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IN THE HIGH COURT OF SOUTH AFRICA

[TRANSVAAL PROVINCIAL DIVISION]

CASE NO: 24487/2005

DATE: 20 November 2007

UNREPORTABLE

In the matter between:

SAMUEL WILHELM JANSE VAN RENSBURG APPLICANT

and

JUDITH JANSE VAN RENSBURG RESPONDENT

J U D G M E N T

MAKGOKA [AJ]

[1] This is a Rule 43 application, wherein the Applicant seeks maintenance and contribution towards his legal costs. There are no minor children born from the marriage between the parties.

[2] The Application was launched on 20 October 2005. The Respondent filed her opposing Affidavit on 6 February 2006. The matter was set down by the Applicant on 23 October 2007.

[3] When the matter was mentioned, Mr Nieman, for the Applicant, made an oral application from the Bar, for a postponement. The Thrust of the said application was that the papers before court did not reflect the present state of affairs between the parties. Correspondence between the parties was handed up, wherein it appears that as of 9 November 2007 the Applicant expressed this view. The Applicant then suggested that the matter be removed from the roll.

[4] The Respondent opposed the application for a postponement. It was argued by Mr Coetzee, for the Respondent that the Applicant, being dominus litis, placed the matter on the roll on 23 October 2007, fully knowing that the papers before court were outdated. It is argued that the Applicant abuses the process of Rule 43.

[5] As stated earlier on, this application for a postponement was made from the Bar, and as a result, very sketchy details are before court to enable me to properly consider same. From the papers, it does not appear why the application was not set down within the time period envisaged in the Rule. Neither is there an explanation as to why it took the Applicant over two years to enrol this application. There is further no explanation why when the matter was set down on 23 October 2007, the Applicant did not consider that the papers were outdated, and filed a supplementary affidavit.

[6] The process of Rule 43 is aimed at speedy and a cost efficient determination of issues between the parties. Certainly, that cannot be achieved under the circumstances of this case. The other aspect is the prolix nature of the papers as they are presently. The paginated papers are up to 69 pages. If further sets of affidavits are allowed, as would be the case if the parties are granted to file further affidavits, the papers would easily exceed 100 pages. That would also defeat the purpose of Rule 43 process, which envisages succinct outline of the issues. This would also place unnecessary burden on the judge who would be seized with the matter.

[7] Given what is stated above, I am of the view that this application should be struck off the roll. As regards costs, it is my view that the conduct of the Applicant, as outlined above, constitutes an abuse of the Rule 43 process. I must mark my disapproval thereto with an appropriate costs order.

[8] In the premises the order I make is the following:

[8.1] The application for a postponement is dismissed with costs;

[8.2] The main application, is struck off the roll;

[8.3] The Applicant is ordered to pay the Respondent’s costs, on an attorney and client scale;

[8.4] The costs mentioned above, shall be taxed outside the parameters of Rule 43[7] and [8].

_________________________

TM MAKGOKA

Acting Judge of the High Court

Heard on: 13 NOVEMBER 2007

For the Applicant: Adv NIEMANN

Instructed by: OJ BOTHA ATTORNEYS

For the respondents: Adv COETZEE

Instructed by: RONEL COETZEE ATTORNEYS

Date of Judgment: 20 NOVEMBER 2007

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