N v N (2021/3737) [2022] ZAGPJHC 829 (24 October 2022)
- Citation
- [2022] ZAGPJHC 829
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 2021/3737
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 2021/3737
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant failed to adequately disclose her income, making it unreasonable for the judge and unfair to the respondent to attempt to deduce her financial position from vague allegations and annexed bank statements. The late submission of heads of argument and the unclear draft order further complicated the proceedings. Given the circumstances, including the respondent's counsel's personal emergency and the lack of urgency in the application, the court determined that postponement was in the interests of justice. The applicant was directed to deliver a supplementary affidavit by a specified date, with the respondent given an opportunity to respond thereafter. Costs were reserved.
Court disposition
The matter is postponed sine die, with costs reserved. Directions are given for the filing of supplementary affidavits by both parties.
Orders
- The matter is postponed sine die, costs reserved.
- The applicant is to deliver a supplementary affidavit by 5pm on 4 November 2022.
- The respondent may deliver a supplementary affidavit within ten court days thereafter.
02
Material facts
Parties
N [....], L [....] P [....] S [....]
Applicant Counsel: Vivian RikhotsoN [....], I [....] V [....]
Respondent Counsel: C R Du Plessis03
Procedural history
Posture
Urgent Application / Rule 43 Application; Interlocutory Hearing
04
Questions and positions
Legal issues
- 01
Whether the applicant has adequately disclosed her income for the purposes of a rule 43 maintenance application.
- 02
Whether the applicant's supplementary affidavit should be admitted into evidence.
- 03
Whether the matter should be postponed to allow proper ventilation of the issues.
Party arguments
- Applicant
- The applicant sought relief under rule 43, including maintenance claims, but failed to set out her income in her affidavits. Her heads of argument were submitted late, and her draft order was initially unclear. Counsel for the applicant argued that there may be urgency in the matter, but did not substantiate this claim.
- Respondent
- The respondent, represented by Ms Diedericks after Mr Du Plessis was excused, opposed the application, arguing that the applicant earns sufficient income based on annexures to the founding affidavit. The respondent opposed the admission of the applicant's supplementary affidavit and submitted that the application should be dismissed.
05
Court’s reasoning
Legal principles
- 01
Uniform Rule 43
In rule 43 applications, parties are required to make full and clear disclosure of their financial circumstances to enable the court to make a just determination.
- 02
General principles of civil procedure
The interests of justice may require postponement of proceedings where the matter has not been properly ventilated or where parties have not complied with procedural requirements.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant failed to adequately disclose her income, making it unreasonable for the judge and unfair to the respondent to attempt to deduce her financial position from vague allegations and annexed bank statements. The late submission of heads of argument and the unclear draft order further complicated the proceedings. Given the circumstances, including the respondent's counsel's personal emergency and the lack of urgency in the application, the court determined that postponement was in the interests of justice. The applicant was directed to deliver a supplementary affidavit by a specified date, with the respondent given an opportunity to respond thereafter. Costs were reserved.
Obiter and limits
- It is unfair to expect an opposing litigant to trawl through annexes in an attempt to work out what the case is that needs to be answered.
- Applicant’s counsel did her best to salvage the hearing despite procedural shortcomings.
- There is no urgency in the present application; it is an ordinary rule 43 case.
Court disposition
The matter is postponed sine die, with costs reserved. Directions are given for the filing of supplementary affidavits by both parties.
- The matter is postponed sine die, costs reserved.
- The applicant is to deliver a supplementary affidavit by 5pm on 4 November 2022.
- The respondent may deliver a supplementary affidavit within ten court days thereafter.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2021/3737
Reportable: No
Of interest to other judges: No
Revised:yes
24 October 2022
In the matter between:
N [....], L [....] P [....] S [....]
APPLICANT
And
N [....], I [....] V [....]
RESPONDENT
JUDGMENT – WRIGHT J
WRIGHT J
1. The applicant for rule 43 relief, which relief includes claims for maintenance money does not set out at all, either in her founding affidavit or in a supplementary affidavit filed without leave and with no accompanying application for condonation, what her income is.
2. It is unreasonable to expect a judge to try and work out what an income might be from vague allegations in a founding affidavit read with a few attached bank statements. It is unfair to expect an opposing litigant to trawl through annexes in an attempt to
work out what the case is that needs to be answered.
3. The applicant’s heads of argument were uploaded to caselines today, 24 October 2022, the day of hearing, without explanation. This is hopelessly out of time.
4. Applicant’s counsel, Adv V Rikhotso, is a highly competent counsel and did her best in an attempt to salvage the hearing.
5. A draft order, presented to me on behalf of the applicant was very difficult to read. Ms Rikhotso corrected it. I had called for a draft order from both sides so that I could know what order each side was seeking.
6. Sadly, just before the hearing may have started, Mr Du Plessis, for the respondent informed me that he had just received news that his wife was dying. I immediately excused him. Ms Diedericks, his attorney requested that the matter proceed. She clearly knew her papers and had even done a calculation of the applicant’s income based on the annexes to the founding affidavit. She submitted that the applicant made more than enough money and that the application should be dismissed.
7. Ms Diedericks may be correct, but I need to do justice between the parties. I do not know why the applicant’s case was presented like it was. Ms Rikhotso made mention of there perhaps being some urgency. There is no urgency in the present application. It is an ordinary rule 43 case.
8. Ms Diedericks opposed the admission into evidence of the applicant’s supplementary affidavit. I make no finding on the admissibility into evidence of the supplementary affidavit.
9. In my view, given all the circumstances, it is in the interests of justice that I make the following order.
ORDER
1. The matter is postponed sine die, costs reserved.
2. The applicant is to deliver a supplementary affidavit by 5pm on 4 November 2022.
3. The respondent may deliver a supplementary affidavit within ten court days thereafter.
HEARD
: 24 October 2022
DELIVERED
: 24 October 2022
APPEARANCES
APPLICANT
: Adv Vivian Rikhotso
073 221 3395
vrikhotso86@gmail.com
Jurgens Bekker Attorneys
011 622 5472
RESPONDENT
: Adv C R Du Plessis and then Ms Diedericks
082 852 3505
charl@litigationsa.com
Diederiks Oudegeest Attorneys Inc
010 110 9612/082 951 9575
diedericks@diedericksattorneys.com
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