A Durban lawyer has been barred from charging her client fees for submitting a lengthy application which included pictures of a lipstick and semen-stained T-shirt and messages relating to an incident involving Viagra pills for provisional, pre-divorce maintenance.
In handing down this ruling, Durban high court judge Rob Mossop said: “Hopefully such an order will cause legal practitioners to show greater discipline in preparing these types of applications.”
Mossop noted the application before him was a Rule 43 application, which was meant to be a “succinct application” aimed at providing spouses in pre-divorce proceedings interim maintenance in a speedy and expeditious way.
The application had been brought by the wife against her husband.
Mossop said it was presented in three separate volumes which, from first to last page, contained some 260 pages — 200 of them annexures.
“Those who compiled this application obviously have paid no heed whatsoever to the contents of Rule 43 and its specific purpose.
“It was crafted to allow for disputes involving maintenance and associated relief in the matrimonial proceedings to be speedily and expeditiously resolved.
“This is understandable as the relief granted is not final but interim and will, in normal circumstances, not be in place for very long.”
He said where parties deliver voluminous papers, the essence of Rule 43 was “abused”.
“The applicant’s (the wife's) sworn statement is 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.
In my view, the growing trend of presenting Rule 43 applications that are lengthy and do not comply with the prescripts of the rule must be halted.
— Judge Rob Mossop
“Examples of these photographs are a photograph of a Michael Kors handbag allegedly purchased by the respondent (the husband), a photograph of the ‘respondent’s lipstick and semen-stained T-shirt’, and messages recorded on a cellular telephone relating to an incident involving Viagra pills.
“It is, quite frankly, scandalous that the (wife’s) legal advisers have permitted such irrelevancies to find a place in this application,” Mossop said.
He said the application was an “abuse” and it would not be considered with amendments, even if it was unopposed.
“In my view, the growing trend of presenting Rule 43 applications that are lengthy and do not comply with the prescripts of the rule must be halted. Judges simply do not have the time to peruse lengthy affidavits that narrate every misstep and alleged wrongdoing of a spouse.
“Often these allegations are included simply to colour the court’s mind against a particular party.”
Mossop said cost orders could be used to halt these abuses. But he was prepared to assume and accept that the applicant personally had no knowledge of what her application should contain.
“Those that had such knowledge, and who must have known, were her legal advisers,” he said.
He struck the matter off the roll and directed the woman’s attorney cannot charge any fees in respect of the application.
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