Background of the Rule 43 Application
In the case of M.N v A.L.N (094387/23) [2024] ZAGPPHC 402 (22 April 2024), the applicant launched a Rule 43 application on 27 November 2023, seeking interim relief for maintenance and contact arrangements for the parties’ two-year-old minor child. The founding affidavit, along with its annexures and confirmatory affidavits, totaled 160 pages. The respondent’s answer was 76 pages long, and both parties filed further affidavits in terms of Rule 43(5), amounting to an additional 107 pages. The parties also filed heads of argument and Financial Disclosure Forms (FDF), which added another 398 pages to the matter.
The court emphasised that Rule 43 is a sui generis type of application, and its provisions are specific and self-contained. The rule itself regulates the affidavits to be filed, with Rule 43(2)(a) requiring the applicant to deliver a sworn statement “in the nature of a declaration,” and Rule 43(3)(a) stipulating that the opposing affidavit should be “in the nature of a plea.”
The court referred to several cases that have discouraged the abuse of process in Rule 43 applications, such as:
CT v MT and Others 2020 (3) SA 409 (WCC)
Smit v Smit 1978 (2) SA 720 (W)
Andrade v Andrade 1982 (4) SA 854 (O)
Du Preez v Du Preez 2009 (6) SA 28 (T)
These cases have consistently held that the purpose of Rule 43 is to ensure a just and expeditious decision, and that prolixity in affidavits and annexures defeats this purpose and amounts to an abuse of process.
Abuse of Process: Lengthy Affidavits and Annexures
The court found that the lengthy affidavits filed by the parties constituted an abuse of process. The court cited several cases dating back to 1961, such as Colman v Colman 1967 (1) SA 291 (C), which emphasised the need for brevity in Rule 43 applications. The court also referred to more recent cases, including Smit v Smit 1978 (2) SA 720 (W), Andrade v Andrade 1982 (4) SA 854 (O), and Du Preez v Du Preez 2009 (6) SA 28 (T), which reiterated that the purpose of Rule 43 is to deal with applications as inexpensively and expeditiously as possible.
In Smit v Smit 1978 (2) SA 720 (W), the court held that filing lengthy affidavits and annexures that would not properly form part of a pleading amounts to an abuse of process. The court in Andrade v Andrade 1982 (4) SA 854 (O) stated that an application to strike out impermissible, unnecessary paragraphs and/or annexures is not a proper procedure under Rule 43, as the procedures under this rule have been specifically devised to save time and costs.
The court in M.N v A.L.N acknowledged that there might be circumstances where a court will allow a deviation from the rules, particularly when the issues are complex or difficult and the interests of minor children are involved. However, the court emphasised that the lengthy affidavits filed in this application were not filed at the behest of the court to adjudicate the best interests of the minor child, but rather at the inception of the matter and in order to oppose it, which is not the proper procedure to be adopted.
The Court’s Interpretation of Recent Case Law
The court addressed the recent case law on Rule 43 applications, particularly TS v TS 2018 (3) SA 572 (GJ) and E v E 2019 (5) SA 566 (GJ). The court clarified that these decisions should not be interpreted as allowing the abuse of the rule that has become prevalent in recent times.
In TS v TS, Spilg J acknowledged the Constitutional imperatives in adjudicating the ‘best interests of the child’ principle in matters regarding interim maintenance of minor children. The court proposed two solutions to address the issue: firstly, that parties must file a proper FDF, which would be available for both the divorce action and the Rule 43 application, and secondly, that the provisions of Rule 43(5) would allow for further evidence to be made available to the court at its behest.
In E v E, the Full Court reiterated that the procedure envisaged in Rule 43 is a succinct application aimed at providing the applicant with interim relief speedily and expeditiously. While the Full Court ruled that prolixity may no longer be used by courts as a reason to strike a matter from the roll, the court in M.N v A.L.N emphasised that this does not remove a court’s discretion to prevent an abuse of its process by a litigant.
The court also addressed the role of the Rules Board, established under the Rules Board for Courts of Law Act 107 of 1955, in amending the rules of court, including Rule 43(2) and 43(3). The court clarified that only the Rules Board has the authourity to amend the rules, and a court’s Practice Directives serve a different purpose of streamlining the conduct of business within a division to ensure the efficient running of the court and proper access to justice for all litigants.
The Applicant’s Financial Position and Maintenance Claims
The court examined the applicant’s financial position and maintenance claims in the context of the Rule 43 application. The applicant sought maintenance of R35,629.42 per month for the two-year-old minor child, along with arrear maintenance of approximately R234,784. However, the court noted that the respondent had been paying maintenance of approximately R28,500 per month (including a cash contribution of R13,500 per month) since 2023.
The court also considered the parties’ respective earning capacities. The respondent earned a net salary of approximately R91,000 per month, while the applicant’s net monthly income was around R105,000, including rental income from a property. The applicant also had other assets, including savings of R400,000.
The court found that the respondent was paying more maintenance for his two-year-old son than for his two older children from a previous marriage, despite the applicant being in a stronger financial position. The court deemed the applicant’s prayer for more maintenance excessive and not commensurate with the parties’ means, stating that it was an abuse of process and contrary to the ethos of Rule 43, which aims to place parties on as equal a footing as possible regarding maintenance and litigation.
The court also noted that the respondent had been paying maintenance since 2023, and there was no need demonstrated on the papers for the court to interfere or protect the minor child’s interests by making such an order. Additionally, the applicant failed to prove that she had made out a case pendente lite for arrear maintenance.
Dismissal of the Application and Reasons
The court dismissed the application with costs, finding it to be an abuse of process for several reasons:
a) Primary care and residence of the minor child were not in dispute, and no order was required to settle that issue at this stage. The court found it undesirable and unnecessary to bring an application simply to confirm a status quo.
b) The disputed terms of contact required an investigation by the Office of the Family Advocate, which both parties sought in their respective orders. The court held that there was no reason for it to be burdened with making only such an order, as the parties had since November 2023 to complete and serve an Annexure B.
c) The respondent had been paying maintenance since 2023, and there was no need demonstrated on the papers for the court to interfere or protect the minor child’s interests by making such an order. The court reiterated that it cannot be required to simply confirm a status quo.
d) The applicant failed to prove that she had made out a case pendente lite for arrear maintenance.
e) The applicant abandoned her request for a contribution to her legal costs, which the court found to be correct.
The court concluded that, regardless of how one viewed the matter, the application was an abuse of process. The application was dismissed with costs to be taxed on Scale A.
Questions and Answers
Q: What is the purpose of Rule 43 applications in South African law? A: Rule 43 applications are designed to provide interim relief in divorce proceedings, allowing for expeditious and inexpensive resolution of maintenance and contact issues pending the finalisation of the divorce.
Q: How did the court in M.N v A.L.N view the lengthy affidavits filed by the parties? A: The court found that the lengthy affidavits filed by the parties constituted an abuse of process, as they defeated the purpose of Rule 43 applications, which is to ensure a just and expeditious decision.
Q: What did the court say about the role of the Rules Board in amending the rules of court? A: The court clarified that only the Rules Board, established under the Rules Board for Courts of Law Act 107 of 1955, has the authority to amend the rules of court, including Rule 43(2) and 43(3).
Q: How did the court interpret the recent case law on Rule 43 applications, particularly TS v TS 2018 (3) SA 572 (GJ) and E v E 2019 (5) SA 566 (GJ)? A: The court emphasised that these decisions should not be interpreted as allowing the abuse of the rule that has become prevalent in recent times, and that a court’s discretion to prevent an abuse of its process by a litigant remains intact.
Q: What factors did the court consider when evaluating the applicant’s maintenance claims? A: The court considered the parties’ respective earning capacities, the respondent’s existing maintenance payments, and the applicant’s financial position, including her assets and savings.
Q: Why did the court find the applicant’s prayer for more maintenance to be an abuse of process? A: The court deemed the applicant’s prayer for more maintenance excessive and not commensurate with the parties’ means, stating that it was an abuse of process and contrary to the ethos of Rule 43, which aims to place parties on as equal a footing as possible regarding maintenance and litigation.
Q: What did the court say about the need for an order confirming the status quo in the case? A: The court found it undesirable and unnecessary to bring an application simply to confirm a status quo, as there was no need demonstrated on the papers for the court to interfere or protect the minor child’s interests by making such an order.
Q: Why did the court find the application to be an abuse of process in relation to the disputed terms of contact? A: The court held that the disputed terms of contact required an investigation by the Office of the Family Advocate, which both parties sought in their respective orders, and there was no reason for the court to be burdened with making only such an order.
Q: What was the court’s ruling on the applicant’s request for arrear maintenance? A: The court found that the applicant failed to prove that she had made out a case pendente lite for arrear maintenance.
Q: What was the outcome of the application, and what costs order was made? A: The court dismissed the application, finding it to be an abuse of process regardless of how one viewed the matter. The costs were ordered to be taxed on Scale A.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline. A blog, managed by SplashLaw, for more information on Family Law read more here.
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