Factual Background and Procedural History
The case A.C v H.C (2024/148225), decided on 28 July 2025 in the Gauteng Local Division, Johannesburg, addressed a Rule 43 application for interim relief in a matrimonial dispute. The applicant (A.C) sought several forms of pendente lite relief while divorce proceedings were contemplated. Specifically, she requested:
Primary residence of the four minor children of the marriage,
Defined contact arrangements between the children and the respondent (H.C),
Payment of maintenance (for herself and the children), and
A contribution of R100,000 towards her legal costs.
These interim measures were to operate pending the finalization of a divorce action. Notably, the applicant also sought costs of the Rule 43 application on an attorney-and-client scale.
Timeline of Proceedings
The applicant’s founding affidavit was deposed on 16 December 2024 (with the notice of motion signed the same day), and the Rule 43 application was issued under case number 2024/148225. The application was served on the respondent on 6 January 2025. At that time, however, no divorce summons had yet been issued in any court. The parties had separated on 6 September 2024 when the respondent left the matrimonial home, and after attempts at reconciliation failed by November 2024, the applicant acknowledged that divorce was inevitable. In her founding papers, she candidly stated that she had “not as yet instituted” a divorce action but intended to do so in the High Court.
Upon being served, the respondent opposed the application and raised an immediate point in limine. In his answering affidavit (sworn reply) of 4 February 2025, he objected that the Rule 43 application had been launched before any divorce action was instituted, and thus the court lacked jurisdiction to grant relief. He asked that the application be dismissed on this basis, with the applicant to pay wasted costs on the punitive attorney-client scale. (He also filed a conditional counter-application on the merits, to be considered only if the Rule 43 proceeded.)
The applicant, represented by senior counsel (Mr. Kloek), delivered an extensive replying affidavit of about 305 pages with annexures. Despite this voluminous reply – which even addressed the point in limine – the fundamental procedural issue remained: no divorce summons had been issued by the time of the Rule 43 hearing. When the matter came before Acting Judge Abro on 23 July 2025, the judge immediately flagged that the application did not appear to be properly before the court in the absence of a pending or issued divorce action. Indeed, it emerged that only on 17 July 2025 (just three court days before the hearing) had the applicant’s attorneys belatedly caused a divorce summons to be issued – and even then under a different case number than the Rule 43 application. The summons had not yet been served (service was arranged for later that day) and no copy of the summons or explanation for the seven-month delay in issuing it was provided to the court.
Both A.C and H.C are attorneys by profession (each represented by their own attorneys and senior counsel in this matter), which heightened the expectation of procedural compliance. The lengthy gap between launching the interim relief application (in December 2024/January 2025) and taking steps to commence the actual divorce action (only in July 2025) was a focal point of concern. Judge Abro, therefore, confined the hearing to the jurisdictional objection – i.e. whether the Rule 43 application was premature – and did not entertain the substantive merits of the interim relief sought.
The In Limine Point: Rule 43 and the Requirement of a Pending Divorce
The preliminary issue raised by the respondent was whether a Rule 43 application for interim relief can be pursued before a divorce action has been initiated, or whether the existence of a pending (or at least formally commenced) matrimonial action is a jurisdictional prerequisite for Rule 43 relief. In simpler terms, can one spouse obtain interim orders for maintenance, child custody, etc., pendente lite if no divorce summons has yet been issued? Rule 43 of the Uniform Rules of Court provides an expedited procedure for spouses to seek interim relief in matrimonial matters “pending” a divorce, but an amendment in 2018 introduced the phrase “or about to be instituted” in one sub-paragraph of the rules. The key legal question was how to interpret that amendment and whether it creates any exception to the general requirement of a pending action.
Rule 43(1) enumerates the types of relief available: (a) maintenance pendente lite; (b) a contribution towards the costs of a matrimonial action, pending or about to be instituted; (c) interim care of a child; and (d) interim contact with a child. The contentious language “pending or about to be instituted” appears only in sub-rule (1)(b) (costs contribution). The applicant’s argument, as reflected in her replying affidavit, was essentially that a divorce was certainly going to be instituted and that Rule 43 should be available because a marital dispute clearly existed and divorce was envisaged. She contended that the Rule “envisages…a divorce summons will be instituted,” thus suggesting that actual issuance of summons was not a strict requirement so long as divorce was contemplated. The respondent, conversely, maintained that without a pending divorce action, the court had no authority to grant any Rule 43 relief, except perhaps in the narrow scenario explicitly allowed by the rule’s wording.
Judge Abro noted that the applicant’s interpretation of what Rule 43 “envisages” was mistaken and not supported by the Rule’s provisions. The ordinary principle (prior to the 2018 amendment) was that Rule 43 applies only when a divorce or matrimonial action is already underway (i.e. pendente lite meaning “pending the litigation”). The introduction of “about to be instituted” in 2018 had to be construed in context – it was not a blanket license to sidestep the need for a pending case in all types of interim relief applications. Here, the applicant’s request was not limited to a contribution towards legal costs; it encompassed custody, contact, and maintenance – issues typically requiring an existing divorce action as the jurisdictional hook. Thus, the central in limine issue became whether the 2018 amendment to Rule 43(1)(b) altered the long-standing requirement of a pending divorce action for all categories of relief under Rule 43, or only for cost contributions.
Importantly, at the 23 July 2025 hearing, Judge Abro expressed that the matter was not properly before the court due to the lack of any divorce action at the time of launching and serving the application. The belated issuance of summons a few days before the hearing did not automatically cure this defect, especially since it came with no explanation for the delay and was filed under a different case numbers.
The judge underscored that jurisdictional requirements cannot be satisfied retroactively at the “eleventh hour.” As both parties in this case were legally represented (indeed, both were lawyers themselves), adherence to procedural prerequisites was expected, and the respondent’s technical objection was deemed well-founded.
In summary, the respondent’s in limine point raised a fundamental question of jurisdiction and procedural propriety: Can a spouse invoke Rule 43 for interim relief prior to instituting divorce proceedings, by relying on an intention to institute divorce or the phrase “about to be instituted” in the rule? This question is examined against the backdrop of the 2018 amendment and prior case law in the sections that follow.
Interpreting the 2018 Amendment to Rule 43(1)(b): “Pending or About to be Instituted”
The 2018 amendment to Rule 43(1)(b) introduced the words “or about to be instituted” with respect to a contribution towards costs in a matrimonial action. Crucially, this amendment applied only to sub-rule (1)(b) and not to the other sub-rules (a), (c), or (d) concerning maintenance, interim care, or interim contacts. In Judge Abro’s analysis, this selective language was deliberate: had the Rules Board intended to permit any Rule 43 relief when a divorce was merely contemplated, it would have mirrored the “about to be instituted” phrasing in all the sub-sections of Rule 43(1). The fact that only the cost contribution provision was altered indicates a narrowly-tailored change rather than a wholesale overhaul of the Rule 43 procedure.
The judgment explains the rationale for this targeted amendment. It aligns with constitutional and policy considerations aimed at promoting access to justice, especially for economically vulnerable spouses (often wives) at the breakdown of a marriage. The Constitutional Court in S v S and Another (2019) highlighted the reality that applicants in Rule 43 matters are “almost invariably women” who frequently occupy a weaker financial position compared to their husbands. The Court noted that black South African women, in particular, have been “doubly oppressed” by race and gender, and that economic disparity in matrimonial contexts remains a persistent challenges. Effective interim relief mechanisms are thus essential to protect the most vulnerable, ensuring that legal processes (like divorce and maintenance enforcement) do not exacerbate gender inequality.
Furthermore, in H v H (GJ 2023), Victor J addressed the specific issue of contributions towards legal costs, observing that “often one party, usually the wife, will not be in a position to institute or defend a divorce due to a lack of financial means”. This statement encapsulates why Rule 43(1)(b) was amended – to allow a spouse with limited resources to seek funds in advance for the very purpose of launching or defending a divorce action. Prior to the amendment, a Catch-22 situation could arise: a spouse needed a divorce case pending to get an interim cost contribution, but could not afford to start the case without that contribution.
The 2018 change remedied this by permitting a contribution order for a matrimonial action “about to be instituted,” thereby empowering financially disadvantaged spouses to initiate divorce proceedings without first having to bankroll the litigation entirely on their owns.
Judge Abro emphasised that this ameliorative amendment was clear and unambiguous in its limited scope: it applies “only to applications where a contribution towards the costs of a matrimonial action is sought.” It was a targeted fix to assist spouses (disproportionately women) who require funds to commence divorce litigation and would otherwise be unable to do so. Nothing in the amendment’s text or purpose suggests an intention to dispense with the requirement of a pending action for other forms of interim relief (such as maintenance or child custody). Indeed, the court noted that if a broader change had been intended, the Rules Board would have explicitly extended the “pending or about to be instituted” language to Rule 43(1)(a), (c), and (d) as well. The fact that it did not do so “was clearly not an oversight but an intention to confine the exception to cost contributions”.
In A.C v H.C, the applicant was not primarily seeking a cost contribution to enable a divorce; only a small part of her relief related to legal fees, with the bulk of her claims concerning maintenance and children’s residence/contact. Thus, her situation did not fall within the narrow safe-harbour of an application “about to be instituted” for costs. The court pointed out that she offered no explanation in her affidavits for why she hadn’t issued the divorce summons earlier, despite ample opportunity. Her counsel’s belated argument that the 2018 amendment somehow rendered the prior case law inapplicable was rejected.
Judge Abro expressly disagreed with the notion that the Pretoria decisions (requiring a pending action) were “distinguishable” post-amendment – underscoring that only sub-rule (b) was changed, and the established principles still govern scenarios like the present one.
To reinforce this interpretation, the judgment cited authoritative commentary and case law: Even after 2018, leading procedural texts (such as Erasmus’ Superior Court Practice) continue to state that Rule 43 applies to “a pending divorce action” and deals only with “pending matrimonial disputes,” noting in footnotes the one exception for cost contributions in actions about to be instituted. In summary, the constitutional context justified the 2018 amendment to assist vulnerable spouses with litigation costs, but that context did not extend to creating a general bypass of the pending action requirement for all interim relief. Rule 43 remains, at its core, a mechanism “ancillary” to a divorce or matrimonial proceeding – not a free-standing remedy to be used in isolation of any filed case.
Judicial Precedents and Conflicting Authorities on the Summons Prerequisite
The question of whether a divorce summons must be issued before (or simultaneously with) a Rule 43 application has been considered in numerous cases over the years. Judge Abro’s decision in A.C v H.C engages with this body of precedent, some of which pre-dates the 2018 amendment and some decided afterward. The authorities reveal an overwhelming consensus that a pending divorce action is required, with only a few outliers suggesting more leniency. Below is a summary of the key cases and principles:
Levy v Levy (1904 EDC 113) – This is an old case from 1904 (decided long before the Uniform Rules of Court existed) that the applicant’s counsel heavily relied on. In Levy, a wife obtained an order for maintenance pendente lite and a contribution towards costs to institute divorce proceedings, despite no action being underway. However, that case was decided under common law powers, since Rule 43 did not yet exist, and it involved a dispute over whether a marriage was valid. Judge Abro found Levy clearly distinguishable: it did not speak to Rule 43’s procedure or requirements (given the rule was not in force in 1904). Thus, while Levy confirmed the concept of interim maintenance and cost contributions in principle, it offers no precedential value on the procedural issue of needing a summons – a point the court highlighted in explaining that post-1965 authorities (after the advent of the Uniform Rules) are the relevant ones. The attempt by applicant’s counsel to treat Levy (a two-judge decision) as binding precedent was firmly rejected.
Bienenstein v Bienenstein (1965 (4) SA 449 (T)) – Decided in 1965, shortly after Rule 43 was introduced, this Transvaal decision contained an oft-quoted remark that Rule 43 can apply “in respect of a proposed matrimonial action” (suggesting that proceedings need not be filed yet). However, as later courts observed, Bienenstein cited no authority for this proposition and simply stated it without analysiss. Judge Abro noted that Bienenstein has been criticised by subsequent judgments for lacking reasoning. Thus, its value as precedent is questionable, especially in light of more developed judgments thereafter.
Varkel v Varkel (1967 (4) SA 129 (C)) – A Cape decision from 1967, where Van Winsen J commented that Rule 43 was meant to provide quick, inexpensive interim relief in matrimonial disputes “pending or about to be instituted”. This phrasing foreshadows the 2018 amendment wording. However, it’s not clear if this was an interpretation of the rule’s scope or an obiter dictum. In any event, like Bienenstein, Varkel predates modern clarifications and did not squarely resolve the summons prerequisite.
Moolman v Moolman ([2007] ZAGPHC 273) – A pivotal Gauteng High Court (Pretoria) case decided by Seriti J in 2007. Moolman is a leading authority establishing that “an action can only pend once at least summons has been issued”. The court held that before a summons is issued, there is no lis (pending action) and “no talk of pending action” can be had. Seriti J explicitly rejected the idea that issuing a divorce summons after launching a Rule 43 could cure the defect; if the application was initiated without a summons, it was fatally flawed from the start. In Moolman, the Rule 43 application was accordingly dismissed, upholding the point in limine (just as the respondent in A.C v H.C sought). This case firmly established the summons-first rule in Gauteng jurisprudence prior to the amendment.
LS v GAS ([2016] ZAWCHC 154) – A 2016 Western Cape High Court decision by Davis J, which dealt with a similar scenario. Davis J agreed that the absence of a pending action was a valid in limine objection. In that case, the wife had delayed about six months without issuing summons after launching Rule 43, and only just before the hearing was a summons filed (accompanied by an explanatory affidavit). While Davis J was critical of the delay – calling the application “skeletal” and the absence of timely summons unexplained – he took a somewhat pragmatic approach. Because the differences between the parties were narrow and a summons had been (belatedly) issued by the hearing, he decided to hear the merits and grant interim relief, but with a significant condition: the order would be of no force or effect if a divorce summons was not formally issued within 7 days.
In effect, he allowed the interim order to stand only because the jurisdictional defect was cured almost in time, and he wanted to prevent prejudice. Nonetheless, LS v GAS reinforced the notion that a Rule 43 launched without summons is problematic; Davis J explicitly warned that “contemplated litigation must mean litigation about to be launched, not litigation that… may proceed at a glacial pace” at the whim of the applicant. His conditional relief underscored that Rule 43 is not meant to provide indefinite interim support absent a duly filed divorce action.
D v D ([2017] ZAGPPHC 293) – A 2017 Pretoria High Court case (Tolmay J) which squarely addressed this issue. In D v D, the wife had not issued summons before her Rule 43, merely stating she “intends” to divorce. The court found that without a pending matrimonial action, Rule 43 is open to abuse. Tolmay J vividly described the “very real danger” that someone with no bona fide intention to actually get divorced could still use Rule 43 to obtain interim relief (e.g. maintenance) and then never follow through with the divorce – a clear abuse. The possibility of such misuse was “self-evident,” in her words. D v D upheld the point in limine, dismissing the Rule 43 application – but with a proviso: if a summons under that case number was later issued and served, the parties could proceed with the Rule 43 on the same papers (updated if necessary). This proviso was intended to mitigate prejudice, particularly to minor children, by allowing the matter to be re-enrolled swiftly once the procedural defect (no summons) was cured. The approach signalled that while the court would not countenance a premature Rule 43, it recognised the need to avoid unnecessary duplication once the divorce case formally commenced.
R.O v M.O ([2017] ZALMPPHC 38) – A late 2017 judgment by Phatudi J in the Limpopo (Polokwane) High Court, echoing Tolmay J’s concerns. In RO v MO, a delay of about 1 month and 3 weeks between the Rule 43 application and any summons was deemed “unreasonably too long”. Phatudi J agreed that issuing and serving summons after launching the interim application “cannot avail” an applicant – in other words, one must have the summons at the start, not as an afterthought. He also eloquently warned of the inherent danger if interim relief were obtainable without a pending divorce: a capricious litigant could secure temporary maintenance or custody orders without ever finalising the divorce, thus leaving matters in limbo. RO v MO reaffirmed that “the issuing of a divorce summons is thus a prerequisite” and Rule 43 “clearly refers only to pending matrimonial causes”. This clear statement buttressed the prevailing interpretation that, amendment aside, a pending case is required.
D.J.D v P.A.G.L ([2018] ZAGPPHC 543) – Although briefly mentioned in the arguments (as DD v AL 2018 JDR 1225 (GP), presumably the same case), this was another Pretoria decision in mid-2018 by Maakane AJ, just around the time the rule was amended. The facts saw a 4½ month delay from separation to launching Rule 43, with no summons issued by the time of the application. The delay was unexplained and deemed “unreasonably too long”. The court upheld the point in limine and dismissed the application, again with a similar allowance that it could be reinstated on the same papers after summons was issued (mirroring D v D’s approach). This indicated continuity in the Gauteng position: even post-amendment (GN 42064 came into effect in late 2018), judges were still insisting on summons first, especially where the interim relief sought was not solely a cost contribution.
T.H v L.A.H ([2020] ZAGPPHC 109) – A Pretoria High Court case by Rabie J in April 2020, notably after the 2018 amendment took effect. In TH v LAH, as in A.C v H.C, the applicant sought interim residence, contact, maintenance, and costs before a divorce was filed. No answering affidavit on the merits was filed; instead, at the hearing the respondent’s counsel appeared to argue only the jurisdictional point (no summons issued). It was common cause that no divorce summons existed yet. Rabie J agreed with the line of judgments above, holding the in limine point was “well taken” and that the application was prematurely instituted and cannot succeed. He considered whether the court, as the upper guardian of children, should nevertheless make some interim order to protect the children, but ultimately refrained and dismissed the application outright. Interestingly, Rabie J noted there were conflicting decisions in his division on this issue and that recent decisions like those he cited might not be widely known or reported. As a result, he made no order as to costs, having sympathy that the applicant might not have been aware of the stricter stance and to avoid penalizing her for a perhaps misunderstood procedural points. TH v LAH is significant because it confirms that even after the 2018 amendment, at least one judge post-amendment adhered to the necessity of a pending action for all relief (the amendment notwithstanding).
In light of these authorities, Judge Abro in A.C v H.C aligned with the dominant view. She explicitly stated that she considered herself bound by the Gauteng decisions (like Moolman, D v D, DD v AL, TH v LAH, etc.) as good law, and not bound by the older or distinguishable cases like Levy. The weight of precedent clearly favoured the respondent’s position: at least a divorce summons must be issued prior to or at the time of launching a Rule 43 application (except where the limited cost contribution exception applies).
Any conflicting suggestions (such as the conditional approach in LS v GAS or the outdated implication of Bienenstein) did not dislodge the fundamental principle that an interim relief application is “ancillary” to a divorce action, not independent of it.
The Court’s Ruling in A.C v H.C and Implications for Future Rule 43 Applications
In the present case, Acting Judge Abro upheld the point in limine, agreeing that the Rule 43 application was not properly before the court due to the lack of any pending divorce action at the time it was launched. The judge’s ruling reinforces the principle that – aside from the specific allowance for cost contributions – a party must initiate or at least concurrently institute divorce proceedings if they wish to access the court’s interim relief under Rule 43.
Key aspects of the ruling:
Belated Summons Did Not Cure the Defect: The fact that the applicant hurriedly issued a divorce summons on 17 July 2025 (just days before the hearing) did not rescue her application. Judge Abro noted that no copy of that summons was provided and no explanation given for waiting over half a year to issue it. This delay – from December 2024 to July 2025 – was deemed unreasonably long and in contravention of both Rule 43’s intent and the case law. The court characterized the applicant’s attitude as “supine,” highlighting that she had “ample time” to start the divorce but simply failed to do so without explanation. Thus, a last-minute filing of summons at the “11th hour” was too little, too late. The judge also pointed out a practical complication: the summons was issued under a different case number, whereas a Rule 43 application is supposed to be ancillary to the main divorce case – having two separate case files could create procedural confusion.
No Merits Heard – Application Removed (Not Dismissed): Because the matter was premature, the court refused to hear any arguments on the substantive merits of custody, maintenance, etc.. The next question was the appropriate order: dismissal versus removal. The applicant’s counsel urged that if the in limine objection were upheld, the court should remove the application from the roll rather than dismiss it, to allow for re-enrollment once the procedural issue was fixed. Judge Abro agreed that removal was the correct course. Therefore, the order made was that the application is removed from the roll (as opposed to a final dismissal). Moreover, the court explicitly permitted the applicant to re-enroll the Rule 43 application on the same papers after proper service of the divorce summons on the respondent, with the requirement that a copy of the summons and proof of its service be provided to that future Rule 43 court. This approach is consistent with the provisos in D v D and DD v AL – it prevents undue prejudice by allowing the interim relief issue to be revived without starting from scratch, once the jurisdictional prerequisite is met.
Costs Consequences: On the issue of costs, the court held that “costs normally follow the result” and since the applicant had effectively lost this round (due to her own procedural lapse), she should bear the wasted costs of the 23 July 2025 hearing. The respondent’s counsel had sought a punitive (attorney-client) costs order against the applicant for dragging them to court prematurely.
Conversely, the applicant’s side argued costs should either be reserved or only on the ordinary party-party scale, and pointed fingers at the respondent’s minor procedural delays (his reply was filed 12 days late, and his financial disclosure 5 days late). Judge Abro found the applicant’s arguments on costs to be misconceived. She noted the irony that the applicant had herself requested punitive costs against the respondent in her notice of motion (despite no basis laid in her affidavit), yet it was the applicant’s own non-compliance that was far more significant. The judge remarked that complaining about the respondent’s slight non-adherence to time limits was irrelevant at this stage – “people in glass houses shouldn’t throw stones”.
Since the entire application was premature and “not properly before” the court, any alleged delays by the respondent were moot. Accordingly, the court declined to impose punitive costs on the respondent; instead, it ordered the applicant to pay the wasted costs of the abortive hearing (on the normal scale).
Professional Expectations: The court subtly chided both sides for the handling of the matter, noting frustration that counsel had not done more robust research on the point of law. Given that both parties are attorneys (and represented by seasoned lawyers), the judge expected a higher standard of diligence. The applicant’s reliance on century-old Levy and failure to grapple with on-point modern authorities was a point of criticism. Ultimately, however, it was the applicant who bore the risk of proceeding without a summons. The judgment underscores that even skilled legal professionals must follow basic procedural rules – a lapse will not be indulged simply because the underlying merits might be sympathetic.
Implications: The decision in A.C v H.C serves as a clear cautionary tale for family law practitioners in South Africa. It reinforces that, except in the limited instance of a costs contribution to initiate a divorce, a Rule 43 application cannot be used as a stand-alone tool before a divorce action exists. Spouses seeking interim maintenance, child custody, or related relief must ensure that a divorce summons is issued (and ideally served) at or before the time they seek pendente lite relief. Failure to do so will likely result in the application being deemed premature and struck off or removed, causing wasted time and expense.
The judgment also clarifies that the 2018 amendment to Rule 43(1)(b) is not a loophole to obtain interim relief in the absence of a filed divorce. Its effect is narrowly confined to empowering courts to order contributions towards legal costs for contemplated matrimonial actions – nothing more. Parties cannot circumvent the requirement of a pending divorce for substantive interim relief by simply claiming a divorce is “about to” happen while indefinitely delaying filing. Courts will look askance at any significant, unexplained delay between the Rule 43 and the divorce action, suspecting potential abuse or lack of bona fides.
After A.C v H.C, the message in the Gauteng jurisdiction is unequivocal: “Summons must have been issued prior to, or simultaneously with, an application in terms of the rule.”. The only exception is the scenario envisaged by Rule 43(1)(b) (cost contributions), and even then, prudent practice would be to issue the divorce summons promptly after obtaining such an order. Practitioners should heed the timeline in this case – a seven-month delay was far too long and without justification.
Finally, while a few cases like showed willingness to grant interim relief conditionally, Judge Abro did not endorse that path for the circumstances before her. Her approach aligns with the stricter stance that sees the summons as a jurisdictional trigger that cannot be retroactively supplied at leisure. Going forward, unless appellate courts or rule-makers say otherwise, litigants in matrimonial disputes should treat the issuance of a divorce summons as a sine qua non for invoking Rule 43 (save for the specific cost contribution exception). By doing so, they ensure their interim applications are properly before the court, avoiding procedural challenges that can derail urgent relief for those who need it.
Questions and Answers
What is the fundamental legal question addressed in the A.C v H.C judgment?
The court addressed whether Rule 43 of the Uniform Rules of the High Court may be utilised prior to the issue of divorce summons, and whether the 2018 amendment to Rule 43(1)(b) provides a blanket exemption for parties to ignore established principles requiring pending matrimonial proceedings.
Which specific provision of Rule 43 was amended in 2018 and what words were added?
Only sub-rule (1)(b) relating to contributions towards costs of matrimonial actions was amended by Government Notice 42064 dated 30 November 2018, with the addition of the phrase “or about to be instituted” after the existing requirement for proceedings to be “pending”.
What was the constitutional rationale behind the 2018 amendment to Rule 43(1)(b)?
The amendment was designed to address gender imbalance and assist women who occupy the lowest economic rung and are generally in a less favourable financial position than their husbands. The S v S case recognised that applicants in Rule 43 applications are almost invariably women who may be precluded from accessing justice due to financial constraints.
Does the 2018 amendment apply to all forms of relief available under Rule 43?
No, the amendment only applies to applications for contributions towards costs of matrimonial actions under sub-rule (1)(b). Relief relating to maintenance pendente lite, interim care of children, and interim contact arrangements under sub-rules (1)(a), (c) and (d) still require pending matrimonial proceedings.
What did the court in the Moolman case establish regarding the summons requirement?
Seriti J held definitively that an action can only pend once at least summons has been issued, and that prior to issuing summons there can be no talk of pending action. The court also found that subsequent issuing of divorce summons does not cure the fatal defect of launching a Rule 43 application prior to summons.
How did the court distinguish the present case from the Levy v Levy authority relied upon by the applicant?
The court found the Levy case distinguishable because it was decided in 1904 before the Uniform Rules of Court came into operation in 1965, dealt with different procedural circumstances, and did not address the application of Rule 43 as it existed at the time.
What dangers did various courts identify in allowing Rule 43 applications without pending matrimonial proceedings?
Courts identified the risk that parties could institute Rule 43 proceedings without bona fide intention to institute divorce proceedings, obtain provisional relief without finalising matrimonial causes, and engage in abuse by capricious litigants seeking relief without proceeding with actual divorce.
What approach did the court reject from the Barakat v Barakat judgment?
The court rejected Mahomed AJ’s approach of hearing the application and granting interim relief whilst suspending the order pending issue of divorce action within twenty days. Abro AJ found this approach inappropriate where no divorce action had been instituted.
What procedural timeline led to the court’s criticism of the applicant’s conduct?
The court noted an unreasonable seven-month delay from signing the notice of motion in December 2024 to eventual issuance of summons in July 2025, characterising the applicant’s attitude as supine given the ample opportunity to rectify the procedural defect.
What order did the court make regarding the disposal of the application?
The court removed the application from the roll but permitted the applicant to re-enrol the Rule 43 application on the same papers after proper service of summons, with the requirement to provide the court with a copy of the summons and proof of service.
How did the court address the applicant’s request for punitive costs against the respondent?
The court rejected the applicant’s submission seeking punitive costs for the respondent’s alleged non-compliance with court rules, finding such arguments misconceived given the fundamental procedural defect that rendered the entire application premature.
What significance did the court attach to both parties being attorneys in this case?
The court emphasised that both parties were attorneys represented by senior counsel, referencing the adage “people in glass houses shouldn’t throw stones” to underscore the importance of procedural compliance before criticising opposing parties for technical infractions.
According to the TH v LAH judgment, how did the courts view Rule 43 applications post-2018 amendment?
Even after the 2018 amendment, Rabie J agreed with established precedents that the in limine point regarding absence of pending proceedings was well taken, and that applications launched without issued summons were prematurely instituted and could not succeed.
What did the court establish regarding the difference between removal and dismissal of Rule 43 applications?
The court agreed with the applicant’s counsel that the correct order was to remove rather than dismiss the application, allowing the applicant opportunity to re-enrol after proper compliance with procedural requirements rather than requiring a fresh application.
What are the practical implications of this judgment for future Rule 43 practitioners?
The judgment establishes that summons must be issued prior to or simultaneously with Rule 43 applications, except for the narrow exception under amended sub-rule (1)(b) for cost contributions. Practitioners must ensure proper procedural compliance before seeking substantive interim relief concerning children and maintenance, and cannot rely on the 2018 amendment as providing blanket exemption from established requirements.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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