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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 47459/2021
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Date: 29 August 2025
In the matter between:
V[…] N[…]: G[…] S[…] APPLICANT
and
V[…] N[…]: C[…] C[…] RESPONDENT
JUDGEMENT
ALLY AJ
INTRODUCTION
[1] This is an opposed application in terms of Rule 43(6) of the Uniform Rules of
Court as well as an application to strike out and counterclaim.
[2] The applicant was represented by Adv. K. Howard and the Respondent by
Adv. A. Koekemoer.
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[3] Before dealing with the merits of the application the Applicant launched an
application to strike out 1 certain paragraphs of the Respondent’s answering affidavit
deposed to on 10 April 2025 together with the annexures.
[4] I deemed it necessary to hear argument on the merits of the Rule 43(6) as
well as the application to strike out because of time constraints.
[5] The basis for the application to strike out is that the Respondent has made
disparaging remarks against the Applicant without providing proof thereof and
therefore stand to be struck out.
[6] A recent judgment 2 by my sister Neukircher J , as well as other judgments 3 in
this Division have provided some insight into Rule 43 applications and how our
Courts should approach these matters. At the outset, I must state that I agree with
the sentiments set out therein and the judgments discussed therein.
[7] It has always been that a Rule 43 application was an expeditious application
that was sui generis in nature and different from an application launched in terms of
Rule 6 of the Uniform Rules of Court. Legal Practitioners are enjoined to set out the
facts succinctly so that the Court is able to deal with the matter as quick as possible.
[8] The trend, however, in this Division, is that parties go to extreme lengths to
make out a case for relief pendente lite. A judge is expected to read hundreds of
pages in supporting documents and heads of argument.
[9] The application before this Court has to deal with changed circumstances, but
the parties have filed the following in respect of pages:
• Notice and Founding Affidavit with annexures – 46 pages;
1 CaseLines: Section 57-244 - 255
2 M N v A L N 2024 GPPHC
3 Du Preez v Du Preez 2008 GPJHC
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• Answering Affidavit and Counter -application with annexures – 53
pages;
• Answering Affidavit to the Counter -application with annexures – 82
pages;
• Application to strike out – 9 pages.
[10] A quick arithmetic calculation puts the pages that had to be read by this Court
at 190 pages.
[11] It cannot be stressed more that litigating in the manner that the parties before
this Court have, does not benefit either party. The energy expended in launching this
application, application to strike out and counter -application can best be used in
finalising the divorce which is being case-managed by my sister Crutchfield J.
[12] The application to strike out as outlined above, is in my view, one that can be
described, at best, as being ill-advised. The Respondent, however, is not innocent in
this description because some of the disparaging remarks relating to the character of
the Applicant and his continued misconduct and criminal behaviour without providing
facts is to say the least unacceptable. However, because of the acrimoniousness
nature of the litigation between the parties, one can understand the temptation to go
beyond what is necessary to defend one’s case. In my view, and in fairness to both
parties, the application to strike out falls to be dismissed for the reasons set above
and also for the reason that the Rule 43 procedure does not cater for such an
application in the circumstances of this case. Furthermore, I am also of the view that
each party should pay their own costs in relation to this application to strike out.
[13] Coming to the merits of the Rule 43(6) application, both parties have sought
to impliedly request this Court to pronounce on the Order of my brother Malindi J
which is, in my view, unsustainable. A Rule 43(6) application, as explained above is
there only to adjudicate a ‘material change in circumstances’ and not a rehearing of
a previous Rule 43
4. As stated, both parties malign the Order of my brother Malindi J.
a previous Rule 43
4. As stated, both parties malign the Order of my brother Malindi J.
4 N J A v K L 2021 GPPHC at para 18 and 20
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Firstly, the fact that reference is made to a Domestic Violence matter does not, in my
view, take away the paragraphs dealing with the agreement between the parties
relating to what will occur pending finalisation of the divorce.
[14] The issue of the company being a separate entity is a matter that this Court
cannot pronounce upon in a Rule 43 application and the less said of that issue the
better.
[15] The counter -application is also misplaced in that the Order of my brother
Malindi J states clearly that the contact of the minor children is postponed sine die
and it is clear that a regime is in place regarding such contact.
[16] In my view, the parties should endeavour to proceed to settle this divorce
which is taking an inordinate amount of time to finalise and should make use of the
Mediation Protocol
5 of this Division in this regard.
[17] Accordingly, on a consideration of all the papers and the submissions of
Counsel an Order, it is just and fair that the following Order be issued:
a). The application in terms of Rule 43(6) by the Applicant is hereby
dismissed with each party paying their own costs;
b). The application to strike out by the applicant is dismissed with each
party paying their own costs;
c). The counter -application by the Respondent is dismissed with each
party paying their own costs.
G ALLY
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
Electronically submitted therefore unsigned
5 April 2025
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Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the Parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 29 August 2025.
Date of hearing: 18 June 2025
Date of judgment: 29 August 2025
Appearances:
Attorneys for the Applicant: SPELLAS LENGERT KEUBLER BRAUN INC
frl@sklkb.co.za
Counsel for the Applicant: Adv. Adv. K. Howard
Attorneys for the Respondent: WATSON LAW INCORPORATED
rwatson@watsonlaw.co.za
Counsel for the Respondent: Adv. A. Koekemoer