Background and Factual Matrix of the Rule 43(6) Dispute
The matter before the court in B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96 (13 May 2025) concerned a Rule 43(6) application brought by the applicant, seeking variation of an interim order previously granted on 21 August 2024 by Morgan AJ. The order pertained to both financial and parental responsibilities pendente lite. Although the parties acknowledged that the original order contained inaccuracies, particularly in relation to cash contributions for child maintenance, the dispute that followed escalated into what the court described as unnecessary and avoidable litigation, primarily due to the failure of the parties to properly engage with the recommendations of the Office of the Family Advocate.
Following the initial Rule 43 order, an inquiry was conducted by the Family Advocate in terms of the powers granted under the Mediation in Certain Divorce Matters Act 24 of 1987. The inquiry focused on the best interests of the minor children with regard to primary residence, contact and care. The family counsellor, after interviewing both parties and the children, recommended that the mother retain primary residence and that the father have structured contact rights, including alternating weekends and school holiday sharing. The report further admonished the parents to co-operate in parenting and to foster a positive image of each other in the children’s lives.
The applicant based his application for variation on alleged changed circumstances, relying on the contents of the Family Advocate’s report. He asserted that the respondent was engaging in behaviour designed to alienate him from the children. This included excluding him from decisions related to the children’s therapy and withholding communication. He proposed a shared residency arrangement, which he submitted would be in the children’s best interests, particularly as both parties resided on the same farm in separate homes.
The respondent, in turn, brought a cross-application, requesting relocation to Polokwane, financial contributions towards new rental accommodation, logistical support for the move, and a further contribution of R100 000.00 towards legal costs. She alleged that the applicant’s conduct had rendered her living conditions intolerable, including allegations that he spied on her and interfered with domestic staff.
The court was tasked with evaluating whether the applicant had made out a case for the variation of contact and spousal maintenance and whether the respondent’s counterclaims were justifiable. In doing so, the court scrutinised the underlying facts and dynamics of the parties’ relationship, the contents and authority of the Family Advocate’s report, and the broader consequences of the litigation on the children’s well-being.
In setting the context, the court highlighted a recurring problem in Rule 43 proceedings – the tendency of legal practitioners to burden the court with unnecessarily voluminous affidavits. Referring to Du Preez v Du Preez 2009 (6) SA 28 (T), Colman v Colman 1967 (1) SA 291 (C) and Visser v Visser 1992 (4) SA 530 (SE), the court reaffirmed the principle that Rule 43 is intended to provide a swift and cost-effective mechanism to resolve interim matrimonial disputes, and that prolixity in such proceedings constitutes an abuse of process.
The matter thus raised not only legal questions surrounding the best interests of the child, but also concerns about procedural efficiency and the ethical responsibilities of parties and their legal representatives in the conduct of high-conflict divorce litigation.
The Role of the Family Advocate and Judicial Deference to Expert Reports
The Family Advocate’s report, central to the dispute in B.P.M v J.L.M, served as a professional and neutral assessment of what would best serve the minor children’s welfare in the context of their parents’ separation. The family counsellor conducted interviews with both parents and the children and concluded that while primary residence should remain with the mother, the father’s contact rights ought to be clearly defined and consistently upheld.
The report underscored the importance of both parents fostering a respectful co-parenting relationship, encouraging them to avoid disparaging one another in front of the children and to co-operate on matters such as access, special occasion planning, and decision-making. Significantly, the family counsellor warned against the mother’s unilateral decision-making and her exclusion of the father from the therapeutic process of the children. These concerns, including indications of possible emotional coaching of the children, informed the recommendation for expanded contact with the father.
Mangena AJ emphasised that courts are not bound automatically by a Family Advocate’s recommendations, but any deviation must be justifiable and exercised with caution. Citing Soller NO v G and Another 2003 (5) SA 430 (W), the judgment reiterated that the Family Advocate acts neither as a representative of the parents nor of the child, but rather as an advisor to the court tasked with assisting in establishing the truth through a neutral process. The court acknowledged the Advocate’s specialist expertise, particularly in assessing children’s emotional and psychological needs—areas where judicial officers lack professional training.
The learned Acting Judge confirmed that while the court remains the upper guardian of all minor children, its powers should not be exercised to override specialised reports without sound reason. He cautioned that judicial intervention in the domain of the Family Advocate must be tempered by a clear awareness of the court’s own limitations. The principle that emerges is one of qualified judicial deference: respect for the report’s weight, without relinquishing judicial discretion.
This approach aligns with the overarching constitutional principle embedded in section 28(2) of the Constitution of the Republic of South Africa, 1996, which provides that a child’s best interests are of paramount importance in every matter concerning the child. The Family Advocate, as envisaged by the Mediation in Certain Divorce Matters Act 24 of 1987, plays a pivotal role in giving content and meaning to this standard by ensuring that the child’s voice and developmental needs are professionally conveyed to the court.
Parental Alienation Syndrome: Judicial Recognition and Intervention
The court in B.P.M v J.L.M was confronted with compelling evidence that the respondent’s conduct had the potential to alienate the minor children from their father. The Family Advocate’s report specifically noted that the mother had excluded the applicant from decisions concerning the children’s therapy and had spoken negatively about him in their presence. These observations prompted the court to examine the psychological and legal implications of such behaviour within the framework of parental alienation.
Relying on the decision in G v G 2003 (5) SA 396 (ZHC), the court reflected on the recognised symptoms of Parental Alienation Syndrome (PAS), including a child’s irrational hatred of the targeted parent, parroting of the alienating parent’s views, refusal of contact, and absence of guilt for rejecting the other parent. The learned judge noted with concern that the mother’s conduct mirrored several of these indicators. Of particular relevance was the counsellor’s comment that the older child appeared to be avoiding taking sides, despite subtle signs of having been coached.
The court highlighted that time favours the alienating parent, and that denying the targeted parent regular and meaningful interaction accelerates the psychological entrenchment of alienation. Left unchecked, PAS can result in significant long-term harm to the child’s emotional development and ability to form stable relationships. The applicant’s fear of becoming estranged from his children was accordingly not treated as speculative but as a legitimate concern requiring judicial action.
In seeking to arrest this dynamic, the court endorsed a contact regime that significantly increased the applicant’s time with the children. It recognised that proximity between the parties’ residences—both on the same farm—made such an arrangement practical and non-disruptive. The proposed schedule, extending from Thursday afternoons to Monday mornings every second weekend and adding alternate Thursday visits, was viewed as a means to counterbalance the respondent’s past conduct and promote emotional bonding.
In parallel, the court authorised the joint appointment of an independent psychologist through the Health Professions Council of South Africa, at the applicant’s cost. This step was taken to provide a forensic assessment of the children’s best interests regarding primary care. By doing so, the court acknowledged that judicial remedies in such matters must often be coupled with expert psychological interventions to address the underlying emotional harm already inflicted.
Spousal Maintenance, Procedural Abuse and Costs: Judicial Warnings on Rule 43 Excesses
In assessing the applicant’s request to reduce spousal maintenance and the respondent’s extensive counter-application, the court was candid in its disapproval of how both parties—assisted by legal representatives—had allowed interim Rule 43 proceedings to spiral into protracted, costly, and overly litigious battles. Mangena AJ underscored that the applicant had failed to make out a case for the variation of spousal maintenance. Merely stating an inability to afford the existing amount, without furnishing concrete financial evidence or detailing his income and expenditure, did not satisfy the legal threshold. He remained obligated to maintain the respondent as his lawful spouse until the dissolution of the marriage.
Conversely, the respondent’s counter-application was found to be excessive and unmerited. She sought an additional R100,000.00 towards legal costs, a relocation allowance of R25,000.00 per month, and logistical assistance, alleging an intolerable living environment on the farm. The court rejected this on the grounds that such relocation would destabilise the children, who had become accustomed to their current home. The respondent had already been awarded substantial contributions under the initial Rule 43 order, and the evidence presented failed to justify further extraordinary financial demands.
The judgment delivered a stern reminder about the abuse of Rule 43 procedures. The affidavits filed were described as unnecessarily prolix, replete with irrelevant annexures, and largely devoid of the concise urgency that Rule 43 applications are intended to capture. In echoing the sentiments of Du Preez v Du Preez 2009 (6) SA 28 (T), and invoking the dicta in Colman v Colman 1967 (1) SA 291 (C) and Visser v Visser 1992 (4) SA 530 (SE), the court reaffirmed that interim relief proceedings must be swift, limited to essential facts, and designed to preserve dignity and resources pending final divorce resolution.
The court’s refusal to award costs to either party further signalled judicial dissatisfaction with the manner in which the litigation was pursued. It warned against the frittering away of the joint estate through legal warfare driven by petty grievances. Drawing inspiration from Belford v Belford 1980 (2) SA 843 (CPD), the judgment called upon legal practitioners to steer their clients away from vengeful litigation and toward constructive engagement, reminding them of their ethical duty to preserve the estate for the benefit of the children and future generations.
Questions and Answers
What was the legal basis for the variation application in B.P.M v J.L.M?
The applicant relied on Rule 43(6) of the Uniform Rules of Court, which allows a party to seek variation of an interim maintenance or contact order where there are new facts or changed circumstances.
Did the court find that there had been a material change in circumstances?
Yes, the court accepted that the findings and recommendations contained in the Family Advocate’s report constituted a material change that justified revisiting the earlier contact arrangements.
Was the Family Advocate’s report binding on the court?
No, the court is not bound by the report of the Family Advocate, but it must give it due consideration unless compelling reasons exist to disregard it.
What weight did the court attach to the Family Advocate’s findings?
The court gave substantial weight to the findings and recommendations, emphasising that the Family Advocate operates as a neutral expert assisting the court in determining the best interests of the minor children.
How did the court interpret the respondent’s conduct in light of the Family Advocate’s report?
The court found that the respondent’s conduct suggested a pattern of excluding the applicant from meaningful participation in the children’s lives, including decision-making and emotional support, which could amount to parental alienation.
What is parental alienation and how was it relevant in this matter?
Parental alienation involves psychological manipulation of a child by one parent against the other. It was relevant here because the court found signs that the respondent may have been denigrating the applicant in the children’s presence and limiting his contact with them.
Did the court approve the applicant’s proposal for shared residency?
The court did not grant shared residency but varied the contact schedule significantly to allow the applicant more consistent and meaningful time with the children.
How did the court address the issue of spousal maintenance?
The court dismissed the applicant’s request to reduce spousal maintenance, stating that he had failed to provide sufficient financial disclosure to support his claim of inability to pay.
Was the respondent’s cross-application for additional financial relief successful?
No, the court dismissed her application for a relocation allowance and additional legal costs, finding it excessive and unsupported by the circumstances.
Did the court find the conduct of the legal representatives appropriate?
No, the court criticised the legal practitioners for contributing to the prolixity and inefficiency of the Rule 43 process, referencing authorities that condemn such abuse.
Which cases did the court rely upon to warn against prolixity in Rule 43 proceedings?
The court referred to Du Preez v Du Preez 2009 (6) SA 28 (T), Colman v Colman 1967 (1) SA 291 (C), and Visser v Visser 1992 (4) SA 530 (SE), each of which cautions against lengthy and unnecessarily detailed affidavits in interim applications.
Was there any provision made for further expert evaluation of the children?
Yes, the court ordered that the parties jointly approach the Health Professions Council of South Africa to appoint an expert psychologist to conduct a forensic assessment, with costs to be borne by the applicant.
How did the court define the limits of the applicant’s access to the marital home?
The applicant was prohibited from entering the marital home except in emergencies or when invited by the respondent, recognising the tension between the parties.
What approach did the court take to the issue of relocation by the respondent?
The court refused to permit relocation, noting that it would uproot the children from a familiar environment without agreement between the parties, which would not serve their best interests.
Did the court make any cost orders?
Yes, the court ordered that each party should bear their own costs, signalling disapproval of the manner in which both parties had conducted the litigation.
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.
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