The judgment pertains to three cases which relate to Rule 43(2) and (3) applications. All three of the Rule 43(2) applications before the Court contained affidavits and annexures in excess of what may be strictly necessary for applications of this nature. The Court was required to determine whether the relevant affidavits deposed to by the respective Applicants and Respondents complied with the legal requirement of ”a sworn statement in nature of a declaration” and “a sworn reply in the nature of a plea” as is envisaged in Rule 43(2) and (3).
The Court noted that the founding papers of the Applicants in the three matters ranged from 51 to 109 pages, whereas the Respondents’ answering papers consisted of anything from 31 to 157 pages. The Court stated that it is apparent that the approach adopted by the litigants in these matters (namely, the utilisation of voluminous answering and replying papers) is a significant departure from the strict provisions of Rule 43(2) and (3), which intend on providing applicants with an inexpensive and expeditious resolution of matters interim to divorce proceedings.
The Court acknowledged the fact that there is considerable uncertainty with regards to the permitted length of litigants’ founding and responding papers, due largely to conflicting judgments in respect of same. The Court opined further that such uncertainty may result in procedural advantages or disadvantages which serve to frustrate the interests of justice.
The Court applied Section 14(1) of the Superior Courts Act and discontinued the hearing of the three matters, directing that they be referred to the full court for determination.
The Court held that although the matters could easily be disposed of by applying any of the numerous (albeit, conflicting) judgments rendered in respect of Rule 43(2) and (3) applications, such course of action would merely compound the uncertainty regarding the permissible length of papers pertaining to such applications. It was held further that determination before a full court will allow the court to formulate a consistent framework within which litigants and legal professionals alike can operate when formulating papers relating to applications of this nature.
This case highlights the current inconsistencies and uncertainty with litigating and adjudicating Rule 43(2) and (3) Applications.
Written by Jeannique Booysen and supervised by Jarryd Spargo, 11 October 2018
 Rule 43 Applications refer to matrimonial matters wherein a spouse seeks relief from a court for (a) maintenance pending a divorce, (b) a contribution towards the costs of a pending matrimonial action, (c) interim custody of any child, or (d) interim access to any child.