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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 28917/2016

In the matter between:

TS, R / Applicant
And
TS, T / Respondent

SUMMARY

SPILG, J:

DIVORCE PROCEEDINGS - RULE 43 APPLICATIONS

Child support issues

-  While many rule 43 applications may not require more than a succinct set of affidavits to enable a court to make a proper determination that will serve the bests interests of the child, a one size fits all approach to the sufficiency of evidence that should be placed before a court may, in a given case, have difficulty passing either constitutional scrutiny (s 28) or be capable of meeting the requirement that the outcome will serve the child’s best interests as required by various provisions of the Children’s Act that apply to all proceedings involving the best interests of children

-  Where interim child support issues cannot be decided in an informed manner on the papers filed under rule 43(2) and (3) then rule 43(5) can be invoked to obtain financial disclosures with or without applying discovery procedures and with or without hearing evidence relating to the lifestyle enjoyed by the parties.

Spousal maintenance

-  In practice the rule 43 application is the only contested hearing that the parties are likely to engage in and that its outcome generally impacts on the settlement that is subsequently concluded. It is also axiomatic that the promotion of resolving divorce issues through negotiation or mediation is to be encouraged .

-  Accordingly a failure by one party to make proper, full and frank disclosure of one’s financial circumstances results in prejudice to the other spouse.

-  The issues before the court included whether or not a trust was the true beneficial owner of some or all of the bundle of rights enjoyed by the respondent, whether the respondent still retained his income and other benefits in the companies from which he had resigned as director, whether he had rearranged his affairs to reduce his financial profile in form but not necessarily in substance and whether the applicant had been frank about her sources of available income.

-  Court satisfied that it could not give a just decision without at least the disclosure of further financial information and documentation by both parties and which were in addition to the documents discovered for trial under rule 35