TS v TS

• Jurisdiction: South Africa
• Citation: 2018 (3) SA 572 (GJ)

TS v TS
2018 (3) SA 572 (GJ)

2018 (3) SA p572

Citation	2018 (3) SA 572 (GJ)
Case No	28917/2016
Court	Gauteng Local Division, Johannesburg
Judge	Spilg J
Heard	August 7, 2017
Judgment	August 7, 2017
Counsel	K Mokotedi for the applicant.; M Fhedzisani for the respondent.

Flynote : Sleutelwoorde

Marriage B — Divorce — Maintenance — Pendente lite — Inadequate financial disclosure in rule 43 proceedings — Court's power to case-manage and order production of information and documents — Uniform Rules of Court, rule 43(5).

Headnote : Kopnota

The C parties were in divorce proceedings in which rule 35 discovery had occurred. Here, the wife brought an application under rule 43. She sought, in respect of the children: an order that they reside with her; contributions to their accommodation and transport costs; and maintenance. (See [48] and [68] – [70].)

For herself, she sought maintenance, and a contribution to her legal costs. (See D [48] and [77].)

Both she, and her husband, alleged financial non-disclosure on the other's part, and that the rule 35 discovery had been inadequate. This where both her, and in particular her husband's financial affairs, were of some complexity. (See [77] and [90].)

The court considered inter alia:

•

E The impact of insufficient information disclosure in rule 43 proceedings (see [12], [15], [18] – [19], [22], [25]);

•

possible solutions (see [34], [37] – [38], [42] – [44] (England), [46] (Australia)); and

•

the bearing of the Children's Act 38 of 2005 on the issue (see [60] – [62], [65] – [66]).

Held, F that rule 43(5) gave a court the power to manage and order disclosure of information and documents. (See [37], [66] and [89].)

Here, given unresolved questions as to the parties' incomes and assets, an order of such disclosure was justified. (See [87] – [88].)

Ordered, accordingly, that each party disclose in an affidavit specified financial information; and provide specified financial documents (see [90]).

Cases cited

Southern G Africa

AD and Another v DW and Others (Centre for Child Law as Amicus Curiae; Department for Social Development as Intervening Party) 2008 (3) SA 183 (CC) H (2008 (4) BCLR 359; [2007] ZACC 27): referred to

Arendsnes Sweefspoor CC v Botha 2013 (5) SA 399 (SCA): referred to

Carstens v Carstens 1985 (2) SA 351 (SE): referred to

Cary v Cary 1999 (3) SA 615 (C): referred to

Cheney v Cheney GJ 6944/2014: referred to

Colman v Colman 1967 (1) SA 291 (C): referred to

De I Gree and Another v Webb and Others (Centre for Child Law as Amicus Curiae) 2007 (5) SA 184 (SCA): referred to

Dodo v Dodo 1990 (2) SA 77 (W): referred to

Eke v Parsons 2016 (3) SA 37 (CC) (2015 (11) BCLR 1319; [2015] ZACC 30): referred to

FS v JJ and Another 2011 (3) SA 126 (SCA): referred to

Greenspan J v Greenspan 2000 (2) SA 283 (C): referred to

2018 (3) SA p573

J v J 2008 (6) SA 30 (C): referred to A

Makate v Vodacom (Pty) Ltd 2014 (1) SA 191 (GSJ): referred to

MB v NB 2010 (3) SA 220 (GSJ): referred to

National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W) (2001 (2) SACR 542; 2002 (1) BCLR 41): referred to

P and Another v P and Another 2002 (6) SA 105 (N): referred to

P v P 2007 (5) SA 94 (SCA): referred to B

Patmore v Patmore 1997 (4) SA 785 (W): referred to

Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (No 1) 2003 (5) SA 518 (C) (2003 (3) BCLR 288): referred to

Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A): dictum at 783A applied

Terblanche v Terblanche 1992 (1) SA 501 (W): referred to C

Western Bank Ltd v Packery 1977 (3) SA 137 (T): referred to

Williams v Williams 1971 (2) SA 620 (O): referred to

Zaphiriou v Zaphiriou 1967 (1) SA 342 (W): referred to

Zoutendijk v Zoutendijk 1975 (3) SA 490 (T): referred to.

United Kingdom D

Livesey (formerly Jenkins) v Jenkins [1985] 1 All ER 106 (HL): considered.

Rules of court cited

Rules of court

The Uniform Rules of Court, rule 43(5): see The Superior Courts Act and Magistrates' Courts Act and Rules (Juta, 2014) at 65.

Case Information

K Mokotedi for the applicant. E

M Fhedzisani for the respondent.

A rule 43 application.

Order F

1.

The respondent may deliver an affidavit by no later than 14 August 2017, limited to a response to the allegations contained in the applicant's supplementary affidavit

2.

By no later than 22 August 2017 the parties shall depose to an affidavit in which they provide full details in respect of the following, accompanied by copies of the source documents as applicable: G

(a)

In the case of the applicant:

(i)

The identity of the originating source of the funds for the holidays and motor vehicle that was purchased in 2015 through Westrust, and in the case of the car the source from which the instalments continue to be paid; H

(ii)

The basis on which the originating source has provided the funds to the applicant and if pursuant to a contract a copy is required and the material terms are required to be provided;

(iii)

Every shareholding of the applicant is required to be I identified, including the number of shares, and how many shares in total are issued. By shareholding is included every beneficial shareholding in which the applicant has decision-making powers or in respect of which she ultimately receives, whether directly or indirectly, any dividend or other benefit, and if so what is such benefit; J

2018 (3) SA p574

(iv)

A All sums of money that are owed to the applicant by any business, including company, partnership, other joint venture or trust, by way of a loan account, partnership capital, undistributed moneys, current account, or the like;

(v)

A list of all directorships held at any time over the past B two years and if since resigned from;

(vi)

Copies of the last audited financial statements of each of the companies in which the applicant held a directorship at any time over the past two years.

(vii)

Full particulars of any payout in respect of any shares in any company in which the applicant held a directorship at C any time over the past two years;

(viii)

Copies of all bank-account and investment-account statements held by or on behalf of the applicant since 1 January 2017 to date;

(ix)

Copies of all credit-card and shopping-card statements D held by applicant or which she is entitled to use since January 2017.

(b)

In the case of the respondent:

(i)

A copy of the Masingo Royal Trust Deed and all amendments to it;

(ii)

E The identity of the donor, each trustee and beneficiaries of the Masingo Royal Trust with their contact addresses;

(iii)

All letters to the trustees regarding the operation of the trust, including any discretionary powers given to them;

(iv)

How the trustees are to exercise their powers;

(v)

The basis on which the respondent resides on any of the F properties of the trust;

(vi)

Whether the respondent has the use, benefit or other right in any other property or asset of the Masingo Royal Trust and when did he commence deriving same;

(vii)

What is the value of each of the benefits derived by the G respondent from the Trust, identified separately;

(viii)

Is the respondent a donor, trustee or beneficiary of any other trust and, if so the contents of all the preceding paragraphs are repeated;

(ix)

Every shareholding of the respondent is required to be H identified, including the number of shares, and how many shares in total are issued. By shareholding is included every beneficial shareholding in which the respondent has decision-making powers or in respect of which he ultimately receives, whether directly or indirectly, any dividend or I other benefit, and if so what is such benefit;

(x)

All sums of money that are owed to the respondent by any business, including company, partnership, other joint venture or trust, by way of a loan account, partnership capital, undistributed moneys, current account, or the like;

(xi)

A list of all directorships held at any time over the past J two years, and if resigned from;

2018 (3) SA p575

(xii)

Copies of the last audited financial statements of each of A the companies in which the respondent held a directorship at any time over the past two years;

(xiii)

Full particulars of any payout in respect of any shares in any company in which the respondent held a directorship at any time over the past two years;

(xiv)

Copies of all bank-account and investment-account statements B held by or on behalf of the respondent since 1 January 2017 to date;

(xv)

Copies of all credit-card and shopping-card statements held by the respondent or which he is entitled to use since January 2017. C

Judgment

Spilg J:

Introduction

[1] Rule 43 was 'merely designed to provide a streamlined and inexpensive D procedure for procuring the same interim relief in matrimonial actions as was previously available under the common law in regard to maintenance and costs'. [1]

[2] If one cares to ask practitioners they will tell you that a rule 43 application is much like playing Russian roulette. The rule is E considered to be unpredictable in application and is said to be prone to an unfair result for one if not both of the parties. [2] This has been a consistent refrain ever since I joined the legal profession.

The problem is that it matters more now because of the significant consequences to the parties of what is procedurally classified as an F interim order but in practice is likely to be the only contested hearing during the entire divorce process.

The reason is the length of time it may take for an opposed divorce to come to trial, thereby prompting the need for interim...