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[2023] ZAGPJHC 1231
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M.S v R.G.S (21620 / 2019) [2023] ZAGPJHC 1231 (26 October 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
(GAUTENG DIVISION,
JOHANNESBURG)
CASE NO: 21620 / 2019
I
n
the matter between:
S,
M
Applicant
And
S,
R G
Respondent
Delivered:
Delivery:
This judgment was
handed down electronically by circulation to the parties' legal
representatives by email, and uploaded on caselines
electronic
platform. The date for hand-down is deemed to be 26 October 2023
JUDGMENT
CORAM: VAN NIEKERK AJ
1.
This is an application terms of which the
applicant seeks an order:
1.1
directing the respondent to make a
financial disclosure in terms of the Judge President of the High
Court’s practice directive
dated 10 January 2020 (“
the
practice directive
”) within 10
days of service of an order, to this effect, upon the respondent’s
attorneys of record; and
1.2
directing the respondent pay the costs of
this application.
2.
The parties are embroiled in divorce
proceedings which were instituted in and during 2019 (“
the
divorce action
”).
3.
An analysis of the pleadings delivered in
the divorce action reveal that the issue of maintenance is in
dispute.
4.
Paragraph 3.5.1 of the practice directive
provides that a Financial Disclosure Form (“FDF”) annexed
to the section as
form “FDF 1” must be completed under
oath, together with the supporting documentation referred to in FDF 1
by each
party in an opposed divorce action in which maintenance or
proprietary relief is in dispute and/or in every rule 43 application
in which maintenance is in dispute. Each party must index and
paginate his/her duly completed FDF with supporting documents, prior
to the exchange and delivery thereof.
5.
Paragraph 3.5.2 of the practice directive
provides that in any opposed divorce action in which maintenance or
proprietary relief
is in dispute both parties must exchange (
inter
partes
), their respective FDF’s
no later than 10 court days after the defendant delivers his/her
plea.
6.
The practice directive is couched in
peremptory terms and enjoins parties in an opposed divorce action in
which,
inter alia
,
maintenance relief is in dispute, to complete Financial Disclosure
Form, under oath, together with supporting documentation.
7.
The essence of the respondent’s
opposition to the relief sought by the applicant is that:
7.1
he is able to afford the amount of
maintenance claimed by the applicant, and that, therefore, the issue
of maintenance is not in
dispute, and this would then relieve him of
the obligation to provide a Financial Disclosure Form;
7.2
the applicant has not proved a need for
maintenance; and
7.3
he has a constitutional right to keep his
financial affairs private.
8.
The applicant has complied with the
practice directive and provided her Financial Disclosure Form.
9.
I do not find the respondents reasons for
refusing to comply with the practice directive to be compelling. As
already indicated,
the wording of the practice directive is
peremptory, and the respondent is not excused from compliance
therewith. Moreover, an
analysis of the pleadings reveals that the
issue of maintenance is in dispute between the parties. At the very
least, the issue
of rehabilitative maintenance is in dispute. This
dispute engages the provisions of the practice directive.
10.
The respondent analyses the Financial
Disclosure Form in order to attempt to demonstrate that the applicant
does not have a need
for maintenance. However, this is an attempt to
usurp the functions and powers of the divorce court, which will, in
time, embark
upon this analysis using,
inter
alia
, the Financial Disclosure Forms
delivered on behalf of both of the parties.
11.
In the circumstances, I make an order in
the following terms:
a.)
the respondent is directed to make a
financial disclosure in terms of the Judge President of the High
Court’s practice directive
dated 10 January 2020 within 10 days
of service of an order, to this effect, upon the respondent’s
attorneys of record; and
b.)
the respondent is directed to pay the costs
of this application.
D Van Niekerk AJ
Representatives:
For
the Applicant:
Adv.
Bernette Bergenthuin
Attorneys
for the applicant:
Arthur
Channon Attorneys Inc,
For the Respondent:
Adv. JC Kotze
Attorneys for respondent:
DMO ATTORNEYS
Hearing date: 12 October
2023
Delivered: 26 October
2023