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[2021] ZAGPJHC 39
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TJ v TA (2019/22224) [2021] ZAGPJHC 39 (31 March 2021)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
number: 2019/22224
In
the matter between:
T[…],
G[…] J[…]
Applicant /
Plaintiff
and
T[..]
S[…]
A[…]
Respondent /
Defendant
(born
L[…]
)
JUDGMENT
[1]
This
is an application in terms of rule 30. In order to understand the
issues in this application, it is helpful to start by setting
out the
relevant history of the litigation between the parties. I do so under
a separate heading below.
[2]
The
litigation between the parties that is relevant to this application
started with an action for divorce instituted by the Applicant
against the Respondent. I refer to that action as “the divorce
action”. The divorce action was followed by at least
an
application in terms of rule 43 and this application. The Respondent
in this application is the applicant in the application
in terms of
rule 43. To avoid confusion, I refer to the parties as they are cited
in the divorce action. Thus, I refer to the Applicant
in this
application as “the Plaintiff” and to the Respondent in
this application as “the Defendant”. Where
I quote
documents in which the parties are not referred to as cited in the
divorce action, I change such references to “the
Plaintiff”
and “the Defendant” respectively.
THE RELEVANT HISTORY
OF THE LITIGATION BETWEEN THE PARTIES
The divorce action
[3]
The
Plaintiff instituted the divorce action against the Defendant in June
2019. He claims a decree of divorce and ancillary relief
in that
action. The Defendant defends the divorce action. She filed a
counterclaim in which she also claims a decree of divorce
and
ancillary relief.
The Defendant’s
application in terms of rule 43
[4]
The
Defendant launched an application in terms of rule 43 during July
2020. I refer to that application as “the rule 43 application”.
[5]
The
founding papers in the rule 43 application consist of a document
headed “
Application
in terms of rule 43”
,
a founding statement and annexures thereto. In the notice of motion
and founding affidavit in the present application, the document
headed “
Application
in terms of rule 43”
is referred to as the “
[Defendant’s]
Notice of Motion in the URC 43 application”
,
“
the
Notice of Motion”
and “
[the
Defendant’s] notice of motion”
.
In the answering affidavit in the present application the said
document is referred to as “
[t]he
Notice of Motion”
and “
the
Rule 43 Notice”
.
I accept that the document headed “
Application
in terms of rule 43”
constitutes the notice in terms of rule 43 as contemplated in rule
43(2) and Form 17 of the First Schedule. I refer to it as “the
rule 43 notice”. I refer to the Defendant’s founding
statement in the rule 43 application as “the rule 43
statement”.
THE PROCEEDINGS IN
TERMS OF RULE 30
The Plaintiff’s
notice in terms of rule 30(2)(
b
)
[6]
The
Plaintiff served a notice in terms of rule 30(2)(
b
)
on 8 August 2020. I refer to that notice as “the rule 30
notice”.
[7]
The
Plaintiff alleged in the rule 30 notice that the rule 43 notice and
the rule 43 statement “
constitute
an irregularity and/or impropriety”
on three grounds. First, it was alleged that the relief claimed by
the Defendant in the rule 43 application is incompetent. Second,
it
was alleged that the rule 43 notice does not correspond with Form 17
of the First Schedule. Third, it was alleged that the rule
43
application is inordinately prolix. I refer to these causes of
complaint as “the first cause of complaint”, “the
second cause of complaint” and “the third cause of
complaint” respectively.
This application in
terms of rule 30
[8]
The
Plaintiff launched this application and seeks the following relief:
“
1.
The following portion of the [Defendant’s] sworn statement in
support of her application in terms of Uniform Rule of Court 43 dated
27 July 2020 (“
the
URC 43 application”
)
are set aside and/or struck out:
1.1
Paragraphs 66.5 and 66.6;
1.2
The words “
after the granting of a Decree of Divorce”
in paragraph 67.1;
1.3
Annexures ST3.1, ST3.2, ST3.3, ST3.4, ST3.5 and ST3.6;
1.4
Annexures ST9, ST9.2 and paginated pages 8-115 to 8-117;
2.
Alternatively
to prayer 1.3 as read with 1 above, the
[Defendant] is granted leave, within 10 days of any order in this
regard, to:
2.1
file a supplementary affidavit in which affidavit the [Defendant]
shall
indicate precisely which portions of Annexures ST3.1, ST3.2,
ST3.3, ST3.4, ST3.5 and ST3.6 she intends relying upon, which must
be
relevant to the issues in dispute in the URC 43 application;
2.2
replace, in the caselines bundle, said Annexures with either only the
relevant extracts thereof
alternatively
versions of said
Annexures with all irrelevant, repetitive, and prolix material
therein contained being redacted.
3.
The [Defendant] is granted leave, within 10 days from
the granting of
any order in this regard, to duly amend her Notice of Motion in the
URC 43 application in accordance with Form
17 of the Uniform Rules of
Court.
4.
The [Defendant] is ordered to pay the [Plaintiff’s]
costs in
respect of the notice in terms of URC 30(2)(b) and this application
on the scale as between attorney and client.”
[9]
The
Plaintiff’s attorney of record, Mr Merchak, deposed to a
founding affidavit in support of this application. The Plaintiff
deposed to a confirmatory affidavit.
[10]
The
Defendant opposes this application. Her attorney of record, Mr
Nowitz, deposed to an answering affidavit. The Defendant did
not
depose to a confirmatory affidavit.
THE DEFENDANT’S
POINT
IN LIMINE
RAISED IN RESPECT OF THE IRREGULARITIES
ALLEGED IN THIS APPLICATION
[11]
Mr
Nowitz states in his answering affidavit that this application is
fatally defective and that it should be dismissed with costs.
He
contends
in
limine
that
rule 30 –
“
contemplates
that an applicant should rely on his/her own Notice when launching
the application pursuant thereto. It is inconceivable
that the
[Plaintiff] can divert from the items complained about in its Notice
and rely on new facts in the application itself.”
[12]
At
the hearing of this application, it was submitted on behalf of the
Defendant that it cannot be logical that a litigant can file
a notice
in terms of rule 30(2)(
b
)
alleging certain causes of complaint and then launch an application
in terms of rule 30 in which different irregularities are
alleged. I
agree.
[13]
Counsel
for the Defendant argued
in
limine
that
the irregularities alleged by the Plaintiff in this application
differ from the causes of complaint alleged in the rule 30
notice. I
now compare the irregularities alleged in this application with the
causes of complaint alleged in the rule 30 notice
to determine
whether there is merit in this contention.
[14]
The
first cause of complaint, as set out in the rule 30 notice, was that
the relief claimed by the Defendant in the rule 43 application
is
allegedly incompetent.
14.1
At paragraphs 66.5, 66.6 and 67.1 respectively of the rule 43
statement, the Defendant claims orders
directing the Plaintiff to,
inter alia
, pay for the tertiary education expenses of the
parties’ children (“the children”), provide each of
the children
with a motor vehicle upon that child completing matric
and pay for ancillary expenses, and pay maintenance to the Defendant
after
the granting of a decree of divorce.
14.2
Neither the rule 30 notice nor the founding affidavit refers by
number to paragraphs 66.5, 66.6 and
67.1 of the rule 43 statement.
However, the relief alleged to be the first cause of the complaint in
the rule 30 notice and alleged
to be the corresponding irregularity
in the founding affidavit is a clear reference to paragraphs 66.5,
66.6 and 67.1 of the rule
43 statement. The latter paragraphs are
referred to by number at paragraphs 1.1 and 1.2 of the notice of
motion.
14.3
I am satisfied that the alleged incompetence of the relief claimed by
the Defendant at paragraphs 66.5,
66.6 and 67.1 of the rule 43
statement was alleged as a cause of complaint in the rule 30 notice
and is alleged as an irregularity
in this application. In the result,
there is no merit in the point
in limine
argued by counsel for
the Defendant with regard to the first cause of complaint and the
corresponding alleged irregularity.
[15]
The
second cause of complaint, as set out in the rule 30 notice, was that
the rule 43 notice allegedly does not correspond with
Form 17 of the
First Schedule. This is also alleged as an irregularity in the
founding affidavit and referred to at paragraph 3
of the notice of
motion. I am satisfied that the alleged failure of the rule 43 notice
to correspond with Form 17 of the First
Schedule was alleged as a
cause of complaint in the rule 30 notice and is alleged as an
irregularity in this application. In the
result, there is no merit in
the point
in
limine
argued
by counsel for the Defendant with regard to the second cause of
complaint and the corresponding alleged irregularity.
[16]
The
third cause of complaint, as set out in the rule 30 notice, was that
the rule 43 application is allegedly inordinately prolix.
16.1
The cause of complaint, according to the rule 30 notice, is that –
“
[t]he
[rule 43] application … is inordinately prolix as,
inter
alia
,
the [Defendant] has appended annexures comprising some
280
pages
of which she has appended some 10 letters exchanged between the
respective attorneys of record of the [Defendant] and the
[Plaintiff],
comprising some 73 pages, the content of which is
largely irrelevant and/or repetitive.”
16.2
Paragraph 6.4 of the founding affidavit reads:
“
[T]he
URC 43 application is inordinately prolix as,
inter
alia
,
the [Defendant] has appended annexures comprising some
280
pages
of which she has appended some 10 letters exchanged between the
respective attorneys of record of the [Defendant] and the
[Plaintiff],
comprising some 73 pages, the content of which is
largely irrelevant and/or repetitive.”
16.3
It would appear at first blush that the third cause of complaint, as
alleged in the rule 30 notice,
is the same than the irregularity
alleged in the founding affidavit. However, this is not the case.
16.4
At paragraphs 9.4 and 9.5 of the founding affidavit, under the
heading “
The annexing of unnecessary correspondence
resulting in the URC 43 application being unduly prolix”
,
Mr Merchak specifies the particulars of the irregularity alleged at
paragraph 6.4 of the founding affidavit. That alleged irregularity
has two prongs. First, it is alleged at paragraph 9.4 of the founding
affidavit that the Defendant failed to point out precisely
which
portions of the letters attached to the rule 43 statement she intends
relying upon in the rule 43 application. Second, it
is alleged at
paragraph 9.5 of the founding affidavit that the Defendant has
attached more than one copy of numerous letters to
the rule 43
statement. The third cause of complaint was not set out in these
terms in the rule 30 notice.
16.5
I am not persuaded that the third cause of complaint, as alleged in
the rule 30 notice, can be interpreted
as being the same than the
irregularities alleged at paragraphs 9.4 and 9.5 of the founding
affidavit. I find that the irregularities
alleged at paragraphs 9.4
and 9.5 of the founding affidavit were not alleged in the rule 30
notice.
16.6
The point
in limine
argued by counsel for the Defendant must
succeed insofar as it relates to the third cause of complaint and the
corresponding alleged
irregularity. I find that the Plaintiff may not
rely on the alleged irregularity of which the particulars are
specified at paragraphs
9.4 and 9.5 of the founding affidavit and
that relates to paragraphs 1.3, 1.4 and 2 of the notice of motion. As
a result, the application
must fail in respect of the relief claimed
at paragraphs 1.3, 1.4 and 2 of the notice of motion.
FINDINGS ON THE
IRREGULARITIES ALLEGED BY THE PLAINTIFF IN RESPECT OF THE DEFENDANT’S
RULE 43 APPLICATION
The first alleged
irregularity: The relief claimed by the Defendant in the rule 43
application is incompetent
[17]
The
first irregularity specified in the founding affidavit is that the
relief claimed by the Defendant in the rule 43 application
is
allegedly incompetent.
[18]
Mr
Merchak contends in his founding affidavit that the Defendant’s
claims for spousal maintenance post-divorce, payment of
the costs of
the children’s tertiary education, the provision of motor
vehicles to the children and the payment of ancillary
costs are not
maintenance
pendente
lite
.
He further contends that the Defendant’s claim for the
provision of motor vehicles to the children would constitute lump
sum
maintenance. To put the contentions on behalf of the Plaintiff in
relation to the maintenance claimed by the Defendant in respect
of
the children into perspective, it should be mentioned that the
children are presently 9 years and 7 years old respectively.
Mr
Merchak states, unsurprisingly, that the children do not attend any
institution of tertiary education and that they have not
written
matric.
[19]
Mr
Nowitz accepts the incompetence of the relief claimed by the
Defendant in paragraphs 66.5, 66.6 and 67.1 of the rule 43 statement.
I refer to that relief as “the incompetent relief”. Mr
Nowitz states at paragraph 21.1 of his answering affidavit that
–
“
certain
typographical errors … cropped up in the affidavit in support
of Rule 43, but that same have been cured and the [Plaintiff’s]
attorney advised thereof along with what the true intention of the
[Defendant] was in seeking the relief that she has.”
He goes on to state,
inter alia
, as follows at paragraph 23 of his answering
affidavit:
“
The
Notice addressed to the [Plaintiff’s] attorney, … does,
with respect, cure any perceived difficulties with the
relief sought
by the [Defendant] in her Rule 43 Notice. It is brought to the
attention of the above Honourable Court, respectfully,
that a
litigant is perfectly entitled to abandon relief that she may have
originally sought and that is exactly what the [Defendant]
did in
this instance.”
[20]
Mr
Nowitz refers to “
[t]he
Notice addressed to the [Plaintiff’s] attorney”
.
This was a document headed “
[Defendant’s]
response to [Plaintiff’s] notice in terms of rule 30(2)(b)
dated 8 August 2020”
.
It was delivered by Mr Nowitz to Mr Merchak on 11 August 2020. I
refer to that document as “the rule 30 response”.
It
reads as follows in relevant part:
“
BE
PLEASED TO TAKE NOTICE
that
the [Defendant] sets out below her response to the [Plaintiff’s]
Notice in terms of Rule 30(2)(b) dated 8 August 2020
and served on
Saturday, 8 August 2020 as follows:
1.
AD PARAGRAPHS 1 TO 1.2.1.1
1.1
A perusal of the prayers recorded on page 16 of the Founding
Statement
expressly, unambiguously and clearly records that the
[Defendant] prays for an order “
Pendente Lite, in the
following terms”
.
1.2
Accordingly, the reference in paragraph 67.1 to “a Decree of
Divorce”
was a typographical error and should have stated
“
after the granting of an Order in terms of a Rule 43”
.
Accordingly, at the hearing of this matter, reference shall be made
only to an Order in terms of Rule 43 and not a Decree of Divorce.
2.
AD PARAGRAPH 1.2.1.2 TO 1.2.4
The relief sought in
these paragraphs with reference to tertiary education and a motor
vehicle and payment in respect of ancillary
costs in respect thereof
is hereby abandoned.”
[21]
Counsel
for the Plaintiff submitted that rule 30 does not provide for a
response to a notice in terms of rule 30(2)(
b
)
in the form of the rule 30 response. It seems to me that the purpose
of a notice in terms of rule 30(2)(
b
)
is to afford the party that has taken an alleged irregular step an
opportunity of removing the cause of complaint. The rule does
not
prescribe how the cause of complaint must be removed. Different
causes of complaint are removed differently. Certain causes
of
complaint are removed by following procedures in terms of the rules,
for example the amendment of a pleading or document other
than a
sworn statement in terms of rule 28. Other causes of complaint are
not removed by following procedures in terms of the rules
because the
rules do not provide for such procedures. The abandoning of relief
claimed is an example of the latter type of removal
of a cause of
complaint. Where, as in the present instance, the cause of complaint
is the incompetence of relief claimed, that
complaint is removed by
abandoning the relevant relief. The rules do not provide for a
procedure to be followed by a party wishing
to abandon relief
claimed. Parties regularly abandon relief claimed, often by way of
counsel informing the court thereof from the
bar at the hearing of a
matter.
[22]
It is
not in dispute that Mr Nowitz is the Defendant’s attorney of
record. The Plaintiff does not contend that Mr Nowitz did
not have
instructions from the Defendant to serve the rule 30 response. The
Plaintiff also does not dispute Mr Nowitz’s contention
that the
rule 30 response is the Defendant’s response to the rule 30
notice. In these circumstances, I am satisfied that
the Defendant
could, as she did, use the rule 30 response to abandon the relief
claimed at paragraphs 66.5 and 66.6 of the rule
43 statement. This
happened on 11 August 2020, about three weeks before this application
was launched in September 2020. As a result,
the application must
fail in respect of the relief claimed at paragraph 1.1 of the notice
of motion.
[23]
The
position is different in respect of the relief claimed by the
Defendant at paragraph 67.1 of the rule 43 statement. That relief
was
not abandoned in the rule 30 response. It was described as “
a
typographical error”
and the Defendant claims new relief in its stead. The rule 43
statement, in which the Defendant claims the incompetent relief at
paragraph 67.1, was deposed to by her under oath. The only way in
which the Defendant could claim new relief that would replace
the
incompetent relief claimed at paragraph 67.1 of the rule 43 statement
was by deposing to a further statement under oath. In
that statement,
the Defendant would have had to identify the incompetent relief and
provide an explanation of how it came about
that she had claimed it.
She would then have had to explain why she no longer wished to claim
the incompetent relief and set out
the new relief she claims in its
stead. This was not done.
[24]
Rule
43(1) provides as follows in relevant part:
“
This
rule shall apply whenever a spouse seeks relief from the court in
respect of one or more of the following matters:
(
a
)
Maintenance
pendente lite
;”
[25]
Rule
43 provides for maintenance
pendente
lite
.
It does not provide for spousal maintenance post-divorce as claimed
by the Defendant at paragraph 67.1 of the rule 43 statement.
Consequently, the Defendant’s claim for payment of maintenance
to her by the Plaintiff “
after
the granting of a Decree of Divorce”
,
as set out at paragraph 67.1 of the rule 43 statement, is irregular.
The second alleged
irregularity: The rule 43 notice does not correspond with Form 17 of
the First Schedule
[26]
The
second irregularity specified in the founding affidavit is that the
rule 43 notice allegedly does not correspond with Form 17
of the
First Schedule.
[27]
Rule
43(2)(
a
)
provides as follows in relevant part:
“
An
applicant applying for any relief referred to in subrule (1) shall
deliver … a notice to the respondent corresponding
with Form
17 of the First Schedule.”
[28]
Mr
Merchak contends in his founding affidavit that, contrary to the
requirements of Form 17 of the First Schedule, the rule 43 notice
does not detail the relief claimed by the Defendant in the rule 43
application. Mr Nowitz states in his answering affidavit that
–
“
[the]
complaint about the format of the Rule 43 Notice … is
over-technical and on a proper reading of the affidavit, it can
be
seen that the prayers in the [Defendant’s] founding affidavit
are that which could be incorporated into the format of
a Form 17.”
[29]
The
rule 43 notice reads:
“
TO:
THE ABOVE-NAMED RESPONDENT
TAKE NOTICE THAT if you
intend to defend this claim, you must, within ten (10) days from date
of service hereof, file a reply with
the Registrar of this Court,
giving an address for service as referred to in Rule 6(5)(b) of the
Uniform Rules of Court, and serve
a copy thereof on the Applicant’s
attorney.
TAKE FURTHER NOTICE that
if you do not do these things, you will automatically be barred from
defending, and judgment may be given
against you as claimed. Your
Reply must indicate what allegations in the [Defendant’s]
Statement you admit or deny, and must
concisely set out your
defence.”
[30]
The
relevant portion of Form 17 of the First Schedule reads:
“
To
the above-named respondent:
Take Notice that …
(the applicant herein) intends to make application to the above
honourable court for the following orders:
(1)
…
(2)
…
(3)
…”
[31]
Rule
43(2)(
a
)
makes plain that the notice delivered must correspond with Form 17 of
the First Schedule. It is clear that Form 17 of the First
Schedule
provides for the applicant in an application in terms of rule 43 to
set out the relief claimed. The Defendant has failed
to do so. In the
result, the rule 43 notice is irregular.
The third alleged
irregularity: The rule 43 application is inordinately prolix
[32]
The
third irregularity specified in the founding affidavit is that the
rule 43 application is allegedly inordinately prolix. I set
out the
particulars of this alleged irregularity above and found that the
point
in
limine
argued
by counsel for the Defendant must succeed insofar as it relates to
the third cause of complaint and the corresponding alleged
irregularity. Even if I am wrong in that regard, I do not believe
that there is merit in at least a portion of the third alleged
irregularity.
[33]
The
Defendant attached,
inter
alia
,
the following annexures, to which I jointly refer as “the
annexures”, to the rule 43 statement:
33.1
Annexure “ST3.1” is an email that was addressed to Mr
Merchak by Mr Nowitz on 3 April 2020.
33.2
Annexure “ST3.2” is a letter that was addressed to Mr
Nowitz by Mr Merchak on 15 April
2020.
33.3
Annexure “ST3.3” is a letter that was addressed to Mr
Nowitz by Mr Merchak on 19 May 2020.
33.4
Annexure “ST3.4” is an email that was addressed to Mr
Merchak by Mr Nowitz on 25 May 2020.
This annexure is duplicated at
pages 08-115 to 08-117.
33.5
Annexure “ST3.5” is a letter that was addressed to Mr
Nowitz by Mr Merchak on 27 May 2020.
33.6
Annexure “ST3.6” is an email that was addressed to the
Defendant by the Plaintiff on 12
July 2020.
33.7
Annexure “ST9” is a duplication of annexure “ST3.2”.
33.8
Annexure “ST9.2” is a duplication of annexure “ST3.3”.
[34]
With
reference to the annexures, counsel for the Plaintiff argued that the
Defendant failed to point out precisely which portions
of the
correspondence she intends relying upon in the rule 43 application.
Counsel referred me to what Zondo J, as he then was,
held in
Genesis
Medical Aid Scheme v Registrar, Medical Schemes and Another
2017
(6) SA 1 (CC):
[1]
“
The
fact that the second judgment got the point about the auditor’s
assurance report from an annexure to one of the affidavits
and not
from the respondents’ answering affidavit raises the question
whether it is permissible in our law to decide a matter
on the basis
of a point contained in, or based on, an annexure to an affidavit but
which is not covered in the relevant affidavit. The
answer is
No. In
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
[2]
the Supreme Court of Appeal said:
‘
(T)he
case argued before this court was not properly made out in answering
affidavits deposed to by Andreas. The case that
was made out,
was conclusively refuted in the replying affidavits as I pointed out
in paras [18] to [20] above.
It
is not proper for a party in motion proceedings to base an argument
on passages in documents which have been annexed to the papers
when
the conclusions sought to be drawn from such passages have not been
canvassed in the affidavits. The reason is manifest
— the
other party may well be prejudiced because evidence may have been
available to it to refute the new case on the facts. The
position is worse where the arguments are advanced for the first time
on appeal. In motion proceedings, the affidavits constitute
both
the pleadings and the evidence:
Transnet
Ltd v Rubenstein
[2006
(1) SA 591
(SCA)
in para 28], and the issues and averments in support of the parties’
cases should appear clearly therefrom. A party
cannot be
expected to trawl through lengthy annexures to the opponent’s
affidavit and to speculate on the possible relevance
of facts therein
contained.
Trial
by ambush cannot be permitted
.’”
[35]
Counsel
for the Plaintiff also referred me to what was held in
Kalisa
v Chairperson, Refugee Appeal Board and Others
2020
(4) SA 256 (WCC):
[3]
“
It
is also ordinarily not appropriate to indiscriminately attach an
entire rule 53 administrative record to an affidavit. The body
of an
affidavit should pertinently identify the materiality and relevance
of every bit of documentary evidence that the deponent
sees fit to
attach as annexures; the reader should not be expected to undertake
an unguided and possibly unprofitable perusal of
the documentary
attachments to an affidavit.”
[36]
In
the rule 43 statement, the Defendant states as follows regarding the
annexures:
“
32.
The [Plaintiff] initially attempted to deny the extent of his taxable
income.
I annex hereto marked annexures “ST3.1” to
“ST3.5”, being an exchange of correspondence with my
attorneys
and then directly between the [Plaintiff] and me, with [the
Plaintiff] ultimately conceding that indeed he has received more than
R7 million in taxable bonuses. In this regard I refer more fully to
Annexure “ST3.6”. [The Plaintiff] simply refuses
to
disclose into which accounts these payments were made and I will take
issue with certain allegations contained in annexure “ST3.6”.
However, what is important now is the concession that he has indeed
received taxable bonuses in excess of R7 million.
…
54.
The said lease terminated on 31 March 2020. At this point in time the
[Plaintiff] tendered to pay me monthly maintenance in an amount of
only R25,857-00, as appears more fully from Annexure “ST9”,
and such payment was made for the month of April 2020, as appears
more fully from Annexure “ST9.1” hereto. However,
the
[Plaintiff] unilaterally decided to further decrease this amount to
R22,318-00 for the months of May and June 2020 and has
not paid me
any maintenance for the month of July 2020 yet, as can be seen in
Annexures “ST9.2”, “ST9.3”
and “ST9.4”,
being my transaction history for these three months respectively.
When the [Plaintiff] decides to make
payment of maintenance, such
maintenance is not only well below the lifestyle that the minor
children and I were used to when living
in the former matrimonial
home but continues to be wholly insufficient. I had to rely on loans
from the Second Lamont Family Trust
for financial relief as a result
of the [Plaintiff’s] refusals, failure and/or neglect to
properly maintain the minor children
and me.”
[37]
Having
regard to what the Defendant states in the above-quoted paragraphs, I
am not persuaded that the Plaintiff is expected to
undertake an
unguided perusal of the annexures.
37.1
Paragraph 32 of the rule 43 statement pertinently identifies the
materiality and relevance of annexures
“ST3.1”, “ST3.2”,
“ST3.3”, “ST3.4”, “ST3.5” and
“ST3.6”
as relating to the Plaintiff’s alleged
initial attempt “
to deny the extent of his taxable income”
,
his alleged ultimate concession “
that indeed he has received
more than R7 million in taxable bonuses”
and his alleged
refusal “
to disclose into which accounts these payments were
made”
.
37.2
The Defendant makes it clear in paragraph 54 of the rule 43 statement
that annexure “ST9”
is material and relevant with regard
to the Plaintiff’s alleged tender to pay the Defendant “
monthly
maintenance in an amount of only R25,857-00”
.
37.3
The materiality and relevance of annexure “ST9.2” is
pertinently identified in paragraph
54 of the rule 43 statement as
relating to the Plaintiff’s alleged unilateral decision “
to
further decrease [the amount of R25 857] to R22,318 for the months of
May and June 2020”
and his alleged failure to pay the
Defendant “
any maintenance for the month of July 2020”
.
[38]
The
Defendant has not attached the annexures without canvassing the
conclusions sought to be drawn from them in the rule 43 statement.
The Defendant’s allegations in paragraphs 32 and 54 of the rule
43 statement serve as a guide to the Plaintiff in perusing
these
annexures. The Plaintiff is not left to trawl through the annexures
and speculate on the possible relevance of their content.
In the
result, I find that there is no merit in the argument that the
Defendant failed to point out which portions of the correspondence
attached to the rule 43 statement she intends relying upon in the
rule 43 application.
[39]
Counsel
for the Plaintiff further pointed out that certain correspondence
between the parties’ respective attorneys have been
duplicated
as annexures to the rule 43 statement. Annexure “ST3.2”
is duplicated as annexure “ST9”, annexure
“ST3.3”
is duplicated as annexure “ST9.2”, and annexure “ST3.4”
is duplicated at pages 08-115
to 08-117. This forms part of the
argument that the application in terms of rule 43 is inordinately
prolix. The duplicated annexures
consist of twenty three pages.
Twenty three pages are substantial in the context of a rule 43
application. As a result I find that,
if the Defendant’s point
in
limine
did
not succeed in respect of the third irregularity, her duplication of
annexures “ST3.2”, “ST3.3” and
“ST3.4”
to the rule 43 statement would have been irregular.
Prejudice
[40]
Prejudice
is a prerequisite to success in an application in terms of rule 30.
(See
Consani
Engineering (Pty) Ltd v Anton Steinecker Maschinenfabrik GmbH
1991
(1) SA 823
(T) at 824G–H.) The Appellate Division held as
follows in
Trans-African
Insurance Co. Ltd. v Maluleka
1956
(2) SA 273 (A):
[4]
“
In
Foster
v. Carlis and Houthakker
,
1924 T.P.D. 247
, the Transvaal Provincial Division upheld on appeal
the refusal of the Witwatersrand Local Division to cancel a notice of
trial
which was insufficient in terms of Rule 47, which is couched in
peremptory terms. Mason, J.P., who gave the judgment of the Full
Court, said at pp. 251-252 in reference to Rule 37,
‘
It
seems to me impossible to construe the Rule otherwise than as
conferring upon the Court the power to condone any such irregularity
or impropriety’
(as is covered by the
Rule)
‘
because
the contrary view would convert the latter part of the Rule into an
instruction to the Court to set aside the irregular
or improper
proceeding … It seems to me, therefore, that the Court is
entitled to overlook in proper cases any irregularity
in procedure
which does not work any substantial prejudice to the other party.’
This decision has been
followed not only in the Transvaal but also in the other Provinces,
where Rules similar to Rule 37 exist;
…
…
No doubt parties and
their legal advisers should not be encouraged to become slack in the
observance of the Rules, which are an
important element in the
machinery for the administration of justice. But on the other hand
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.”
[41]
Mr
Merchak claims in his founding affidavit that the Plaintiff “
will
be severely prejudiced if he is obliged to answer the [application in
terms of rule 43] in its current form”
.
He alleges the following grounds for this claim:
“
10.1
the [Plaintiff] will be put to considerable expense dealing with an
unduly prolix application,
addressing repetitive and irrelevant
allegations;
10.2
given the nature of the [Defendant’s] sworn statement as
aforesaid, the [Plaintiff]
will not be able to answer the URC 43
application in the nature of a plea as is required by URC 43(3);
10.3
the sworn reply of the [Plaintiff] will, of necessity, be lengthy,
thereby attracting
criticism from this Court as a result of the
conduct of the [Defendant];
10.4
absent the [Defendant] formally and appropriately amending her relief
in the URC
43 application, under oath, the [Plaintiff] runs the risk
that the [Defendant] alters or disavows herself of the approach
hereto
as set out in the URC 30 response and persists with such
relief in paragraphs 66.5, 66.6 and 67.1.”
[42]
These
allegations are not persuasive.
42.1
I don’t agree that the Plaintiff “
will be put to
considerable expense dealing with an unduly prolix application”
.
The Defendant pertinently identified the materiality and relevance of
the annexures in the rule 43 statement. The Plaintiff is
not left to
trawl through the annexures, speculating on the possible relevance of
their contents.
42.2
The Plaintiff will not “
be put to considerable expense
dealing”
with the three duplicated annexures. In his sworn
reply in the rule 43 application, the Plaintiff will either deal with
the identified
materiality and relevance of each duplicated annexure
within the context of the relevant paragraph in the rule 43 statement
or
state that the annexure is duplicated and has already been dealt
with before.
42.3
Mr Merchak did not explain what he meant by “
the nature of
the [Defendant’s] sworn statement”
. He also did not
substantiate his allegation that the Plaintiff “
will not be
able to answer the URC 43 application in the nature of a plea”
.
In the absence of such explanation and substantiation, I am unable to
find that the Plaintiff will be prejudiced.
42.4
The Plaintiff did not set out a complaint relating to “
the
nature of the [Defendant’s] sworn statement”
in the
rule 30 notice. He also did not specify particulars of an
irregularity relating to “
the nature of the [Defendant’s]
sworn statement”
in this application. For the same reasons
as mentioned above in respect of the point
in limine
, the
Plaintiff may not rely on “
the nature of the [Defendant’s]
sworn statement”
for purposes of this application.
42.5
In the event of the Plaintiff “
attracting criticism”
about the length of his sworn reply from the court hearing the
rule 43 application, he will have an opportunity of arguing that it
was “
as a result of the conduct of the [Defendant]”
.
42.6
The Defendant has abandoned the incompetent relief previously claimed
at paragraphs 66.5 and 66.6 of
the rule 43 statement. As far as the
incompetent relief claimed at paragraph 67.1 of the rule 43 statement
is concerned, the Defendant
could only claim new relief in its stead
by deposing to a further statement under oath. This has not been
done. Thus, the Plaintiff
does not run “
the risk that the
[Defendant] alters or disavows herself of the approach … as
set out in the URC 30 response”
.
[43]
I
have found the Defendant’s claim for payment of maintenance to
her by the Plaintiff “
after
the granting of a Decree of Divorce”
,
as set out at paragraph 67.1 of the rule 43 statement, to be
irregular. I am not persuaded that this irregularity causes
substantial
prejudice to the Plaintiff. On the contrary, it advances
the Plaintiff’s prospects in the rule 43 application. In his
sworn
reply in the rule 43 application, the Plaintiff will raise the
incompetence of the relevant relief claimed by the Defendant and
ask
the court hearing that application to rule against her in respect
thereof.
[44]
The
rule 43 notice has also been found to be irregular. This
irregularity, too, does not cause substantial prejudice to the
Plaintiff.
The relief claimed by the Defendant in the rule 43
application is set out in detail at paragraphs 65, 66, 67 and 68 of
the rule
43 statement.
[45]
I
have also found that, if the Defendant’s point
in
limine
did
not succeed in respect of the third irregularity, her duplication of
annexures “ST3.2”, “ST3.3” and
“ST3.4”
to the rule 43 statement would have been irregular. This irregularity
would not have caused substantial prejudice
to the Plaintiff. As
stated, the Plaintiff will, in his sworn reply in the rule 43
application, either deal with the identified
materiality and
relevance of each duplicated annexure within the context of the
relevant paragraph in the rule 43 statement or
state that the
annexure is duplicated and has already been dealt with before.
[46]
Besides
not being persuaded that any of the irregularities causes, or would
have caused, substantial prejudice to the Plaintiff,
I am mindful
thereof that the irregularities should not be permitted to interfere
with the expeditious and, if possible, inexpensive
decision of the
rule 43 application on its real merits. This court has a discretion
not to uphold objections to irregularities.
(See:
National
Union of South African Students v. Meyer, Curtis v. Meyer
1973
(1) SA 363
(T) at 367E–G and
Uitenhage
Municipality v. Uys
1974
(3) SA 800
(E) at 803A–C.) The Appellate Division held in
Northern
Assurance Co. Ltd. v. Somdaka
1960
(1) SA 588
(A) that –
“
[o]nce
it is seen that the Court has a discretion, it seems to me to follow
inescapably that it was not intended that a breach of
the Rules
relating to actions should necessarily be visited with nullity.”
[5]
[47]
In my
view, this principle is equally applicable in respect of motion
proceedings. In exercising my discretion, I have had due regard
to
any possible prejudice to both parties. Upon balancing these, I have
come to the conclusion that, in all the circumstances,
the
application should not succeed.
[48]
In
the result the following order is made:
1.
The
application is dismissed.
2.
The
Plaintiff is to pay the Defendant’s costs.
This
judgment is handed down electronically by uploading it on CaseLines.
_______________________
L.J. du Bruyn
Acting Judge of the
High Court of South Africa
Gauteng
Local Division, Johannesburg
Date heard:
12
February 2021
Judgment
delivered: 31
March 2021
For the Applicant /
Plaintiff: A.A.
de Wet SC
briefed
by Steve Merchak Attorney
For the Respondent /
Defendant: S.A. Nathan SC
briefed
by Nowitz Attorneys
[1]
Genesis
Medical Aid Scheme v Registrar, Medical Schemes and Another
2017
(6) SA 1
(CC) at paragraph 171.
[2]
Minister
of Land Affairs and Agriculture v D & F Wevell Trust and Others
2008
(2) SA 184
(SCA) at paragraph 43.
[3]
Kalisa
v Chairperson, Refugee Appeal Board and Others
2020
(4) SA 256
(WCC) at paragraph 44.
[4]
Trans-African
Insurance Co. Ltd. v Maluleka
1956
(2) SA 273
(A) at 276F–H and 278F–G.
[5]
Northern
Assurance Co. Ltd. v. Somdaka
1960
(1) SA 588
(A) at 595A–B.