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[2020] ZAWCHC 2
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C.T v M.T and Others (10825/14) [2020] ZAWCHC 2; 2020 (3) SA 409 (WCC) (29 January 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 10825/14
In
the matter between
CT
APPLICANT
and
MT
FIRST
RESPONDENT
DIRECTOR
OF PUBLIC PROSECUTIONS WESTERN CAPE
SECOND
RESPONDENT
MINISTER
OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
THIRD
RESPONDENT
Coram:
Rogers J
Heard
:
9 December 2019
Delivered:
29 January 2020
JUDGMENT
Rogers
J
[1]
The applicant, who appears
in person, has applied to have rule 43 declared constitutionally
invalid. The first respondent is his
erstwhile wife from whom he was
divorced by an order of Cloete J on 8 February 2017. The applicant
told me that he wishes to appeal
the divorce order, which was granted
at the instance of the first respondent,
inter
alia
because in his
view she was not and is not of sound mind. The second respondent is
the Director of Public Prosecutions, Western
Cape (‘DPP’).
The third respondent is the Minister of Justice and Correctional
Services (‘Minister).
[2]
The DPP does not have a
legal interest in the validity of rule 43 though he features in some
of the applicant’s matrimonial
travails. In-house counsel for
the DPP filed heads of argument, and Mr Stephen SC (not the author of
the heads) appeared at the
hearing. He agreed that the DPP does not
have a legal interest but remained present to observe proceedings.
The Minister was represented
by Ms Mayosi.
[3]
Since a final order of
divorce has been made, it is doubtful whether the applicant retains a
practical interest in the validity
of rule 43. His stated case does
not assert that he is acting in the public interest or in the
interest of any other group of persons.
However, no challenge to his
standing was taken, and in the circumstances I think it better to
deal with the merits of his challenge.
[4]
The matter has come before
me in a curious way. The case started as an application issued in the
latter part of 2014. In April 2015
the applicant caused a rule 16A
notice to be issued. In March 2019 the parties met with the
Judge-President who directed that in
terms of rule 33(1) they should
present the constitutional challenge to rule 43 for adjudication by
way of a special case in terms
of rule 33(1). On 29 May 2019 the
Minister’s counsel filed a ‘stated case’, which –
having regard to its
content – would more accurately have been
called heads of argument. The DPP filed a similarly styled document
of a similar
kind. On 1 June 2019 the applicant filed his ‘stated
case’, which was a mixture of factual material concerning his
own matrimonial litigation and legal submissions. This is the only
material placed before me. I was not given the application itself.
[5]
The ‘special case’
contemplated in rule 33(1) is a single document submitted by the
parties jointly, setting out
inter
alia
a written
statement of the agreed facts. Here the parties have submitted
separate documents, essentially in the nature of argument.
The facts
contained in the applicant’s ‘stated case’, to the
extent that they are relevant to the adjudication
of the
constitutional challenge, have not been presented to the court as
agreed facts.
[6]
However, I have decided to
overlook these procedural shortcomings. As I explained to the
applicant, and as he accepted, the facts
of his own saga are not
germane to the validity of rule 43 except perhaps as illustrating (in
his view) some of the hardships to
which the rule can give rise. I
shall thus record his matrimonial litigation in bare outline. Meaning
no disrespect to the parties,
I shall refer to the applicant and the
first respondent as Henry and Mary (not their real names).
[7]
Henry and Mary were
married in June 2003. A son was born to them in August 2006. In
September 2008 Mary instituted divorce proceedings
in the Durban High
Court, she residing within that court’s area of jurisdiction at
the time. In January 2009 Mary obtained
an order from the Durban High
Court in terms of rule 43 which obliged Henry to pay maintenance for
her and the child. In June 2009
Henry succeeded in getting a
reduction of maintenance from the Durban maintenance court but an
appeal by Mary against that reduction
succeeded. In October 2010
Henry’s attempt to have the rule 43 order varied in terms of
rule 43(6) failed.
[8]
In November 2011 Henry was
arrested in Gauteng for alleged non-compliance with the order. This
initially proceeded as a criminal
case in the Somerset West
Magistrate’s Court. In October 2012 those proceedings were
converted into a maintenance enquiry
in view of Henry’s claim
of impecuniosity. Shortly afterwards the maintenance investigator
closed the file because Mary withdrew
her complaint, claiming that it
was a waste of time.
[9]
Henry laid charges against
Mary for failing to give him access to his son in terms of an order
granted by the Durban High Court
in August 2012. In May 2014 the same
court ordered that Mary be arrested and brought to court on 22 May to
show cause why she should
not be incarcerated for contempt. On that
day the court transferred the divorce action and the related rule 43
proceedings to this
court, since Mary had relocated from Durban to
Cape Town.
[10]
In the meanwhile Henry had
applied to the Constitutional Court for direct access to challenge
the validity of rule 43. In March
2012 the apex court dismissed his
application, ruling that it was not in the interests of justice to
hear the challenge at first
instance.
[11]
As I have said, the
constitutional challenge to rule 43 was launched in this court in the
latter part of 2014. Why it has taken
so long for it to come to
adjudication is unclear. Also unclear is why it took until February
2017 for the divorce case to be heard,
save to record that in March
2016 Gamble J found Mary to be in contempt for failure to comply with
case management directions (the
judgment is reported at
2016 (4) SA
193
(WCC)). Henry applied to the Constitutional Court for leave to
pursue an appeal against the divorce order directly to that court.
In
January 2018 the apex court dismissed the application, ruling that it
was not in the interests of justice to hear the matter
at that stage.
[12]
Since the applicant
appears in person, it is understandable that the distinction between
‘administrative action’ reviewable
in terms of the
Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’),
and other exercises of public power reviewable
in terms of the
principle of legality, was not present to his mind. The Uniform Rules
are akin to regulations. The last word has
not been spoken as to
whether and when the exercise of regulation-making power constitutes
‘administrative action’
subject to PAJA (
Mostert
NO v Registrar of Pension Funds & others
[2017]
ZASCA 108
;
2018 (2) SA 53
(SCA) paras 8-10;
Minister
of Mineral Resources v Stern & others; Treasure the Karoo Action
Group & another v Department of Mineral Resources
& others
[2019] ZASCA 99
;
[2019] 3 All SA 684
(SCA)
para
50).
[13]
The applicant has made no
mention of PAJA and I thus take his application to be based on the
principle of legality. No point of
delay has been taken by the
Minister.
[14]
In para 115.1 of his
stated case the applicant identifies the key features of rule 43
which in his view make it unconstitutional:
‘[I]t contains no
guidelines, timelines, is indefinite and non-appealable.’
[15]
In para 118 of his stated
case the applicant lists various provisions of the Bill of Rights,
presumably because he regards rule
43 as implicating them in some
way. These fundamental rights are: equality before the law (s 9(1));
dignity (s 10); the
right not to be treated or punished in a
cruel, inhuman or degrading way (s 12(
e
));
privacy in the form of the right not to have one’s possessions
seized (s 14(
c
));
access to information (s 32(1)(
b
));
the right to lawful, reasonable and procedurally fair administrative
action (s 33(1)); and the right to have any dispute
that can be
resolved by the application of law decided in a fair public hearing
before a court (s 34).
[16]
In para 127 he says that
although rule 43 on its face seems to be neutral and
non-discriminatory, it has or could have discriminatory
effects, one
of which is arbitrary deprivation of a spouse’s assets. This
might be thought to be a reference to s 25(1)
of the
Constitution.
[17]
In paras 154-158 he says
that rule 43 does not contain adequate protections and safeguards for
children, and he refers in this regard
to the rights of children in
terms of s 28(1) of the Constitution and the Children’s
Act 38 of 2005.
[18]
The applicant’s
statement of case does not expand upon the respects in which rule 43
is said to violate rights guaranteed
in the Bill of Rights and indeed
he does not expressly allege that the rule is invalid for violating
these rights. In his oral
submissions he confined himself to the
complaint that the rule contains no guidelines or timelines and is
indefinite.
[19]
However, to the extent
that the applicant intended to advance the case that the rule is
invalid for violating one or more of the
above sections of the Bill
of Rights, I reject the argument. I remind myself at the outset that
the rules of court are concerned
with the procedure by which
substantive rights are enforced. They do not lay down substantive law
(
United
Reflective Converters (Pty) Ltd v Levine
1988
(4) SA 460
(W) at 463B-E;
Prism
Payment Technologies (Pty) Ltd v Altech Information Technologies
(Pty) Ltd t/a Altech Card Solutions & others
2012 (5) SA 267
(GSJ) para 21;
Standard
Bank of South Africa Limited v Hendricks & another and five
similar cases
2019 (2) SA 620
(WCC) para 26). Specifically in relation to rule 43,
Vos J in this division said in
Harwood
v Harwood
1976
(4) SA 586
(C) at 588E-F that rule 43 governs procedure and does not
affect the substantive law (see also
Jeanes
v Jeanes & another
1977
(2) SA 703
(W) at 706F-G).
[20]
The court’s power to
make
pendente lite
orders for
maintenance, contribution to costs, and access to and custody of
children, is a power which vests in it by virtue of
substantive law.
It is a power which was exercised for many decades before rule 43 was
introduced. If rule 43 were abolished, the
substantive power would
not disappear. Only the procedure by which it is invoked would change
(a spouse would seek
pendente
lite
relief by way of
an ordinary application).
[21]
It follows that in a
challenge to the constitutional validity of rule 43 one is not
concerned with the notional detriment which
spouses may suffer from
orders made against them
pendente
lite
in accordance
with substantive law but only with such detriment as flows from the
specific procedure laid down in rule 43 for obtaining
such orders.
[22]
In regard to procedure,
the applicant has not complained about the requirement in rule 43
that the claim should be made by a sworn
statement ‘in the
nature of the declaration’ (rule 43(2)) and that the defence
should be made by a sworn reply ‘in
the nature of a plea’.
Precisely what the quoted phrases mean is open to debate. Clearly the
rule-maker intended that the
sworn statements should not be prolix.
Rule 43 was intended to provide for inexpensive and expeditious
interim relief (
S v S &
another
[2019] ZACC
22
;
2019 (6) SA 1
(CC) para 43).
[23]
In this division, at any
rate, rule 43 is not in my experience understood as meaning that
(save for being sworn) the claim must
in fact be a declaration as
envisaged in rule 20 read with rule 18 and that the defence must in
fact be a plea as envisaged in
rule 22. Some evidence, which would be
objectionable in a declaration or plea, is not merely allowed but
expected. In a declaration
it might suffice, for example, for a wife
to plead that she reasonably requires RX per month to maintain
herself and that the husband
can afford to pay it. In a rule 43
statement, by contrast, the court would expect a breakdown of and
some evidence to support the
wife’s alleged maintenance
requirements, and some evidence as to why she says the husband can
afford to pay the amount. When
the rule-maker says that the claim or
defence should be ‘in the nature’ of a declaration or
plea, the rule-maker is
saying, I think, that in the quest for
brevity the claim and defence should be more like a declaration and
plea than like a founding
affidavit and opposing affidavit.
[24]
Shortly after the
introduction of rule 43, Van Winsen J in
Varkel
v Varkel
1967 (4) SA
129
(C) appears to have thought that in the ordinary course the
parties would, following their brief sworn statements, appear before
a judge and give oral evidence in terms of rule 43(5), which was the
proper occasion to produce material in support of their respective
averments (at 132C-F). That is not, however, the view that has
prevailed. Except perhaps where the interests of children are at
stake, it is the exception rather than the norm for oral evidence to
be heard. Judges expect succinctly-stated evidence in support
of the
points of claim or defence to be contained in the sworn statements.
This was the view taken by Milne JP in
Boulle
v Boulle
1966 (1) SA
446
(D), also shortly after the introduction of the rule, when he
said (at 449
in fine
):
‘
No doubt the
intention of the rule is that the essential facts relied upon by the
applicant should be stated concisely, but it appears
to me to be
prima
facie
desirable that some details should be given so as to enable the court
to deal with the application, if possible, without recourse
to
viva
voce
evidence.’
(See
also
Eksteen v Eksteen
1969 (1) SA 23
(O) at
24H-25C. The question of the permissible length of sworn statements
in terms of rule 43, and the further question whether
replying
affidavits should sometimes be allowed, were recently considered by a
full court in Johannesburg in
E
v E
2019 (5) SA 566
(GJ). It is unnecessary for me to express an opinion on the views
contained in that judgment. According to my enquiries, the practice
directives of that court have not yet been amended in line with the
proposals in
E v E
.)
[25]
Against this background, I
deal briefly with each of the fundamental rights which the applicant
mentions:
(a) In regard to
equality (s 9(1)), all spouses are subject to the same rule. To
the extent that the rule creates
differential treatment between
matrimonial litigants (who are subject to the said rule in respect of
the matters governed thereby)
and other litigants (to whom ordinary
motion and action rules apply), the differential treatment has not
been shown to be irrational
or discriminatory.
(b) In regard to
dignity (s 10), it is not an affront to a person’s dignity
to be required to advance or defend
a claim for
pendente lite
matrimonial relief in accordance with the prescripts of rule 43,
any more than it is an affront to dignity to be required to advance
or defend other claims in accordance with the prescripts relating to
actions or applications as the case might be.
(c) In regard to
degrading, inhuman or cruel treatment or punishment (s 12(1)(
e
)),
an interim matrimonial order may result in hardship for the burdened
party but cannot be regarded as degrading, inhuman or cruel
within
the meaning of the Bill of Rights. Anyway, the order would be sourced
in substantive law, not the rule.
(d) In regard to the
possible seizure of possessions (s 14(
c
))
and deprivation of property (s 25(1)), this is not a consequence
of rule 43 but of the substantive power to make matrimonial
orders
pendente lite
,
coupled with the provisions of
legislation and the rules concerning execution of judgments in
general.
(e) In regard to
access to information (s 32(1)(
b
)), rule 43 does not
stand in the way of a person’s right to information as
guaranteed by that section read with the
Promotion of Access to
Information Act 2 of 2000
. This does not mean, of course, that a
rule
43
respondent can compel the opposing party to produce whatever
information he regards as necessary to advance his defence, any more
than an ordinary respondent could in ordinary motion proceedings. If,
however, a
rule 43
respondent considers that the applicant is
withholding important information which would refute her claim for
relief
pendente lite
, and that without such information the
applicant might unjustly obtain relief by passing off sparseness as
conciseness, he can
ask the court to call for further evidence,
either orally or by way of further affidavits.
(f) In regard to fair
administrative action
(s 33)
, proceedings in terms of
rule 43
are not
administrative but judicial, so this fundamental right is not
engaged.
(g) In regard to
access to courts
(s 34)
,
rule 43
envisages a public hearing
before a court of law. Disputes about interim matrimonial relief are
disputes which can and have for
decades been decided by the
application of our substantive law. Subject to the applicant’s
complaints that
rule 43
contains no guidelines or timelines, is
indefinite and non-appealable, which I shall address separately,
there is nothing unfair
about the
rule 43
procedure. It may be
somewhat robust, but that is legitimate for relief which is intended
only to be interim, with final adjustments
to be made, if necessary,
in the divorce order. As I have said, the need for the claim or
defence to be concise does not preclude
the inclusion of evidence in
the sworn statements, and
rule 43(5)
exists as a backstop where
additional evidence is needed to dispose of a case fairly.
(h) In regard to the
rights of children
(s 28)
, courts hearing
rule 43
applications
relating to access to and custody of children must comply with the
Constitution and the Children’s Act. In particular,
the court
must apply the standard of the best interests of the child. In the
nature of things, interim orders cannot be as fully
investigated as
final orders, but courts hearing rule 43 applications relating to
children are likely to be generous in applying
the standard of
succinctness and in their invocation of rule 43(5) (see
TS v TS
P18 (3) SA 572 (GJ) paras 37 and 60-66). Rule 43 does not compel
the court to act in way which negates the best interests of children.
[26]
I turn now to the
complaints articulated in para 115.1 of the stated case. In regard to
non-appealability, the question has been
settled by the
Constitutional Court in
S
v S supra.
Non-appealability
is not unconstitutional. I should add that non-appealability is not
imposed by rule 43 but by
s 16(3)
of the
Superior Courts Act 10
of 2013
. At the hearing the applicant acknowledged that the
appealability question had been settled by
S
v S
, but said that in
considering his other complaints one must bear in mind there is no
appeal as an antidote to unjust decisions.
[27]
In regard to the absence
of guidelines, the applicant considers that the rule should set out,
for example, how spousal support is
to be calculated. By way of an
example of the sort of guidelines he had in mind, he referred me to
the temporary maintenance guidelines
apparently adopted by the State
of New York – only income, not assets are taken into account;
various percentage deductions
are made from the annual incomes of the
dependent spouse and wealthier spouse; the duration of the award is
related to the duration
of the marriage and so forth.
[28]
This complaint cannot be
sustained because it is concerned with substantive law, not
procedure. The substantive law governing interim
maintenance is our
common law, the obligation to pay such maintenance being rooted in a
spouse’s duty of support. Whether
the broad and flexible
jurisdiction of the common law (as to which, see eg
Smallberger
v Smallberger
1
948
(2) SA 309
(O) at 313-314;
Barass
v Barass
1979
(1) SA 246
(R) at 246
in
fine
) should be
replaced by more predictable and mechanical rules is not a matter for
procedural rules but substantive legislation.
As I have already
remarked, if
rule 43
were abolished, the court would still have its
substantive power to order interim maintenance, and the current
common law would
still apply. The only difference would be that the
broad and generous jurisdiction of the common law would be invoked by
an ordinary
application under
rule 6
rather than by way of the more
truncated procedure of
rule 43.
[29]
The same applies to the
court’s power to order a contribution to costs, which is
likewise sourced in the spousal duty of support
(
Chamani
v Chamani
1979
(4) SA 804
(W) at 806B-H;
AF
v MF
[2019] WCHC 111;
2019 (6) 422 (WCC) para 27). In regard to access to and custody of
children, the court’s common law powers
have now largely been
superseded by the Children’s Act, which contains significant
guidance.
[30]
In his oral submissions,
the applicant said that his complaint about the absence of timelines,
and that the rule is indefinite,
are really concerned with the same
problem, namely that an interim order might end up lasting a very
long time, with resultant
injustice to the burdened spouse. He
referred me to cases where courts have recognised that
rule 43
may be
abused by a spouse in whose favour a generous interim award has been
made. Such a spouse may have an incentive to string
out the divorce
case far longer than would have been in the court’s mind when
the interim order was made.
[31]
Although I do not know why
the applicant’s own matrimonial litigation has been so
protracted, and am not in a position to
judge the rights and wrongs
of his case, I can understand that he might see himself as a victim
of this type of abuse. On his version
he has lost substantially his
whole estate, including a pharmacy business, during the pendency of
the divorce proceedings. He spoke
with obvious emotion about his
child with whom he has been able to establish no relationship, having
(in his words) seen the boy
for only 82 minutes in the last 11 years.
[32]
I do not think, however,
that his unfortunate experience, which may be an extreme example of a
more common malaise, can be laid
at the door of
rule 43.
At the risk
of repetition, the substantive power to make interim orders of the
kind listed in
rule 43(1)
is a power sourced in our common law. The
abuse of which the applicant complains is one that could be caused by
any interim matrimonial
order by whatsoever procedure obtained.
[33]
One possible source of
injustice is where the interim order is from the outset unjust. In
such a case the problem is not one of
absence of temporal limit,
though of course the injustice would at least be contained if the
order automatically lapsed after a
specified period of time.
Unfortunately it is always possible that interim orders may be unjust
(whether because of dishonest affidavits
or poor decision-making) and
that they may last longer than anticipated. This danger applies to
all forms of interim relief, not
only interim matrimonial relief. The
non-appealability of
rule 43
orders, which is expressly decreed by
statute, is in truth a general characteristic of all interim orders.
Rule 43(6)
will not usually provide a solution since the complaint is
that the judge made an unjust order, not that circumstances have
materially
changed.
[34]
Nevertheless, where an
order is from the outset manifestly unjust and erroneous, a court may
exercise its inherent power in terms
of s 173 of the Constitution to
remedy the wrong (
S v S
supra
para 58).
Moreover, where an injustice is compounded by an undue protraction of
the divorce proceedings, the delay may itself constitute
a material
change of circumstance as contemplated in rule 43(6).
[35]
The potential abuse of
indeterminate interim orders could be avoided by including in the
order a provision to the effect that it
will lapse after a specified
period of time, whereupon the spouse in whose favour it was made
would need to renew his or her application.
In many cases it ought to
be possible to assess how long the divorce should take to come to
trial if diligently conducted. Specifying
a fixed period might
encourage the benefited spouse to pursue the main case diligently. On
the other hand, proceedings can be delayed
for many unforeseen
circumstances having nothing to do with abuse by the benefited
spouse. Whether it is desirable to insist on
the expense and
inconvenience of a further application is debatable. Furthermore, if
the interim order were regarded as unduly
parsimonious rather than
unduly generous, there may be an incentive on the part of the
obligated spouse, rather than the benefited
spouse, to drag out the
main case.
[36]
Be that as it may, if
specifying a terminal date in the order were thought desirable, there
is nothing at common law or in rule
43 which prevents its imposition.
And even in the absence of such a term, the fact that the main case
has been delayed significantly
longer than could reasonably have been
expected when the interim order was made would probably be a basis to
ask for a fresh assessment
in terms of rule 43(6).
[37]
However, and although
terms such as those suggested above could be included in rule 43
orders in order to minimise the risk of abuse,
the abuse as such is
not caused by rule 43. The rules of court as a whole are meant to
result in expeditious adjudication. Every
procedural step is governed
by a time-limit. If the time-limit is not complied with, the rules
entitle the other party to apply
for relief (eg an order compelling
compliance, failing which the claim or defence is struck out).
Judicial case-management is a
further mechanism designed to ensure
that trial preparation is handled efficiently. Provided judges play
their part, no case should
take as long as the applicant’s did,
even if one of the litigants were trying to drag it out. Significant
abuse can only
really happen where a litigant fails to exercise his
or her procedural rights or a judge fails to do his or her duty.
[38]
It follows that the
applicant’s challenge to rule 43 must fail. It is not in
dispute that in terms of the
Biowatch
principle there should
be no order as to costs. Since I have not been furnished with the
notice of motion giving rise to the ‘stated
case’, I do
not know whether the applicant claimed any relief apart from
challenging the constitutionality of rule 43. In
those circumstances
I am not in a position to dismiss his application, though this will
be the practical effect of my order unless
there is other relief
still to be determined.
[39]
Since the applicant
appears in person, I remind him that he has 15 court days from the
date of delivery of this judgment to file
and serve an application
for leave to appeal my judgment. If he delivers such an application,
I shall make prompt arrangements
to hear it. This is not intended as
an encouragement to him to seek leave.
[40]
I make the following
order:
The
applicant’s application for an order declaring rule 43 to be
unconstitutional and invalid is dismissed.
______________________
O L
Rogers
Judge
of the High Court
Western
Cape Division
APPEARANCES
For
Applicant
In
person
For
Second Respondent
Mr
Stephen SC
Office
of the Director of Public Prosecutions, Western Cape
For
Third Respondent
Ms
N Mayosi
Instructed
by:
State
Attorney
4
th
Floor, Liberty Centre
22
Long Street
Cape
Town