It is worth noting that the Courts do require procedures to follow a particular format in terms of the law and further directives, to ensure due legal process. This is particularly of note when looking at Application procedures, with reference to the title ‘Length Vs Relevance In Rule 43 Applications‘.
Rule 43 Proceedings, in point, have particular emphasis on length and relevance.
This situation is more unique than most, with three cases being discussed, and having an Order made thereon
For the laypeople out there, this is not normally the case, as although each case is still heard on its own facts, most cases have an Order made in isolation, without any other matter.
While separately, these three matters revolved around a Rule 43 Application, the details of each do differ in some material effects, though, as you may have guessed, individually, they had to deal with the balancing of length and relevance in their papers.
E v E revolved around a Rule 43 Application requesting interim maintenance, with the Application, including annexures, reaching a substantial length of 86 pages. Frightfully enough, the Answering Affidavit, with its annexures, reached an impressive 157 pages.
R v R saw another Rule 43 Application, though bearing much lower numbers, with the Application and answering Affidavit being 53 pages with annexures, and with an Answering Affidavit of 31 pages. Pertinently, the Respondent argued that the Application was a proliferation of papers, and that it was not in line with Rule 43(2).
Lastly, M v M dealt with a third Rule 43 Application. This was an Application the court considered suitably succinct, though with a good deal of pleadings attached as annexures. The Answering Affidavit likewise was a brief 10 pages, albeit with seven times that in annexures.
One can therefore see, that while each is a Rule 43, and with substantial annexures, the actual documents differ in length from case to case.
Having laid out the facts, the court then decided to give judgement in two parts, first to provide relief, and then afterward to give the detailed reasoning for each.
The court then noted a number of discrepancies becoming more common in legal practice.
In some cases, the court has noted that parties have generally stopped respectively delivering a statement in their declarations and a reply in their plea, relating to rules 43(2) and (3) of the uniform rules of court.
This lead to the question as to whether or not the Court has discretion, to permit Applications that do not meet these requirements of Rule 43(2) and (3), being filed.
If the court lacks this discretion, should the Practice Manual instead direct that all Rule 43 Applications meet a specific format, particularly in terms of length?
The court even commented that it can indeed be queried, if limiting the length of Rule 43 Applications would be constitutional?
The Courts first analysed the Rule 43 itself, noting that Rule 43 in its present form, is aimed at providing an interim remedy to assist Applicants in acquiring relief with all possible haste and speed in respect of the following:
The court then heeded the Children’s Act, which directs that the best interests of the child is of paramount importance in every matter concerning children.
Likewise, Section 28 of the Constitution requires that a fair hearing is observed and that the child’s best interests are protected in all proceedings concerning the child.
There is consequently legislative and constitutional support that on some level, the papers must be long enough to ensure that there is sufficient information for the best interests of the child to be met.
In looking at Rule 43, one does have to look at the aforementioned sub-rules:
“(2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds thereof together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorneys and shall give an address for service within eight kilometres of the office of the registrar and shall be served by the sheriff.
(3) The Respondent shall within ten days after receiving the Statement, deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred.”
From this we can see that in Rule 43 proceedings, the process is somewhat limited, with a declaration from one party, and a reply from another.
The courts then commented that in answering the abovementioned issues and questions, one must further consider Rule 43(5).
This rule states that the court may hear whatever evidence it considers necessary, and may make any order it thinks necessary for a just and expeditious decision.
Quite powerful as a rule, I’m sure you’ll agree.
Returning to the Applications, upon noting that there is no third replying opportunity in Rule 43 proceedings, the court found that parties tend to provide more information than necessary in their documents. Evidently, this will extend the documents – which are traditionally meant to be brief in length.
A further question that could be asked, is what should happen when a dispute of fact arises from the Respondent’s Answering Affidavit.
In both instances, the court said that one should look to Rule 43(5) which gives the court a discretion to hear such evidence as it considers necessary.
The Applicant could, for example seek permission to file a further Affidavit in terms of Rule 43(5), allowing them to dispute the Respondent’s version of events as contained in their Answering Affidavit.
Rule 43(5) does allow for this step, thanks to the discretion allowed to the court in terms of this rule.
Up till now, due to papers being to extensive, or parties not being able to restrict themselves to the single document opportunity available to them in terms of Rule 43(2) and 43(3), Respondents often argue that the Rule 43 should be dismissed. Indeed, they have often been successful.
In considering past case law, the court found that as times have changed, and society likewise, and as an enforced uniform length of papers cannot be in the best interests of the child; rather it should be a flexible approach that caters to each matter’s individual circumstances.
The courts in these previous cases went on to state that it was the relevance of the court papers that mattered far more than their length.
In this matter, though the Respondent did argue that the papers were prolix and did not comply with Rule 43 (2). It was found however, that a one size fits all approach to papers cannot suffice and will never be in the best interest of the children – and the length of an Applicant’s Affidavit should not disentitle her to relief. What is important is whether or not the contents of the Affidavit and the annexures are relevant.
The court further decided that the Founding Affidavit is not overly voluminous, with the Affidavit and annexures totalling 33 pages. The court went on to state that the annexures, which were 22 pages, were indispensable for making a case for the relief sought.
The court reiterated that the best interests of the child standard is paramount in Rule 43 Applications concerning minor children, and that Courts have allowed longer Affidavits when necessary to properly assess the needs of children.
However, it should be noted that this principle does not justify excessive, irrelevant documents, and the Rule 43 Application remains a summary procedure, where only relevant information is brought forward.
The court went on to state that there is a duty on Applicants in Rule 43 Applications to act with the utmost good faith and to disclose fully and all material information regarding their financial affairs.
Any false disclosure or material non-disclosure would mean that he or she is not before the court with “clean hands” and on that ground alone the court will be justified in refusing relief.”
In M v M, the court noted that the Applicant’s sworn statement is concise, despite her attaching 33 pages of documentary evidence in addition to a copy of the Particulars of Claim in the divorce action.
The Respondent themselves made the papers more protracted, with 70 pages of annexures attached to the 10 pages of their Answering Affidavit.
Again it was emphasised that the issue is not based on the number of pages or annexures, but rather the relevance of the information contained therein.
Neither of the parties to the matter raised the issue of papers being extensive.
Indeed, both Parties agreed that it is unthinkable that a party in a Rule 43 Application can display all relevant facts regarding finances, contact and residence of the minor children in such a brief statement, before further stating that restricting the length of the Application and the annexures, can even result in prejudicing children and the parties themselves.
Given that a Rule 43 Application and its resulting Order carrying tremendous weight in divorce proceedings, the Court held that it was in the interests of justice and the minor children to allow the parties to file substantive but relevant Affidavits.
This matter alone of the three, saw the referral judge seek the intervention of the full court as to the correct applicability of Rule 43(2) and 43(3).
The Applicant’s founding papers comprised of 86 pages, 34 of which were the Rule 43(2) sworn statement, the balance made up of annexures.
The Respondent went further, with an Answering Affidavit of 109 pages and 48 pages of annexures.
In addressing the issue of whether or not the Application, as well as the reply thereto, meets the requirements of Rule 43(2) and (3), the Respondent argued in line with R v R and M v M.
The Respondent contended that the only limitation to annexures and their content was their admissibility and relevance.
Ironically enough, the court having found that the contents of the Applicant’s Affidavit and annexures were relevant, and that she made out a case for the relief sought, the court granted the Order.
The court held that this question should not be confused with the discretion that a court has in terms of Rule 43 (5).
This question instead is concerned with the Founding and Answering Affidavits.
It was found that the court does not have such a discretion unless it decides to call for further evidence in terms of Rule 43 (5).
Indeed, as seen above, it was generally found that there should be no limitation to the number of pages filed, so long as the information was relevant and admissible as evidence.
Interestingly enough, it was considered that a practice directive be issued requiring the parties in all divorce matters should complete and submit a detailed financial disclosure form under oath, commonly called an FDF. This FDF would be filed as an annexure to the parties’ respective Rule 43 Affidavits.
The benefit of making it mandatory to file an FDF is that:
Firstly, the parties can use shorter Affidavits in their matter, having made a proper financial disclosure, assisting in handling financial matters.
Secondly, this disclosure assists in transparency early in the divorce action, allowing for early settlement, and allowing the court to be in a superior position in deciding on the matter.
As stated above, the court found that in terms of Rule 43(5), the court does have a discretion to call for further evidence, in spite of the limitations imposed by Rule 43(2) and (3), but this is not automatic—a party must request it, or the court must deem it necessary.
The problem persists though, in that Rule 43(2) and (3) are often raised by the Respondent, with the Applicant unable to respond to due to the restriction, unless the court allows the Applicant to utilise Rule 43(5).
It is indeed argued and was noted by the Court, that the Applicant should have an automatic right to file a replying Affidavit, in order to respond to the Respondent’s Answering Affidavit.
In S.M v N.M (D6667/2024) [2024] ZAKZDHC 54 (28 August 2024), the Durban High Court emphasised that Rule 43 remains a summary procedure and courts will not routinely allow further Affidavits unless justified.
The answer to this question is simple and has already been alluded to above.
The court did even consider the amending of the practice manual, in order to permit Rule 43 Applications being filed without restrictions, however, it has not as of yet been formally amended to remove restrictions on Rule 43 Applications.
Instead, High Court judges have discretion to allow necessary but relevant Affidavits and may request FDFs. Again, it may be necessary to apply for this in terms of Rule 43(5).
This was considered to be in the best interest of minor children, as well as ensure fairness and transparency.
While the court noted that it was common for the parties to ventilate personal issues in the Rule 43 Application, resulting in papers replete with irrelevant allegations and counter allegations.
The court considered that in these circumstances, the court may penalise one or both of the parties with an adverse order as to costs. Indeed, it must be noted that any lifting of restrictions as proposed in this judgment, should not suggest a license to parties to express and advance views and opinions that bear no relevance to the issues before the court.
The court went on to state that the proposed FDF may present confidentiality issues, which can be countered by the form being filed on its own, and only used by the parties and the court for the purpose of the Rule 43 Application and the divorce.
The court, then ordered that on receipt of the Affidavits in Rule 43 Proceedings, the Judge shall, if deemed 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 making a full and frank disclosure of their financial and other relevant circumstances to the court and to the other party.
The Affidavits referred to above must be accompanied by a financial disclosure form, annexed thereto, which must be filed seven days before the date of hearing.
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.
It is proposed that the Judge President amends the Practice Directive to give effect to this judgment and order.
It can be noted that in Gauteng, the filing of FDF’s is now compulsory in High Court Divorce and Rule 43 proceedings, and indeed Judges are now required to make a judgement call over the length of the papers and whether they are indeed overlong and irrelevant.
In some instances, likewise, there has been call for a Replying Affidavit in Rule 43 proceedings after the Answering Affidavit, although it should be noted that while some courts have allowed further Affidavits in exceptional circumstances, this is not standard practice and requires a special request under Rule 43(5), as stated above
In SM v NM, referenced above, the Court reaffirmed that Replying Affidavits are not standard in Rule 43 and will only be allowed where the Respondent raises new material facts that the Applicant could not have anticipated.
Whilst cognisant of the above, it should be borne in mind that Rule 43 papers should remain somewhat brief, and more importantly, confine themselves to information which is relevant, as any further information must be applied for in terms of Rule 43(5).
This remains pertinent as various other matters show.
The case of:
SM v NM, which was briefly mentioned earlier, saw the Court place a keen interest in brevity and relevant information in Rule 43 Applications, and
H v H (44450/22) [2022] ZAGPJHC 904 did see it stated that parties who file overlong Applications may face judicial censure.
These cases confirm that courts will discourage verbose Rule 43 Applications and may strike out irrelevant material.
© 2025 Martin Vermaak Attorneys. All rights reserved.
Terms of Use Privacy Policy
