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[2017] ZAECPEHC 39
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J.A.W v G.S.M.W (3145/2015) [2017] ZAECPEHC 39 (22 August 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, PORT ELIZABETH
Case No.:
3145/2015
Date Heard: 10
August 2017
Date Delivered: 22
August 2017
In
the matter between:
J.
A.
W.
Applicant
and
G.
S. M.
W.
Respondent
JUDGMENT
EKSTEEN
J:
[1]
The parties are engaged in protracted and acrimonious divorce
proceedings. In June 2017 the applicant launched an application
in terms of the provisions of rule 43 of the Uniform Rules of Court
(the rules) for maintenance
pendente
lite
in
respect of herself and two dependent adult sons and a substantial
contribution towards her costs in the litigation. The
rule 43
application was met by an application launched by the respondent in
terms of rule 30 of the rules to strike out the entire
rule 43
application contending that the application was an irregular step.
The present proceedings relate only to the rule
30 application.
Background
[2]
The parties
are married to one another out of community of property in terms of
an ante nuptial contract which incorporates the
accrual system.
The respondent is a successful businessman who has accumulated
considerable wealth both locally and abroad,
the bulk of which is
held in various trusts.
[3]
In August
2015 the applicant issued summons for divorce in which the respondent
was cited as the first defendant. In addition,
however, she has
cited numerous further defendants being the trustees for the time
being of eight different trusts which she contends
are controlled by
the respondent. The applicant avers in the rule 43 application
that she has discovered a number of additional
trusts after the
commencement of the divorce proceedings and that she will be required
to give consideration to joining them as
further defendants in the
divorce action. Finally, she contends that the respondent is
the settlor of the Christim Trust
and the Highway Trust which have
not been joined as defendants and which have been established
offshore and hold certain assets
abroad.
[4]
In the
divorce action the applicant claims extensive maintenance. It
is fair to say that her claim in respect of the division
of the
accrual is complex and would require considerable evidence relating
to the respondent’s financial affairs to be obtained
and
adduced. In respect of the latter claim it is alleged in the
particulars of claim in the divorce action that during the
course of
the marriage the respondent contributed to the financing of the
acquisition of trust assets and assisted in the financing
of the
maintenance and running costs of the trust assets through his
personal estate. It is contended that he caused the
trustees to
acquire the assets of the trusts joined in the proceedings and in
doing so he intended to retain control of such assets
for his
personal benefit and to treat them as if they were his own personal
assets. On this basis it is alleged that during
the subsistence
of the marriage, and with the tacit consent of the trustees in the
various trusts, the respondent conducted the
affairs of the trusts
and controlled the assets ostensibly held in the name of the trusts
as if such assets were his personal assets
and that he has been in
effective control of such assets since their acquisition. He
has, so it is alleged, utilised trust
assets without remuneration to
the trusts and certain provisions of the Trust Property Act (57 of
1988), have been breached.
On these grounds the particulars of
claim contend that the assets vesting in the trusts are beneficially
owned and controlled by
the respondent and the transactions by which
they were acquired were in fact simulated transactions which fall to
be set aside
so as to reflect the respondent as the true owner of the
assets.
[5]
It is not
necessary for present purposes to consider the actual extent of the
alleged assets vesting in the trusts. Suffice
it to say that
the rule 43 application alleges that the respondent has a personal
estate of approximately R22 million whilst the
assets held in the BMI
Trust, the trustees of which have been joined in the divorce action,
were valued in February 2016 at R857
million. The further trust
joined are not alleged to hold the same degree of wealth as the BMI
Trust, however, their joint
value is also alleged to be in excess of
R50 million.
[6]
The
applicant in her particulars of claim in the divorce action, seeks an
order declaring that the assets acquired by the trustees
of the
various trusts, which the trustees ostensibly hold in their
capacities as trustees, are in fact held by the respondent in
his
personal capacity and for his personal benefit. She accordingly
seeks an order in the divorce action that in calculating
the accrual
of the respondent’s personal estate the nett value of the
assets held by the various trusts at the time of the
dissolution of
the marriage is to be taken into account as forming part of the
respondent’s personal assets. In the
event that it is
found, as the applicant contends, that the respondent has
insufficient assets in his personal estate to pay her
share of the
accrual calculated as aforesaid, she seeks an order in the divorce
action that the trustees of the trusts cited in
the litigation shall
transfer to the respondent, in his personal capacity, at his cost,
the assets held by them.
The
rule 43 application
[7]
In the rule
43 application the applicant seeks extensive interim maintenance
including substantial sums of money, orders relating
to specific
expenses which the respondent is required to pay,
pendente
lite
,
and occupational rights to various properties in South Africa and in
London. Furthermore, she sought, initially, a contribution
towards her litigation costs in the amount of R900 000.
(It was later increased to R1,25 million as set out below.)
The
formulation of the relief sought in the rule 43 application runs to
ten pages and the affidavit filed in support thereof extends
to
thirty one pages. Thirty pages of annexures were annexed to the
application.
[8]
The trial
in the divorce action had previously been set down for hearing on 11
October 2016. Prior to the trial date the parties’
legal
representatives met in an endeavour to settle the dispute between the
parties. The applicant explains her understanding
that a
settlement of the divorce action was in fact achieved at the meeting,
however, a document setting out the terms of the agreement
was not
prepared and signed on this occasion. Subsequent to the
conclusion of the agreement, she states, the respondent reneged
from
the agreement and refused to sign the deed of settlement. All
of this is set out in the applicant’s statement
in terms of
rule 43(2).
[9]
At the time
when the application in terms of rule 43 was launched the applicant
was intent on enforcing the terms of the agreement
of settlement and
signified her intention to give notice of an application to amend her
pleadings so as to claim specific performance
of the terms of the
settlement agreement. She sets out, in her statement in terms
of rule 43(2), certain of the terms of
the settlement agreement.
[10]
After
filing the rule 43 application and prior to the entry of appearance
to oppose the application the applicant filed a further
supplementary
affidavit. It emerges from the supplementary affidavit that the
applicant had been advised, that by virtue
thereof that the
settlement agreement contained provisions for the exchange of rights
to immovable properties she could, as a matter
of law, not achieve
the enforcement of the settlement agreement in the absence of a
written deed of settlement which the respondent
refused to sign.
She accordingly declares that, acting on this advice, she would be
required to proceed to trial in respect
of the division of the
accrual which entails proof of respondent’s financial affairs
during the subsistence of the marriage.
She persisted, however,
in her stance that an agreement had in fact previously been achieved
and insisted that she was entitled,
as a matter of law, to refer to
the agreement concluded and the terms thereof. I shall revert
to this issue below.
[11]
The
supplementary affidavit runs to nine pages and is accompanied by an
amended “Notice of Motion in terms of Rule 43”
which
again runs to ten pages and which is largely identical to the
original relief claimed, save that the contribution towards
costs is
increased to R1 250 000. Further annexures extending
to four pages were also annexed to the supplementary
affidavit.
The rule 43 application accordingly runs to ninety four pages in
total.
The
objection
[12]
I have
recorded earlier that the rule 43 application was met with the
present proceedings in terms of rule 30 of the rules.
[13]
In the
present proceedings the respondent contends that the rule 43
application should be struck out in its entirety as constituting
an
irregular step as envisaged in the provisions of rule 30(1).
The objection is founded on two grounds. Primarily
it is
contended that the affidavit and supplementary affidavit filed by the
applicant, with annexures thereto, do not comply with
the provisions
of rule 43 in that:
1.
They are
unduly voluminous and are not in the form of a declaration, as is
required by rule 43(2);
2.
they burden
the applicant with the duty to respond thereto, which would involve
lengthy and expensive consultations and would result
in the
respondent being unable to comply with rule 43(3), to which I revert
below;
3.
the
applicant has delivered a supplementary affidavit to her founding
affidavit, which is not permitted by rule 43, in the absence
of an
order of this court allowing it to be filed. Such an order has
not been sought or obtained.
[14]
The second
ground for the objection is that the founding and supplementary
affidavits filed contain material which is “scandalous,
alternatively, vexatious, further alternatively, irrelevant as they:
1.
Refer to oral and written settlement negotiations and proposals,
which were conducted
and made on a “without prejudice”
basis, despite the fact that the applicant, on her version, concedes
that these negotiations
and/or proposals did not result in a
settlement being achieved between the parties. The applicant is
precluded from referring
to the negotiations and/or proposals as they
remain privileged and the respondent has not waived this privilege;
2.
Contain material which is essentially a paraphrasing of a forensic
report obtained
by the applicant and, which:
2.1
Is irrelevant to the questions of interim maintenance and a
contribution to costs;
and
2.2
is designed, rather, to extract a response from the respondent, on
oath, to allegations
which are relevant only in the main action, but
are irrelevant to the application in terms of rule 43.
[15]
It is not
contentious that rule 43 provides a remedy by which a party in
pending matrimonial disputes may claim,
inter
alia
,
maintenance
pendente
lite
and a contribution to the costs of the pending matrimonial action.
Rule 43 affords to the parties a procedure intended to
be quick and
inexpensive. To this end rule 43(2) provides that the
applicant, “shall deliver a sworn statement in the
nature of a
declaration, setting out the relief claimed and the grounds
therefore”. Rule 43(3) provides that a respondent
“shall
within ten days after receiving the statement deliver a sworn reply
in the nature of a plea”. No replying
affidavits are
permitted as of right. It has been held that rule 43
proceedings should be self-contained so that it is not
necessary for
the court to search for and peruse the file of papers relating to the
main action (see
Carstens
v Carstens
1985 (2) SA 351
(SE) at 352E). There is, however, no reason why
a party should be prevented from referring to the pleadings in the
divorce
action (see
Dodo
v Dodo
1990 (2) SA 77
(W) at 89H).
[16]
In
Micklem
v Micklem
1988 (3) SA 259
(C) Van den Heever J summarised the principles
applicable to rule 43 applications. To the extent that these
principles find
application to the present matter Van den Heever J
stated at 262A-263A:
“
1.
Wealth is an undoubted advantage in litigating, in that a litigant
with means can obtain the services of experts which may not
be
available to someone with a more modest purse. No authority was
quoted, and I would be astonished to discover that any existed,
that a man of means is entitled to rewrite the rules to suit his own
convenience and still less that he should be obliged to permit
his
opposition to do so, even if she is his wife.
2. Rule 43(2)
sets out the type of affidavits that should be put before the Court.
The cases are clear that unduly lengthy
affidavits and
annexures, that would not in the normal course be annexed to be a
pleading, may amount to an abuse of the process
of the Court. The aim
of Rule 43 is to conserve the parties' energies for the trial itself
and provide speedy and inexpensive
interim
relief - even for
millionaire spouses.
3. …
4. …
5. The fact that
a husband has unlimited means does not in our law entitle his wife to
unlimited spending. There is a difference
between her wants and her
needs (
Grasso
v Grasso
1987
(1) SA 48 (C)
at 59G - H). What she is entitled to, is to maintain the standard of
living to which she was accustomed, not to increase that.
6. A wife
seeking a contribution towards costs is not entitled to payment in
full of the costs she avers will be incurred in presenting
her case
to the Court nor all costs incurred to date. In a matter such as the
present, this may clash with the 'paramount consideration'
that she
should be enabled 'adequately to place her case before the Court'
(
Van
Rippen v Van Rippen
1949
(4) SA 634
(C)
at 638 - 9) in which the question of essential disbursements is
a material factor. And what are
essential
disbursements is adjudged against the background of
(a)
the depth of his purse and
(b)
his own scale of litigation. (
Glazer
v Glazer
1959
(3) SA 928
(W)
.)”
[17]
What
clearly emerges from the authorities is that lengthy affidavits which
frustrate the objects of the rule to decide applications
thereon as
expeditiously and inexpensively as possible may, for that reason,
amount to an abuse of process and may, result in no
order being
made. (See for example,
Micklem
v Micklem
supra
;
Visser v
Visser
1992 (4) SA 530
(SE) at 531D;
Patmore
v Patmore
1997 (4) SA 785
(W) at 788D; and
Du
Preez v Du Preez
2009 (6) SA 28
(T) at 33B.) (Compare also
Zoutendijk
v Zoutendijk
1975 (3) SA 490
(T) at 492C in respect of the form of the affidavit
envisaged.) The courts will generally hold the parties to the
rule and
would not readily entertain applications which clearly do
not conform to the requirements of rule 43.
[18]
The rule
is, however, not absolute. Rule 27(3) of the rules provides for
a court, on good cause shown, to condone any non-compliance
with the
rules. In
Dodo
v Dodo
supra
Wulfsohn AJ remarked in the context of rule 43, that there should be
no reason why special circumstances may not justify a deviation
from
the norm. This is clearly correct. Each case must be
decided on its own facts. The length of the affidavit,
in
itself, is not decisive of the issue. Where the circumstances
of the case and the interests of justice dictate that lengthier
affidavits are necessary in order to adequately set out the grounds
for the relief claimed the courts will be slow to penalise
a litigant
who merely seeks to make out a case for the amount required to be
able adequately to place her case before the court.
[19]
The
applicant avers in the rule 43 application that she is obliged to
make reference to documents (annexures to the rule 43(2) affidavit)
and to explain in some detail what she knows about the financial
affairs of the respondent in order to properly enable the court
to
come to a just and expeditious determination in terms of rule 43.
To the extent that the application may appear to be
prolix she avers
that it is an unavoidable consequence of the complexity of the matter
and the manner in which the respondent has
sought to protect and
control his financial affairs.
First
ground of objection
[20]
Mr
Buchanan
SC
who
appears together with
Mr
Ronassen SC
,
on behalf of the respondent argues that the initial affidavit filed
in the rule 43 application contains unnecessary detail which
could
have been formulated with greater brevity. There may be some
merit in this suggestion, however, I consider that some
latitude must
be provided and, although the courts would not permit a litigant to
abuse the opportunity, she ought to be given
a fair opportunity to
set out the grounds for the relief which she seeks with sufficient
clarity to enable the court to come to
a fair conclusion thereon.
[21]
The
maintenance relief sought in the rule 43 application currently under
consideration could hardly be described as being typical.
The
applicant claims a monetary contribution of R47 000 per month,
pendente
lite
and
payment of a number of additional expenses in respect of herself and
the two boys born of the marriage. She seeks rights
of
occupation to the matrimonial home and use rights to property in
London and a contribution towards vacation expenses in the
amount of
R200 000 per annum for herself and the boys.
[22]
The parties
in the present matter have lived a luxurious lifestyle with homes in
Grahamstown, Port Elizabeth, Cape Town and London.
They
travelled abroad on a regular basis. They have driven expensive
motor vehicles. In order for the applicant herein
to set out
the grounds for her extensive claims for interim maintenance she must
be afforded the opportunity to provide sufficient
particularity of
the lifestyle of the parties during the marriage, her own financial
means and the ability of the respondent to
pay the amounts claimed.
By virtue of the facts of the present matter I consider that this
necessarily requires more detail
than would be justified in the vast
majority of cases which the courts ordinarily encounter.
[23]
On behalf
of the respondent it is contended that the ten pages taken up to set
out the relief claimed (ten pages being the extent
of the notice of
motion) is in itself excessive. It is contended that some of
the relief claimed, for example occupation
rights to various
properties other than the primary residence of the applicant, is
inappropriate in rule 43 proceedings.
The form of the notice of
motion too is not in accordance with form 17 of the first schedule to
the rules, as prescribed in rule
43. Rule 20(2) of the rules
dictates the form of the sworn statement required by rule 43.
It requires of a litigant
to set out the nature of the claim, the
conclusions of law which he is entitled to draw from the facts stated
therein and a prayer
for relief which he claims. It is for the court
hearing the rule 43 application to determine whether the relief which
is sought
is appropriate in the circumstances. Rule 30 is not
an appropriate procedure to challenge the appropriateness of the
relief.
It is true that the notice of motion filed is not
strictly in accordance with the form prescribed by rule 43, however,
I can conceive
of no prejudice to the respondent which arises from
the form of the notice of motion. Had the relief claimed not
been set
out in the notice of motion the applicant would have had to
set out the relief which she claims in the same format in the body of
the affidavit filed.
[24]
It cannot
be gainsaid that the extent of the contribution towards costs claimed
is indeed extraordinary. This is clearly occasioned
by the
nature of the relief sought in the divorce action, in particular in
respect of the financial affairs of various trusts.
I cannot at
this stage determine the merits of the claims in the divorce action,
however, it is abundantly clear from the nature
thereof that very
extensive evidence would have to be obtained and an analysis carried
out by appropriate experts relating to the
financial affairs and
commercial transactions of the respondent and the various trusts
which have been joined and which may yet
be joined. This would
require forensic investigations both locally and abroad. The
alleged value of the various trusts
and of the respondent’s
estate provide some indication of the probable extent of these
investigations. Annexed to the
rule 43 application are two
organograms depicting the structures of the local and offshore trusts
involved. The complexity
of the structure is readily apparent
from the organograms.
[25]
In
Dodo’s
case,
supra
,
Wulfsohn AJ held at 99D-E:
“
Because
of the luxuriousness of the respondent's scale of litigating with
the applicant, his wealth, the potentially enormous
capital sum or
value which the applicant may gain in the trial, the extensive scope
of the preparation needed for the trial, the
scale on which she
desires to litigate and the fact that each party has engaged senior
and junior counsel for the trial, it is
clear that the present
application for the contribution towards costs is distinguishable
from the far more usual class of
case wherein a contribution of
a few thousand rand would normally be adequate.”
[26]
Each
one of the considerations which moved Wulfsohn AJ to hold the case to
be a special case finds application in this case, save
that in this
case each party has engaged two senior counsel.
For
these reasons I am persuaded that the present matter is an
exceptional matter as envisaged in
Dodo’s
case,
supra,
which
justifies a deviation from the norm set out in rule 43. I am
not persuaded, on the facts of this case, that the volume
of the
papers and the degree of detail contained therein necessarily
constitutes an abuse of the process which would justify
an order
under rule 30. I find accordingly that on the facts of the
present case the papers are not unduly prolix.
[27]
The
respondent’s objection attacks the procedure followed by the
applicant in filing the supplementary affidavit without earlier
obtaining the consent of the court to do so. Reliance was
placed in argument in support of this contention on the judgment
of
Verster
v Verster
1975 (3) SA 493
(W) at 494C. In
Verster
the court was not concerned with a supplementary affidavit but with
affidavits attested to by third parties, who were not parties
to the
divorce proceedings. Rule 43(5) provides that a 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. In
Verster
,
it was held that it was not open to an applicant under rule 43 to
file, as annexures, affidavits by third parties and that the
appropriate procedure would be to approach the court to hear the
evidence of third parties as envisaged in rule 43(5).
[28]
The present
matter, I think, is to be distinguished on the facts from the matter
in
Verster
.
The rule nevertheless does not authorise an applicant, as of right,
to proceed to file a supplementary affidavit under rule
43, even in
circumstances where the respondent had not yet filed an intention to
oppose. In this instance, however, the applicant
was alive to
the strictures imposed by rule 43. In her supplementary
affidavit she explains the change of stance leading
to the amendment
to the claim for a contribution towards costs and she states that it
is necessary for her to seek the amendment
in order to provide cover
for the additional fees and disbursements which would now become
reasonably necessary to be incurred
and she seeks the condonation of
the court in regard to the supplementary affidavit.
[29]
It is true
that the applicant did not, prior to filing the supplementary
affidavit, seek the leave of the court. In my view,
the
procedure adopted by the applicant did not constitute a peremption to
her right to ask the court hearing the rule 43 application
that
regard should be had to the supplementary affidavit. The court
should always take into account the true intention of
the fairness of
the rules of court and the realities of the situation
(compare:
Prism
Payment Technologies (Pty) Ltd v Altech Information Technologies
(Pty) Ltd (t/a Altech Card Solutions) and Others
2012
(5) SA 267
(GSJ) at 272 and the authorities referred to therein).
The procedure envisaged in rule 43, as set out earlier, is to obtain
an expeditious and inexpensive resolution to interim disputes
pendente
lite
.
To require of a litigant who is already in financial straits to incur
the costs of launching a separate application for
leave to file a
supplementary affidavit in circumstances where such an affidavit may
be justified, or of withdrawing the rule 43
application and filing a
fresh application repeating everything which had been covered in the
initial application may serve only
to undermine the objects of rule
43. To dismiss the rule 43 application as an irregular step
would escalate the costs to
the parties, cause a delay in the
decision of the disputes in the rule 43 application and give rise to
an inevitable further delay
in the finalisation of the divorce
action. In the circumstances I consider that the procedure
adopted in this instance to
seek condonation for the filing of the
supplementary affidavit in the rule 43 proceedings is permissible.
[30]
Finally,
the respondent contends that the rule 43 application should be struck
out on the ground that the volume of the papers filed
would burden
the respondent with the duty to respond thereto which would involve
lengthy and expensive consultations and which
would result in the
respondent being unable to comply with these obligations in terms of
rule 43(3). In this regard I was
referred to the decision in
Zoutendijk
supra
where Nicholas J, as he then was, concluded, after finding that an
answering affidavit filed in rule 43 proceedings was unduly
prolix,
that it would be wrong, in the circumstances of that case, to burden
the applicant with the duty of replying to ninety
pages of affidavits
which would involve lengthy and expensive consultations. During
argument before me it was sought to elevate
this conclusion to a
principle of law. That would not be justified. If once it
is found, as I have, that the circumstances
of the case justify the
volume of the papers and necessitate the detail of the averments
made, the inevitable consequence is that
it is necessary for the
respondent to respond thereto. I am unable to uphold the
argument that the respondent would be precluded
from complying with
the provisions of rule 43(3), by virtue thereof. Experience has
shown that it is not extraordinary in
litigation involving
significant amounts of money for a “declaration” or
“particulars of claim” to exceed
the length of the papers
in the present rule 43 application. That in itself does not
preclude a defendant from pleading thereto.
[31]
In these
circumstances the first ground of objection cannot be upheld.
Second
ground of objection
[32]
The second
ground of objection proceeds on the basis that allegations made in
respect of the conclusion of the settlement agreement
and material
set out in the rule 43 affidavit which is taken from the forensic
report obtained by the applicant are scandalous,
vexatious or
irrelevant.
[33]
In respect
of the settlement agreement there is some dispute between the parties
as to whether a “settlement agreement”
was in fact
achieved and whether the references in the rule 43 affidavit relate
to the terms of an agreement or to proposals made
in the course of
negotiations. It is not necessary for me at this stage to
address this dispute. I shall accept
for purposes hereof,
without making any finding in that regard, that a settlement
agreement was not achieved and that the references
thereto are
therefore privileged and irrelevant.
[34]
It is trite
that averments contained in affidavits which are scandalous,
vexatious or irrelevant may be struck out. At common
law other
inadmissible evidence contained in affidavits may similarly be struck
out. The procedure for doing so is set out
in rule 6(15) of the
rules of court. It would usually require a notice of motion to
be filed and for the application to strike
out to be heard
simultaneously with the main application. By virtue of the very
purpose of rule 43 it has been held that
the provisions of rule 6(15)
do not apply in rule 43 proceedings. To hold otherwise would
simply undermine the objectives
of the rule in seeking to achieve an
expeditious and inexpensive resolution of the interim dispute between
the parties. In
Andrade
v Andrade
1982 (4) SA 854
(O) Erasmus J held at 856D-F:
“
The
short period of seven days which is allowed and within which a
respondent must reply to the application (in terms of rule 43)
indicates that applications to strike out were not contemplated by
the Rulemaker. There seems to be no good reason why a party
who
wishes to strike out irrelevant and unnecessary matter in an
application or a replying affidavit under the Rule should not
object
to it in his argument before the Court and ask for a special order as
to costs on the application no matter what the result
might be on the
merits. An aggrieved party may also ask the Court that his opponent
be ordered to pay for the costs thus unnecessarily
incurred by
inadmissible redundant paragraphs and annexures.”
I
agree with these sentiments. Whatever the appropriate procedure
may be the right of a litigant who is aggrieved by the inclusion
of
such matter in affidavits is to apply to strike out the offending
allegations, not to set aside the process. Rule 30 is
not an
appropriate procedure by which to attack scandalous, vexatious or
irrelevant matter contained in affidavits.
[35]
It has been
suggested that the procedure under rule 30 is appropriate only for
irregularities of form rather than matters of substance.
(See
for example
Singh
v Vorkel
1947 (3) SA 400
(C) at 406C;
Pyramid
Jewellers v South British Insurance Co. Ltd
1953 (4) SA 24
(N); and
Herbstein
and Van Winsen: The Civil Practice of the High Court of South
Africa
(5
th
ed) vol 1 p. 740.) I am alive to the fact that it has also more
recently been held that any irregular proceeding may be attacked
under rule 30 and where there is a defect going to the root of the
matter in issue there is no reason why the court should be precluded
from dealing with the matter under rule 30. (Compare
Deputy
Minister of Tribal Authorities and Another v Kekana
1983
(3) SA 492
(B).) I consider that the view expressed in the
earlier cases is to be preferred. In any event, even if I err
in this
finding, the inclusion of averments which may be
scandalous, vexatious or irrelevant is not a defect going to the root
of
the matter. For these reasons the second objection too must
fail.
Costs
[36]
Finally
there remains the question of costs occasioned by the application.
Mr
Fitzgerald
SC
, who
appeared together with Ms
Dicker
SC
seek
an order that the respondent pay the costs occasioned by the
application, including the cost of two senior counsel.
Mr
Buchanan
did not expressly resist this order during argument. I have
recorded earlier that the respondent himself has engaged two
senior
counsel. On a consideration of the luxurious scale of
litigation in which both parties have engaged and the potentially
enormous capital amounts of money in dispute in the divorce
proceedings the request is not an unreasonable one.
[37]
In the
result, the application to dismiss the rule 43 application as an
irregular step is dismissed with costs, such costs to include
the
cost of two senior counsel, where employed.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Applicant:
Adv M J Fitzgerald SC and Adv T A Dicker SC instructed
by Catto
Neethling Wiid Inc, Cape Town c/o Greyvensteins Attorneys, Port
Elizabeth
For
Respondent: Adv R G Buchanan SC and Adv
O Ronassen SC instructed by Miller du Toit Cloete Inc,
Cape Town c/o
Lexicon Attorneys, Port Elizabeth