A new future for family law: Significant changes to r 43 applications

November 1st, 2019
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On 12 June, the Gauteng Local Division of the High Court in Johannesburg (GJ) delivered a Full Bench judgment relating to r 43 applications. This judgment brings about significant changes in r 43 applications, and divorces in general.

The referral to the Full Bench

The judgment in E v E and related matters [2019] 3 All SA 519 (GJ) was made pursuant to an order by van Vuuren AJ on 20 September 2018, when three r 43 applications were referred to a Full Court of the GJ under s 14(1)(b) of the Superior Courts Act 10 of 2013, as the conflicting judgments of that division brought Uniform subrs 43(2) and (3) into focus.

Uniform subrs 43(2) and (3) read, inter alia, as follows:

‘(2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds thereof … .

(3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea … in default of which he shall be ipso facto barred.’

Makume J in delivering the Full Bench judgment, noted that the effect of r 43(5) would also have to be considered, which provides:

‘(5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order as it thinks fit to ensure a just and expeditious decision.’

The directive to the Full Bench by Mlambo JP

Gauteng Division Judge President Mlambo directed that the Full Court hear submissions to dispose of the three applications, as well as to determine the following issues at para 18:

‘i) While rule 43 applications generally require the submission of a succinct set of papers, does the Court have the discretion to permit the [filing] of applications that have departed from the strict provisions of rule 43(2) and (3)?

  1. ii) If the Court does not have such a discretion, should the Practice Manual direct that all rule 43 application[s] conform to a specific form, particularly in terms of length? Would the imposition of a restriction on the length of rule 43 applications withstand constitutional muster?

iii) If the Court does have such a discretion, what are the factors to consider in order to reasonably exercise this discretion? Are these factors exhaustive?’

Mlambo JP issued a further directive inviting interested parties to apply to be admitted as amicus curiae. Legal Aid South Africa and the Gauteng Family Law Forum (GFLF) both applied and were respectively admitted as amicus curiae. This article focusses on the submissions made by the GFLF, and the outcome of the case.

The GFLF

The GFLF is a voluntary association of Gauteng family legal practitioners. The GFLF seeks to improve the standard of practice of and level of cooperation between legal practitioners, and to improve the experience of the public exposed to the judicial system in family law matters.

Members of the GFLF have committed to approaching family law matters in a constructive way, seeking to resolve and not to inflame. In order to be a member of the GFLF, a practitioner must subscribe to the GFLF Code of Conduct, as published on the GFLF’s website at www.gflf.co.za.

The GFLF aims to identify, discuss and provide practical solutions to the problems that legal practitioners face in practice areas affecting family law. Once the solutions are identified, the GFLF works towards initiating and promoting reforms and improvements, working cooperatively with a number of role-players (eg, the judiciary, the magistracy, and the Office of the Family Advocate).

Makume J found in his judgment that the ‘subject matter raised in the directive falls squarely within the Forum’s knowledge and expertise’ and subsequently admitted the GFLF as amicus curiae.

The salient points raised by the GFLF as amicus curiae

Uniform Rule 43 enables a spouse to apply to the High Court for maintenance pendente lite, a contribution towards costs, and interim care of and/or contact with a child born of the marriage in a pending matrimonial matter.

The GFLF argued, inter alia, that r 43 implicates various constitutional rights, including the rights of a child, socio-economic rights to housing, healthcare and food, the right to dignity, the right of spouses to equal protection under the law, and the right to a fair hearing. The High Court is, therefore, under a constitutional obligation to interpret r 43 in a manner that best promotes these constitutional rights. An overly narrow interpretation and strict application of r 43 would threaten these constitutional rights. In addition, s 173 of the Constitution provides, inter alia, that a High Court has the inherent power to regulate its own processes in the interests of justice. This, the GFLF argued includes issuing a practice directive to ensure uniformity of treatment and the proper administration of justice in certain categories of cases.

The GFLF submitted that taking the above into consideration, the Full Bench should exercise its power in terms of s 173 of the Constitution by amending or issuing a practice directive, to include –

  • the pre-emptory completion of a substantial and uniform financial disclosure form under oath (a proposed form, drafted by the GFLF, was annexed to the founding affidavit); and
  • the right of an applicant in a r 43 application to file a replying affidavit, with the replying affidavit limited to addressing inaccuracies in the respondent’s reply, as well as addressing untruths in the reply and dealing with new matters raised in the reply.

The GFLF demonstrated that its submissions were in line with international family law practices. The United Kingdom, Australia and Singapore, among others, require that litigants file uniform and detailed statements of their finances at inception of a divorce action, or in applications for maintenance pendente lite. The GFLF argued that the procedures of the High Courts must, therefore, also be developed to ensure full financial disclosure by both parties in a uniform manner under oath, thereby ensuring the proper administration of justice.

The findings of the Full Bench

Makume J (Kollapen J and Modiba J concurring) correctly noted in para 28 of the judgment that: ‘The nub of the question to be answered is what interpretation of rule 43 will ensure a speedy and efficient resolution of the application while at the same time protecting the rights of women and children who are prevalently vulnerable in rule 43 applications?’

When considering the directive of Mlambo JP concerning the court’s discretion to allow (or disallow) lengthy r 43 applications, Makume J at para 61 found that: ‘It is imperative, constitutional and practically necessary to amend the practice manual so as to permit rule 43 applications being filed without restrictions. This will allow optimisation of the best interest of minor children but will also be fair and promote transparency …’. At para 33, the court held that: ‘The length of an applicant’s affidavit should not disentitle her to relief. What is important is whether the contents of the affidavit and the annexures are relevant.’ However, parties and practitioners ought to heed the caution set out in para 62 of the judgment, echoed in clause 3 of the court’s order: ‘The lifting that this judgment proposes should not become a license to parties to express and advance views and opinions that bear no relevance to the issues before the Court.’ The court suggested that parties who include irrelevant material could be met with costs orders or could find the irrelevant material struck out.

It is evident from the judgment that there is still a delicate balance to be struck between making full and relevant disclosures on the one hand and avoiding unnecessary prolixity on the other.

The completion of a uniform financial disclosure form by litigants in r 43 applications was found by the court to be not only relevant, but also convenient. The uniform financial disclosure form, as was suggested by the GFLF, is now annexed to the Full Bench judgment and is included in clause 2 of the Order. About this financial disclosure form, the court held at paras 56 – 57: ‘The benefit of making it mandatory to file a financial disclosure form is that firstly, the parties will not need to file lengthy affidavits to make or defend their case. Secondly, parties will be forced to be transparent with each other and with the Court at the inception of the divorce action. … Financial disclosure will place the Court hearing the application in a better position to decide the matter in a manner that does justice to the parties and takes care of the best interests of the minor children.’

With regard to  the suggested filing of a replying affidavit and how to deal with a dispute of fact that arises from the respondent’s answering affidavit, the court took a measured approach and found that this should be dealt with in terms of subr 43(5) stating, inter alia, at para  24 that: ‘In my view the answer lies in the provisions of rule 43(5) which gives the court a discretion to hear such evidence as it considers necessary. The applicant may seek leave to file a further affidavit in terms of rule 43(5) …’.

The order

The following order was granted by the Full Bench on 12 June:

‘1. On receipt of the rule 43(2) and 43(3) affidavits, the judge allocated to hear the matter shall, if he or she deems it appropriate, issue a directive to the parties in terms of rule 43(5) calling on the Applicant and/or the respondent to file (a) supplementary affidavit(s) making a full and frank disclosure of their financial and other relevant circumstances to the Court and to the other party.

  1. The affidavits referred to above must be accompanied by a financial disclosure form, annexed hereto, which must be filed seven days before the date of hearing.
  2. Affidavits filed in terms of rule 43(2) and (3) shall only contain material or averments relevant to the issues for consideration. It shall not be competent for a court to dismiss an application in terms of rule 43, only on the basis of prolixity. If the Court finds that the 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.
  3. It is proposed that the Judge President amends the Practice Directive to give effect to this judgment and order.’

Conclusion

The outcome of a r 43 hearing carries significant weight in a matrimonial matter and it drastically impacts the lives of the parties and minor children involved. As such, judges hearing r 43 applications ought to apply the highest level of judicial scrutiny, and in my view it is, therefore, correct that this judgment restores the proper exercise of judicial discretion, by removing outdated and arbitrary restrictions relating to the length of papers in r 43 applications.

The introduction of a mandatory uniform financial disclosure form in matrimonial matters is long overdue. It will assist not only the court, but litigants as well. This form should, inter alia, reduce the time and costs associated with discovery, and it will hopefully encourage early settlement. Furthermore, this judgment aligns South African family law with international family law standards.

We await the amendments to GJ’s practice directive, which will have to follow this judgment in order to deal with its practical implementation. It is hoped that the Rules Board will in due course make this financial disclosure form mandatory in all opposed divorces, and not only r 43 applications.

Ultimately, this transformation of r 43 procedures will not only innovate family law practice, but, crucially, it will ensure the promotion of the administration of justice in an expeditious manner and will provide protection to the constitutional rights relevant in family law matters.

  • See law reports ‘family law’ 2019 (Oct) DR 17 for the summary of the E v E and related matters

Maresa Kurz LLB (UFS) is a legal practitioner at Clarks Attorneys in Johannesburg. Ms Kurz is also the Secretary of the Gauteng Family Law Forum. The Gauteng Family Law Forum acted as amicus curiae in the E v E case.

This article was first published in De Rebus in 2019 (Nov) DR 10.