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 OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 094519 /2024
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED.
SIGNATURE
DATE 20/02/2025
In the matter between:
N[...] P[...] M[...] APPLICANT
and
W[...] R[...] RESPONDENT
This Judgment was handed down electronically and by circulation to the parties’
legal representatives by way of email and shall be uploaded on caselines. The date
for the hand down is deemed to be on 20 February 2025 .
______________________________________________________________ _____
JUDGMENT
VAN NIEKERK PA, AJ
INTRODUCTION:
[1] On 19 February 2025 I made an order in terms whereof an application for
postponement brought by the Respondent was refused, and an order was
made in terms whereof the Respondent was ordered to pay maintenance
pendente lite to the Applicant and the minor children in the amount of R103
000.00 per month. I further ordered that a motor vehicle as described in a
draft order handed up by Applicant’s counsel be made available for the
Applicant and the minor children and ordered the Respondent to pay a
contribution towards the Applicant’s costs in the amount of R50 000.00. I
ordered costs to be costs in the cause.
[2] The maintenance order pendente lite referred to supra was made following an
application instituted on 11 November 2024 in terms of the provisions of Rule
43, inter alia seeking an order for a contribution towards costs in the amount
of R100 000.00 and maintenance for Applicant and the minor children in the
combined amount of R130 000.00. The Respondent filed an Opposing
Affidavit on the 2nd of December 2024 and the matter was enrolled in the
Family Court of this division on 27 January 2025. On that date Swanepoel J.
removed the matter from the roll as the parties did not file financial disclosures
as required in terms of the present authority and the Practice Directives of this
court. The matter was thereafter enrolled for hearing in this Court on 17
February 2025 and disposed of by way of a virtual hearing at 14h00 pm on
Wednesday, 19 February 2025.
[3] The Applicant’s Founding Affidavit in terms of the provisions of Rule 43 can
conveniently be summarised as follows:
[3.1] The Applicant and the Respondent are married in terms of customary
law in community of property, from which marriage two children were
born who are still minors. The Applicant further has a minor child from
a previous relationship which child at all relevant times were living with
the Applicant and the Respondent in the previous common home, and
maintained by the Respondent as part of the family;
[3.2] The Applicant and the minor children presently reside in the previous
common home situate in an affluent private estate between Pretoria
and Johannesburg, and the Respondent resides in a similar affluent
private estate in the same area;
[3.3] The Respondent failed to comply with his common law maintenance
obligations in relation to the Applicant and the minor children resulting
inter alia that the expensive private school which the minor children
attend on various occasions gave notice of termination of services to
the parties, and an inability of the Applicant and the children to
maintain a relatively decent standard of living as they were accustomed
to;
[3.4] The Applicant tabled a list of expenses which she has to incur in
relation to herself and the minor children which includes food,
accommodation expenses in relation to the property which the
Applicant and the children reside in, transport expenses of the children,
their school and extra -mural activities, and necessities such as
clothing. The total sum of these expenses, according to the Applicant,
amounts to R103 800.00 per month.
[3.5] The Applicant further averred that she disposed of a number of motor
vehicles since inception of the action in order to fund the shortfall which
she experiences in relation to the living expenses of herself and the
children;
[3.6] According to the Applicant, the parties enjoyed a luxurious standard of
living as is evidenced from the fact that the common home, which is
fully paid for, is a large and expensive property situate d in a luxurious
private estate. The Applicant further averred that the Respondent
spends exorbitant amounts on leisure activities such as attending
exclusive clubs where the Respondent would spend up to R50 000.00
per night, and alluded to the fact that there are presently a number of
extremely luxurious and expensive vehicles in the possession of the
Respondent, including an exotic German sports car to the value of
R5 000 000.
[4] The Answering Affidavit filed by the Respondent commences with the
Respondent averring that any legal submissions made by the Respondent in
the Answering Affidavit was done on the advice of his legal representatives.
Respondent then embarks on various legal submissions relating to Rule 43
applications, the approach a court should adopt in a Rule 43 application and
generally refers to principles relating to Rule 43 applications which are
established and trite. However, in relation to the minor child born of a previous
relationship of the Applicant, the Respondent avers that, in terms of “ common
law” he has no duty to maintain that child. This advice, given the particular
factual circumstances of the parties, is patently incorrect.
[5] Save for the legal arguments advanced by the Respondent in the Opposing
Affidavit, the Respondent’s Answering Affidavit can be summarised as
follows:
[5.1] The Respondent denies being married to the Applicant in terms of
customary law and makes the startling allegation, in my view vexatious,
that the Applicant is “ nothing ” to him save for being the mother of his
children. This kind of allegation finds no place in litigation, and is
indicative of a mala fide attitude;
[5.2] The Respondent does not deny the expenses set out in the Applicant’s
Founding Affidavit, save to take note of same, and further adopts the
same approach in relation to the averments made by the Applicant
regarding the parties’ luxurious style of living, the expensive motor
vehicles which vest in the joint estate. In respect to all the allegations
relating to the Applicant’s expenses, the wealth of the parties and the
evidence provided by the Applicant in relation to the Respondent’s
ability to afford the maintenance claimed by the Applicant, the
Respondent simply states that he “ notes ” the contents thereof;
[5.3] The Respondent further avers that he pays R10 000.00 per month as
maintenance for the two minor children in terms of a maintenance court
order.
[6] Absent from the Respondent’s Answering Affidavit are allegations which
would enable the Court to gauge and compare the Respondent’s living
expenses with those of the Applicant and the minor children. The
Respondent further provides no evidence relating to his financial position, his
ability to maintain the Applicant and the minor children or to comply with the
order which the Applicant seeks, nor does the Respondent provide any
information in relation to costs already paid by the Respondent to his legal
advisors for purposes of comparison to enable this court to gauge a fair and
just contribution to be paid by the Respondent to the Applicant.
[7] Considering the fact that it clearly appears that the Respondent was
represented by legal representatives who are experienced with the provisions
of Rule 43 when the Answering Affidavit was deposed to, the only reasonable
inference that this Court can draw from the fact that the Respondent failed to
deal with the material averments as set out by the Applicant in relation to the
quantum of maintenance which she requires for herself and the children, the
wealth of the parties and the Respondent’s ability to comply with such
maintenance order, is namely that the Respondent cannot dispute same and
does not wish to disclose his true financial position to this Court.
[8] When the matter was called for hearing on Wednesday, 19 February 2025 at
14h00, Respondent’s counsel moved for an order that the Rule 43 application
be postponed, tendered costs of such postponement, and referred to a
substantive application filed on behalf of the Respondent for such
postponement on the same day. In summary, the Respondent’s grounds for
postponement are namely the fact that the Respondent avers that he is not
financially able to comply with the maintenance as sought by the Applicant,
wishes to supplement his Answering Affidavit to refer to this issue, and to file
an amended financial disclosure as, according to the Respondent, the
financial disclosure which the Respondent filed belatedly on the day when this
application was set down for hearing, is incomplete.
[9] The Respondent’s application for postponement can concisely be
summarised as follows:
[9.1] The Respondent appointed a new attorney of record approximately five
days before the hearing of the application;
[9.2] The Respondent was advised that his Answering Affidavit is
incomplete, and he intends to file a new financial disclosure;
[9.3] The Respondent will be prejudiced should the Respondent not be
granted an opportunity to file such documents.
[10] The application for postponement was opposed by the Applicant. The
Applicant’s counsel inter alia referred to the scant bank statements provided
by the Respondent in his financial disclosure where there are clear indications
of other bank accounts operated by the Respondent, which w ere not
disclosed. The Applicant’s counsel submitted that the application for
postponement is mala fide and constitutes dilatory tactics.
[11] During the argument of the application for postponement the Respondent’s
counsel submitted that serious prejudice would befall the Respondent should
the matter not be postponed, and that the matter should be postponed “ in the
interest of justice ”. These submissions are also made in the Respondent’s
affidavit in support of the application for postponement.
[12] It is trite law that an application for postponement is at the discretion of the
Court and that the interest of all parties should be considered. A
postponement is not a right, but an indulgence. The party who seeks a
postponement should convince the Court that the postponement is bona fide ,
and that the other party will not be unduly prejudiced thereby.
[13] In my view the application for postponement is not bona fide , and that the
Court should not exercise its discretion to grant such application for the
following reasons:
[13.1] There is no proper explanation in the Founding Affidavit why the
previous attorneys of the Respondent (who are clearly experienced in
Rule 43 applications) effectively admitted the averments relating to the
parties’ standard of living, the wealth of the joint estate and the
Respondent’s financial means which enabled the Respondent to
finance an extremely valuable joint estate, consisting inter alia of
expensive sports cars;
[13.2] In the Respondent’s affidavit in support of the postponement the
Respondent simply refers to the prejudice that will befall the
Respondent. No offer is made for interim maintenance for the Applicant
and the minor children pending finalisation of the application in the
event of the Respondent being successful in his application for
postponement, and when the Respondent’s counsel was questioned
on this issue by this Court, his response was namely that there is a
maintenance order in place in the Maintenance Court for R10 000.00
for the children. Considering the objective facts of this matter, the
Respondent’s conduct of insisting that the Applicant maintain the minor
children on an amount of R10 000.00 per month is deplorable and
constitutes an infringement on their constitutional rights as referred to
infra.
[13.3] The fact that the Respondent inter alia seeks a postponement for the
purposes of amending his financial disclosure, gives rise to concern. A
financial disclosure requires the Respondent to provide full and frank
disclosure of the full extent of his financial means, under oath, against
an explicit warning that the failure to provide correct and full disclosure,
may be criminally sanctioned. The fact that this Court is informed that
the Respondent now intends to file a further improved financial
disclosure clearly implies that the first financial disclosure which the
Respondent filed prima facie constitutes perjury.
[14] In the premises, I am of the view that the application for postponement is mala
fide, and constitutes dilatory tactics, as the Applicant’s counsel argued.
[15] I am further duty -bound to consider the constitutionally entrenched right of the
Applicant and the children to accommodation, to dignity, and to act in the best
interest of the minor children. In terms of section 28(1) of the Constitution the
children are entitled to family care, accommodation and nutrition. Considering
the application for postponement I am duty -bound to consider these enshrined
rights of the children involved in this matter. This Court cannot simply ignore the
plight of the Applicant and the children involved in order to indulge the
Respondent in a postponement which clearly will serve no purpose as the
material considerations for purposes of the relief claimed by the Applicant in her
Founding Affidavit constitutes undisputed evidence when regard is had to the
respective affidavits of the parties and the objective facts relating to the
Respondent’s means as a whole.
[16] In the result, I made an order in terms of the draft order as amended, and the
application for postponement was refused.
P A VAN NIEKERK
ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA
Counsel for the Applicant: Adv. T. Sebata. Mobile
sebatatt@loftusadv.co.za
Counsel for the Respondent: Adv. N. Makhani
Makhani@maisels.co.za