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[2019] ZAGPJHC 181
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T G v J G (11653/2019) [2019] ZAGPJHC 181 (13 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 11653/2019
In
the matter between:
G
T Applicant
And
G
J Respondent
JUDGMENT
TSOKA
J
[1] On 26 April 2019, the
applicant, T G (T) launched an application in terms of Rule 43
wherein she claims that the respondent,
J G (J)
pendent lite
be ordered to pay;
1.1 the full monthly
mortgage repayments on the matrimonial property and all the arrears
thereon;
1.2 the full monthly
water and electricity costs and rates and taxes on the matrimonial
property and all the arrears thereon;
1.3 R5000 cash payment in
respect of maintenance for each of the parties’ four minor
children;
1.4 all educational
expenses reasonably incurred inclusive of school fees at private
school, transport costs, school uniforms, school
books, stationery,
extra lessons and compulsory tours and outings;
1.5 one extra activity
per child per term inclusive of clothing and equipment.
1.6
and to retain herself and the minor children on respondent’s
medical aid scheme and pay all additional costs not covered
by the
medical aid;
[2] In addition, T seeks
an order that J be ordered to pay the amount of
R10 000 per month
as maintenance for herself. Furthermore, that J be ordered to pay R50
000 in respect of contribution to her costs
payable in monthly
instalments in the amount of R5000 plus the costs of the application.
[3]
The application is opposed by J who raises two preliminary points
that the application constitutes an abuse of the court process
as T
solemnly undertook not to litigate but to have the disputes between
the parties mediated. A further preliminary point raised
is that T
compromised her claims in that all her claims against J were settled
at a mediation agreed to between the parties. Thus,
the launching of
the application by T, in these circumstances, is abuse of the court
process and that the application must accordingly
be dismissed with
costs.
[4]
The facts in this matter are, in the main, uncomplicated and common
cause. The parties were married to each other on 3 December
2000 out
of community of property but subject to the accrual system. The
marriage is about to be dissolved as T has instituted
an action of
divorce against J. The pleadings in the pending divorce action are
closed.
[5]
There are four children born of the marriage between the parties. All
the four children are minors. T is the primary caregiver
of the minor
children and by agreement between the parties, the children were to
spend two weeks per month with each party.
[6]
T has no formal qualifications. Presently she is employed by a
company as an administrative assistant earning R10 065 net per
month.
J is presently running a company that sells Kosher food products
amongst the Jewish community. His earnings are, however,
unknown to
T. Notwithstanding that the latter does not know the former’s
earnings, she contends that J is capable of making
cash payments to
her and the four children in the total amount of R30 000 per month as
she is financially unable to manage to support
herself and the four
minor children on her net salary of R10 065.
[7]
J in his answering affidavit apart from challenging the application
on the two preliminary points mentioned above, states that
T’s
monthly expenses are grossly inflated to bolster her claims. In
addition, he states that some of the expenses T alleges
are her
expenses are in fact the expenses paid by him. His conclusion is that
the application is an abuse of the court process
which this court
should not countenance.
[8]
Sight should not be lost that T’s application is in terms of
Rule 43. The orders sought are interim and temporary in nature
pending the dissolution of the marriage in due course. To achieve
this temporary and interim remedy, Rule 43(2) provides that an
application such as the present, must be in a form of a declaration.
J’s affidavit in terms of Rule 43(3) must be in the
nature of a
plea. That the parties’ papers must not be prolifix and contain
irrelevant material, is obvious.
[9]
In the present matter, T’s sworn statement is not in a form of
a declaration. So is J’s answer which is not in a
form of a
plea. That the parties regard the provisions of Rule 43 as irrelevant
that can be ignored at whim is obvious. Although
T’s sworn
affidavit commences from page 3 to 13, it contains irrelevant
annexures that run from pages 14 to 52. J is also
not blameless. One
can, however, understand that he was expected to respond to the case
presented to him by his wife.
[10]
In 2009, in the matter of
Van
Beest Van Andel
[1]
,
a matter also relating to Rule 43, I had the opportunity to observe
that –
‘
The
purpose of Rule 43, is to afford the parties inexpensive and speedy
relief pending the finalization of a divorce action. This
purpose is
frustrated by the filing of lengthy and irrelevant annexures. These
lengthy and irrelevant annexures merely increase
the cost of what is
meant to be an inexpensive procedure.’
[11]
The observation made in 2009 that applications in terms of Rule 43
must not be prolifix, carries on. Litigants and their respective
legal representatives launch applications in this court in terms of
Rule 43 regardless of the rule’s clear and unambiguous
wording
and the line of decided cases that gave guidelines as to the approach
to be adopted in launching such applications. The
conclusion reached
is that as far as the litigants and their legal representatives are
concerned, the provisions of Rule 43 do
not exist. The previous
decided cases are inapplicable to them. That this conduct is not only
abuse of the court process but brings
the administration of justice
into disrepute, admits no doubt. The practice must stop. Applications
in terms of Rule 43 must be
brief and in accordance with the
provisions of the Rule.
12]
That the present application in abuse of the court process appears
not only from the prolifix and the irrelevant annexures attached,
but
appears also from T’s allegations in support of the
application.
[13]
Although the residential property has been taken over by the
mortgagee under its Easy Sell to enable the property to be sold
at
profit for the benefit of the parties, T claims payment in excess of
R10 000 pm in respect of mortgage repayments. She seeks
an order that
she knows that J in any event does make. Notwithstanding that by
agreement, the four children only are with her two
weeks in a month,
she seeks an order for maintenance for the whole month. In spite of
her being provided with transport by J, she
seeks an order that in
addition J must pay for her transport. That indeed T did not need to
approach this Court, is also obvious.
Particularly that the various
amounts of money claimed are now greater than the ones claimed in the
mediation. December 2017 a
similar application to the present one was
launched by T claiming maintenance for herself and the children in
the sum of R9000.
The said application was inexplicably withdrawn.
Surely this is not the conduct of someone who requires interim
financial relief
pending the divorce.
[14]
On the conclusion reached, it is unnecessary to determine whether the
preliminary points raised have merit or not. The observation
made,
however, is that the applicant cannot give an undertaking not to
litigate as this appears to be against public policy and
therefore
unconstitutional. Neither has she compromised her claims, as the
alleged agreement between the parties has not been signed
by the
mediator.
[15]
To conclude, the present application amounts to abuse of the court
process. The abuse cannot be countenanced by this Court.
The
application deserves to be dismissed.
[16] Having regard to the
aforesaid, the application is dismissed with costs.
_________________
M TSOKA
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOAHHESBURG
Date of hearing: 12 June
2019
Date of judgment: 13 June
2019
Appearances:
For the applicant: Adv
Courtenay
Instructed by: Sterling
Attorneys
For the respondent: Adv
Segal
Instructed by: Thompson
Wilks
[1]
Van Beest
Van Andel Isabella Susanna v Van Beest Van Andel Edwin Paul
(Unreported Case no: 27869/2007 GJ)