A wealthy couple involved in a raging divorce battle has been harshly criticised by the Johannesburg High Court for fighting “protracted, high-conflict and acrimonious divorce proceedings which have endured over an incredible 12-year period”.
The current application lodged by the husband involves a squabble over the maintenance arrangements to remain in force until the divorce is finalised.
“The trial in the divorce action currently sits part heard, with no end in sight after 17 days of evidence. With the way this divorce is playing out, the probability exists there will simply be nothing left to fight over by the time it is finalised,” commented acting judge Leigh de Souza-Spagnoletti.
The court heard that Mr and Mrs S have so far run up “well over R10m in legal fees — this all over a marriage which comparatively speaking, did not last that long”. Mrs S was now outgunning her husband with senior counsel representation while he is now representing himself.
In this latest application, Mr S was asking for his R30,000 a month maintenance liability to be reduced on grounds that his wife (unemployed during the marriage) has increased her living standards and found a job since their split.
The court found that while the actions of the wife under guidance of her lawyer “seem aggressive and somewhat ruthless, they do fall within the parameters of the law”.
Criticising the couple for the Rule 43 application — “intended to provide quick and inexpensive relief” for interim arrangements during a marital dispute — De Souza-Spagnoletti said: “Neither party has endeared him or herself to this court with the excessive splay of papers which flies in the face of all that a Rule 43 application ought to be.”
The court heard that Mr and Mrs S were married in January 2004 out of community of property. Three years later they had a daughter. In 2012, after eight years of marriage, they filed for divorce.
“To emphasise the gravity of the matter, this minor child, who was five when the divorce summons was issued, has just turned 17. She has spent almost her entire childhood within the stress, tension and animosity of high-conflict divorce proceedings,” the court said, noting that a family advocate report found that she was now spending very little time with her father.
While an interim maintenance order was set in place in 2012, the circumstances changed. In 2020 Mr S was ordered to pay R3m towards Mrs S’s legal costs — but in 2022 the order was suspended pending reconsideration by the divorce court.
In this new application, Mr S asked to pay R15,000 maintenance and that Mrs S — currently living in their upmarket Houghton apartment — be ordered to move to more affordable accommodation within 3km of his rented apartment. He would pay her rent, and the apartment would be sold to settle their accumulated debts.
He asked that Mrs S, who is now employed, be ordered to pay a portion of their child’s expenses, that she be instructed to continue using her current vehicle and that the Toyota Prado he drives be sold to pay off the legal costs of the Rule 43 application.
In January last year, a month after the new Rule 43 application was lodged, Mrs S raised an exception, arguing that she should not be asked to find alternative accommodation. She also declined to declare when she had started earning her own income.
In his application, Mr S told the court that he was in dire financial straits as there had been material changes to his circumstances since 2012. Mrs S argued this was untrue, claiming Mr S was “a man of extensive means” and had “immense wealth”.
Mr S said he was unable to settle the order to pay Mrs S R3m for her past legal costs as he had no liquid assets nor the ability to access this much money. Mrs S, he said, had attached several of his assets — one being 90% of his member’s interest in the clothing manufacturing company he built 37 years ago, which is his main source of income. This had rendered him an employee and no longer head of the business.
She had also attached 90% of his member’s interest in the company he owned that was the recipient of clothing supplied by his manufacturing company, and that this business had been liquidated in February 2022.
She had also attached 100% of his member’s interest in the entity that owned the former matrimonial home in Norwood, with the result that the property was now unoccupied, falling into disrepair, with significant bond and utility arrears.
Mr S said he had to sell most of his personal assets, including Krugerrands left to him by his grandmother. He had cashed in a policy to settle his legal costs.
He told the court his financial circumstances had deteriorated because of the Covid-19 pandemic, that he had earned nothing from April to August 2020 during which time he had been unable to settle his full maintenance obligations. In September 2020 Mrs S had seized the last R43,881.36 in his account when he owed her R66,000.
He said the higher costs of fabric, the liquidation of his biggest client, his inability to recover monies owed by his clients, his need to reduce his staff from 279 to 111, looting in KwaZulu-Natal in July 2021 and R32m owed to Sars and the City of Johannesburg had all contributed to his difficulties.
“This court recognises how undesirable and unfortunate a decade-long Rule 43 obligation is for any party to divorce proceedings,” the judge held.
Mrs S had run up debit loans of R1.4m and two personal loans of R320,000 and R2.3m.
Mr S said most of his income was going on his maintenance obligations, leaving him to “live a humble existence”. He had used up all his savings, cashed in his investments and sold most of his movable assets, including his inheritance from his grandmother which he said was used to pay school fees.
Mr S said he had downscaled his legal representation and was forced into self-litigation while Mrs S was “represented by inter alia a senior attorney and senior counsel”.
Mrs S told the court that she believed Mr S had interests in two other businesses, one which owned R50m in property and the other he had bought for R2m cash. She provided no proof of this.
“It does appear that (Mrs S) has aggressively pursued the applicant’s financial resources to settle the judgments against the applicant who claims that he simply has nothing left,” the judge said, noting that Mr S had downscaled his lifestyle and was renting a home for R11,000 a month.
“It is difficult for this court to find that he is the immensely wealthy man alleged by (Mrs S).”
The judge found Mrs S’s claims that her husband was better off than in 2012 to be “an inaccurate claim”, and that the salary she was earning was significantly more than any increases Mr S had been given.
Mr S told the court that his wife was living more lavishly than when they were married, and he did not have the means to maintain this.
The court noted that while Mrs S had spent lavishly on their daughter’s Bat Mitzvah, 16th birthday and a European school tour, it was not uncommon for parents to splurge on their children to ensure they experienced the same as their peers.
“A Bat Mitzvah in the Jewish faith is indeed a milestone event in the life of a girl and there is often huge pressure for parents to ‘beg, borrow or steal’ to make sure that such events are memorable. It does seem to an extent that Mr S is ‘damned if he does and damned if he doesn’t’,” the court said.
Mr S said he was factually insolvent and unable to settle his personal debt. He asked that Mrs S and their daughter seek alternative accommodation similar in standard to that which he himself occupies, as Mrs S was refusing to vacate the Houghton apartment.
In terms of the current order, Mr S was obligated to pay Mrs S R31,500 a month and other payments including their daughter’s medical aid, school fees and extra murals. But since it was granted, Mrs S had found a job and was now earning a net salary of R29,500.
Mrs S said she had assets worth R310,700 and liabilities of R8.1m. She provided the court with examples of rental properties she would consider if she had to leave the Houghton apartment. These were for R30,000 a month — almost three times more than her husband’s home. She would also require a lump-sum payment to buy new appliances.
Mrs S said she should be driving a BMW X3 or a vehicle comparable in size with added features, while Mr S argued that she should continue to drive the one-year-old Kia she had damaged in a collision she caused.
The court found that Mrs S’s claim that her husband earned eight times more than her was inaccurate, as she was comparing his gross salary with her net earnings. She had also been evasive in response to his repeated requests for clarity on her employment date.
Mrs S detailed her monthly expenses as R2,900 for a personal trainer; R2,300 for hairdressing; R1,100 for beauty treatments; R350 for magazines and books; R3,000 for cosmetics and perfumes; R3,600 for restaurants; R3,870 for holidays; R1,100 for entertainment; R2,000 for her overdraft and R8,000 for legal fees.
The court noted that it was not clear how Mrs S was able to litigate so “robustly”, but that she had been “strongly and aggressively represented for some years now”.
De Souza-Spagnoletti said Mr S was “not living the life of a king” and it was highly unlikely that he had lowered his standard of living so immensely just to mislead Mrs S and avoid his maintenance obligations. It was also significant that Mrs S, who had not earned a cent during the marriage, was now employed.
The court held that Mrs S was “seeking to live a lifestyle of a time long passed”, before Mr S had been dispossessed of his biggest assets and spent 12 years in a divorce war that had cost millions and had long outlived the lifespan of the marriage.
The court held that Mr S was now living a sparse and humble existence and that Mrs S and their teenage daughter “are going to have to tighten their belts too”. Mrs S’s claims for more legal costs contributions were “simply not viable on the papers”.
The court struck out the old Rule 43 order and lowered Mr S’s monthly maintenance payments to R28,000. He was also to pay their daughter’s education and medical costs and fund repairs on Mrs S’s car.
Should Mrs S leave the Houghton apartment, Mr S would be required to pay her rent up to R18,000 a month along with her utilities bill.
