S.K v C.A.K (D3535/2023) [2023] ZAKZDHC 78 (20 October 2023) Dutton AJ
Introduction
An application was made in terms of Uniform rule 43(1). In his sworn statement, the applicant had contended that this was an application in line with Uniform rule 43(6). He had alleged that he filed the application due to a significant change in his financial circumstances, stemming from the respondent’s decision to relocate and establish an independent household. It became clear that this application was not made in terms of Uniform rule 43(6) because no Uniform rule 43 order existed when the application was filed.
Background
The critical background information was as follows: The parties had gotten married on 24 September 2005, outside of community of property with accrual. A single minor child had been born from the marriage, named A[…] A[…] K[…], a young male born on 14 May 2010. The primary residence of the minor child was with the respondent. The respondent had claimed that she covered all of the minor child’s maintenance needs. The applicant had not asserted that he contributed to the minor child’s maintenance. While the marriage remained intact, the respondent had left the mutual home with the minor child around August 2021, which was over two years before this judgment.
Relief Requested
Apart from a modest sum of R500 intended for the minor child’s entertainment, the applicant had sought maintenance pendente lite for himself, amounting to a total of R26 270. The contribution towards bond payments of R15 700, which had been claimed in the sworn statement, was later abandoned during the hearing:
Utilities: R8 500
Food and home essentials: R6 000
Motor vehicle: R4 900
Vehicle tracker: R120
Fuel: R1 800
Internet: R1 050
Housekeeper: R2 400
Gardener: R1 000
Entertainment for the minor child: R500
Total: R26 270
The applicant had also requested a contribution to costs, totaling R50 000. However, the applicant hadn’t specified how the amount of R 50,000 was determined. Representing the respondent, arguments were put forward indicating it was evident that the applicant’s income was more substantial than what he had disclosed in his sworn statement. Regardless, based on the figures the applicant had provided, it was evident that he earned an income more than sufficient to support himself.
The Imperative of Full Disclosure
In discussing the duty to provide complete information, one must reference the principles related to disclosure obligations in Uniform rule 43 procedures. In the case of MB v DB 2013 (6) SA 86 (KZD), Lopes, J deliberated on the significance of disclosure in divorce proceedings. J v J [1955] P 215 at 227 have also been vocal about the critical nature of financial transparency in divorce proceedings. Sachs J remarked that when a husband, familiar with his intricate financial dealings, fails to provide complete clarity, the court is inclined to draw inferences that might not be in his favour. Especially when potential facts that could paint a more positive picture remain undisclosed by his legal team. The primary obligation lies in being transparent, clear, and forthright in financial disclosures. Any deviation from this standard should result in the court drawing conclusions against the party, especially concerning the undisclosed matters.
Furthermore, in NG v SG [2011] EWHC 3270 (Fam), Mostyn J emphasised that among the many principles governing financial resolutions post-divorce, the most paramount is the unwavering duty of parties to present transparent, unequivocal, and detailed disclosure of their current and future financial standings. He opined that withholding information undermines the very essence of the judicial process. Without complete transparency, the court’s verdict might lack fairness, authenticity, and justice.
Such principles hold weight in the context of applications as per Uniform rule 43. As observed in Ou Preez v Du Preez 2009 (6) SA 28 (TPD), there exists a tendency among parties, either for convenience or tactical reasons, to misrepresent the true nature of their financial circumstances. This misrepresentation not only skews one aspect of the provided information but also casts doubt on the entirety of the data presented. Hence, it’s imperative for parties in rule 43 applications, especially those seeking equitable resolutions, to act in utmost good faith and present a holistic view of their financial situations. Any discrepancy or omission in the disclosure indicates that the applicant might not be approaching the court with “clean hands.” This, in itself, could be grounds for the court to deny relief. In the Ou Preez matter the Judge stated: ‘A misstatement of one aspect of relevant information invariably will colour other aspects with the possible (or likely) result that fairness will not be done. Consequently, I would assume there is a duty on applicants in rule 43 applications seeking equitable redress to act with the utmost good faith (uberrimae fidet) and to disclose fully all material information regarding their financial affairs. Any false disclosure or material non-disclosure would mean that he or she is not before the court with “clean hands” and, on that ground alone, the court will be justified in refusing relief.’
Evaluation of Financial Disclosure
Counsel for the applicant asserted that complete financial transparency was provided, indicating that the applicant couldn’t sustain his previous standard of living. However, the respondent’s counsel highlighted that the applicant had indeed submitted a financial disclosure form, which revealed inconsistencies in the applicant’s claims.
Within the financial disclosure form, the applicant mentioned an income of R150 000 from a business dealing in CBD oils for the last financial year. Notably, there was no disclosure about income from another business, G[…] R[…], which seemed to be the applicant’s primary income source for about ten years. No financial documents related to this business were provided by the applicant.
Furthermore, an examination of the applicant’s bank statements revealed several credits, seemingly from G[…] R[…], amounting to R23 350 for a month. This income was not disclosed in the financial form. Moreover, the applicant had other sources of income, including rental income, which was ambiguous in its current status.
There were alarming revelations regarding the applicant’s expenditures, including significant spending on cryptocurrency and online dating. These expenditures, especially considering they were made after borrowing money from the respondent under the guise of financial distress, show a concerning level of financial irresponsibility and deception, undermining the entire application.
Conclusion
Given the glaring omissions and inconsistencies in the applicant’s financial disclosures, the applicant approached the court without “clean hands.” The court, thus, was unable to determine his genuine financial needs. As a result, any relief based on the principles set out in Du Preez was denied. The court also could not evaluate the application for costs since the applicant failed to provide a detailed breakdown of the anticipated expenses. Considering the details presented, it seemed that the applicant had sufficient income to support himself.
Order
Consequently, the court ordered:
- The application was rejected.
- The applicant was mandated to cover the application’s costs.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.