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[2023] ZAECMKHC 66
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C.A.D v J.D (4017/2021) [2023] ZAECMKHC 66 (18 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Case No: 4017/2021
In the matter between:
C[…]
A[…] D[…]
Applicant
/ Defendant
And
J[…]
D[…]
Respondent
/ Plaintiff
JUDGMENT
BESHE
J:
[1] Applicant
is the defendant in the divorce action between the parties. He
instituted a
Rule 43
application for an order that respondent
(plaintiff in the main action) makes a contribution towards his legal
costs. In addition
to opposing the application, respondent is making
a counter-application that applicant be ordered to contribute towards
the parties’
minor child’s maintenance
pendente lite
.
[2]
At the outset, it is apposite to remind all
concerned that the object of
Rule
43
is that the applications that are provided for by this rule should be
dealt with as inexpensively and as expeditiously as possible.
Further
that prolixity in averments and the unnecessary proliferation of
papers and affidavits should be avoided.
[1]
Papers filed in this matter are a far cry of what is envisaged in
Rule
43
applications. Papers run into some 184 pages excluding applicant’s
replying affidavit. As if that is not enough, the court
is referred
to bundle relating to
Rule
35
notice with papers that are as voluminous if not more than those
filed in respect of the
Rule
43
application. The problem starts with the notice in terms of
Rule
43
where there is no indication of what exactly the applicant will be
seeking in terms of this rule (
Rule
43
).
It is only at the end of 23 pages of the affidavit that the court is
told that the applicant seeks a provisional payment as contribution
towards applicant’s legal costs
pendente
lite
.
To crown it all, the affidavit has very sparse details about
applicant’s earnings and monthly expenses. It is only in his
reply to the counter-application that the applicant refers the court
to his reply to the
Rule
35
notice regarding his financial position. This reply does not shed
much light either. This is unacceptable for two reasons:
(i) A party is required to make
his/her case in the founding affidavit.
(ii)
Rule 43 proceedings should be self-contained, the court should not be
required to peruse other files of papers or indices.
[2]
This in my view calls for an adverse
inference to be drawn against the applicant, that he has not come to
court with clean hands,
is not playing open cards in regard to the
issues at hand in this application in particular his earnings and
monthly expenditure
/ expenses. The manner in which the applicant
conducted these proceedings is not acceptable. I dare say it an abuse
of the court
process.
[3] As
indicated earlier, in the counter-application respondent seeks an
order for payment of maintenance
pendente lite
in respect of
the parties’ minor child of R5000.00 per month; half of the
medical aid premium payable in respect of the child;
half of
reasonable medical expenses not covered by the medical aid scheme;
half of reasonable costs of the minor child’s
schooling as well
as the minor child’s extramural and extracurricular schooling
and sporting activities etc.
[4] Notably
in his reply, the applicant (in the main application), does not deny
the need for maintenance
as outlined by the respondent is respect of
the minor child. He resorts to his refrain that the respondent is
responsible for the
action not having been settled yet they have
agreed to settled during 2021. He also makes the point that given
respondent’s
financial position she is able to afford her
monthly expenses with the
proviso
of course that excluding her
legal fees. Applicant does not take issue with the figures provided
as monthly expenditure in respect
of the minor child which came to
R12 647.50 per month. I am of the view that the amount given by
the respondent is reasonable
and the items thereon do not amount to
extravagant demands. Both parents, if they have the means to do so,
have a duty to support
their children. Respondent has shown that her
monthly expenditure exceeds her earnings.
[5] Due to
the paucity of information provided by the applicant in respect of
both his application for
a contribution towards costs as well as the
counter-application for payment of a contribution towards the minor
child’s maintenance,
I am unable to find that applicant has
made out a case for a contribution by the respondent towards his
legal costs. I am also
not persuaded that he is not possessed of
means to contribute towards the maintenance of the parties’
minor child
pendente lite
.
[6]
Accordingly, the following order will issue:
The main application is dismissed.
The relief sought in the
counter-application is granted as it appears in the respondents’
notice in terms of
Rule 43 (1)
, being paragraphs 1, 1.1, 1.2,
1.3, 1.4 and 3 thereof.
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For
the Applicant/Defendant:
Adv:
Molony
Instructed
by:
NETTELTONS
ATTORNEYS
118A
High Street
MAKHANDA
Ref:
Mr Hart/Liza/D281/D22196
Tel.:
046 – 622 7149
For
the Respondents/Plaintiff:
Adv:
Ellis
Instructed
by:
KAPLAN
BLUMBERG ATTORNEYS (GQEBERHA)
C/o
WHITESIDES ATTORNEYS
53
African Street
MAKHANDA
Ref.:
Mr G Barrow/Stephanie
Tel.:
046 – 622 7117
Date
Heard:
05/16/23
Date
Reserved:
05/16/23
Date
Delivered:
05/18/23
[1]
See
Erasmus
Superior Court Practice Volume 2 D1-578.
[2]
C[…] v C[…]
1985 (2) SA 345.