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[2023] ZAECMKHC 85
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M.A.D.S.M v G.J.M (399/2021) [2023] ZAECMKHC 85 (3 August 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NO. 399/2021
In
the matter between:
M.
A. DA SILVA M[…
]
Applicant
And
G.
J. M[…]
Respondent
JUDGMENT
Rugunanan J
[1]
The applicant resorts to the rule 43
application procedure for which she seeks a costs contribution of R40
000 from the respondent
in respect of a pending divorce action which
is set down for trial on 14 August 2023. Her counsel in argument
submitted that the
quantum of the contribution has been pruned to
R20 000, in the light of discussions which culminated in a
considerable narrowing
of issues for adjudication at trial. These
discussions are external to the papers before me and their content
need not be mentioned
herein.
[2]
The application was launched on 6 July
2023.
[3]
The applicant asserts in her founding
affidavit that the contribution is required for covering her legal
costs including counsel
and ‘
the
experts I will now need to appoint to value the respondent’s
estate’.
[4]
The primary assertions in the founding
affidavit are disputed.
[5]
In opposition to these proceedings the
respondent seeks a dismissal of the application with costs.
[6]
I must do the best I can in the
circumstances to arrive at a rough and ready solution to the problem.
I do so by applying trite
principles applicable to founding
affidavits in application proceedings.
[7]
Having read the papers filed of record and
having heard and considered the submissions for both parties, I have
concluded as follows:
[8]
The founding affidavit is deficient,
notwithstanding the reduction of the contribution being claimed.
[9]
In application proceedings it is trite that
a litigant must make out its case in its founding papers.
[10]
It is to the founding affidavit that a
court will turn to determine what the complaint is (see
Director
of Hospital Services v Mistry
1979 (1)
SA 626
(A) at 635H). The founding affidavit must in itself contain
sufficient facts upon which a court may find in the applicant’s
favour (see
Elegant Line Trading 257 CC
v MEC for Transport, Eastern Cape
[2022] ZAECBHC 45 para 2). In motion proceedings it is trite that the
affidavits constitute both the pleadings and the evidence-
hence the
issues and averments in support of the parties’ cases should
appear clearly therefrom (see
Minister
of Land Affairs and Agriculture v D & F Wevell Trust
2008 (2) SA 184
(SCA) at 200D).
[11]
The applicant asserts that the contribution
claimed is fair and reasonable.
[12]
Her opinion is subjective.
[13]
She does not set out her claim in a manner
as will enable the respondent or this Court to discern how it is
constituted and quantified.
There appears to be a substantial quantum
leap between the amount of R40 000 claimed in the notice of
motion and the amount
of R20 000 demanded by her attorneys.
[14]
The demand was made in a letter dated 13
June 2023 dispatched to the respondent’s attorneys. Nothing is
mentioned about the
engagement of experts, though in argument
applicant’s counsel indicated that experts have been engaged
with appropriate notification
having been given in accordance with
the rules of court.
[15]
It is significant that the applicant’s
founding affidavit proffers no indication of the experts engaged and
what the approximate
cost of their services would be. For present
purposes the founding affidavit must therefore be construed on the
basis of the applicant’s
assertion quoted earlier in this
judgment.
[16]
The applicant further asserts that she is
unemployed and requests this court to have regard to a full set of
application papers
in a previous rule 43 application heard by this
Court on 10 August 2021.
[17]
In keeping with the principle that a
litigant must make out its case in its founding affidavit, it is not
the practice for a court
to be required to go behind a founding
affidavit and have regard to extraneous or separate material. A court
cannot be expected
to trawl through such material and then draw
inferences or speculate on its relevance to the issues at hand.
[18]
Rule 43 applications by their nature are
designed to provide a cost-effective and expeditious remedy for a
party in need of interim
relief. That need and the exigencies that
gave rise to the proceedings must, in the first instance, be
demonstrated in the founding
papers.
[19]
The applicant’s bid for the Court to
have recourse to material contained in her previous set of
papers – which
in my view has already been adjudicated upon –
constitutes an abuse of process.
[20]
The previous affidavit is voluminous and I
was not referred to specific portions thereof.
[21]
To expect a court a court to do so without
any indication of the relevance of what portions are to be relied on
is an invitation
I decline to accept.
[22]
The respondent squarely takes issue with a
number of the applicant’s averments,
inter
alia
by asserting that she is
self-employed and by attaching her bank statements to his opposing
affidavit.
[23]
He conveniently sets out material
information in his opposing affidavit.
[24]
Tellingly, the information indicates that
not insubstantial sums have been periodically deposited into the
applicant’s Capitec
bank account albeit during 2021.
[25]
As for the respondent’s financial
resources, his bank statements indicate a balance of R624. 80 as at
14 July 2023.
[26]
Despite placing affordability in issue, the
respondent has made a tender the for payment of a contribution of
R10 000.00 split
over two instalments of R5 000.00, the
first of which commences on 8 August 2023 and the second to be
effected no later than
31 August 2023.
[27]
I was informed from the bar that the
respondent’s tender was rejected and that the applicant
persisted with her claim for
R20 000.00.
[28]
I am of the view that the applicant has not
made out a case in her founding papers and where the respondent has
placed affordability
in issue, the applicant’s repudiation of
the tender is disingenuous.
[29]
The parties have filed supplementary
affidavits.
[30]
Though concise, I am not persuaded that
they are of any assistance in arriving at the conclusion which I
have.
[31]
For reasons aforementioned, the application
is deficient.
[32]
It is vexatious and ill-conceived.
[33]
Being of the view that there are no
bona
fide
grounds for affording the
applicant the relief which she seeks, the fate of the matter must be
determined in accordance with the
respondent’s prayer in his
opposing affidavit.
[34]
In the circumstances the following order
issues:
[35]
The application is dismissed with costs.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Applicant:
G.
Brown
Instructed
by
Wheeldon
Rushmere & Cole Attorneys
High
Street
Makhanda
For
the Respondent:
S.
Sephton
Instructed
by
Neville
Borman & Botha Attorneys
Hill
Street
Makhanda
Date
heard:
1
August 2023
Date
delivered:
3
August 2023