E.V v G.V (2024-143960) [2025] ZAGPPHC 869 (17 August 2025)

Case Note

E […] V […] v G […] V […] (Case number 2024-143960) [2025] ZAGPPHC ‑ Gauteng Division, Pretoria (17 August 2025)

Reportability

This judgment is reportable because it provides an authoritative restatement of the principles that govern applications brought under Rule 43 of the Uniform Rules of Court. The court not only revisits the purpose of Rule 43, namely to afford swift and inexpensive interim relief in matrimonial litigation, but also emphasises the paramount duties of candour, brevity and good faith that rest on litigants who invoke the rule.

In addition, the judgment synthesises and applies a substantial line of earlier authorities dealing with non-disclosure, prolixity and the equitable nature of interim maintenance and costs orders. The clarity with which the court links those principles to the discretionary power to strike a matter from the roll will serve as persuasive precedent in future Rule 43 proceedings.

Finally, the decision is significant because it demonstrates a robust judicial response to abuses of process in the form of unnecessary supplementary affidavits and inflated claims. In doing so, it contributes to the broader jurisprudence aimed at curbing delay and cost in family law litigation.

Cases Cited

Taute v Taute 1974 (2) SA 675 (Eastern Cape Division).

Cotman v Cotman 1967 (1) SA 291 (Cape Provincial Division).

Smit v Smit 1978 (2) SA 720 (Witwatersrand Local Division).

Du Preez v Du Preez (16043/2008) [2008] ZAGPHC 334 (Gauteng High Court, Pretoria).

Buttner v Buttner 2006 (3) SA 23 (Supreme Court of Appeal).

Carstens v Carstens 1985 (2) SA 351 (South Eastern Cape Local Division).

Nicholson v Nicholson 1998 (1) SA 48 (Witwatersrand Local Division).

Glazer v Glazer 1959 (3) SA 928 (Witwatersrand Local Division).

E v E and Related Matters 2019 (3) All SA 519 (Gauteng Division, Johannesburg).

Du Preez v Du Preez 2009 (6) SA 28 (Tshwane High Court).

Legislation Cited

The Uniform Rules of Court, especially Rule 43 in its entirety, together with particular reference to sub-rule 43(5).

The Divorce Act 70 of 1979 forms the statutory backdrop to the parties’ pending divorce action and the correlative duty of support.

Rules of Court Cited

Rule 43 of the Uniform Rules of Court, including the provisions governing founding and answering statements, and the limitation on the filing of further affidavits.

HEADNOTE

Summary

The applicant wife sought an interim maintenance award of R20 000 per month and a contribution of R200 000 towards her legal costs pending the finalisation of divorce proceedings. She also asked for leave to deliver supplementary affidavits. The respondent husband opposed the application, revealed substantial assets already transferred to the applicant and argued that her material non-disclosure barred relief.

Marx du Plessis AJ held that Rule 43 proceedings must be brief, candid and confined to essential facts. Both parties’ affidavits were excessively prolix, but the applicant’s failure to make full disclosure of a R4 million inheritance investment and other benefits was decisive. Because her omission meant the court could not reliably determine need or ability to pay, the application could not succeed.

The court struck the matter from the roll without a costs order, signalling that litigants who approach the court with “unclean hands” risk losing the interim protection of Rule 43.

Key Issues

The first issue concerned whether the applicant had met the high duty of full and frank disclosure required in Rule 43 proceedings. The second issue was whether prolix supplementary affidavits could be accepted when the original papers were deficient. The third issue revolved around the substantive merits of the claim for interim maintenance and a contribution to legal costs in light of the assets already transferred to the applicant.

Held

The court found that the applicant’s omission of a substantial inheritance investment and other payments constituted a material failure to disclose. Such lack of candour justified refusing relief. Prolix affidavits that undermine the purpose of Rule 43 are an abuse of process. Because the court was unable to assess the applicant’s need or the respondent’s ability to pay on the unreliable papers, the application was struck off the roll and no order as to costs was made.

THE FACTS

The parties were married out of community of property with accrual on 11 January 1997 and have one adult son who is still dependent. They separated in August 2023 when the applicant left the matrimonial home. Shortly thereafter they engaged in mediation and concluded a settlement agreement in October 2023. In terms of that agreement the respondent purchased a house for the applicant for R1,35 million, paid all attendant transfer and relocation costs, and placed R3,08 million into an investment account in her name, on the understanding that she would not access those funds until the divorce was finalised.

Despite those provisions, the applicant launched Rule 43 proceedings in which she requested monthly maintenance and a legal-costs contribution. She disclosed the house purchase and the investment but contended she had been “manipulated” into the settlement. Crucially, she failed to reveal that she held an inheritance investment worth approximately R4 million producing undisclosed returns. That fact became known only through the respondent’s answering affidavit.

Both parties then exchanged voluminous supplementary affidavits. The applicant attempted to explain the omission and presented a detailed but belated account of her expenses. The respondent responded in kind, criticising the prolixity and insisting that the application be dismissed for non-disclosure and abuse of process.

THE ISSUES

The court had to decide whether the applicant’s failure to disclose substantial assets disentitled her to interim relief under Rule 43. It also had to determine whether, despite the rule’s prohibition on a third set of affidavits, the supplementary papers should be allowed and, if so, what weight they should carry. Finally, it was required to assess, on the information properly before it, whether the applicant had demonstrated a genuine need for maintenance and a contribution towards legal costs, and whether the respondent had the capacity to satisfy such obligations.

ANALYSIS

Marx du Plessis AJ began by re-affirming the purpose of Rule 43 as an expedited and inexpensive mechanism for interim relief in matrimonial disputes. The rule envisages concise sworn statements that approximate a declaration and plea, allowing the court to make an equitable order on limited papers. Lengthy, argumentative affidavits frustrate that purpose and constitute an abuse.

Against that backdrop, the court scrutinised the applicant’s founding statement. Eleven of its nineteen pages were devoted to allegations about alcoholism, employment history and marital discord, none of which bore on the quantification of need or means. More critically, the statement omitted any reference to the R4 million inheritance investment and the income it produced, as well as other sizeable amounts already provided by the respondent. The court held that such omissions breached the duty of uberrima fides and tainted the application with unclean hands.

Turning to the supplementary affidavits, the court observed that Rule 43 does not ordinarily permit a replying affidavit. Exceptions exist only in truly exceptional circumstances, which were absent here. The applicant could not cure her defective founding papers by filing further affidavits once the respondent had exposed the omissions. Allowing such a tactic would encourage strategic concealment and undermine the efficiency of Rule 43.

Because the applicant’s credibility was compromised and the correct financial picture was unclear, the court concluded it could not reliably assess maintenance or legal-cost contributions. The equitable discretion under Rule 43 was therefore exercised against granting any relief, and the matter was struck from the roll.

REMEDY

The court ordered that the application be struck off the roll, thereby refusing the interim maintenance and legal-costs contribution sought. No costs order was made, the court evidently considering that the parties were spouses engaged in matrimonial litigation and that a punitive cost award would not be just in the circumstances.

LEGAL PRINCIPLES

The judgment entrenches several key principles in South African matrimonial procedure. First, litigants invoking Rule 43 must act with the utmost good faith and disclose all material financial information; failure to do so can justify outright dismissal. Second, affidavits in Rule 43 proceedings must be concise and relevant; prolixity is itself an abuse of the rule. Third, the discretion under Rule 43 is equitable and broad, enabling the court to strike a matter from the roll or refuse relief where justice so demands.

The decision further illustrates that a claim for interim legal-costs contributions is inseparable from the parties’ respective means and must be evaluated alongside maintenance. Finally, it highlights the court’s intolerance for strategic litigation tactics designed to conceal assets or inflate need, reinforcing that interim relief is a privilege conditioned on scrupulous honesty.