JMV v PCV

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BR Tokota J
• Judgment Date: 12 July 2022
• Docket Number: 5472022
• Hearing Date: 31 May 2022
• Court: East London Circuit Local Division
• Citation: 2022 JDR 2036 (ECGEL)

Tokota J:

[1]

The applicant and the respondent were married to each other out of community of property on 9 February 1991. The parties are embroiled in divorce proceedings before this Court. Pending the finalisation of the divorce, the applicant is approaching this court seeking an order, pendente lite, in the following terms:

2022 JDR 2036 p2

Tokota J

(a) Maintenance for herself and her daughter, who is 23 years old, in the amount of R54 801.50;

(b) Contribution towards her past legal costs in the amount of R33 954.80;

(c) Contribution towards future legal costs in the amount of R199 939.00;

(d) Contribution towards costs of forensic accountant in the amount of R500 000;

(e) Contribution towards costs of appraised evaluator in the amount of R29 100.

The application is opposed by the respondent.

[2]

At the hearing of this matter, I raised a legal point that my prima facie view was that the application did not comply with Rule 43 of the Uniform Rules of Court. Mr Kotze appearing for the respondent did not have his heads of argument and sought leave to file them later and would deal with my concerns in those heads of argument. Mr Cole SC who appeared for the applicant had filed his heads of argument but indicated that he would like an opportunity to file further heads of argument to deal with the point raised as well. I granted leave to both of them to submit their heads of argument in this regard. Mr Kotze delivered his heads of argument on 15 June 2022 and I received heads of argument from the applicant's attorneys on 22 June 2022. I'm indebted to both parties for their heads. At the hearing of the matter I allowed oral argument.

[3]

My concern was not only based on the bulkiness of the papers but also on the substance, including annexures and the manner in which the claim was presented. There are four matters to be sought in terms of Rule 43. The purpose of the Rule is to provide a party with a speedy and inexpensive remedy, instead of waiting for a prolonged battle of a divorce action, enabling the party to seek maintenance; a

2022 JDR 2036 p3

Tokota J

contribution towards the costs of matrimonial action pending or about to be instituted; interim care; or contact with a child pendent lite. The sworn statement filed by the applicant is not in the nature of a declaration as envisaged in Rule 43. Mr Kotze who appeared for the respondent submitted that the reply by the respondent to the applicant's founding affidavit was prompted by the nature of the applicant's affidavit hence it is also not in the nature of a plea.

[4]

It is expedient at this juncture to quote the relevant provisions of the Rule:

43 Interim relief in matrimonial matters

(1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:

(a) Maintenance pendente lite;

(b) A contribution towards the costs of a matrimonial action, pending or about to be instituted;

(c) Interim care of any child;

(d) Interim contact with any child.

(2)(a) An applicant applying for any relief referred to in subrule (1) shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent corresponding with Form 17 of the First Schedule.

(b)...

(3)(a) The respondent shall within 10 days after receiving the application deliver a sworn reply in the nature of a plea.

(b)...

(c)...

(4)…

(5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order as it deems fit to ensure a just and expeditious decision."

2022 JDR 2036 p4

Tokota J

[5]

The point of non-compliance with Rule 43 was not raised in the papers by the respondent. Ngcobo J in CUSA v Tao Ying Metal Industries [1] stated:

'Where a point of law is apparent on the papers, but the common approach of the parties proceeds on a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged, mero motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be a decision premised on an incorrect application of the law.'

[6]

In Paddock Motors (Pty) Ltd v Igesund [2] Jansen JA said:

'. . . it would create an intolerable position if a Court were to be precluded from giving the right decision on accepted facts, merely because a party failed to raise a legal point, as a result of an error of law on his part . . .' [3]

[7]

More than thirty years ago rule 43 applications have been identified as sort of a hybrid procedure. In Willies v Willies [4] Fannin J said: 'In considering the question before us it must not be ignored, I...