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As many other opposed legal matters in South Africa, an opposed divorce may take several years to finalise. This is mostly due to the jam-packed Courts.
Unlike most other legal matters, Divorce matters may involve Minor Children, and/or a Spouse who is not able to finically support him/herself during the lengthy litigation and/or who cannot fund the litigation. Because of this fact, Rule 43 of the High Court Rules provides a mechanism for these divorcing people to seek interim relief from the Courts, pending the finalisation of their Divorce matter.
The Rules requires an Applicant to deliver a sworn statement in the nature of a declaration, to set out the relief claimed and the grounds thereof. This relief may include maintenance, a contribution towards legal costs, interim custody of any Child and/or interim access to any Child.
The Respondent is then provided with the opportunity to deliver a sworn reply and as soon as possible thereafter the registrar shall bring the matter before the Court for, that the Rules call a “summary” hearing.
Over the years, and with various Court rulings, the Rule 43 Application has been developed to something that it supposed be an inexpensive and quick procedure for interim relief. This is evident in the fact that only two sets of Affidavits are required and, in the fact, that the Courts have placed a limit on the number of pages for these Affidavits. The page limit was imposed to avoid lengthy and unnecessary allegations and annexures so as to keep the procedure streamlined.
The downside to prohibiting responding Affidavits and to restricting the length of the Affidavits is that the Court will not in be in a position to properly consider the true financial affairs. The Court is expected to make a prompt decision based in incomplete facts. Many Applicants and Respondents have abused these proceedings and used the limitations and prohibitions to their advantage to obtain an unfair ruling and in that manner, gain an advantage in the divorce matter.
Many Rule 43 rulings have been extremely unfair especially when it is quite apparent that the Court would have made a different ruling had the Parties been forced to make a full and frank financial disclosure.
Judge Spilg[ ], very appropriately compared bringing a Rule 43 Application to playing Russian roulette. Very often unfair results emerge due to the Judge being unable to judge factual disputes between the Parties. In this very matter, the Judge made a Ruling that leaned towards allowing lengthy papers when it is necessary. This was in contradiction to his Brother’s, Judge Tsoka’s, ruling from a few years prior, where the Parties were penalised for filing lengthy papers. Judge Spig’s approach was that when it is relevant and necessary for the purpose of the case, it will be in the interest of Justice to allow “lengthy” papers. This also goes against previous Judgments where Applications have been dismissed with costs only because they were considered as lengthy.
These conflicting rulings essentially lead to a ground-breaking Judgement, which Judgement may have changed Rule 43 Applications as we know it.
Several matters were referred to the full Court by the President of the South Gauteng High Court pursuant to an Order by Acting Judge van Vuuren dated 20th September 2018.
The following issues were referred for Judgement:
In this matter, the Court had to ask itself what interpretation of a Rule 43 will ensure a speedy and efficient resolution of the Application while at the same time protecting the rights of women and children who are prevalently vulnerable in Rule 43 applications. Further, the Court also asked itself whether the Children’s best interests are promoted during these Applications especially with the strict limitations. The best interests of Children should always be paramount in any matter concerning them.
The Court considered Judge Spilg’s previous remarks when he stated that it was necessary for a proper determination of a Rule 43 Application for a party to make a full and frank disclosure of their financial affairs, thus permitting longer Affidavits. Judge Spilg held that without proper financial disclosure the Court has little to work on other than the product of competing type of writers.
In several of the referral matters it was decided that the length of the Applications, which included various annexures, were indispensable for purpose of making out a case for the relief the Applicant seeks. Judge’s Spilg’s Judgement was again referred to where he stated that a one-size-fits-all approach may have difficulty whether in passing constitutional scrutiny or being capable of meeting the requirements that the outcome will serve the child’s interest.
The Court made mention of the provisions of Rule 43(5) which allowed the Court to hear any such evidence as it considered necessary. The question arose as to whether this provision did not provide some relief to the prejudice caused by the restriction on further Affidavits and the length of papers. The approach of the Courts to date has however supported the need for a hybrid procedure and it therefore rarely allowed further Affidavits and longer papers, despite arguments being made in support of the interest of justice. The Courts mostly wanted to avoid conflicting judgments and as such, favoured the restrictions and limitations, dispute same resulting in a ruling being unfair, and, not supported by factual evidence.
In a 2016 matter it was stated that the object of the Court Rules is twofold. The first is to ensure a fair trial or hearing. The second is to secure the inexpensive and expeditious completion of litigation and to further the administration of justice. It is against this backdrop that the issues before the Court where considered.
Al the Parties in the matter, including the amici of the Court recognised the absolute need for a full and frank financial disclosure and thus supported that the practice directive be issued requiring the Parties in all opposed divorce matters to complete and submit a detailed financial disclosure form, which must be completed under oath.
The Court found that this form will place the Court hearing Rule 43 Applications in a better position to decide the matter in a manner that dies justice to the Parties and takes care of the best interest of the minor children. The Court also supported the lifting of the strict limitations on length but warned that such lifting should not become a licence to parties to express and advance views and opinions that bead no relevance.
The Court stated that until the Rules are amended, to make provision for the above discussed findings, that Rule 43(5) be invoked. With this Judgment, good argument can be made in support of allowing further, relevant, evidence until one is able to rely on the amended rules.
The Judgement that was made requires a Rule 43 Judge to, on his own accord, decide whether or nor to call for more evidence (as per Rule 43(5)) and in such manner request a full and frank financial disclosure. It also requires Affidavits to be accompanied by a financial disclosure form, which must be filed seven days before the date of hearing. It also found that it shall not be competent for a Court to dismiss an Application only on the basis of prolixity. If the Court finds that the papers contain irrelevant material, the Court only has the power to strike off the irrelevant and inadmissible material from the Affidavit. Lastly, it was proposed that the Judge President amend the Practice Directive to give effect to this Judgment and order.
Hopefully this will result in changing Rule 43 Application’s reputation for being grossly unfair and mostly used in divorce matters for purposes of gaining an advantage in negotiating a settlement.
[ ] TS R vs TS, T case number 28917/2016
[ ] Van Beest Van Andel v Van Beest Van Andel EP case number 27869/2007