change in financial circumstances.
In spite of this, the former president’s lawyers were back in court on March 23 in an application which came before judge Jerome Mnguni.
In it he said he could not afford to pay that amount, and claimed the payments into his accounts were “contributions and donations from sympathetic members of the public or donor organisations who support me politically” and should not have been deemed “income”.
He said he owed R13m in legal fees and VBS Bank was suing him for more than R7m because he had defaulted on his bond payments and stood to lose his home.
Mnguni declined to deal with the application. He said it was not “urgent” and appeared to be an attempt to appeal the rule 43 ruling, which was not permissible.
The matter was adjourned until June.
Last Friday, the former president’s lawyers launched yet another legal bid to set aside Skinner’s ruling in the form of an “application for leave to appeal” to a full bench of the KwaZulu-Natal division, or the Supreme Court of Appeal (SCA), arguing again that the judge had got it wrong.
His lawyers, in their written argument, said a crucial aspect of the case had not been properly considered by courts in SA: the determination of rule 43 applications where litigants are parties to a marriage regulated by the Recognition of Customary Marriages Act.
Opposing the application, advocate Sian Clarence, acting for the estranged wife, said thus far he had not paid her anything and this was yet another dilatory tactic to avoid his obligations.
In her written argument, she repeated that the Superior Courts Act barred appeals of rule 43 orders.
The Constitutional Court had given this a thumbs up, finding that the purpose of the rule was to provide a speedy and inexpensive remedy “primarily for the benefit of women and children … the rationalisation for the non-appealability is to prevent delays and curtail costs ... to allow an appeal process would contradict its very objective”.
When the matter was called on Tuesday, the former president’s lawyers asked for an adjournment, saying the advocate tasked to argue the matter was not available.
Skinner refused to grant the adjournment, and when the matter proceeded the lawyers said they only had instructions to argue for a postponement, not the merits.
After hearing arguments from Clarence, Skinner dismissed the application with costs on an attorney and client scale.
The parties cannot be named because of a blanket ruling by the Constitutional Court barring the disclosure of parties in divorce proceedings.