Factual Matrix: A Rule 43 Application Gone Wrong
The parties married on 13 October 2012 in Johannesburg, out of community of property with the accrual system. Two minor children were born of the marriage: a son, L M J, born on 10 January 2018 (now 9 years old), and a daughter, H A J, born on 30 August 2022 (now 4 years old). What began as a seemingly comfortable middle-class marriage unravelled when the respondent vacated the matrimonial home on 31 December 2023, marking the formal separation of the parties.
The applicant painted a picture of financial destitution and abandonment in her founding papers. She claimed that following the birth of their son, the parties agreed she would cease formal employment to care for the children, relying entirely on the respondent’s assurance of full financial support. According to her version, the family enjoyed a comfortable lifestyle during the marriage—residing in a three-bedroom free-standing home, their son attending private school, regular dining at restaurants, with the respondent meeting all household expenses including bond payments, levies, utilities, medical aid, and school fees.
The applicant alleged she vacated the matrimonial home on 14 September 2024 due to ongoing coercive control and financial abuse, finding herself forced to rent a two-bedroom unit from her grandmother at twelve thousand rands per month (though claiming she could only afford eight thousand rands). She asserted she was now earning a mere ten thousand rands per month as a contractor trainee at Life Day Spa, having previously been placed on the respondent’s company payroll as an administrator earning thirteen thousand rands monthly—an arrangement she claimed the respondent had initiated.
In her founding affidavit, the applicant sought what can only be described as substantial relief under Rule 43 of the Uniform Rules of Court: ten thousand rands per child per month for maintenance, thirty thousand rands monthly for spousal maintenance, an eighty thousand rand contribution towards legal costs, an order that the respondent pay all school fees and related activities, continuation of medical aid cover, and the appointment of either an independent social worker or the Office of the Family Advocate to investigate custody and contact arrangements. Most tellingly, she claimed the respondent had contributed only one thousand rands cash per month towards the children’s maintenance—a claim that would prove to be the unravelling of her entire application.
The respondent’s version told a starkly different story. He alleged that far from contributing a paltry one thousand rands, he was in fact paying fourteen thousand one hundred rands per month directly to the applicant from his company, plus an additional twenty-four thousand six hundred and fifty-eight rands in direct monthly expenses for the children. In total, he contended he was paying thirty-seven thousand seven hundred and fifty-eight rands per month for the children and the applicant. He further disputed the applicant’s claim that he earned two hundred thousand rands per month with thirteenth and fourteenth cheques, asserting his actual net income was approximately ninety-four thousand rands monthly. The respondent denied the children’s expenses exceeded twenty thousand rands per month and accused the applicant of massively inflating their costs without providing any substantiation.
The stage was thus set for a classic Rule 43 battle, but with an unusual twist—the applicant’s alleged failure to take the court into her confidence regarding her true financial position, a misstep that would prove fatal to her entire application and serve as a cautionary tale for practitioners about the perils of non-disclosure in matrimonial proceedings.
The Duty of Utmost Good Faith: Non-Disclosure as Fatal to a Rule 43 Application
The court’s starting point was unequivocal: parties to a Rule 43 application owe the court an absolute duty of full, honest, and clear disclosure. This is not merely a procedural nicety or a technical requirement that can be satisfied with a cursory nod to completeness. It is a fundamental obligation that strikes at the very heart of the court’s ability to exercise its discretion justly and equitably in matrimonial proceedings.
Khaba AJ reminded practitioners that the essential question in every Rule 43 application is deceptively simple yet profoundly important: did the applicant make full disclosure of all material facts? Without such disclosure, the court finds itself navigating in the dark, unable to properly determine the issues before it. The authorities make clear that courts take a decidedly dim view of applicants who are not candid and open, and that misstatement or suppression of facts constitutes not merely grounds for denial of relief but justifies a punitive costs order.
The court turned to D.C.S v G.R.S (an unreported judgment, case number 21228/17, delivered on 15 September 2023), where Thulare J dealt with strikingly similar conduct. In that matter, the applicant had purposefully failed to take the court into her confidence by failing to make an honest disclosure of her monthly income, particularly since 2018. She had failed to provide financial information when the respondent requested it in 2020 when she first raised interim maintenance. The court in the D.C.S case found that the applicant had deliberately withheld information about her business revenue from the court, with financial statements standing in direct contradiction to her allegations about her financial position. Thulare J concluded that the applicant’s conduct amounted to not only dishonesty but attempting to “dribble her need and means past the respondent and the court,” ultimately finding she had earned sufficiently to cater for her needs and did not require interim maintenance.
Even more instructive was the court’s reliance on Du Preez v Du Preez 2009 (6) SA 28 (TPD). In a passage that bears repeated emphasis, the court in the Du Preez case noted with obvious frustration that there is a disturbing tendency in Rule 43 applications for parties, acting expediently or strategically, to misstate the true nature of their financial affairs. It is not unusual, the court observed, to see parties exaggerate their expenses and understate their income, only to attempt correction in subsequent affidavits or in argument after being caught out by unassailable contrary evidence. Counsel, acting doubtless on instructions, unabashedly seek to rectify false information as though such original misstatements are simply things courts must live with in Rule 43 proceedings.
The court in the Du Preez case declared such conduct distasteful, unacceptable, and deserving of censure. More importantly, it reminded practitioners that such behaviour is fundamentally dishonourable and has no place in judicial proceedings. Parties must remain aware that intentional false statements under oath constitute perjury and may, in certain circumstances, amount to defeating the course of justice. The remedy is equally stark: should such conduct occur at the instance of the applicant, relief should be denied.
The discretion conferred by Rule 43(5) to dismiss an application or make such order as the court thinks fit is essentially equitable in nature. It must be exercised judicially with regard to all relevant considerations. A misstatement of one aspect of relevant information invariably colours other aspects, with the probable result that fairness cannot be achieved. Consequently, applicants in Rule 43 proceedings seeking equitable redress carry a duty to act with the utmost good faith—uberrimae fidei in the Latin formulation—and to disclose fully all material information regarding their financial affairs. Any false disclosure or material non-disclosure means the applicant does not come before the court with “clean hands,” and on that ground alone the court is justified in refusing relief.
Applied to the facts before Khaba AJ, the applicant’s omissions were glaring. She claimed the respondent contributed only one thousand rands cash per month, conveniently omitting that she received fourteen thousand one hundred rands monthly from his company plus twenty-four thousand six hundred and fifty-eight rands in direct payment of expenses. This was not a minor discrepancy or innocent oversight—it was a material misrepresentation of the financial reality that fundamentally skewed the entire application. The court found this material omission fell woefully short of what may be expected in Rule 43 proceedings. Having failed to take the court fully into her confidence, the applicant did not act with utmost good faith and deserved to be denied relief on that score alone.
The message to practitioners is unmistakable: there are no shortcuts, no strategic omissions, no “close enough” disclosures in Rule 43 applications. Full disclosure means exactly that, and anything less invites not merely dismissal but a punitive costs order that serves as a salutary reminder of the price of dishonesty before the court.
The Role and Function of the Family Advocate in Custody and Contact Disputes
The respondent had launched a counter-application in terms of Rule 43(6) seeking increased contact and shared residency of the two minor children. The children resided primarily with the applicant, with the respondent enjoying limited contact every Thursday from 16h30 until 18h30 and every Saturday from 09h00 until 17h00. During the hearing, both counsels agreed that the matter should be referred to the Office of the Family Advocate for investigation, with the respondent’s counsel submitting that the issues of contact and residency might be resolved once the parties received the Family Advocate’s recommendations.
An agreement was reached during the proceedings that the respondent could be afforded sleepover contact with the children every alternate Saturday in addition to normal contact. However, Khaba AJ exercised judicial restraint, reminding the parties that the court, as upper guardian of all minor children, possesses unfettered discretion to make any order in relation to the best interests of the children as it deems fit. At that stage, the court declined to interfere with the existing status quo, noting it was not placed in possession of sufficient evidence to determine what arrangements would serve the children’s best interests regarding the proposed alternate Saturday sleepovers.
The court turned to Soller NO v G and Another 2003 (5) SA 430 (W), where Satchwell J provided comprehensive consideration of the Family Advocate’s role and functions. The Office of the Family Advocate was created by the Mediation in Certain Divorce Matters Act 24 of 1987, providing for the appointment of persons in the public service at each division of the High Court to be styled “the Family Advocate.” The powers and duties are set out in section 4 of the legislation, which provides that the Family Advocate shall, after an application has been lodged for variation of an order regarding custody or access to a child made in terms of the Divorce Act, institute an enquiry if requested by any party to enable the Family Advocate to furnish the court with a report and recommendations on any matter concerning the welfare of each minor or dependent child, or regarding such matter as is referred by the court.
The very title of the enabling legislation—the Mediation in Certain Divorce Matters Act—comprises within the word “mediate” the concepts of negotiation perhaps leading to settlement, acting as a sort of go-between for the parties. As explained in the Soller case, if attempts at mediation through discussion and counselling prove unsuccessful, the Family Advocate reports to the court on the facts found to exist and makes recommendations based on professional experience. In this capacity, the Family Advocate acts as an advisor to the court and perhaps as a mediator between the family under investigation and the court.
Critically, the Family Advocate is not appointed as the representative of any party to a dispute—neither mother, father, nor any child. The Family Advocate must maintain neutrality in approach so that the wishes and desires of disputing parties can be more closely examined and the true facts and circumstances ascertained. The function has been described as one of assistance to the court by placing facts and considerations before it. The Family Advocate should make a balanced recommendation and must not take sides against one party in favour of another.
The court in the Soller case emphasised that this neutral investigative role differs fundamentally from partisan advocacy. Unlike legal representatives who advance their clients’ positions, the Family Advocate’s obligation runs to the court and to the best interests of the children, requiring an evenhanded approach that may not align with either parent’s preferred outcome.
In Terblanche v Terblanche 1992 (1) SA 501 (W), the court described the Family Advocate as particularly well-equipped to perform these functions and duties, having at disposal a whole battery of auxiliary services from all walks of life. These include family counsellors appointed in terms of the Act who are usually qualified social workers, clinical psychologists, psychiatrists, educational authorities, ministers of religion, and any number of other persons cognisant of the physical and spiritual needs or problems of children and their parents or guardians. These professionals can render assistance to the Family Advocate in weighing up and evaluating all relevant facts and circumstances pertaining to the welfare and interests of the children concerned.
This multidisciplinary approach distinguishes the Family Advocate’s investigation from adversarial legal proceedings. Where parties and their legal representatives necessarily view matters through the lens of their client’s interests, the Family Advocate can draw upon diverse professional perspectives to construct a holistic picture of the family’s circumstances and the children’s needs.
Khaba AJ determined that the current status quo between the parties should remain pending finalisation of the Family Advocate’s report. An objective investigation and recommendation were deemed imperative to assist the court ultimately in finding what arrangements would serve both children’s best interests. The Office of the Family Advocate having been established by virtue of legislation, and both parties having agreed to the appointment, the court ordered the referral with the expectation that the respondent would offer full cooperation to ensure timely completion of the report.
The court’s approach reflects the modern understanding that custody and contact determinations cannot be made in a factual vacuum or based solely on partisan allegations in affidavits. The Family Advocate provides the court with professional, independent assessment grounded in child development expertise and informed by direct observation of the family’s dynamics—precisely the kind of evidence necessary for decisions affecting children’s welfare and best interests.
Contribution to Costs: Requirements for Establishing a Prima Facie Case
Beyond her maintenance claims, the applicant sought a contribution of eighty thousand rands towards her legal costs, asserting her parents were funding her litigation and she could not litigate on the same level as the respondent. This contribution, she argued, would enable her to prosecute the divorce action meaningfully and secure the rights of both the minor children and herself. The claim raised fundamental questions about when a spouse becomes entitled to access the other’s resources for legal representation in matrimonial proceedings.
The court began by clarifying the juridical foundation of such claims. A contribution towards costs is a claim sui generis deriving originally from Roman Dutch law, based on the duty of support owed by spouses to each other. This ancient principle recognizes that the marital relationship creates reciprocal obligations that do not evaporate the moment proceedings are instituted but rather continue to operate even as the marriage unravels in litigation. The spouse claiming contribution must demonstrate inadequate means of his or her own to fund the litigation—a threshold requirement that places the evidential burden squarely on the applicant.
Whether an applicant is entitled to contribution, and if so at what amount, remains firmly within the court’s discretion. This discretion is not unfettered but guided by established principles. The paramount consideration, as articulated in Van Rippen v Van Rippen 1949 (4) SA 634, is that the party claiming contribution should be enabled adequately to place his or her case before the court. This principle acknowledges the fundamental unfairness that would result if one spouse, through superior financial resources, could effectively silence the other by making litigation financially impossible. The rule guards against inequality of arms in the courtroom, ensuring that financial disparity does not translate into denial of access to justice.
However, this does not mean the floodgates open to unlimited funding. The court in the Van Rippen case made clear that the object is not to release the whole half of the joint estate to the applicant, nor to require the respondent to make over to the applicant’s legal advisers the sum they would be entitled to receive if the applicant were ultimately successful. To do so would prejudice the respondent spouse should the applicant fail to achieve that success. Put differently, an applicant is not entitled to all their costs even if the respondent can afford to pay them—a principle reinforced in Dodo v Dodo 1990 (2) SA 77 (W) and Nicholson v Nicholson 1998 (1) SA 48 (W).
The quantum of any contribution depends on multiple factors that must be weighed in the exercise of judicial discretion: the financial position of both parties, the issues involved in the pending litigation, the scale on which the respondent spouse is litigating, and the disbursements essential to the applicant’s case. Importantly, attorneys are expected to bear some risk with regard to their fees, though attorney’s fees may be included in the contribution awarded. The court must also factor into its discretion the constitutional injunction to guarantee the right to equality before the law and equal protection of the law—a consideration that brings modern constitutional values to bear on this ancient common law remedy.
What evidence must an applicant place before the court to establish entitlement? The court identified several critical gaps in the applicant’s case. She had not placed any evidence before the court regarding the steps that need to be taken to bring the matter to trial readiness and trial. There was no evidence of her estimated future litigation costs, no detail of amounts already expended in the divorce action, no explanation of what was required to properly prepare her case and place it before the court at the hearing, and no substantiation of costs incurred in the divorce litigation thus far.
The evidential deficit became even more problematic when examining the invoice attached to the papers. The applicant contended she required eighty thousand rands towards legal costs, but her attorney’s invoice revealed that one hundred and fifty-four thousand three hundred and eighty-three rands and fifty-three cents was already due and owing. Upon closer scrutiny, this substantial amount related entirely to professional services rendered in respect of the Rule 43 application itself—not for trial preparation or the divorce action proper. This raised the uncomfortable question of whether the contribution sought was simply to discharge existing fees for the very application in which contribution was claimed, rather than to fund future litigation as the remedy contemplates.
To establish a prima facie case for contribution, the applicant bore the burden of proving three essential elements: first, a duty of support; second, a need to be supported; and third, adequate resources on the part of the respondent to provide that support. The court found the applicant had failed on all three counts. She had not demonstrated genuine need given her failure to disclose her true financial position. She had not established the respondent possessed adequate resources to meet the contribution claimed, given the substantial difference between his actual earnings and her inflated allegations. The duty of support, while existing in law, could not be stretched to require funding of litigation premised on dishonest disclosure.
The claim for contribution to costs thus fell victim to the same fundamental flaw that doomed her maintenance application: the applicant’s failure to place a proper evidential foundation before the court. In matrimonial litigation, as in all civil proceedings, a court cannot simply manufacture a case where the applicant has failed to make one. The applicant bore the onus of proof, and having failed to discharge that burden through credible, substantiated evidence, her claim for contribution could not succeed.
Costs Consequences: When Dishonourable Conduct Attracts an Adverse Costs Order
The sting in the tail of this judgment came in the costs order. The applicant was not merely refused the relief she sought—she was ordered to pay the respondent’s costs on a party and party scale, including the costs of counsel on scale B. In the landscape of family law litigation, where courts traditionally adopt a more lenient approach to costs given the emotionally fraught nature of matrimonial disputes, this outcome demands careful analysis.
The general rule in South African litigation is straightforward: costs follow the event. The successful party should be awarded costs, and this rule should not be departed from except where good grounds are shown, such as misconduct on the successful party’s part or other exceptional circumstances. Family law matters, however, have historically occupied something of a special position. Courts have recognised that the acrimonious dissolution of a marriage, with all its attendant emotional trauma and financial upheaval, warrants a more nuanced approach to costs. The traditional reluctance to make punitive costs orders in matrimonial proceedings stems from the recognition that both parties are victims of the marriage breakdown, and that costs orders can exacerbate already difficult circumstances, particularly where minor children are involved.
Yet Khaba AJ found no reason to deviate from the general rule in this instance. The court’s reasoning reveals an important principle: the special considerations applicable to family law matters do not create a sanctuary for dishonest litigants. Where a party has deliberately misled the court, understated the financial support being received, and exaggerated expenses without substantiation, the gloves come off. The court’s discretion on costs becomes an instrument of deterrence, sending an unmistakable message that tactical dishonesty will be met with financial consequences.
The costs order served multiple purposes beyond simply compensating the respondent for his legal expenses. First, it vindicated the court’s authority and the integrity of the judicial process. Courts depend entirely on the honesty of litigants, particularly in motion proceedings where evidence comes by way of affidavit rather than oral testimony subject to cross-examination. When that trust is betrayed, the court must respond decisively to preserve the integrity of the system. To allow a dishonest applicant to walk away without costs consequences would be to signal that the duty of candour carries no real teeth, that misrepresentation is merely a calculated risk with limited downside.
Second, the costs order served a broader public policy function. Rule 43 applications have become increasingly common in South African divorce litigation, and with that proliferation has come the temptation to use the procedure strategically. The expedited nature of Rule 43, coupled with the limited opportunity for extensive cross-examination and discovery, creates obvious opportunities for manipulation. An applicant can inflate expenses, understate income, and present a picture of destitution that may bear little resemblance to reality, gambling that the respondent either cannot disprove the allegations in the limited time available or that the court will simply split the difference between competing versions.
The costs order in this case serves as a warning shot across the bow of such strategic conduct. It tells practitioners and litigants alike that the court is alive to these tactics and prepared to impose real financial consequences when they are detected. The inclusion of counsel’s fees on scale B—rather than the more modest scale A often applied in family matters—further underscores the court’s disapproval. This was not a case where honest litigants simply disagreed about the facts; it was a case where one party attempted to manipulate the process through selective disclosure and material omission.
For practitioners, the judgment offers sobering lessons. The first consultation with a client seeking Rule 43 relief must include frank discussion about the duty of disclosure. Clients must understand that this is not a poker game where cards can be concealed or bluffed. Every rand received must be disclosed. Every expense claimed must be substantiated. The temptation to paint a picture more sympathetic than reality warrants must be resisted, because the costs consequences of detection can be severe.
Attorneys bear professional obligations that extend beyond client instructions. Where a client’s version appears inconsistent with disclosed documents, or where expenses claimed seem inflated beyond reason, the attorney must probe, question, and if necessary, decline to persist with claims that cannot be properly substantiated. The attorney who simply files what the client provides, without rigorous scrutiny, risks not only the client’s costs exposure but potential professional consequences for failing to act as an officer of the court.
The judgment also highlights the evidentiary burden that rests on any applicant in Rule 43 proceedings. It is insufficient to make bald allegations of need and entitlement. Every claim must be supported by documentary proof: bank statements showing income received, invoices evidencing expenses paid, quotations establishing future costs. The court will not manufacture a case from thin air, nor will it accept unsubstantiated assertions simply because the subject matter involves family relationships.
Ultimately, the costs order in this case reflects a principle that transcends family law: access to the courts is a privilege that carries responsibilities. Those who invoke the court’s jurisdiction must do so honestly, completely, and in good faith. When that obligation is breached, the court possesses ample remedies to mark its disapproval and deter future misconduct. In ordering the applicant to pay costs including counsel’s fees, Khaba AJ affirmed that dishonourable conduct has no place in judicial proceedings, regardless of the emotional context in which it occurs. The message resonates beyond this particular case: come to court with clean hands or prepare to pay the price for attempting to mislead the tribunal whose assistance you seek.
Questions and Answers
What is the fundamental duty that parties owe to the court in Rule 43 applications?
Parties in Rule 43 applications owe the court an absolute duty of full, honest, and clear disclosure. This duty applies with particular force in these proceedings and compels parties to disclose the true state of their financial affairs. The essential question in every Rule 43 application is whether the applicant made full disclosure of all material facts. This is not merely a procedural requirement but goes to the very heart of the court’s ability to exercise its discretion justly and equitably.
What is the legal consequence of failing to make full disclosure in Rule 43 proceedings?
Failure to make full disclosure constitutes grounds for denial of relief and justifies a punitive costs order. Where an applicant has not been candid with the court through misstatement or suppression of material facts, the court is justified in refusing relief on that ground alone. The applicant is deemed not to come before the court with “clean hands,” which is fatal to an application seeking equitable relief. The court in the Du Preez case made clear that such conduct is dishonourable and should find no place in judicial proceedings.
What standard of good faith applies to applicants in Rule 43 proceedings?
Applicants in Rule 43 proceedings seeking equitable redress must act with the utmost good faith—described in law as uberrimae fidei. This requires full disclosure of all material information regarding financial affairs. Any false disclosure or material non-disclosure means the applicant does not approach the court with clean hands. This elevated standard reflects the equitable nature of the relief sought and the court’s dependence on the honesty of parties in motion proceedings where evidence comes by way of affidavit rather than oral testimony.
What is the original juridical foundation for a claim for contribution towards legal costs in divorce proceedings?
A claim for contribution towards costs is sui generis, deriving originally from Roman Dutch law. It is based on the duty of support owed by spouses to each other. This ancient principle recognises that the marital relationship creates reciprocal obligations that continue to operate even as the marriage unravels in litigation. The duty of support does not evaporate the moment proceedings are instituted but rather extends to ensuring both spouses can adequately present their cases before the court.
What must an applicant prove to establish a prima facie case for contribution to legal costs?
An applicant must prove three essential elements to establish entitlement to contribution towards legal costs. First, there must be a duty of support between the spouses. Second, the applicant must demonstrate a need to be supported—that is, inadequate means of his or her own to fund the litigation. Third, the applicant must establish that the respondent has adequate resources to provide the contribution sought. Failure to prove any one of these three elements is fatal to the claim.
What is the paramount consideration when a court exercises its discretion regarding contribution to legal costs?
The paramount consideration is that the party claiming contribution should be enabled adequately to place his or her case before the court. This principle, established in the Van Rippen case, acknowledges the fundamental unfairness that would result if one spouse could effectively silence the other through superior financial resources. However, this does not entitle an applicant to all costs even if the respondent can afford them. The object is not to release the whole half of the joint estate to the applicant or to require the respondent to make over the full sum the applicant’s lawyers would receive if ultimately successful.
What factors must a court consider when determining the quantum of contribution towards legal costs?
The quantum depends on multiple factors that must be weighed in exercising judicial discretion: the financial position of both parties, the issues involved in the pending litigation, the scale on which the respondent spouse is litigating, and the disbursements essential to the applicant’s case. The court must also factor in the constitutional injunction to guarantee equality before the law and equal protection of the law. Additionally, attorneys are expected to bear some risk regarding their fees, though attorney’s fees may properly be included in any contribution awarded.
What is the purpose and scope of Rule 43 of the Uniform Rules of Court?
Rule 43 was envisaged to provide temporary assistance for spouses who had given up careers or potential careers for matrimony, with or without maternity, until such time as maintenance claims could be properly determined at trial after hearing evidence. It is aimed at assisting parties in maintaining the standard of living established over the course of their marriage and ensuring they can litigate on equal footing. The rule was not created to provide an interim meal ticket to spouses who clearly at trial would not be able to establish a right to maintenance.
What power does the court possess under Rule 43(5) and how must this discretion be exercised?
Rule 43(5) empowers the court to dismiss the application or make such order as it thinks fit to ensure a just and expeditious decision. This discretion is essentially equitable in nature and must be exercised judicially with regard to all relevant considerations. The requirement for a just order places a duty not only on courts but also on applicants to base their applications and conduct according to what is morally right and fair. It requires a dispassionate approach guided by truth and reason, allowing for rational thinking and good decision-making despite the emotionally charged nature of family law matters.
Under what legislation is the Office of the Family Advocate established and what are its primary functions?
The Office of the Family Advocate is established under the Mediation in Certain Divorce Matters Act 24 of 1987. Section 4 of the legislation sets out the powers and duties, providing that the Family Advocate shall institute an enquiry to furnish the court with a report and recommendations on matters concerning the welfare of minor or dependent children when requested by any party or when referred by the court. The Family Advocate acts as an advisor to the court and as a mediator between the family under investigation and the court, attempting mediation through discussion and counselling, and making professional recommendations when mediation proves unsuccessful.
What is the critical distinguishing feature of the Family Advocate’s role compared to legal representatives in custody disputes?
The Family Advocate is not appointed as the representative of any party to the dispute—neither mother, father, nor any child. The Family Advocate must maintain neutrality in approach so that the wishes and desires of disputing parties can be more closely examined and true facts and circumstances ascertained. This differs fundamentally from legal representatives who advance their clients’ positions. The Family Advocate’s obligation runs to the court and to the best interests of the children, requiring an evenhanded approach that may not align with either parent’s preferred outcome. The Family Advocate should make a balanced recommendation and must not take sides.
What auxiliary resources does the Family Advocate have at disposal to conduct investigations?
As described in the Terblanche case, the Family Advocate has at disposal a whole battery of auxiliary services from all walks of life. These include family counsellors appointed in terms of the Act who are usually qualified social workers, clinical psychologists, psychiatrists, educational authorities, ministers of religion, and any number of other persons cognisant of the physical and spiritual needs or problems of children and their parents or guardians. This multidisciplinary approach distinguishes the Family Advocate’s investigation from adversarial legal proceedings and enables weighing up and evaluating all relevant facts and circumstances pertaining to the welfare and interests of children.
What is the general rule regarding costs in litigation and when may a court depart from it?
The general rule is that the successful party should be awarded costs, and this rule should not be departed from except where good grounds are shown for doing so, such as misconduct on the successful party’s part or other exceptional circumstances. Whilst family law matters have historically occupied a special position due to their emotionally fraught nature, this does not create sanctuary for dishonest litigants. Where a party has deliberately misled the court, the special considerations applicable to family law do not prevent the court from making a punitive costs order, including costs of counsel.
Can dishonest conduct in Rule 43 proceedings constitute a criminal offence?
Yes. As emphasised in the Du Preez case, parties must remain aware that the intentional making of a false statement under oath in the course of judicial proceedings constitutes the offence of perjury. In certain circumstances, such conduct may also amount to the crime of defeating the course of justice. This underscores the seriousness with which courts view dishonest disclosure in Rule 43 proceedings and the potential consequences that extend beyond mere civil liability for costs.
What does the court mean by stating that parties must litigate with “equality of arms” in Rule 43 proceedings?
Equality in the context of Rule 43 does not mean the parties must have similar means. Rather, it means parties should have equal means to adequately engage with the issues between them on an equal footing. Equality accepts the difference between available means between parties, provided that difference does not amount to an unfair advantage for one party at the expense of the other leading to unjust divorce proceedings. This paradox acknowledges that equality sometimes involves contradictory yet interrelated elements—similarities and differences in one whole—ensuring financial disparity does not translate into denial of access to justice whilst recognising that complete financial equalisation is neither intended nor required.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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