Unlocking Fairness in Divorce: The Critical Role of Full Disclosure in Rule 43 Applications. – C.A v H.A (5578/2022) [2024] ZAWCHC 25 (6 February 2024).

In the case of C.A vs. H.A, brought under Rule 43 of the Uniform Rules of Court, the applicant sought interim maintenance for herself while awaiting the finalisation of her divorce. The marriage, initiated on 1 July 1995 and based on an out-of-community property regime with the accrual system, saw the commencement of divorce proceedings by the applicant on 17 May 2022, leading to their separate living arrangements since May 2022. The couple shares two adult children.

Rule 43 aims to maintain the living standard established during the marriage. The applicant accused the respondent of concealing his true income, especially after selling the marital home in June 2022, the proceeds of which remain undisclosed to her. Employed as a restaurant manager since February 2022, the applicant disclosed a net income of R13,518 per month and expressed her intention to move to a more secure residence if granted adequate interim maintenance. She also highlighted additional medical expenses not covered by the respondent’s medical aid.

A crucial element of Rule 43 applications is the complete and honest disclosure of financial positions by both parties. This case scrutinises the applicant’s transparency regarding her financial status, including her inheritance and savings, which were not initially disclosed. The supplementary affidavit filed later revealed significant assets and savings, raising concerns about the fullness of disclosure in her original affidavit.

The court underscored the importance of full disclosure in Rule 43 applications, critiquing the applicant for not providing a comprehensive account of her financial situation in her founding affidavit. The supplementary affidavit exposed further assets and inheritances, indicating a lack of forthrightness in the applicant’s initial disclosure.

Nziweni, J made reference to D.C.S v G.R.S, case number 21228/17 an unreported judgement of the court, where Thulare, J underscored the necessity for an applicant to be completely transparent about their financial circumstances. In this case, the court highlighted the applicant’s failure to disclose substantial revenue, which directly influenced the court’s decision on interim maintenance. This precedent reinforces the principle that withholding crucial financial information, whether by omission or commission, can severely impact the outcome of Rule 43 applications. In this case Thulare, J was of the view that he applicant deliberately chose not to fully inform the court by not disclosing her true monthly income, particularly from the year 2018 onwards. This omission was evident when she initially broached the subject of interim maintenance in 2020, yet failed to furnish the requested financial details to the respondent. By withholding vital information about her financial standing, including her business revenue and the valuation derived from the financial statements given to an independent accountant, which directly contradicted her claimed financial distress, she breached her duty of honesty. The Judge was of the view that had there been any significant change in her revenue by 2022, it was likely she would have addressed the respondent’s queries. The applicant’s intentional omission of her past income and overall behaviour, characterised by dishonesty and an attempt to obscure her financial capabilities from both the respondent and the court, lead to the conclusion that she possessed adequate financial resources to meet her needs without the necessity for interim maintenance.

In the case of Du Preez v Du Preez (2009) 6 SA 28, the court addressed a critical concern before concluding its judgment. It noted a prevalent tendency among parties in Rule 43 applications to manipulate the portrayal of their financial circumstances, often either exaggerating expenses or understating income. This misrepresentation was typically corrected only when irrefutable evidence emerged, challenging the initial claims. Such practices were condemned by the court, emphasizing that honesty in judicial proceedings is non-negotiable and that deceitful behaviour, regardless of its motives, is dishonorable and unacceptable. The court reminded parties that making false statements under oath could constitute perjury or even the crime of defeating the course of justice, suggesting that relief should be denied to applicants who engage in such conduct.

Furthermore, the court highlighted its discretionary power under Rule 43(5) to make orders ensuring just and expedient decisions. It underscored the necessity for applicants to act in utmost good faith and to fully disclose all material financial information. Any failure to do so could lead to the denial of relief, as the court relies on complete and truthful disclosures to make informed decisions.

A specific instance cited involved an applicant who claimed a net salary of R7,521.39 per month but omitted approximately R3,000 per month earned from an investment. This omission was seen as a significant failure to provide a full and honest account of her financial status, meriting the denial of interim maintenance relief. The court’s stance in Du Preez v Du Preez serves as a stern reminder of the importance of transparency and integrity in legal proceedings, particularly in matters of financial disclosure in divorce cases.

These citations within the judgement by Nziweni, J serve to underline the judiciary’s strict approach towards full and honest disclosure in applications for interim maintenance. The cases illustrate that the courts are vigilant in detecting and penalizing any form of dishonesty, as the integrity of the judicial process and the fair adjudication of disputes hinge upon the completeness and accuracy of the information presented.

By drawing on these cases, Nziweni, J not only contextualizes the applicant’s conduct in C.A vs. H.A but also places it within a broader judicial framework that condemns incomplete disclosures. This approach signals to future litigants that transparency is paramount and that the courts will not hesitate to censure those who fail to meet this critical standard. The emphasis on candidness and integrity in presenting one’s financial situation is thus affirmed as a cornerstone of the adjudicative process in matters of interim maintenance.

TS v TS (2018) 3 SA 572 (GJ), Justice Spilg highlighted the critical role of financial disclosure in Rule 43 proceedings, noting that:

“Without proper disclosure requirements, and possibly the use of oral evidence in suitable cases, Rule 43 proceedings tend to benefit the dishonest party or those who exploit a system lacking in demands for immediate revelation of true financial conditions.”

The Applicant alleged that his savings were depleted, leaving him without funds for daily expenses. He also claimed to lack income, savings, or liquid assets. Notably missing, however, were the Applicant’s personal bank statements, which were argued to reveal a failure to fully and transparently disclose essential financial information, a key expectation in maintenance-related proceedings.

Gorven AJA, in ST v CT (2018) 5 SA 479 SCA at paragraphs 492 – 493, described the typical behaviour of divorcing parties in financial disputes as a game of “catch me if you can.” Such parties often position themselves as unyielding, aiming to exhaust the other through relentless resistance. They habitually avoid proper disclosure, withhold details of assets they uniquely know, and generally engage in delaying and evasive tactics, hoping to escape accountability and the legal obligation to share assets rightfully belonging to the other party.

“The trial conduct … was evidently executed by the defendant on a ‘catch me if you can’ strategy…. He postponed the submission of crucial documents until it was nearly too late, then failed to disclose them. He withheld information about the finances of Full House Taverns. He did not supply documents that would allow for the tracing of assets originating from excluded assets. He claimed inability to submit documents related to the Trust without the consent of his co-trustees, only to fail to prove timely or complete compliance with a subpoena duces tecum. Remarkably, he chose not to testify, then raised a procedural objection regarding documentary evidence. [41] Such behaviour by the defendant is deserving of condemnation. In my opinion, it could have justified an order for punitive costs at trial.”

In light of the applicant’s incomplete disclosure of her financial situation, the court was presented with considerable difficulty in conducting an accurate and fair evaluation of her financial needs vis-à-vis the respondent’s ability to meet those needs. The essence of Rule 43 applications rests on the foundation of full and frank disclosure, which is paramount in enabling the judiciary to make informed decisions that reflect equity and justice for both parties involved. The applicant’s failure to provide a transparent account of her financial assets, particularly regarding her inheritance and savings, significantly impeded the court’s ability to render a judgment that could potentially alter the financial dynamics between the parties pending the finalization of their divorce.

The court’s decision to strike the application from the roll, rather than dismissing it outright, reflects a judicious exercise of discretion. This action underscores the court’s commitment to ensuring that the judicial process is not only fair but also seen to be fair. By requiring each party to bear their own costs, the court sends a clear message about the critical importance of honesty in financial disclosures within Rule 43 applications. This decision also serves as a cautionary note to future litigants about the consequences of withholding material information from the court.

Moreover, this conclusion emphasises the judiciary’s role in upholding the integrity of the legal process, particularly in cases involving familial disputes where emotions and financial interests are deeply intertwined. It reaffirms the principle that equitable relief, such as interim maintenance, is contingent upon the litigants’ willingness to engage in the process with clean hands, fully disclosing all relevant information that could influence the court’s decisions.

In summary, the court’s handling of this matter highlights the delicate balance it seeks to maintain between administering justice promptly and ensuring that such justice is grounded in the complete and truthful presentation of facts. The outcome of this case not only addresses the immediate issue at hand but also reinforces the broader legal standards that govern interim maintenance applications, serving as a precedent for the importance of transparency and honesty in all judicial proceedings.

  • The application was struck from the roll.
  • Each party was ordered to pay its own costs.

What is Rule 43 of the Uniform Rules of Court?

  • A: Rule 43 provides for interim relief in matters concerning maintenance and contributions towards legal costs in divorce proceedings. It aims to ensure that parties are not financially prejudiced while waiting for the final divorce decree.

Why did the court find it challenging to assess the applicant’s financial needs in C.A v H.A?

  • A: The court faced difficulties because the applicant failed to fully disclose her financial position, including her inheritance and savings, which are crucial for assessing her financial needs accurately.

What was the court’s decision regarding the application in C.A v H.A?

  • A: The court chose to strike the application from the roll due to the applicant’s lack of transparency in disclosing her financial situation, and ordered each party to bear their own costs.

Why is full and honest financial disclosure important in Rule 43 applications?

  • A: Full disclosure allows the court to make an informed decision regarding interim maintenance and legal costs, ensuring fairness and equity between the parties during divorce proceedings.

What consequences did the applicant face for not disclosing her financial information fully?

  • A: The applicant’s failure to disclose led to the court’s inability to grant her interim maintenance and ultimately resulted in her application being struck from the roll.

Can a party be penalized for not disclosing financial information in Rule 43 applications?

  • A: Yes, a lack of transparency can lead to the court denying relief, striking the application from the roll, or ordering the non-disclosing party to pay costs, as it undermines the court’s ability to administer justice.

What does it mean to strike an application from the roll?

  • A: Striking an application from the roll means the court will not proceed to make a decision on the merits of the case due to procedural or substantive issues, such as inadequate disclosure.

How does the court ensure that Rule 43 applications are dealt with justly and expediently?

  • A: The court exercises its discretion to make orders it deems fit, based on full and honest disclosures, to ensure a just and expeditious resolution, aligning with the equitable nature of Rule 43.

What role does the principle of ‘clean hands’ play in Rule 43 applications?

  • A: The ‘clean hands’ doctrine requires applicants to act in good faith and disclose all relevant financial information. Those who come to court with dishonest intentions or withhold material facts may be denied relief.

What can future litigants learn from C.A v H.A regarding Rule 43 applications?

  • A: Future litigants should understand the critical importance of full financial transparency in Rule 43 applications. Honest disclosure of financial circumstances is essential for the court to provide fair interim relief, emphasizing that ethical conduct is paramount in legal proceedings.

Written by Bertus Preller, a Family Law and Divorce Law attorney and FAMAC accredited Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.