About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 445
|
|
S.V.D.L v A.J.V.D.L (70189/2013) [2015] ZAGPPHC 445 (13 May 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
GAUTENG DIVISION, PRETORIA
CASE NO: 70189/2013
DATE: 13 MAY 2015
In the matter between:-
[S…….. V……
D……
L…..]
.....................................................................................................
Applicant
And
A……. J……
V…… D…..
L….]
...........................................................................................
Respondent
JUDGMENT
13 -05-2015
Ismail J:
[1] This is an application in terms of
Rule 43 (6) of the Uniform Rules of Court. The rule stipulates
“ The court may on the same
procedure, vary its decision in the event of material change taking
place in the circumstances
of either party ora child, or the
contribution towards costs proving inadequate”.
[2] This application previously was
heard before her Ladyship, Justice Jansen on the 20 December 2013
when the learned judge made
the following order:
1. THAT the respondent to pay the
medical aid of all 3 children as well as the applicant;
2. THAT the respondent to give the
applicant the Mercedes - Benz vehicle and to insure and service it
when necessary;
3. THAT the respondent to pay R5 000-00
maintenance towards the minor child, [K………];
4. THAT the respondent to pay the
applicant maintenance in the amount of R8 130-00 per month;
5. THAT the issue of custody and access
to the minor child, [K…….], be referred to the Family
Advocate.
[3] In this application the applicant
seeks an order as follows:
(1) That the Respondent be ordered to
electronically pay maintenance in the amount of R10 000.00 per month
on or before the 1st
day of every month into the bank account of the
Applicant towards the minor child. The first payment to be effected
on or before
the 1st day of the 1st month after granting of the court
order;
(2) That the Respondent be ordered to
electronically pay maintenance in the amount of R20 000.00 per month
on or before the 1st
day of every month into the bank account of the
Applicant towards the Applicant. The first payment to be effected on
or before
the 1st day of the 1st month after granting of the court
order;
(3) That the Respondent be ordered to
electronically pay the Applicant’s medical aid premium in the
amount of R4 574.00 per
month on or before the 1st day of every month
into the bank account of the Applicant. The first payment to be
effected on or before
the 1st day of the 1st month after granting the
court order;
(4) That the Respondent be ordered to
retain all 3 children on his medical aid and to pay all medical
expenses not covered by the
medical aid;
(5) That the Respondent be ordered to
insure the Mercedes Benz motor vehicle and to pay all monthly
premiums in connection therewith;
(6) That the Respondent be ordered to
pay the services and maintenance of the Mercedes Benz motor vehicle
including tyres;
(7) That the Respondent be ordered to
electronically pay the amount of R7 994.00 into the bank account of
the Applicant as partial
payment on the service in respect of the
Mercedes Benz motor vehicle. The payment to be effected within 5
(Five) days of date of
granting of this order;
(8) That the Respondent be ordered to
electronically pay medical expenses incurred by the Applicant in the
amount of R12 205.75
into the Applicants bank account within 5 (Five)
days of date of granting of this order;
(9) That the Respondent be ordered to
electronically pay arrear maintenance into the bank account of the
Applicant in the amount
of R25 060-21 within the 5 (Five) days of the
date of granting of this order;
(10) That the Respondent be ordered to
electronically pay legal fees of the Applicant into the trust bank
account of to the Applicants
attorneys with trust bank details in the
mount of R36 565.29, to be paid in equal monthly instalments of R5
000.00 per month. The
first payment to be effected on or before the
1st day of the month after granting of the court order;
(11) That the costs of this application
shall be costs in the cause and that the restrictions of Rule 43(7)
and (8) are not applicable;
and
(12) Further and/or alternative relief.
[4] This application is opposed and the
respondent filed answering Affidavits. As a consequence the applicant
filed a third set
of affidavits in these proceedings, which is an
exceptional in applications of this nature.
The papers in this matter.
[5] It would be completely untoward of
me if I were not to say something regarding the volume of this
application, in view of the
judgments expressed by various dealing
with Rule 43 applications. Some of the judgments which I would allude
to, below, in this
judgment
[6] The founding affidavit in this
matter comprises 17 folios and attached to it are annexures
comprising a further 42 folios. The
respondents answering affidavit
consist of 34 folios and attached to it annexures
comprising an additional 74 folios. The
applicant’s supplementary affidavit consists of 13 pages and
annexures thereto of
a further 7 folios.
[7] In total the application embraces
205 pages.
[8] To compound and aggravate matters
the applicant filed supplementary affidavit wherein the applicant
stated:
“ I have been advised by my legal
representative that the uniform Rule 43 does not make provision for
three sets of affidavits
as is the position in normal applications I
have read the respondent’s opposing affidavit of not less than
35 pages, and
as a result of the absurd, untrue and defamatory
allegations although irrelevant, I have no other choice than to
supplement my
founding affidavit in order to address these
allegations.
[9] One would be imagine that if the
allegations are so absurd, untrue and defamatory it would best to
treat them with the contempt
they deserve and leave it to a judge who
hopefully would not be so myopic as not to see them for what they
are. Please excuse the
pun. Instead the very allegations which are
described as absurd and untrue are now replied to, thereby adding to
the absurdity
and thereby obfuscating the issues.
[10] It is trite that where there are
limitations to the number of affidavits that can be filed additional
affidavits will only
be countenanced with the leave of the court.
Victor i/ Victor
1938 WLD 16
and Transvaal Government v Standerton
Farmers’ Association
1906 TS 21.
The supplementary affidavit
notwithstanding the applicant stating that in such applications a
third affidavit is not permitted
in terms of the Rule the affidavit
was filed. Additional or supplementary affidavits will only be
permitted where special circumstances
exist, such as where there was
something unexpected in the replying affidavits.
[11] Lest it be stated that the court
seems to be venting itself only against the applicant conduct, permit
me to set the record
straight, that both parties are recalcitrant in
this regard.
The approach to Rule 43 applications
from previous judgments:
[12] Our courts in various judgments
over time set out the law that these applications should be succinct
and brief. In this regard
see Smit v Smit
1978 (2) SA 720
(W) at 722
G; Patmore v Patmore
1997 (4) SA (W)
785
and more recently Du Preez v Du
Preez
2009 (6) SA 28
(T). Judgments of this division.
[13] The approach referred to is no
different in other divisions. In this regard it is apt to refer to
what was stated in Coleman
v Coleman 1967(1) SA 291 (C ) at 292H,
where Theron J said:
“ the whole spirit of Rule 43
seems to me to demand that there should be only a very brief
statement by the applicant of the
reason why he or she is asking for
the relief claimed and an equally succinct reply by the respondent
and the Court is then to
do its best to arrive expeditiously at a
decision as to what order should be made pendent life
[14] In Du Preez’s matter, supra,
Murphy J at par [14] stated:
“Consistent with the policy that
prolixity should be discouraged, he made no order to costs and
further ordered that neither
party be charged any fees by their
attorneys. This approach, as I have said commends itself to me as an
effective means of disciplining
practitioners and I accordingly
propose to follow it.”
See also: The remarks of Murphy J in
par [18] of the judgment and Maree v Maree 1972(1) SA 261(0) at 263
G-H where the following
was stated:-
“Die hele doel van die prosedure
wat deur Reel 43 geskerp is, is dat die partye die beweringe wat vir
die behoorlike beregting
van so ‘n aansoek nodig is kort en
bonding moet stel... Lang - asem uiteensetting wat lywegeverklarings
tot bevolg het, is
teenstrydig met, en sal die doel van hierdie Reel
verydel.”
Erasmus, Superior Court Practice B1
-312.
[15] The procedure to be followed in
Rule 43 applications are prominently known and one would expect that
practitioners would follow
the procedure set out in the Rule and
adhere to the principles spelt out in the judgments, however one
finds all too often that
these applications contain voluminous
affidavits, as in this matter.
[16] Having read through the
application I am of the view that both parties are culpable of
prolixity, and in so doing rather than
assist the court they have
obfuscated the issues.
[17] In the circumstances I make the
following order:
1. The application is struck of the
roll;
2. There is no order as to costs and it
is specifically ordered that neither party would be charged any fees
by their attorneys
in respect of the application and the opposition
thereto.
Ismail J
APPEARANCES.
For the Applicant: Adv. E de Lange
instructed by Riette Oosthuizen
Attorneys, Pretoria.
For the Respondent: Adv. M Barnard
instructed by Van Heerden
Schoeman Attorneys, Pretoria,
Date of hearing: 13 May 2015