Carstens v Carstens

• Jurisdiction: South Africa
• Court: South Eastern Cape Local Division
• Judge: Mullins J
• Judgment Date: 04 December 1984
• Citation: 1985 (2) SA 351 (SE)
• Hearing Date: 20 November 1984

Mullins J:

This is an application for maintenance pendente lite B and a contribution towards costs in terms of Rule of Court 43. The applicant and respondent were married in community of property on 3 April 1971. There are no children of the marriage.

The matrimonial discord apparently commenced, according to the present papers, in about December 1982. Divorce proceedings are pending and I am informed that the pleadings are already C closed. In her founding affidavit applicant alleges

"In relation to this application I respectfully request that the above honourable Court have regard to the allegations made in all the pleadings which have been filed of record in this matter. It is my humble contention that the marriage relationship between myself and the respondent has broken down irretrievably and that there is no reasonable prospect of the D restoration of a normal marriage relationship between us. It is my further humble contention that the breakdown of the marriage relationship has been caused entirely through the fault of the respondent in the respects set out in my particulars of claim as amplified by the further particulars filed of record."

Without laying down any rule of practice in this regard, and despite the desirability of keeping the costs of Rule 43 E applications as low as possible, I am of the view that the Court should not be required to search for and peruse another file of papers. I am not informed of the case number of the divorce proceedings, nor even whether process was issued out of this Court. Furthermore Rule 43 (2) requires the applicant's sworn statement to set out "the relief claimed and the grounds F therefor". This suggests that Rule 43 proceedings should be self-contained. In the present case I have in any event not regarded it as necessary to refer to such pleadings.

Despite earlier matrimonial infidelities by both parties which appear to have been condoned, the break up of the common home occurred when applicant left the respondent on 28 February G 1983. Since then she has been living with a former lover, one Clarkson, by whom she has had a child born on 18 May 1984. Applicant was employed from time to time while she lived with respondent, and after she left him she was in full-time employment and, according to respondent, self-supporting, until she fell pregnant in August 1983.

The basis of applicant's claim for maintenance against H respondent pendente lite is that she is presently unable to work because of the demands of the child. Her affidavit was signed on 23 August 1984, when the child was...