A Durban judge was fed up with the lawyers of a divorcing woman who launched an application for interim maintenance, and attached dozens of pictures to the application which included a picture of the husband’s lipstick- and semen-stained T-shirt.
Judge Robin Mossop, sitting in the high court in Durban, said Rule 43 applications (interim maintenance while a divorce is still pending) are interim in nature and thus speedy and swift procedures.
He questioned how the lawyers allowed reams of irrelevant documentation to be handed to court. He said the wife’s sworn statement was “prolix in the extreme”.
“It contains irrelevant allegations and has attached to it literally dozens of photographs, the precise relevance of which is not clear.”
Judge Mossop said examples of these pictures were a photograph of a Michael Kors handbag allegedly purchased by the husband, and messages recorded on a cellphone relating to an incident involving Viagra pills. This was apart from the lipstick- and semen-stained shirt.
“It is, quite frankly, scandalous that the applicant’s (the wife’s) legal advisers have permitted such irrelevancies to find a place in this application,” the judge said.
The wife turned to court to obtain interim maintenance from her divorcing husband, pending the final divorce. Her lawyers filed 260 pages in which they claimed they had set out the relevant facts.
But Judge Mossop said the relief that the applicant claimed covered five pages of the notice of application, followed by her sworn statement which ran into about 57 pages. The rest of the documentation — about 200 — were simply annexes such as the pictures relating to her husband’s alleged antics.
The judge said those who compiled the application had obviously paid no heed whatsoever to the rule that these types of applications had to be speedily and expeditiously resolved by the courts. He commented that the law in this regard was understandable, as the relief that was granted was not final, but interim in nature that would in normal circumstances not be in place for very long, as it would be only pending the final divorce.
Judge Mossop said the application before him was an abuse of the court process, which the court would not allow.
He said the applicant must first present an application that complied with the prescripts of Rule 43 if she wanted her application to be considered and adjudicated upon. Until she did so, and even in the absence of opposition from the respondent, it would not be considered.
Judge Mossop said the growing trend of presenting Rule 43 applications that were lengthy and that did not comply with the legal prescripts must be halted. “Judges simply do not have the time to peruse lengthy affidavits that narrate every misstep and alleged wrongdoing of a spouse,” he said.
The judge noted that often these allegations were included simply to colour the court’s mind against a particular party. “One way of potentially halting these abuses is to order costs against a party that is guilty of prolixity,” he said.
However, Judge Mossop was prepared to assume and accept that the applicant (wife) personally had no knowledge of what her application should contain. “Those that had such knowledge, and who must have known that the application that was prepared for the applicant offended the provisions of Rule 43, were her legal advisers.”
In striking the matter from the roll, Judge Mossop ordered that the wife’s legal team may not charge her at all for bringing the application to court. “Hopefully, such an order will cause legal practitioners to show greater discipline in preparing these types of applications,” Judge Mosso said.
Pretoria News
zelda.venter@inl.co.za
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