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IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

 Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrates: YES/NO 

Case no. 4396/2020

In the matter between:

JACOB JOHANNES VORSTER                                                                    Applicant

and

LIZANNE VORSTER                                                                                  Respondent

CORAM:                                           I VAN RHYN, AJ

HEARD ON:                                    22 JULY 2021

DELIVERED:                                   27 JULY 2021

[1]       This is an application in terms of the provisions of Rule 43(6) of the Uniform Rules of Court for the variation of the order granted by Nekosie AJ on 10 December 2020.

[2]        The respondent in the present application launched an application (as the applicant) in terms of the provisions of Rule 43(2) of the Rules of Court (“Rule 43”) during December 2020 for payment of maintenance in respect of herself and the parties’ two minor children, a contribution towards costs and further relief pertaining to the parental responsibilities and rights as well as contact rights regarding the two minor children pending divorce proceedings.  The applicant in the present application (the respondent in the Rule 43 application) opposed the application.  

[3]        The opposed Rule 43 application culminated in granting of an order in terms whereof the applicant was ordered to pay maintenance to the respondent in respect of the two minor children in the amount of R 5000.00 per child per month and maintenance to the respondent in the amount of R 9000.00 per month. The court furthermore ordered the applicant to pay the monthly instalments for the Toyota Fortuner motor vehicle which has been in possession of the respondent. The monthly instalment amounts to R 7 778.33. The applicant was ordered to make a contribution towards the respondent’s costs in the amount of R10 000.00 to be paid in monthly instalments of R 2 000.00.

[4]        The order granted in the Rule 43 proceedings furthermore contained provisions pertaining to the parental responsibilities, place of primary residency and contact rights regarding the two minor children which, after some confusion caused by the applicant’s inaccurate reference to the parties became evident, are not relevant in respect of this application for variation of the order.

[5]        The applicant, a farmer in the Kuruman district and the respondent, a broker consultant, were married to each other on the 9^th day of August 2008 out of community of property with exclusion of the accrual system. The respondent issued divorce proceedings in this court during 2020 which the applicant is defending. Two minor children were born from the marriage, presently 8 and 2 years old respectively. The minor children are residing with the respondent who has separated from the applicant, and are currently residing in Bloemfontein. The primary residency of the two minor children was awarded to the respondent.

[6]        The applicant seeks a variation of the order granted some 7 months ago on the grounds that there has been a material change in his financial circumstances as contemplated in Rule 43(6).

[7]        At the hearing of the matter, I was required to deal with an application for condonation for delivery of a replying affidavit by the applicant. The condonation application was opposed by the respondent on the basis, and rightly so, that Rule 43 makes no provision for the filing of a replying affidavit by the applicant.[1]  Several errors were made in the founding affidavit. Condonation is requested for the filing of the replying affidavit to remedy these errors as well providing an opportunity to respond to the contention made by the respondent that the applicant has indeed not sustained a decrease in his income but has in fact himself demonstrated that his income has increased by an amount of R 1 126 493.61 in the past year.

[8]        Only two affidavits are allowed in Rule 43 applications. Parties and their legal representatives should not be encouraged to file further affidavits and become slack in observance of the Rules of Court. Rule 43 is a special rule governing certain specific applications in contrast with the provisions of Rule 6.[2] Furthermore, Rule 43 governs and regulates applications for ancillary relief of an interim nature in matrimonial matters and these applications should be dealt with as inexpensively and expeditiously as possible. The court may, on the same procedure vary its decision granted in terms of Rule 43 in the event of a material change occurring in the circumstances of either party or child, or the contribution towards costs proving inadequate.

[9]       The applicant claims the following relief:

“1.1        That the rule 43 order dated 10 December 2021 be set aside and replaced with an order in the following terms:

1.1.1           Pendente lite joint custody, control and full parental responsibilities and rights of the 2 (two) minor children be awarded to both the parties and that the primary place of residence be awarded to the Applicant, subject to Respondent’s specific responsibilities and rights with regard to contact with the 2 (two) minor children as contemplated in terms of Section 18(2)(b) of the children’s Act, Act 38 of 2005 only under the supervision of applicant.

1.1.2           Pendente lite Respondent shall pay maintenance to applicant in respect of the aforesaid minor children in the amount of R 5 000.00 (five thousand Rand) per month per child.

1.1.3           Pendente lite Respondent shall pay the monthly instalments for the 2007 model Toyota Fortuner 3.0 D4d 4x4 with registration number CCG535NC in the amount of R 8 000.00 (vehicle instalment plus car tracker), currently in possession of the Applicant

1.1.4           All payments relating to the minor children shall be made on or before the 25^th day of each succeeding month.

1.2               Costs to be costs in the cause, in the alternative and in the event that the Respondent opposes this application, the Respondent to pay the costs.

1.3               Further and /or alternative relief.”

[10]     The applicant in effect now prays that the primary residency of the two minor children be awarded to him and payment of maintenance in respect of the minor children to be made by the respondent. Furthermore, the respondent to pay the monthly instalments on a 2007 model Toyota Fortuner. No description of the Toyota Fortuner pertaining to the model or year was provided in the order granted by Nekosie AJ save for the fact that the motor vehicle was in possession of the respondent.

[11]     However, from the content of the replying affidavit as well as certain contradicting averments in the founding affidavit, it became evident that it was not the intention of the applicant to vary the order granted in the Rule 43 application pertaining to the maintenance, the parental rights and responsibilities, nor the primary residency relating to the minor children. Even though the applicant wrongly referred to the Toyota Fortuner as a 2007 model he apparently adhered to the order and will continue to pay the instalment on the vehicle in the respondent’s possession, a 2019 model Toyota Fortuner. What the applicant intended with the application is to vary the order for payment of maintenance to the respondent in the amount of R 9 000.00 per month.

[12]     The applicant’s erroneous reference to the respondent as being the applicant and vice versa in the notice of motion, which should have been a notice in terms of the provisions of Rule 43(6), resulted in the understanding that the applicant is now requesting primary residency of the two minor children and payment of maintenance from the respondent in respect of the minor children. These errors caused the respondent to oppose certain aspects which the applicant in effect did not intend to vary by way of this application. These errors and careless mistakes caused unnecessary responses from the respondent and concomitant prolixity in papers which could have been avoided if the applicant and his legal advisor(s) took care in observing the Rules of Court and drafting the application and founding affidavit.

[13]     In motion proceedings the affidavits constitute both the pleadings and the evidence. In Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd [3] the conduct of legal representatives in enabling the efficient resolution of disputes and optimising both expedition and economy, was explained as follows:

“The role of legal representatives has two key aspects. First is the supervision, organisation and presentation of evidence of the witnesses and, secondly, the formulation and presentation of argument in support of a litigant’s case. The diligent observation of those roles facilitates the role of the judicial officer, which is to arrive at a reasoned determination of the issues in dispute, in favour of one or the other of the parties. Where practitioners neglect their roles, it leads to the protracted conduct of the litigation in an ill-disciplined manner, the introduction of inadmissible evidence and the confusion of fact and argument, with attendant increase in costs and delay in its finalisation, inimical to both expedition and economy”[4]

[14]     I granted the application for condonation primarily with a view to cure the errors regarding the applicant’s intended relief in respect of the minor children and payment of the Toyota Fortuner.  The applicant’s contention that there has been a material change in his financial circumstances which justifies a variation of the previous order, is premised upon the allegation in the applicant’s founding affidavit that he has made payments towards the maintenance of the minor children, the monthly instalments for the Toyota Fortuner but has fallen into arrears relating to the respondent’s spousal maintenance due to financial difficulties. The applicant avers that he has made a payment of R 33 000.00 for the contribution towards the respondent’s legal costs on 25 March 2021. The applicant furthermore contends that he effected an amount of R 33 000.00 towards the respondent’s spousal maintenance for the months December 2020 to February 2021 and part payment in the amount of R 6 000.00 for March 2021.

[15]     Appended to the founding affidavit are several financial statements pertaining to the applicant’s farming business to support his contention that he has suffered a demise in his financial ability of adhering to the order granted on 10 December 2020. It is contended that due to the effects of the Covid-19 pandemic the applicant’s net profit has dwindled from R 209 274.97 for the 2019 - 2020 financial year to R 154 754.20 for the 2020 - 2021 financial year. The applicant refrained from providing any further facts to sustain these allegations.

[16]     The respondent contends that the first two payments regarding maintenance for the minor children were late and the applicant has failed to make the full payment in the amount of R 10 000 as a contribution towards her costs but has only paid an amount of R 6 000.00 towards her costs. The applicant made a lumpsum payment of R 33 000.00 on 25 March 2021 after he had failed to adhere to the court order of monthly spousal maintenance payments. This caused considerable distress and prejudice to the respondent. On behalf of the respondent, it was argued that the Covid-19 pandemic has had no adverse impact on the applicant’s farming business and the Kuruman region furthermore received ample rain during the last rain season.

[17]     With reference to the same financial statements appended to the applicant’s founding affidavit, the respondent contends that the applicant has in fact increased his income for the last financial year with R 1 126 493.61. Having regard to the 2019-2020 financial year the applicant’s gross income was R 2 088 674.63 while the gross income for the previous financial year is reflected as the amount of R 962 181.02. It is furthermore evident that the applicant has spent considerably more on purchasing livestock than the previous year and has drawn an amount of R 739 587.90 of which the applicant provided no explanation. It is furthermore evident that the applicant has no debt and has in fact a positive bank balance of approximately R 85 000.00 as on 28 January 2021. The applicant’s assets are worth more than R 7 million.

[18]     It is trite that the applicant in application proceedings must make out his/her case in the founding affidavit and should not be allowed to try and make out a case in the replying affidavit.  The founding affidavit must contain sufficient facts in itself upon which a court may find in the applicant’s favour.[5]

[19]     Of concern is the applicant’s argument that the court granted an order which was not sought for by the respondent in the Rule 43 proceedings. In the Rule 43 application the respondent stated her monthly expenses amounted to R 85 075.33 with one of these expenses being payment to the applicant of the monthly instalment in respect of the Toyota Fortuner in the amount of R 7 778.33. The explanation for payment to be made to the applicant in the said amount, is that the respondent is under debt review and thus unable to obtain financing for purchasing the motor vehicle.  The applicant purchased the Toyota Fortuner currently being used by the respondent and for practical reasons Nekosie AJ ordered that the amount in respect of maintenance for the respondent should be reduced in the amount of the monthly instalments for the motor vehicle which culminated in the order whereby the respondent was awarded R 16 778.33 per month, R 9 000.00 directly from the applicant and R 7 778.33 by way of payment of the Toyota Fortuner in her possession.  

[20]     The applicant not only erroneously referred to a 2007 (which has been paid in full) and not the 2019 model Toyota Fortuner, but has furthermore, rather opportunistically, indicated that an order not sought by the respondent was granted by the court in the Rule 43 application. The applicant refrained from providing the background regarding the Respondent’s claim amounting to R 25 000.00 for spousal maintenance which included the amount for the Toyota Fortuner. The lack of care regarding the facts and allegations contained in the applicant’s papers nevertheless evokes astonishment. From the applicant’s founding papers it appears as if he made two payments of R 33 000.00, one pertaining to spousal maintenance and the other in respect of a contribution towards costs. Clearly this is incorrect. The applicant was ordered to make a contribution towards the respondent’s cost in the amount of R 10 000.00. Furthermore, the applicant possesses significant assets for instance a motorcycle, two Toyota Hilux vehicles, two Isuzu vehicles, another Toyota Fortuner and livestock. The applicant however fails to explain why he has not sold any of these assets in an effort to comply with the court order.

[21]     A considered interpretation of Rule 43(6) suggests that, in order to succeed in demonstrating a material change in circumstances, the applicant must make a full and frank disclosure in regard to all of the many and varied elements which make up the broad overview of the applicant’s financial situation. The applicant has dismally failed to explain in what why the reduction in his yearly net income impacted on his ability to meet his obligations to the respondent and to adhere to the court order granted during December 2020. The applicant did not succeed in establishing a material change in his financial circumstances.

[22]     It is therefore unsurprising that the respondent argues that the applicant has failed to make out a case for the relief he seeks. The applicant is criticized that the relief sought (initially) are entirely incompatible with the averments made in the founding affidavit. Due to the errors relating to the respective parties and blatant mistakes pertaining to the relief claimed, unnecessary opposition and the subsequent replying affidavit added volume to the papers consequently increasing the costs or expenses of the matter.[6] This is impermissible in terms of Rule 43 and the respondent's complaint was justified in this regard and the court shall ameliorate the situation through an appropriate costs order.

[23]     Effectively, the applicant has made a failed attempt at an impermissible appeal or rehearing of the Rule 43 Application. This too justifies the respondent's argument that the applicant apparently does not want to pay spousal maintenance, which he is obliged to do.

[24]     On the information provided by the applicant, I am unable to determine what the impact of the reduction in his nett yearly income is in light of the applicant’s broader financial circumstances.  I am accordingly of the view that the applicant has failed to establish changed circumstances to warrant the variation of the order granted by the court on 10 December 2020. The costs incurred with regard the filing of the replying affidavit by the applicant are incidental to the present application. It will be inappropriate to grant the usual costs order that the costs be costs in the divorce proceedings. The costs of the Rule 43(6) should thus follow the result of the present application.

[25]     Accordingly, I make the following order:

1.      The application in terms of Rule 43(6) is dismissed with costs, such costs to include the costs arising from the filing of the applicant’s replying affidavit.

I VAN RHYN AJ 

On behalf of the Applicant:                                                           ADV. I MACAKATI

Instructed by:                                                             JOUBERT BOSMAN LAW INC

On behalf of the  Respondent:                                                 ADV. J. F. MITCHLEY

Instructed by:                                                               MCINTYRE VAN DER POST\

.[1] Henning v Henning 1975(2) SA 787(O) at 789H

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