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[2022] ZAECELLC 14
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J.M.V v P.C.V (547/2022) [2022] ZAECELLC 14 (12 July 2022)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EAST LONDON CIRCUIT
LOCAL DIVISION)
CASE NO.5472022
In
the matter between:
J[…]
M[…] V[…] W[…]
Applicant
And
P[…]
C[…] V[…] W[…]
Respondent
JUDGMENT
TOKOTA J
[1]
The applicant and the respondent were married to each other out of
community of property on 9
February 1991. The parties are embroiled
in divorce proceedings before this Court. Pending the finalisation of
the divorce, the
applicant is approaching this court seeking an
order,
pendente lite,
in the following terms:
(a)
Maintenance for herself and her daughter, who is 23 years old, in the
amount of R54 801.50;
(b)
Contribution towards her past legal costs in the amount of
R33 954.80;
(c)
Contribution towards future legal costs in the amount of R199 939.00;
(d)
Contribution towards costs of forensic accountant in the amount of
R500 000;
(e)
Contribution towards costs of appraised evaluator in the amount of
R29 100. The application is
opposed by the respondent.
[2]
At the hearing of this matter, I raised a legal point that my
prima
facie
view was that the application did not comply with Rule 43
of the Uniform Rules of Court. Mr
Kotze
appearing for the
respondent did not have his heads of argument and sought leave to
file them later and would deal with my concerns
in those heads of
argument. Mr
Cole SC
who appeared for the applicant had filed
his heads of argument but indicated that he would like an opportunity
to file further
heads of argument to deal with the point raised as
well. I granted leave to both of them to submit their heads of
argument in this
regard. Mr
Kotze
delivered his heads of
argument on 15 June 2022 and I received heads of argument from the
applicant’s attorneys on 22 June
2022. I’m indebted to
both parties for their heads. At the hearing of the matter I allowed
oral argument.
[3]
My concern was not only based on the bulkiness of the papers but also
on the substance, including
annexures and the manner in which the
claim was presented. There are four matters to be sought in terms of
Rule 43. The purpose
of the Rule is to provide a party with a speedy
and inexpensive remedy, instead of waiting for a prolonged battle of
a divorce
action, enabling the party to seek maintenance; a
contribution towards the costs of matrimonial action pending or about
to be instituted;
interim care; or contact with a child
pendent
lite
.
The sworn statement filed by the applicant
is not in the nature of a declaration as envisaged in Rule 43. Mr
Kotze
who
appeared for the respondent submitted that the reply by the
respondent to the applicant’s founding affidavit was prompted
by the nature of the applicant’s affidavit hence it is also not
in the nature of a plea.
[4]
It is expedient at this juncture to quote the relevant provisions of
the Rule:
43 Interim relief
in matrimonial matters
(1) This rule shall
apply whenever a spouse seeks relief from the court in respect of one
or more of the following matters:
(a)
Maintenance pendente lite;
(b)
A contribution towards the costs of a matrimonial action, pending or
about to be instituted;
(c)
Interim care of any child;
(d)
Interim contact with any child.
(2)(a) An applicant
applying for any relief referred to in subrule (1) shall deliver a
sworn statement in the nature of a declaration,
setting out the
relief claimed and the grounds therefor, together with a notice to
the respondent corresponding with Form 17 of
the First Schedule.
(b)...
(3)(a) The respondent
shall within 10 days after receiving the application deliver a sworn
reply in the nature of a plea.
(b)...
(c)...
(4)…
(5) The court may hear
such evidence as it considers necessary and may dismiss the
application or make such order as it deems fit
to ensure a just and
expeditious decision.”
[5]
The point of non-compliance with Rule 43 was not raised in the papers
by the respondent. Ngcobo
J in
CUSA
v Tao Ying Metal Industries
[1]
stated:
'Where a point of law
is apparent on the papers, but the common approach of the parties
proceeds on a wrong perception of what the
law is, a court is not
only entitled, but is in fact also obliged, mero motu, to raise the
point of law and require the parties
to deal therewith. Otherwise,
the result would be a decision premised on an incorrect application
of the law.'
[6]
In
Paddock
Motors (Pty) Ltd v Igesund
[2]
Jansen
JA said:
'.
. . it would create an intolerable position if a Court were to be
precluded from giving the right decision on accepted facts,
merely
because a party failed to raise a legal point, as a result of an
error of law on his part
.
. .'
[3]
[7]
More than thirty years ago rule 43 applications have been identified
as sort of a hybrid procedure.
In
Willies
v Willies
[4]
Fannin
J said:
'In
considering the question before us it must not be ignored, I think,
that the rule 43 procedure was a novel procedure, a sort
of hybrid
procedure, largely of the nature of a motion or application (being
commenced with a notice supported by an affidavit)
but partly of the
nature of an action, in which a document in the nature of a
declaration has to be filed and in which evidence
can be led.'
[8]
Rule 43(2)(a) provides that the sworn statement must be in the nature
of a declaration and Rule
43(3) provides that the respondent’s
reply must be in the nature of a plea. The declaration in the
legal sense is a
separate document in which the plaintiff sets out
his particulars of claim in the same precise manner as he would in a
combined
summons. This means that Rule 18(4) applies. Rule 18(4)
provides:
‘
every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence
or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto.
’
In
Maree
v Maree
[5]
sê
die geleerde Regter:
“
Dit
moet steeds in gedagte gehou word dat die prosedure deur Reël 43
beoog geensins 'n gewone aansoek is wat by wyse van 'n
kennisgewing
van mosie geloods word nie, maar wel 'n aansoek
in
verkorte vorm wat op spoedige en kostebesparende wyse
afgehandel behoort te word.
[Onderstreping
is myne]
[9]
However, I agree with Sher J in
KT
v ATand Others
[6]
where the Learned Judge says:
“
Whereas
in one matter a short affidavit a few pages long and without any
supporting annexures might suffice, in another a lengthier
one with a
number of supporting annexures may be required. In each matter what
will reasonably be required will depend on the facts
and
circumstances. Thus, for example, where the matter concerns a claim
in respect of relief sought in relation to the care of,
or contact
with, a child and the parties have been embroiled in a long and
bitter tussle it may be necessary to set out, in some
detail, the sad
and sorry saga which has led up to the application and the alleged
misbehaviour in which the parties have engaged,
inasmuch as this may
be relevant to a determination of whether or not they are fit and
responsible enough parents to have a child
in their care, or to have
contact with him/her
.”
[10] In
this matter, the applicant is claiming maintenance for herself and
her daughter who is neither a minor
nor a student. In light of the
view I take of the matter it is not necessary to decide the question
of whether her daughter could
and should have acted on her own to
seek maintenance directly from her father since she is an adult and
not a child anymore. Furthermore,
it would seem to me that the
separate claims for contribution for costs relating to the
appointment of an appraised evaluator in
the amount of R29 100
and costs of a forensic accountant in the amount of R500 000
have contributed to the bulky nature
of the papers. There are several
annexures from which no portions have been identified on which
reliance is placed for the applicant’s
case. It is not the
number of pages that count but rather the substance of the
application and whether an attempt is being made
to stick to the
letter of Rule 43.
[11]
Rule 43 applications are launched and enrolled in the unopposed
motion Court roll even though in most instances
they are opposed. It
is therefore imperative that the parties must make every effort to
avoid prolixity thereof as the roll
may be congested with other
matters, including opposed applications for summary judgments and
urgent applications.
[12]
In this division urgent matters are heard simultaneously with these
applications. The applicant is therefore
required to set out
succinctly and concisely, by way of a statement in the form of a
declaration in terms of the Rule, a chronological
exposition of the
legal process in the pending divorce action from summons to close of
pleadings; the nature of the claims which
she was putting forward as
plaintiff in the divorce action; and the respondent's defence
thereto, very briefly, and then deal with
the claims for maintenance
and for contribution to legal costs. The rationale for this is that
an applicant for a contribution
towards costs must show that, if she
is the plaintiff in the main action, she has a
prima
facie
case; and if she is the defendant, she is defending the action in
good faith.
[7]
[13]
The applicant should set out her financial circumstances,
particularly her needs and the respondent's means,
nothing more
nothing less. There is no need to burden the application by simply
attaching annexures without identifying the portions
thereof on which
reliance is placed for the applicant’s case. The same goes with
the respondent. The only essential annexure
that comes to my mind is
proof of income. It is sufficient to attach a salary advice or, in
the case of a business owner, a certificate
from the bookkeeper
certifying the average income of the party concerned based on the
last three financial years as reflected on
tax returns. There is no
need to attach financial statements unless this is absolutely
necessary. It is unhelpful to attach photos
of business offices, as
was done in this case.
[14]
I am mindful of the fact that Rules are made to facilitate litigation
and promote orderly ventilation of
issues subject to the overriding
discretion of the Court. In
casu,
I
am not satisfied that Rule 43 has been complied with in material
respects. For this reason, it is not necessary for me to delve
into
the merits of the application. In
Moulded
Components and Roto moulding South Africa (Pty) Ltd v Coucourakis and
Anothe
r
[8]
Botha
J said the following:
'I
would sound a word of caution generally in
regard to the exercise of the Court's inherent power to regulate
procedure. Obviously,
I think, such inherent power will not be
exercised as a matter of course. The Rules are there to regulate the
practice and procedure
of the Court in general terms and strong
grounds would have to be advanced, in my view, to persuade the Court
to act outside the
powers provided for specifically in the Rules. Its
inherent power, in other words, is something that will be exercised
sparingly.
As has been said in the cases quoted earlier, I think that
the court will exercise an inherent jurisdiction whenever justice
requires
that it should do so. I shall not attempt a definition of
the concept of justice in this context. I shall simply say that, as I
see the position, the Court will come to the assistance of an
applicant outside the provisions of the Rules when the Court can
be
satisfied that justice cannot be properly done unless relief is
granted to the applicant.'
[15] In
the past, attorneys and advocates were limited to the maximum nominal
fees they could charge in applications
of this nature. This
limitation has since been removed. Rule 43 has now been amended in
such a way that there is no limit on legal
fees to be charged by
lawyers. Thus, lengthy affidavits with unnecessary annexures
may frustrate the object of the Rule to
decide the application
inexpensively and expeditiously and for this reason this may amount
to an abuse of the Court process.
[16]
Mr
Cole
for
the applicant argued that it is permissible to have bulky papers and
for this argument he relied on the case of
E
v E
[9]
.
As I understand that case, the full bench of the Gauteng division
reiterated that affidavits filed in terms of Rule 43 should
only
contain material which is relevant to the issues under consideration,
failing which the court has the power to strike it out
and make an
'appropriate' costs order.
[17] In
view of the shortcomings pointed out above I am of the view that the
application should be struck from
the roll and the applicant should
only be allowed to re-enrol the matter when it is brought in the
proper form, in compliance with
what the Rule envisages.
[18]
With regard to costs, I am of the opinion that none of the parties is
entitled to costs. The respondent was
free to invoke the Rule 30
procedure but did not do so until the parties were invited to address
the issue. Fairness dictates,
therefore, that the respondent should
not benefit from the point which was raised by the Court
mero
motu.
[19] In
the result the following order will issue:
1.
The application is struck from the roll
with no order as to costs.
B R TOKOTA
JUDGE OF THE HIGH
COURT
Appearances:
For
the applicant:
S
H Cole SC
Instructed
by
Stirk
Yazbek Attorneys
For
the Respondent
C
D Kotzѐ
Instructed
by
Abdo
& Abdo Attorneys
Date of
Hearing:
31 May 2022.
Date
Delivered:
12 July 2022
[1]
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009
(2) SA 204
(CC)
(2009 (1) BCLR 1
;
[2009] 1 BLLR 1
; (2008) 29 ILJ
2461;
[2008] ZACC 15)
para 68.
[2]
1976(3)SA
16 (A)at 23F.
[3]
Government
of the Republic of South Africa v Von Abo
2011
(5) SA 262
(SCA) ([2011]
3 All SA 261)
para18;
Department
of Transport v Tasima
(Pty) Ltd
2017 (2) SA 622
(CC)
(2017 (1) BCLR 1
;
[2016] ZACC
39)
para189.
[4]
1973(3)
SA 257 (D) at 259C-D.
[5]
1972(1)
SA 261(O) at 264A.
[6]
2020(2)
SA 516(WCC) para19.
[7]
Jones
v Jones
1974
(1) SA 212
(R) at 214.
[8]
1979(2)
SA457 (W)at 462-H-463B.
[9]
2019(5)
SA 566 (GJ).