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[2011] ZAGPJHC 77
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Calvaleros v Calvaleros (42518/2010) [2011] ZAGPJHC 77 (12 August 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 42158/2010
DATE:12/08/2011
In the matter between:
CAVALEROS
COSMAS
.....................................................................
Applicant
and
CAVALEROS VANA
MAGDALENA
….........................................
Respondent
J U D G M E N T
MOKGOATLHENG J
(1)
The applicant
has launched this application pursuant to
Rule
30 (1
)
to set aside a
Rule
43
application instituted by the respondent. The application is premised
on the basis that the
Rule
43 (2)
application is in its entirety an irregular proceeding, as envisaged
by
Rule
30 (1)
.
(2) The gravamen of the
applicant’s objection is that the
Rule
43 (2)
application
is inordinately prolix in that it spans forty-three pages comprising
of a twenty-one page founding affidavit, irrelevant
lengthy
correspondence, superfluous and vexatious material which renders it
irregular and consequently, an abuse of the process
of Court.
(3) The applicant
surmises that should he respond to each and every allegation
contained in the
Rule
43
application,
he would be constraint to be succinct, because his answering
affidavit would also be prolix, thus making it susceptible
to
defeating the purpose and objective of
Rule
43 (2),
and
consequently, subjecting him to censure by the Court.
(4) The applicant’s
opines that since the dispute strictly relates to the parties
patrimonial claim and does not concern itself
with minor children’s
issues, the Court has no discretion to condone the irregular nature
of the respondent’s
Rule
43
application, as there are no exceptional circumstances justifying a
deviation from the prescripts of
Rule
43.
(5) The applicant
surmises that the
Rule
43
application
contains a plethora of irrelevant, argumentative and unnecessary
evidential material relating to his alleged extravagant
luxurious
lifestyle, extramarital relationship and business interests which
render the
application
nugatory.
THE NATURE AND
AMBIT OF
RULE
43 (2)
(6)
Rule
43 (2)
provides:
“
The applicant
shall deliver a sworn statement in the nature of a declaration
setting out the relief claimed and the grounds therefore.……….”
In
Colman
v Colman
1967 (1) SA 291
(C) at 292A
Theron J remarked:
“The
whole spirit of Rule 43 seems to me to demand that there is to be
only a very brief succinct statement by the applicant
of the reasons
why he or she is asking for the relief claimed and an equally
succinct reply by the respondent and that the Court
is then to do its
best to arrive expeditiously at a decision as to what order should be
made pendente lite.”
Zaphiriou
v Zaphiriou
1967 (1) SA 342
(W) at 345F-G; Varkel v Varkel
1967 (4)
SA 129
(C) at 131G;
Zoutendijk
v Zoutendijk
1975 (3) SA 490
(t) at 492A-D.
(7) Although the object
of
Rule
43 (2)
is to
condense the founding affidavit, Courts have held that to expect a
sworn statement in the nature of a declaration is somewhat
unrealistic having regard to the complexities inherent in
Rule
43 (2)
applications,
consequently, a deviation from the strict formal requirements of the
rule is permissible in exceptional circumstances.
(8)
Rule
43 (2)
does
not prescribe the length of the founding affidavit. The only
requirement is that the founding affidavit must be in the nature
of a
declaration. The applicant is not required to deliver an affidavit
which is in fact a declaration, but is enjoined to deliver
one which
is merely in the nature of a declaration. Documents relevant to the
averments in the founding affidavit may be annexed.
Rule
43 (2)
does not proscribe the annexing of a necessary confirmatory
affidavit.
THE EXCEPTIONAL
CIRCUMSTANCES
(9) The respondent
contends that her
Rule
43 (2)
founding affidavit conforms to the requirements of
Rule
43 (2),
and
argues that the factual matrix underpinning the application are
exceptional, in that her claim for maintenance
pendente lite
is in respect of a substantial sum of R 151 911.67 per month, and an
equally substantial contribution of the amount of R 150 000.00
to
costs.
(10) The respondent
contends further that the luxurious and lavish standard of living she
enjoyed with the applicant, the vast assets
constituting the
applicant’s expansive R5 billion financial empire, the
applicant’s remissness in not contributing
to her maintenance,
and the applicant’s extravagant standard of living with his
alleged mistress had to be disclosed and
are relevant, because the
respondent is , in a
Rule
43 (2)
enjoins her to establish a
prime
facie
case
to succeed with her claim for the maintenance
pendente
lite
and
contribution to costs.
(11) The facts in this
matter distinguish this as an exceptional
Rule
43
application,
because it is not the normal run of the mill
Rule
43
application
envisaged by the “
Rule
Framers”
in
1965, and subsequently interpreted in a long line of decisions
commencing from
Colman
v Colman
1967 (1) SA 291
(C).
Although
in this matter there were no novel legal points raised, it
nevertheless an exceptional rarity for an applicant in
Rule
43
application
to seek an order setting aside such application as an irregular
proceeding in terms of
Rule
30 (1),
more especially, where it is predicated on the contention that such
alleged irregular proceeding renders the entire
Rule
43 (2)
application
a nullity.
(12) This
Rule
43 (2)
application
is exceptional in that it relates to a marriage spanning 45 years,
involves an extraordinarily substantial maintenance
claim
pendente
lite
and contribution to costs predicated on the earning capacity of an
admitted billionaire, who allegedly owns through Cavaleros Group
Holdings (Pty) Ltd, a conglomeration of 60 business entities valued
at R5 billion, and whose allegedly well-kept mistress with
whom he
jointly owns and controls assets valued at about R130 million, is the
cause of the breakdown of the marital relationship.
(13) The respondent is
enjoined in terms of
Rule
43 (2),
to
establish a
prima
facie
case to justify her claim for maintenance
pendente
lite
and contribution to costs
.
The
evidence tendered in the
Rule
43 (2)
application in the determination of the maintenance payable
pendente
lite
is
relevant to, and to the final determination of a final just
maintenance order made by the Court adjudicating the issue of
maintenance
in terms of
section
7
(3) of the
Divorce Act 70 of 1979
when
finalising the divorce.
(14) Nothing debars the
respondent from traversing the details of the cause of the breakdown
of the marriage, indeed it would be
unrealistic not to expect the
respondent to advert to the pertinent salient features regarding
“
the
existing or prospective means of each of the parties, their
respective earning capacities, financial needs and obligations,
the
age of each of the parties, the duration of the marriage, the
standard of living of the parties prior to the divorce, their
conduct
in so far as it may be relevant to the breakdown of the
marriage………..”
see also
Rousails
v Rousalis
1980 (3) SA 446
(CPD) at 450G-H.
(15) This application
was argued over 2 hours by this Court’s most experienced silk
specialists in matrimonial matters. In
anticipating the exceptional
nature of the
Rule
43
application,
the
Rule
30
(1)
application
was strenuously opposed. Counsel submitted substantial sets of heads
of argument. Counsel cited 30 reported cases traversing
the entire
spectrum of
Rule
43
applications.
THE APPLICABLE
LEGAL PRINCIPLES
(16) The applicant in
invoking the provisions of
Rule
30
(1)
is in effect submitting that the
Rule
43
application
is so defective that it constitutes a nullity, and that the Court
cannot condone its non-compliance with
Rule
43
(2)
.
I disagree. The Court has wide powers in adjudicating a
Rule
30
(1)
application.
Rule
43(5)
vests the Court with a discretion and provides:
“The
Court may hear such evidence as it considers necessary and may
dismiss the application or make such order as it thinks
fit to ensure
a just and expeditious decision.”
(17)
Rule
30(1)
does not define what should be regarded as an irregular step or
proceeding, but It is clear from the provisions of
Rule
43
(5)
that
a Court has a wide discretion whether or not to seek further
supplementary evidence or to set aside such proceeding.
(18) In
Gardiner
v Survey Engineering (Pty) Ltd
1993 (3) SA 549
it
was held:
“Proof
of prejudice is a prerequisite to the success of an application in
terms of
Rule 30.
”
Cloete
J (as he then was) in
Uitenhage
Municipality v Uys
1974 (3) SA 800
(E) at 805D-F:
remarked “The principle has repeatedly been laid down in our
Courts that the Court is entitled to overlook, in proper cases,
any
irregularity in procedure which does not work any substantial
prejudice to the other side.”
(19) The question
whether the
Rule
43
application
is a
nullity or not as contended by the applicant, secondly whether it is
unduly prolix or whether in addition it contains a plethora
of
superfluous, irrelevant and vexatious material. Addressing these
exigencies Nestadt J in
Kruger
v Minister of Police
1981 (1) SA 765
(T) at 768D-E
opined:
“
The
distinction between an irregular proceeding and one that is a nullity
or void is one that has been recognised” (
see
eg
Dalhouzie
v Bruwer
1970 (4) SA 566
(T)
at
569
and the cases there cited)
.
“I do not propose to attempt to define the standard by which a
step or proceeding is to be judged as so irregular or defective
that
it constitutes a nullity.
Perhaps
it is a question of degree
.
”
(
Trans-African
Insurance Co Ltd v Maluleka
1956 (2) SA 273
(A) at 278G-H; Rooskrans
v Minister van Polisie
1973 (1) SA 273
(T) at 274).
(20) In the applicant’s
notice in terms of
Rule 30
(2)(b)
no
specific details are cited as to which allegations in the
respondent’s founding affidavit are categorised as
“
superfluous,
irrelevant or vexatious evidential matter”
and are consequently, contrary to the provisions of
Rule
43
(2)
read
with
Rules
20
(2),
8
(3)
and
18
(4).
(21) In
Consani
Engineering (Pty) Ltd v Anton Steinecker Machinenfabrik GmbH
1991 (1)
SA 823
(T) at 824G-H;
it
was held:
“
It is not all
proceedings which are less than perfect in form which are open to
objection in terms of
Rule 30
, and while the Courts frequently
condemn non-compliance with the Rules, purely technical objections
should also be discouraged.”
(22)
In
Trans-African
Insurance Co Ltd v Maluleka
1956 (2) SA 273
(A) at 278
Schreiner
JA stated:
“…
.technical
objections to less than perfect procedural steps should not be
permitted, in the absence of prejudice, to interfere with
the
expeditious and, if possible, inexpensive decision of cases on their
real merits.”
SA Metropolitan
ewensverskeringsmaatskappy Bpk v Louw NO
1981 (4) SA 329
(O) at
334H-335E.
(23) The only palpable
prejudice alluded to by the applicant is the allegation that the
founding affidavit contains a plethora
of superfluous and irrelevant
material which stands to be struck out if the application is not set
aside, because such irregular
proceeding will result in the applicant
being unable to comply with the requirement of
Rule
43(2)
in
that his answering affidavit might result in the
Rule
43
(2)
application
spanning some eighty (80) to ninety (90) pages, thus making him
susceptible to failing to comply with
Rule
43
(2).
(24) A perusal and
consideration of the applicant’s founding affidavit indicates
that although extensively detailed it is
not inordinately prolix
having regard to exceptional circumstances predicting applicant’s
claim for personal maintenance,
and contribution to costs, it
consequently cannot be categorised as beyond the letter and spirit of
Rule 43
(2)
as
it comprises of the material facts essential for the respondent’s
claim.
(25)
Rule
43
(2)
enjoins
the respondent to establish a
prima
facie
case,
consequently, the parties luxurious standard of living has to be
factually established and elaborated upon. The same considerations
apply to the vast complex assets constituting the financial empire
controlled by the applicant, and the details of cause of the
breakdown of the marriage.
(26) The allegations
relating to the applicant’s conduct with his alleged mistress
are unsavoury, but this conduct is relevant
to show that the
respondent is entitled to maintenance
pendente
lite
on the same standard she was accustomed to, especially where such
standard is prejudiced by applicant’s alleged extramarital
relationship.
(27) It is true that the
respondent might have over-elaborated and narrated the details
pertaining to the parties lavish lifestyle
and the cause of the
breakdown of the marriage with venomous vainglorious particularity to
the justified annoyance and discomfort
of the applicant, but such
defect in the founding affidavit is plainly not such that the
document can be said to be a nullity.
(28) Although the
allegations are detailed and somewhat expansive, it cannot be said
they are not non-existent or that the founding
affidavit is an
irregular proceeding in it’s entirety, and consequently, that
the applicant is thereby prejudiced in that
he cannot in law be
expected to answer or respond to the founding affidavit.
(29) The applicant is
enjoined to answer succinctly to the allegations in the
Rule
43
(2)
founding
affidavit, the applicant is not obliged to deal with irrelevant
superfluous vexatious allegations, save to state that such
are
irrelevant to the issue. Alternatively, the applicant is at liberty
to bring an application to strike out irrelevant or vexatious
material in the respondent’s
Rule
43 (2)
founding
affidavit.
(30) A consideration and
analysis of the contents of the
Rule
43
(2)
founding
affidavit, although extensive and detailed, the allegations contained
therein are relevant to a declaration as envisaged
in
Rule
43
(2).
Because of the exceptional circumstances predicating the application
the founding affidavit is not unduly prolix, and cannot objectively
be said to be nullity. In any event, even if the
Rule
43
application
does not comply in all respects with the requirements of
Rule
43
(2)
read with
Rules
20
(2),
18
(3)
and
18
(4),
that
cannot be a necessarily a justification for setting it aside. It is
trite that a Court has the discretion in a proper case
to overlook an
irregularity in procedure that does not cause substantial prejudice
to the party complaining of it.
THE
ORDER
(30) In the premises the
application is dismissed with costs.
Dated at Johannesburg on
the 12
th
August 2011.
________________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
DATE OF HEARING: 24
th
MARCH 2011
DATE OF JUDGMENT: 12
th
AUGUST 2011
ON BEHALF OF THE
APPLICANT: MRS R ROSENBERG SC
INSTRUCTED BY: ZAMIE
LIKNAITZKY ATTORNEYS
C/O HARVEY NOSSEL
ATTORNEYS
TELEPHONE NUMBER: (011)
783 - 0561
REF. NO.: Mr S
Linknaitzky/ Mr H Nossel
ON BEHALF OF THE
RESPONDENT: MRS K I FOULKES-JONES SC
INSTRUCTED BY: YAMMIN
HAMMOND INC
TELEPHONE NUMBER: (011)
616 - 4314
REF. NO.: MDY/jn/M4273