BACKGROUND AND SUMMARY
All three of the above matters were referred to the full bench of the High Court, Gauteng Local Division. Until this judgment, parties have been limited to the type of and amount of information they may provide to the Court, consequently, matters are often dispensed with in Court due to the prolixity of papers. While the Courts may not be overburdened, the importance of ascertaining the full extent of a party’s financial position has now been codified.
In casu, the applicants sought relief pendente lite for interim maintenance, custody and contribution to costs pending the finalisation of their divorce actions. Rule 43 provides an interim remedy to assist an Applicant to obtain expeditious relief in respect of the care of children as well as maintenance matters.
The applications were brought in terms of Rule 43(1) of the Uniform Rules of court. In this matter, the court was tasked with dealing with the conflicting judgements of Van Beest Van Andel v Van Beest Van Andel EP 27869/2007and that of TS, R vs TS, T 28917/2016, which brought sub-rule 43(2) and (3) into question. Legal Aid South Africa and the Gauteng Family Law Forum applied to be appointed as amicus curiae and were so appointed. The Applicants herein raised questions regarding Rule 43 applications in matrimonial matters.
In E v E, the Applicant sought an order pendente lite, that the Respondent pays her interim spousal maintenance and a contribution towards legal costs.
In R v R, the Applicant raised a point in limine that the Applicant’s papers are “prolix and not in compliance with the requirements of Rule 43(2).”
In M v M, the Applicant sought an order in respect of maintenance pendente lite for their child as well as a contribution to legal costs. The Respondent filed a response with annexures consisting of a total of 80 pages.
This consolidated judgement was delivered in two parts. Firstly, the court dealt with the relief that the parties sought, by way of a court order, so that same does not frustrate the expeditious nature of these applications.
Secondly the court would hand down judgement on the questions raised in the referral judgement. Such issues included the fact that the parties had “generally departed from respectively delivering a statement in the nature of a declaration and a reply in the nature of a plea.” The following issues were also determined by the court:
- Rule 43 applications require submission of a succinct set of papers, however, “does the court have the discretion to permit the filing of applications that have departed from the strict provisions of rule 43(2) and (3).”
- If no such discretion exists, “should the Practice Manual direct that all rule 43 applications conform to a specific form, particularly in terms of length? Would such a restriction on the length of Rule 43 pass constitutional muster?”
“If the court does have such a discretion, what are the factors to consider in order to reasonably exercise this discretion? Are these factors exhaustive?”
| The court held that it was necessary to consider the effect of Rule 43(5). Rule 43 applications, as presently structured, are a deviation from the normal motion proceedings in that the rule does not make provision for a third set of affidavits. |
The court held that the applicant is limited to what is set out in the founding affidavit, in the form of a declaration, setting out the relief claimed and on which grounds. On receipt, the respondent is required to file an answering affidavit in the nature of a plea. The court held that parties should deal with a dispute in terms of the provisions of rule 43(5) which provides a court with a discretion to hear evidence as is necessary.
The court held that “all the parties and the amici are ad idem that a practice directive be issued requiring the parties in all opposed divorce matters to complete and submit a detailed financial disclosure form (“the disclosure form”) attached hereto. The disclosure form must be completed under oath. They propose that the disclosure form must either be filed within 20 days of service of the notice of intention to defend, alternatively, that it be filed as an annexure to the parties’ respective rule 43 affidavits.”
Thus, there is now a prescribed form in the form of an Affidavit/Declaration that each party must complete in respect of a full and frank financial disclosure. This is important because in the past, this full and frank disclosure could only be sought at a late stage in the litigation process. This previously allowed parties to hide the full extent of their financial position by using technicalities which could otherwise not be proved.
The Court will now not only look at bank statements and salary advices as proof of a parties financial position but it may now go further and even consider the lifestyle of each party.
The benefit of mandatory filing of a financial disclosure form simplifies the court process as the parties no longer need to file lengthy affidavits to make or defend their case.
Written by Ashleigh Butler and supervised by Jasvir Sewnarain
05 July 2019