Two Cases, Two Outcomes: The Factual Matrix of S.M v N.M and B.S v K.W.S
The contrasting outcomes in S.M v N.M (D6667/2024) [2024] ZAKZDHC 54 (28 August 2024) and B.S v K.W.S (2025/027511) [2025] ZAGPPHC 1085 (26 September 2025) provide a striking illustration of divergent judicial responses to lengthy Rule 43 applications. Both matters came before the High Court as applications for interim relief pending divorce proceedings, yet their trajectories could not have been more different.
In the S.M case, the applicant wife approached the KwaZulu-Natal Local Division seeking interim relief from her husband. The application was presented in three separate volumes spanning approximately 260 pages. The notice of application alone consumed five pages, whilst the applicant’s sworn statement ran from page 8 to page 57, comprising 147 individually numbered paragraphs. The annexures attached to the sworn statement occupied a further 200 pages, extending from page 58 to page 258. At the time the matter came before Mossop J, no opposing papers had been filed by the respondent husband, rendering the application technically unopposed. The sworn statement contained what the court described as irrelevant allegations and photographs, including images of a Michael Kors handbag allegedly purchased by the respondent, a photograph described as the “Respondent’s lipstick and semen stained T-shirt”, and cellular telephone messages relating to an incident involving Viagra pills. The matter was struck off the roll on 28 August 2024, with the court further ordering that the applicant’s attorney be prohibited from charging the applicant any fees in respect of the application. There was no order as to costs.
The B.S case, heard before Marumoagae AJ in the Gauteng Division, Pretoria, presented a factually complex matrimonial dispute. The parties had married out of community of property with the accrual system and had no children born of their marriage. They began their relationship in 2013, with the respondent husband initially managing two guest houses owned by his parents in Mpumalanga. The applicant wife left her employment to work on these properties. The parties subsequently purchased their own guest house in Cape Town with bank assistance and rented another property which generated substantial monthly income of approximately R600,000, all controlled by the respondent. The applicant registered a company called M F Properties Proprietary Limited, which acquired two Cape Town properties with bank financing, with both parties standing as sureties. The respondent allegedly promised to settle these loans through an anticipated large project which never materialised. Both parties brought major children into the marriage, and they agreed to appoint their respective daughters as directors of the company to protect assets from creditors, though the respondent retained complete control over the business operations and profits.
The relationship deteriorated when the respondent failed to settle debts incurred by the applicant, and she discovered his infidelity. The parties separated in 2023, with the applicant leaving the matrimonial home. The respondent continued providing allowances ranging between R10,000 and R30,000, paid from his son’s or daughter’s bank accounts rather than his own. A settlement agreement was concluded wherein the respondent agreed to pay R15,000 monthly spousal maintenance until remarriage and a lump sum of R1,500,000, but he only paid R75,000 of the lump sum. Before November 2024, the respondent had deposited various amounts exceeding R300,000 into the applicant’s accounts. The respondent ceased all payments in November 2024 after the applicant rejected a revised settlement proposal and withdrew from the original agreement, claiming he could no longer afford the agreed amounts. The applicant alleged this was punishment for pursuing divorce proceedings and that the respondent’s financial circumstances had not changed.
At the time of instituting proceedings, the applicant was unemployed, relying on loans from friends and her father, with her bank having repossessed both her immovable property and vehicles. She subsequently secured temporary employment earning R11,000, then permanent employment with a gross salary of R10,000. The applicant sought interim spousal maintenance of R32,120 per month and a contribution of R200,000 towards her legal costs, though during oral argument she requested the court exercise its discretion to order the R15,000 originally agreed in the settlement agreement. The respondent, whilst admitting he previously paid R336,050 to the applicant since August 2023 through third party accounts, claimed he was no longer earning income, was supported by family members, and had no means to pay maintenance or contribute to legal costs. He alleged the applicant failed to make full and frank disclosure of her bank accounts and that her disclosed accounts showed receipts of R385,364 over seven months, demonstrating she was not in financial need.
The application record in the B.S case comprised 302 pages in total. The applicant’s notice of motion and founding affidavit constituted 58 pages, with the financial disclosure form and its annexures comprising 75 pages. The respondent’s answering affidavit with annexures totalled 65 pages, whilst his financial disclosure form and annexures constituted 64 pages. The parties’ supplementary affidavits added a further 34 and 6 pages respectively. The respondent criticised the application as unnecessarily prolix and an abuse of court processes, arguing that it contained irrelevant documents. Despite these objections, the court on 26 September 2025 granted an order requiring the respondent to pay monthly maintenance of R15,000 and to contribute R200,000 towards the applicant’s legal costs, payable in twenty consecutive monthly instalments of R10,000. The court accepted both supplementary affidavits, found that the applicant had not failed to make frank and full disclosure, and concluded that the respondent was deliberately hiding his true financial position by conducting business through third party bank accounts.
The factual divergence between these two matters is immediately apparent. The S.M case involved an unopposed application of 260 pages containing demonstrably irrelevant material such as photographs of personal items and intimate messages, whilst the B.S case involved a fully opposed application of 302 pages in a complex matrimonial dispute involving multiple properties, a company structure, allegations of asset hiding, and detailed financial investigations spanning several years of the parties’ relationship.
The Purpose and Essence of Rule 43 Applications: Speed, Brevity and Interim Relief
Uniform Rule 43 occupies a unique position within South African civil procedure. It provides a mechanism through which spouses embroiled in divorce proceedings can secure interim relief without enduring the protracted timelines associated with ordinary contested litigation. The rule was deliberately crafted to address the urgent financial needs that arise when marriages break down, recognising that one spouse, typically the financially weaker party, may be left destitute whilst awaiting the final determination of their rights.
The provision in Uniform Rule 43(2)(a) requires an applicant to 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. This language is instructive. The reference to a statement “in the nature of a declaration” is not accidental or archaic. As Mossop J observed in the S.M judgment, when the rule was originally fashioned, parties were required to file unsworn statements in the nature of a declaration or plea. The subsequent introduction of sworn versions did not eliminate the references to declarations and pleas, and this retention was deliberate. The terminology serves as a constant reminder that brevity, characteristic of declarations and pleas in traditional pleadings, remains essential.
In E v E; R v R; M v M [2019] 3 All SA 519 (GJ); 2019 (5) SA 566 (GJ), a full court articulated the fundamental character of Rule 43 proceedings by endorsing the statement in Maree v Maree 1972 (1) SA 261 (O) that the procedure envisaged is not that of a normal application commenced by way of notice of motion, but rather a succinct application aimed at providing interim relief speedily and expeditiously. This observation captures the essential tension that lies at the heart of Rule 43 practice. The procedure must balance the need for sufficient information to enable a court to make an informed decision against the imperative of speed.
The constitutional dimensions of Rule 43 were authoritatively examined by the Constitutional Court in S v S and Another 2019 (8) BCLR 989 (CC); 2019 (6) SA 1 (CC). The court observed that applicants in Rule 43 applications are almost invariably women who, as in most countries, occupy the lowest economic rung and are generally in a less favourable financial position than their husbands. The judgment emphasised that the gender imbalance in homes and society remains a challenge for both society at large and the courts, particularly apparent in maintenance applications where systemic failures to enforce maintenance orders have negatively impacted the rule of law. Women are primarily left to nurture their children and shoulder the related financial burden, and to alleviate this burden the courts must ensure that the existing legal framework operates effectively to protect the most vulnerable groups in society.
Marumoagae AJ in the B.S judgment described Rule 43 as generally intended to provide expeditious and inexpensive relief to financially weaker spouses from their financially stronger spouses. The relief granted is provisional in nature, designed to maintain the status quo pendente lite. As was stated in C.A v H.A (5578/2022) [2024] ZAWCHC 25 (6 February 2024), the rule is aimed at assisting the parties in maintaining the standard of living established over the course of their marriage. The test articulated in K.F v M.F (10237/2037; 4001/2023) [2023] ZAWCHC 253 (13 October 2023) provides that each case depends on its own facts, but the general governing principle is that the applicant is entitled to reasonable maintenance pendente lite having regard to the marital standard of living, the applicant’s actual and reasonable requirements, and the capacity of the respondent to meet such requirements.
The emphasis on brevity serves multiple purposes. First, it ensures that judicial resources are not unnecessarily consumed by lengthy matrimonial disputes when the relief being sought is merely interim. Second, it reduces the financial burden on parties who must bear the costs of preparing and responding to applications. Third, it accelerates the timeline from application to hearing, ensuring that financially vulnerable parties are not left without support for extended periods. As Mossop J noted in the S.M judgment, citing Colman v Colman 1967 (1) SA 291 (C), the whole purpose behind Rule 43 is brevity. This is understandable because the relief granted is not final but interim in nature and will, in normal circumstances, not be in place for very long.
Yet brevity cannot come at the expense of justice. The requirement that parties make full and frank disclosure of their financial circumstances is well established. The B.S judgment cited M.Y v J.Y (2024/013982) [2024] ZAGPJHC 684 (26 July 2024) for the proposition that there is a duty on all applicants in Rule 43 applications seeking equitable redress to act with the utmost good faith and to disclose fully all material information regarding their financial affairs. This duty extends equally to respondents. As was held in I.A.V.H v J.G.R.B (2024/084226) [2025] ZAGPPHC 940 (29 August 2025), courts have always emphasised the need for utmost good faith by both parties and the need to disclose fully all material information regarding their financial affairs.
The practical reality acknowledged in the B.S judgment is that Rule 43 applications are notorious for general distortion of parties’ true financial circumstances. Some financially weaker spouses overstate their needs, whilst financially stronger spouses understate their means. Courts are continually confronted with deliberate lack of adequate disclosure or selective disclosure by litigants whose primary aim is not to comply with their maintenance obligations. Such conduct is not merely dishonest but seriously handicaps courts from fairly determining disputes. As was stated in E.W v S.W (26912/2019) [2024] ZAGPJHC 465 (29 April 2024), a court cannot exercise its discretion based on factual reality between parties when made aware of selective financial disclosure which taints the whole matter in its entirety. A decision made based on incomplete and selective financial disclosure will be unjust and will not serve justice.
The question that emerges is how courts should navigate the twin imperatives of brevity and thoroughness. Rule 43 demands speed, but justice demands adequate information. Where financially stronger spouses deliberately hide assets or conduct business through third party accounts, as was alleged in the B.S case, a financially weaker spouse may need to present substantial documentation to establish both need and means. The challenge for practitioners and courts alike is determining when documentation crosses the line from necessary detail to impermissible prolixity.
Striking Off versus Striking Out: Contrasting Judicial Approaches to Prolixity
The divergent outcomes in these two matters reflect fundamentally different judicial philosophies regarding how courts should respond when confronted with lengthy Rule 43 applications. Both judges acknowledged the problem of prolixity, yet their chosen remedies could not have been more different.
Mossop J in the S.M case adopted an uncompromising stance. Upon reviewing the 260-page application, the court identified what it described as prolixity in the extreme, containing irrelevant allegations and dozens of photographs whose precise relevance was unclear. The judge characterised the inclusion of such material as scandalous and concluded that the application constituted an abuse of the court’s processes.
The remedy was swift and decisive: the matter was struck off the roll entirely. The court invoked its inherent power to regulate proceedings and prevent abuse of its own processes by litigants.
In support of this approach, Mossop J cited three precedents where Rule 43 applications had been struck from the roll because of excessive length. In Patmore v Patmore 1997 (4) SA 785 (W), an application of 47 pages met this fate. In Smit v Smit 1978 (2) SA 720 (WLD), the offending application ran to 69 pages. In Du Preez v Du Preez (16043/2008) [2008] ZAGPHC 334 (24 October 2008), the papers comprised 192 pages. These authorities established that South African courts have, on multiple occasions over several decades, been willing to strike lengthy Rule 43 applications from the roll without adjudicating their merits.
The reasoning underlying the S.M judgment rests on several pillars. First, the court emphasised that judges simply do not have time to peruse lengthy affidavits that narrate every misstep and alleged wrongdoing of a spouse. Second, such allegations are often included simply to colour the court’s mind against a particular party. Third, permitting prolixity rewards poor drafting and encourages future litigants to adopt similar approaches. Fourth, striking matters off the roll sends a clear message to legal practitioners that non-compliance with the spirit of Rule 43 will not be tolerated.
The judge specifically noted the growing trend of presenting Rule 43 applications that are lengthy and do not comply with the rule’s prescripts, expressing the view that this trend must be halted. In crafting an appropriate remedy, Mossop J considered but rejected the possibility of ordering costs against the applicant personally, accepting that she likely had no knowledge of what her application should contain. Instead, following the approach adopted in Visser v Visser 1992 (4) SA 530 (SECLD), the court directed that the applicant’s attorney should not be permitted to charge any fees in respect of the application. This reasoning was that those who possessed the requisite knowledge and who must have known that the application offended Rule 43 were the legal advisors. The order was designed to cause legal practitioners to show greater discipline in preparing such applications.
Marumoagae AJ in the B.S case was presented with similar arguments. The respondent criticised the applicant’s application as unnecessarily prolix and constituting an abuse of court processes, arguing that irrelevant documents had been included. The notice of motion and founding affidavit comprised 58 pages, the financial disclosure form with annexures comprised 75 pages, and when the answering papers and supplementary affidavits were included, the record totalled 302 pages. By any measure, this exceeded the length of the application in the S.M case.
Yet Marumoagae AJ explicitly rejected the invitation to strike the matter from the roll. The judgment expressed strong disagreement with the approach adopted by Mossop J in the S.M case, describing it as “unsound” and “wrong”. The critique of that judgment was detailed and pointed. The learned judge identified multiple flaws in the reasoning that had led to the striking off of the S.M application.
First, the B.S judgment noted that the S.M approach appeared oblivious to the true nature of matrimonial disputes, particularly where one party is desperately trying to prove that the other party, who is uncooperative and hiding assets, has the financial means to pay sought-after interim maintenance and contribution to costs. Such an approach would lead to unjust outcomes where financially weaker spouses would be reluctant to provide courts with relevant information demonstrating their spouses’ financial means, fearing such information might be regarded as irrelevant and lead to matters being removed from the roll.
Second, the judgment observed that the S.M approach appeared ignorant of the fact that some divorces are incredibly complex, where one or both parties may have various financial products in which they place their assets. There are matrimonial disputes where it is not possible to determine the means and needs of parties based merely on the required six months’ bank statements. There might be a need to seriously reflect on payslips over time, financial statements of trusts, share certificates, financial records of companies, and other investment vehicles. Where one spouse pleads insolvency, the other spouse may need to use tactics to illustrate the means of that spouse, which may require assessment of lengthy documents that indirectly establish such means, including financial records of third parties accused of holding financial resources.
Third, the judgment referenced TS v TS (28917/2016) [2018] ZAGPJHC 29 (2 March 2018) for the proposition that a court would be unable to determine whether there has been proper disclosure of available income and the parties’ respective means without assessing the available source of funds that historically have been used to support the family prior to separation and whether that has changed to any marked degree. In complex matrimonial disputes, there might be a need to trace parties’ historical sources of income to have a sound idea of how their finances are currently structured.
Fourth, the B.S judgment expressed disappointment that whilst the S.M judgment articulated what it regarded as an unacceptable trend with Rule 43 applications, it provided no guidance on what would be acceptable to prevent matters from being removed from the roll. The rhetorical question was posed: since 47 pages appear to amount to prolixity according to that court, what then is an acceptable number of pages when preparing a Rule 43 application?
Fifth, Marumoagae AJ emphasised that a one-size-fits-all approach in Rule 43 applications is unjustifiable. There are instances where litigants are justified in submitting as much information and evidence to the court as possible to prove their cases. The judge cautioned against misunderstanding this as encouraging litigants or legal representatives to include irrelevant and unnecessary averments or attach annexures that do not prove or disprove any claims. While desirability exists that Rule 43 application records should not be lengthy, the test should never be their length but the relevancy of what is provided.
Sixth, the judgment expressed concern that the S.M approach is unsound because it will encourage arbitrary decision-making in Rule 43 matters and lead judicial officers to remove applications from the roll even though no universally acceptable standard exists for fairly determining whether a record is lengthy. The assessment appeared to depend on the subjective views of a particular judge assigned to the application.
Seventh, and perhaps most significantly, Marumoagae AJ articulated the constitutional problems with striking matters off the roll merely because a judge feels the pages are lengthy. This approach was described as highly prejudicial to litigants because it is not easy to get a speedy hearing date in the High Court. Spouses in dire need of interim maintenance would have to return on a future date for their matters to be heard once their applications had been trimmed down to the judge’s satisfaction. This was characterised as not constitutionally compliant and prejudicial particularly to women, who are generally financially weaker spouses in practice. The judgment noted that Rule 43 applications also implicate the best interests of children as provided for in section 28 of the Constitution of the Republic of South Africa, 1996 and given effect to by section 7 of the Children’s Act 38 of 2005. While it may be convenient for a judge to remove a matter from the roll, such a decision will undoubtedly be prejudicial to litigants who need matters heard and determined, particularly women and children who desperately require interim maintenance.
The alternative approach endorsed in the B.S judgment drew upon the reasoning of the full court in the E v E case, which had accepted that there should be no limitation to the number of pages filed for as long as what is contained in the affidavit and annexures is relevant and admissible as evidence. That full court had dismissed points in limine based on prolixity and made an order that it shall not be competent for a court to dismiss an application in terms of Rule 43 only on the basis of prolixity. If a court finds that papers filed by a party contain irrelevant material, the court only has the power to strike off the irrelevant and inadmissible material from the affidavit in question and make an appropriate cost order.
The B.S judgment identified this approach as consistent with the Supreme Court of Appeal’s reasoning in Monyepao v Ledwaba and Others (1368/18) [2020] ZASCA 54 (27 May 2020). In that appeal, the court was confronted with an appeal record comprising four volumes totalling 544 pages. The five judges of appeal reviewed the entire record and determined that only 147 pages were relevant to the question they were required to decide. They expressed displeasure with the irrelevant documents but did not remove the matter from the roll. Instead, they saw no reason why any legal representative on either side should be entitled to charge fees and disbursements in relation to the irrelevant portions of the record, and made an order to that effect.
Marumoagae AJ described this as a constitutionally compliant approach that allows courts to perform their function of deciding cases generally, and Rule 43 applications in particular. Rule 43 applications are matters in which litigants are typically in dire financial need. They cannot afford to be punished by having their cases removed from the roll when all the necessary information to finalise those cases is before the court. There is a need for a measure of consistency across all Divisions of the High Court.
The constitutional dimensions of this debate cannot be overstated. While the S.M judgment saw prolixity as an abuse requiring a deterrent response, the B.S judgment saw the striking off approach itself as potentially unconstitutional, denying access to justice to those most in need of the court’s protection. The tension between these two positions raises fundamental questions about the proper role of courts when procedural rules appear to conflict with substantive justice.
The Constitutional Implications: Access to Justice, Gender Equality and the Best Interests of Children
The conflict between these two judicial approaches transcends mere procedural disagreement and raises profound constitutional questions about access to justice, equality before the law, and the protection of vulnerable persons. At stake is whether the legitimate desire for procedural efficiency can justify denying substantive relief to those who have failed to comply with perceived standards of brevity.
The Constitution guarantees everyone the right to have justiciable disputes decided by a court of law or another independent and impartial tribunal or forum. This right to access courts is not merely symbolic but must be real and effective. Where a person approaches a court seeking interim maintenance to survive pending divorce proceedings, and that person is turned away without adjudication on the merits because their papers are considered too long, a serious question arises whether their constitutional right of access has been violated.
The reality acknowledged in both judgments is that Rule 43 applicants are predominantly women. This demographic reality is not accidental but reflects deep-seated structural inequalities within South African society. Women continue to earn less than men, are more likely to have interrupted their careers for child-rearing, and frequently sacrifice their own economic advancement for the benefit of their families. When marriages dissolve, these economic disparities crystallize into acute vulnerability. A woman who has spent years as a homemaker or who has subordinated her career to support her husband’s ambitions may find herself without independent financial resources precisely when she needs them most.
The gendered nature of Rule 43 applications means that procedural barriers to accessing interim relief have a disproportionate impact on women. If courts adopt an approach that strikes applications from the roll for excessive length, the burden falls primarily on female applicants who are already economically disadvantaged. The consequence is not merely delay but potential destitution. A woman waiting for her matter to be re-enrolled may be unable to pay rent, feed her children, or access medical care. The theoretical right to bring a compliant application offers cold comfort to someone facing immediate financial crisis.
The intersection between Rule 43 proceedings and children’s rights adds another constitutional dimension. Many maintenance applications include claims for child support. When such an application is struck from the roll, children are deprived of the financial support they require for their basic needs. The paramountcy principle enshrined in the Constitution requires that a child’s best interests are of paramount importance in every matter concerning the child. This principle demands that courts consider how their procedural decisions will affect children’s welfare. An approach that prioritizes procedural formalism over substantive justice for children sits uncomfortably with this constitutional imperative.
Moreover, the striking off of applications creates systemic disadvantages that compound existing inequalities. A financially stronger spouse, typically the husband, benefits from delay. Every month that passes without a maintenance order is a month in which he retains full control over marital resources while his estranged wife struggles to survive. If he can secure a striking off order by raising technical objections to the length or format of her application, he achieves a strategic victory without engaging with the merits of her claims. This dynamic incentivizes obstructionist tactics and rewards those with the resources to exploit procedural technicalities.
The question of legal representation further complicates the constitutional analysis. The S.M judgment sought to address prolixity by prohibiting the applicant’s attorney from charging fees, reasoning that legal advisors bear responsibility for non-compliant applications. This approach assumes that applicants have meaningful control over how their cases are presented and can hold their lawyers accountable for poor drafting. In reality, many Rule 43 applicants lack the legal sophistication to assess whether their papers comply with procedural requirements. They rely entirely on their attorneys’ judgment. If an attorney produces prolix papers and is subsequently prohibited from charging fees, the attorney may withdraw from the matter, leaving the applicant unrepresented. An unrepresented litigant facing a represented opponent in a complex financial dispute is severely disadvantaged, raising further access to justice concerns.
The remedial options available to a court confronted with prolix papers reveal the stakes of this debate. One option, adopted in the S.M case, is to refuse to hear the matter until compliant papers are filed. This option prioritizes procedural discipline but potentially denies relief to deserving applicants. Another option, endorsed in the B.S judgment, is to examine the papers, extract what is relevant, disregard what is irrelevant, and adjudicate the matter on its merits. This option prioritizes substantive justice but requires judges to invest significant time in reviewing lengthy documents, potentially undermining the efficiency that Rule 43 is designed to achieve.
A third option, suggested by the Monyepao case and adopted in the B.S judgment, involves proceeding with the adjudication but preventing legal representatives from charging fees for irrelevant portions of the record. This approach seeks a middle ground, allowing the matter to proceed while imposing consequences for poor drafting. Yet even this approach raises questions. How does a court quantify what portion of legal fees relates to irrelevant material? What if the supposedly irrelevant material is intertwined with relevant allegations? What if an attorney reasonably believed the material was relevant even if the court ultimately disagrees?
The constitutional values at play extend beyond individual litigants to systemic considerations. Courts serve not only the parties before them but the broader public interest in maintaining confidence in the justice system. If vulnerable people perceive that courts will turn them away for technical non-compliance while their substantive claims go unheard, respect for the rule of law erodes. Conversely, if courts permit unlimited prolixity, judicial resources become strained, hearing dates grow scarce, and other litigants suffer delays. The constitutional imperative to provide accessible justice must be balanced against the practical reality of limited judicial capacity.
The question of how courts should respond to hiding of assets illustrates these tensions acutely. Where a financially stronger spouse conducts business through third party accounts, pays maintenance from children’s bank accounts, and provides incomplete financial disclosure, a financially weaker spouse may need extensive documentation to establish the true financial position. Photographs of expensive purchases, evidence of lavish expenditure, and detailed tracing of financial flows may all be relevant to demonstrating that claims of poverty are false. What appears to one judge as irrelevant scandalous material may appear to another judge as necessary evidence to counter deliberate obfuscation.
The practice described in the B.S judgment as the “catch me if you can” approach, endorsed by the Supreme Court of Appeal in the B case, recognises that divorce parties who control money often set themselves up as immovable objects, using every means to wear down the other party. They fail to discover properly, fail to provide particulars of assets within their peculiar knowledge, and generally delay and obfuscate in hope they will not be caught and forced to disgorge what is legally due. In such circumstances, requiring the financially weaker spouse to be brief may effectively deny them any realistic prospect of proving their case. The constitutional commitment to equality demands that procedure not become a shield for those seeking to evade their legal obligations.
Finding the Balance: Towards a Principled Approach to Relevancy and Length in Rule 43 Applications
The fundamental disagreement between these two judgments compels a critical examination of whether coherent principles can be articulated to guide practitioners and courts in determining when Rule 43 papers cross the line from appropriately detailed to impermissibly prolix. The absence of clear standards creates uncertainty for litigants and invites inconsistent application across different courts and judges.
The starting point must be the recognition that length alone cannot be the determining factor. A Rule 43 application involving a homemaker with minimal assets seeking maintenance from a salaried employee with straightforward finances will naturally be shorter than an application involving complex business structures, multiple properties, trusts, companies, and allegations of deliberate asset concealment. Context matters profoundly. The 302-page record in the B.S case arose from the parties’ business dealings spanning over a decade, involving guest houses, property acquisitions, a company with changing directors, suretyships, debt disputes, and financial transactions conducted through multiple third party accounts. To expect such complexity to be condensed into the 47 pages that proved fatal in the Patmore case would be to demand the impossible.
The concept of relevance provides a more principled basis for assessment than raw page count. Material is relevant if it tends to prove or disprove a fact in issue. In Rule 43 proceedings, the primary facts in issue are the applicant’s reasonable maintenance needs, the parties’ established standard of living, and the respondent’s financial capacity to meet those needs. Any evidence that illuminates these questions is prima facie relevant. Evidence that does not advance the court’s understanding of these issues is irrelevant and should be excluded.
Applying this test requires careful analysis of the specific allegations and documentation in each case. Photographs of expensive purchases may be relevant if they demonstrate a standard of living that the applicant seeks to maintain or if they contradict a respondent’s claims of poverty. They become irrelevant if they serve merely to embarrass or disparage without advancing any legitimate forensic purpose. Bank statements covering six months may be insufficient if they fail to capture the true financial picture because income is being diverted through third party accounts. Additional bank statements, financial records of related entities, and evidence of historical income patterns may all become relevant when a party is deliberately obscuring their financial position.
The distinction between direct and circumstantial evidence also bears consideration. Where a respondent provides complete and transparent financial disclosure through his personal bank accounts and financial statements, an applicant can establish his means through direct evidence. Where a respondent conducts all financial transactions through accounts belonging to his children, parents, or romantic partner, an applicant must rely on circumstantial evidence to establish what income he controls and what resources he can access. Circumstantial evidence inherently requires more extensive documentation than direct evidence because it involves drawing inferences from multiple data points rather than establishing facts through single sources.
The duty of full and frank disclosure imposed on both parties in Rule 43 proceedings has implications for the relevance inquiry. When a respondent fails to provide the required six months’ bank statements, provides statements for a closed account without explanation, or offers no documentary proof for assertions about family financial support, an applicant is entitled to test those assertions through alternative means. Evidence that might appear tangential in a case with full disclosure becomes central in a case characterized by evasion and incomplete information. A court assessing relevance must therefore consider not merely what evidence has been provided but what evidence has been withheld.
The practice of including lengthy narrative backgrounds detailing the history of the parties’ relationship, recounting grievances, and cataloguing marital misconduct presents particular challenges. Such material is typically irrelevant to the narrow questions that Rule 43 requires courts to determine. The fact that a respondent committed adultery, consumed alcohol excessively, or behaved poorly during the marriage does not advance the inquiry into his current financial means. Yet even here, context matters. Evidence of infidelity may be relevant if it demonstrates expenditure on a romantic partner or helps explain why the applicant left the matrimonial home. Evidence of the parties’ lifestyle during the marriage may be relevant to establishing the standard of living they enjoyed.
The role of legal representatives in preparing Rule 43 applications deserves specific attention. Attorneys owe duties both to their clients and to the court. The duty to clients includes advancing their interests zealously within the bounds of the law. The duty to the court includes not abusing court processes or burdening the court with irrelevant material. These duties can come into tension when a client insists on including material that the attorney considers marginally relevant or when an attorney is uncertain whether specific evidence will prove significant. An attorney who errs on the side of inclusion risks criticism for prolixity. An attorney who errs on the side of exclusion risks inadequately presenting the client’s case.
The consequences for non-compliance must also be proportionate to the transgression. Preventing an attorney from charging any fees for an entire application, as occurred in the S.M case, represents a severe sanction that may exceed what is warranted if only portions of the application are truly objectionable. The Monyepao approach of disallowing fees only for irrelevant portions provides a more calibrated response. Yet even this requires a principled methodology for apportioning fees between relevant and irrelevant material.
The question of whether costs orders against clients rather than attorneys provide an appropriate remedy requires careful consideration. A costs order punishes the party for their attorney’s conduct, which may seem unfair if the party lacked the sophistication to assess whether their papers complied with procedural requirements. However, costs orders have the virtue of being familiar to the legal system and readily quantifiable. They also avoid the complications that arise when courts attempt to regulate the fees that attorneys may charge their own clients.
The possibility of courts undertaking their own editing of applications, striking out irrelevant material while proceeding to adjudicate the balance, deserves serious consideration. This approach, endorsed by the full court in the E v E case, recognises that judicial officers possess the expertise to distinguish relevant from irrelevant material and the authority to disregard what does not advance the inquiry. It places the burden on the court rather than requiring parties to return with amended papers, thereby avoiding delay. The objection to this approach is that it requires judges to invest significant time reviewing material that should never have been included, potentially defeating the efficiency that Rule 43 seeks to achieve.
Guidance from higher courts would assist in resolving these tensions. The full court in the E v E case provided a clear directive that courts may not dismiss Rule 43 applications solely on the basis of prolixity, but this has not prevented subsequent cases from doing exactly that. The question whether the striking off approach adopted in the S.M case survives the full court’s pronouncement in E v E remains contentious. Until appellate courts definitively resolve this question, uncertainty will persist.
Practical guidelines for practitioners might include requirements that founding affidavits commence with a concise statement of the relief sought and a summary of the essential grounds, that annexures be limited to documents directly relevant to the financial inquiry, that historical background be condensed to what is necessary to contextualize current financial positions, and that evidence of misconduct be included only where it has direct financial implications. Financial disclosure forms should be completed comprehensively, with all required bank statements attached and explanations provided for any omissions. Supplementary affidavits should be used sparingly and only where genuinely new information has come to light rather than as opportunities to reply to answering affidavits.
Courts confronted with allegedly prolix applications might adopt a staged approach. At a preliminary stage, the court could identify specific portions of the papers that appear irrelevant and invite the applicant to explain their relevance. If no adequate explanation is forthcoming, those portions could be struck out with an appropriate costs order. The application could then proceed to adjudication on the remaining material. This approach provides an opportunity for dialogue, ensures that parties understand what is expected, and avoids the drastic step of striking an entire application from the roll without consideration of its merits.
The ultimate question is whether the legal system can accommodate both the need for speed and the need for thoroughness in Rule 43 proceedings. The answer must be that it can and must. Speed cannot be achieved by denying hearings to those whose papers are lengthy if the length reflects genuine complexity. Thoroughness cannot be achieved by permitting unlimited inclusion of irrelevant material that obscures rather than illuminates the issues. The principled approach lies in rigorous attention to relevance, proportionate consequences for non-compliance, and a commitment to adjudicating matters on their merits wherever the information necessary to do so is before the court.
The B.S judgment offers a more constitutionally sound framework than the S.M judgment precisely because it recognizes these nuances. By examining the actual content of the papers rather than merely counting pages, by understanding the factual complexity that necessitated extensive documentation, and by proceeding to adjudicate the matter rather than removing it from the roll, Marumoagae AJ demonstrated how courts can uphold procedural standards without sacrificing substantive justice. Whether this approach will gain acceptance across all divisions of the High Court remains to be seen, but it deserves to become the prevailing standard for balancing the competing demands that Rule 43 applications present.
Questions and Answers
What is the primary purpose of Uniform Rule 43 applications in South African law?
Uniform Rule 43 provides a mechanism for spouses involved in divorce proceedings to obtain interim relief, particularly maintenance and contribution to legal costs, pending the finalisation of their divorce. The rule is designed to provide expeditious and inexpensive relief to financially weaker spouses from their financially stronger spouses. It aims to ensure that the financially vulnerable party can maintain a reasonable standard of living and properly litigate their case whilst awaiting final determination of their rights.
What does Uniform Rule 43(2)(a) require from an applicant seeking interim relief?
The provision requires an applicant to 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. The reference to a statement “in the nature of a declaration” is significant because it emphasises that brevity, characteristic of declarations in traditional pleadings, is essential to the procedure.
What is the general test for determining whether an applicant is entitled to interim spousal maintenance?
The governing principle, articulated in the K.F case, is that the applicant is entitled to reasonable maintenance pendente lite having regard to the marital standard of living of the parties, the applicant’s actual and reasonable requirements, and the capacity of the respondent to meet such requirements. Each case depends on its own facts, and courts must balance these three elements in determining what maintenance, if any, should be ordered.
What duty do parties bear regarding financial disclosure in Rule 43 proceedings?
Both parties have a duty to act with the utmost good faith and to make full and frank disclosure of all material information regarding their financial affairs. This duty applies equally to applicants and respondents. As stated in the I.A.V.H case, courts have always emphasised the need for utmost good faith by both parties and the need to disclose fully all material information. The duty extends to disclosing all bank accounts held in the last twelve months and providing bank statements covering at least six months.
What consequences follow from selective or inadequate financial disclosure?
When a court becomes aware of selective financial disclosure that taints the matter, it cannot exercise its discretion based on factual reality between the parties. As held in the E.W case, a decision made based on incomplete and selective financial disclosure will be unjust and will not serve justice. Courts must be vigilant in establishing whether parties have overstated their needs or understated their means, and can draw adverse inferences against parties who fail to provide complete disclosure.
What approach did Mossop J adopt in the S.M case when confronted with a 260-page Rule 43 application?
Mossop J struck the matter off the roll entirely, finding that the application was prolix in the extreme and constituted an abuse of court processes. The court prohibited the applicant’s attorney from charging any fees in respect of the application. This approach was based on precedents including the Patmore, Smit, and Du Preez cases where lengthy Rule 43 applications had been struck from the roll. The judge reasoned that the growing trend of presenting lengthy Rule 43 applications must be halted because judges do not have time to peruse lengthy affidavits and such applications undermine the expeditious nature of the rule.
What criticism did Marumoagae AJ level against the approach adopted in the S.M case?
Marumoagae AJ described the S.M approach as unsound and wrong. The criticism included that it appeared oblivious to the true nature of matrimonial disputes, particularly where one party is desperately trying to prove that an uncooperative spouse hiding assets has financial means. The approach would lead to unjust outcomes where financially weaker spouses would be reluctant to provide relevant information for fear of having matters removed from the roll. It appeared ignorant of the fact that some divorces are incredibly complex, requiring assessment of payslips, financial statements of trusts, share certificates, and financial records of companies. The approach would encourage arbitrary decision-making and was not constitutionally compliant.
What alternative approach to dealing with prolixity did the full court endorse in the E v E case?
The full court in the E v E case accepted that there should be no limitation to the number of pages filed for as long as what is contained in the affidavit and annexures is relevant and admissible as evidence. The court held that it shall not be competent for a court to dismiss a Rule 43 application only on the basis of prolixity. If a court finds that papers contain irrelevant material, the court only has the power to strike off the irrelevant and inadmissible material from the affidavit in question and make an appropriate cost order. The matter should then proceed to adjudication on the remaining material.
What approach did the Supreme Court of Appeal adopt in the Monyepao case when confronted with a 544-page appeal record?
The five judges of appeal reviewed the entire appeal record and determined that only 147 pages were relevant to the question they were required to decide. They expressed displeasure with the irrelevant documents but did not remove the matter from the roll. Instead, they saw no reason why any legal representative on either side should be entitled to charge fees and disbursements in relation to the irrelevant portions of the record, and made an order preventing them from doing so. This approach allowed the substantive matter to be decided whilst imposing consequences for including irrelevant material.
What constitutional dimensions arise in Rule 43 proceedings according to the Constitutional Court in the S v S case?
The Constitutional Court observed that applicants in Rule 43 applications are almost invariably women who occupy the lowest economic rung and are generally in a less favourable financial position than their husbands. The gender imbalance in homes and society remains a challenge, particularly apparent in maintenance applications where systemic failures to enforce maintenance orders have negatively impacted the rule of law. Women are primarily left to nurture their children and shoulder the related financial burden. Courts must ensure that the existing legal framework operates effectively to protect the most vulnerable groups in society.
How do children’s rights intersect with Rule 43 proceedings?
Rule 43 applications implicate the best interests of children as provided for in section 28 of the Constitution and given effect to by section 7 of the Children’s Act. Many maintenance applications include claims for child support. When such an application is struck from the roll, children are deprived of financial support they require for basic needs. The paramountcy principle requires that a child’s best interests are of paramount importance in every matter concerning the child, demanding that courts consider how their procedural decisions will affect children’s welfare.
What is the “catch me if you can” phenomenon identified by the Supreme Court of Appeal in the B case?
This refers to the attitude of many divorce parties, particularly those who control money, who set themselves up as immovable objects hoping to wear down the other party. They use every means to do so, including failing to discover properly, failing to provide particulars of assets within their peculiar knowledge, and generally delaying and obfuscating in hope that they will not be caught and have to disgorge what is legally due to the other party. This practice necessitates that financially weaker spouses sometimes need extensive documentation to establish the true financial position of uncooperative spouses.
On what basis can a court make an order for contribution to legal costs in Rule 43 proceedings?
Courts retain discretion to order the financially stronger spouse to pay the legal costs of the financially weaker spouse. As stated in the L.K case, the law is settled that contribution towards legal costs ensures that a party litigates on the same scale as the other and is not disadvantaged in the divorce action. In determining the contribution, the court must consider the circumstances of the case, the financial position of the parties, and the issues involved in the pending litigation. The contribution is not for the entire legal costs but a reasonable portion.
What practical factors should be considered in determining whether material in a Rule 43 application is relevant or irrelevant?
Material is relevant if it tends to prove or disprove a fact in issue. In Rule 43 proceedings, the primary facts in issue are the applicant’s reasonable maintenance needs, the parties’ established standard of living, and the respondent’s financial capacity to meet those needs. Evidence that illuminates these questions is prima facie relevant. Context matters profoundly, as applications involving complex business structures, multiple properties, trusts, companies, and allegations of deliberate asset concealment will naturally require more extensive documentation than straightforward cases. Evidence of lifestyle during marriage may be relevant to establishing the standard of living enjoyed by the parties.
What remedial options are available to a court confronted with allegedly prolix Rule 43 papers?
Several options exist. First, the court can refuse to hear the matter until compliant papers are filed, as occurred in the S.M case, though this prioritises procedural discipline over substantive justice. Second, the court can examine the papers, extract what is relevant, disregard what is irrelevant, and adjudicate the matter on its merits, as endorsed in the B.S judgment. Third, the court can proceed with adjudication but prevent legal representatives from charging fees for irrelevant portions, as suggested in Monyepao. Fourth, the court could adopt a staged approach, identifying specific portions that appear irrelevant and inviting explanation before striking those portions out with an appropriate costs order, then proceeding to adjudication on the remaining material.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline 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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