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[2012] ZAECPEHC 26
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Papadolambis v Papadolambis (790/2011) [2012] ZAECPEHC 26 (26 April 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, PORT
ELIZABETH
CASE NO: 790/2011
Date Heard: 24/04/12
Date Delivered: 26/04/12
In the matter between:
JOY PAPADOLAMBIS
….............................................................................
Applicant
And
EMMANUEL STAVROS PAPADOLAMBIS
….........................................
Respondent
JUDGMENT ON RULE 43 APPLICATION
DAMBUZA J:
[1] This is an opposed application for
variation of an
interim
maintenance order. Two
interim
maintenance orders were previously granted in favour of the
applicant. In terms of the last of those orders, which was granted
on
23 August 2011, the respondent was ordered to pay
interim
maintenance of R10 000,00 to the applicant. In this application the
applicant seeks an increase of R6 000,00 to her
interim
maintenance; she further seeks an order of contribution towards her
legal cost. This is further to an order of contribution towards
the
applicant’s costs in the amount of R15 000,00 having been made
against the respondent in the order granted on 23 August
2011.
[2] The basis for this application is
that the applicant has had to vacate the common home which has since
been sold. She has secured
a lease for residential premises in
respect of which she has to pay rental of R7 150,00 per month. It is
not in dispute that the
applicant’s circumstances have changed;
the respondent only contends that he is not able to pay the increased
maintenance.
The respondent does take issue with the reasonableness
of the contribution towards costs claimed by the applicant. He has
also
brought an application in terms of Rule 6(15) of the High Court
Rules in terms of which he seeks to have certain portions of the
applicant’s affidavit struck out. At the hearing it was
submitted on behalf of the respondent that in fact the application
should be struck off the roll.
[3] It was submitted on behalf of the
applicant that the portions of the founding papers which the
respondents objects to are evidence
necessary to adequately place
before court all the factors relevant for proper determination of the
application. I deem it appropriate
to first consider the application
to strike out.
[4] The application
is brought in terms of Rule 43(6). This sub-rule provides for
variation,
on
the same procedure as Rule 43(1),
in
the event of a material change in the circumstances of a party or
child who is already subject to an order in terms of Rule 43(1).
The
procedure referred to is set out in Rule 43(2) and requires an
applicant to “
deliver
a sworn statement in the nature of a declaration setting out the
relief claimed and grounds therefore.”
It
is trite that Rule 43 of the High Court Rules is intended to provide
a comparatively inexpensive and speedy remedy in matrimonial
proceedings where orders of maintenance
pendente
lite
and
contribution towards costs are sought.
[5] In terms of
Rule 43(2), the applicant is required to set out the facts on which
she relies succinctly. Consequently lengthy
affidavits may amount to
an abuse of court process and may result in no order being made on
the application, except in special
circumstances.
1
[6] During the
hearing I was referred to various decisions on this principle. In
Patmore
v Patmore
1997
(4) SA 785
WLDthe applicant’s affidavit ran to 47 pages; in
Visser
v Visser
1992
(4) SA 530
E referred to
Nienaber
v Nienaber
1980
(2) 803 (O) wherein the applicant’s affidavit was 23 pages
long. The applicant’s affidavit in
Visser
was
longer than
Nienaber.
In
Du
Preez v Du Preez
2009
(6) T the application consisted of 139 pages.
[7] In the three decisions referred to
above, the court cited with approval the interpretation in
Zoutendijk
v Zoutendjk
1975(3) SA 490 T of the word “
declaration”
in Rule 43. The court in
Zoutendijk
held that:
“
When
Rule 43(2) refers to a sworn statement in the nature of a
declaration, the rule-maker presumably had in contemplation the
requirements of a declaration as set out in Rule 20(2); and when Rule
43(3) refers to a sworn reply in the nature of a plea, the
rule-maker
presumably had in contemplation the requirements of a plea as set out
in Rule 22(2). In both cases the rule-maker also
presumably had in
contemplation the general rule applicable to pleading…”
2
[8] The applications in all three
matters were struck off the roll. The court further ordered that the
parties would not be charged
any fees by their attorneys in respect
of the application. In
Patmore
(
supra)
Epstein AJ
referred, with approval, to
Colman v Colman
1967(1) SA 291 (C
) AT 292A wherein the court held that that:
“
The
whole spirit of Rule 43 seems to me to demand that there should only
be a brief 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 the order should be
pendente
lite”.
[9] In this application the
applicant’s affidavit alone is 29 pages long. Additional to
that is 34 pages of annexures. This
excludes the two page Notice in
terms of Rule 43(6) prefixed to the affidavit. The facts which
constitute the basis of this application
were common cause prior to
the launching of this application. In particular, it was not in
dispute that the applicant had agreed
to vacate the common home which
had been sold and that she had to procure alternative accommodation.
There could not have been
a
bona fide
dispute on whether there
has been a material change in the applicant’s circumstances
since the last order was granted. The
only issues that would be in
dispute would be the respondent’s to pay for the additional
expenses. The issue in this application
is narrower than in the Rule
43(1) proceedings that were under consideration in the cases referred
to above. Ordinarily that much
should be reflected in the contents of
the sworn statement.
[10] It was not necessary, in my view,
for the applicant to attach the seven page lease agreement in respect
of the new premises.
It was equally unnecessary for her to attach
Rule 35 notices that had been served on the respondent. She could
have referred to
correspondence that preceded this application
without attaching the correspondence itself all that the
correspondence is a disputed
allegation that the respondent had
agreed to pay additional maintenance of R6000. The ten page reply by
the applicant, in this
application, to the respondent’s
answering affidavits in the two previous Rule 43 applications is in
total conflict with
the letter and spirit of Rule 43. In essence this
means that I have to consider the papers filed in the previous
applications as
well.
[12] Regarding costs, I am of the view
that although my finding regarding prolixity only relates to the
applicant’s papers,
it would be unjust to order the applicant
to pay the respondent’s costs for the application.
The order I issue therefore is that:
The application is struck off the
roll.
There is no order as to costs and it
is ordered further that the applicant will not be charged any fees
by her attorneys in respect
of the application.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Appearances:
For the applicant: Adv. S Potgieter
Instructed by Anthony INC. Central, Port Elizabeth.
For the Respondent: Adv. Ronaasen
Instructed by Roelofse Meyer INC. Central Port Elizabeth.
1
Erasmus;
Superior Court Practice; at B1-316A.
2
See,
for example Patmore, at 787C