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Payment of costs and maintenance pending divorce: Rule 43 applications By Jean de Wet

The payment of legal costs and maintenance while parties are engaged in divorce litigation is often a crucial issue, which is regulated by Rule 43 of the Uniform Rules of Court. An application under Rule 43 is a common occurrence in divorce litigation. Rule 43 provides interim relief to a spouse in divorce proceedings, in respect of “maintenance pendente lite; a contribution towards the costs of a pending matrimonial action; interim custody of any child and interim access to any child”. It provides an effective remedy in circumstances where a divorce is opposed and where it may take a long time (even several years) to be finalised. The prescribed process is a simple one: Each party files an affidavit (with annexures) setting out their respective positions and arguments, and no further affidavits are allowed, unless the court requests it.

While normally a court order with final effect, a Rule 43 order is unique in that it is not appealable. This may seem to be contrary to the fundamental rights of litigants, but it has received a “constitutional stamp of approval” in the 2019 Constitutional Court case of S v S and Another [2019] JOL 44978 (CC). The Court held that the non-appeal rule can be justified on the following grounds: the delay caused by the appeal of a Rule 43 order would be contrary to the best interests of children; the granting of leave to appeal would be contrary to the objective of Rule 43 to provide speedy and inexpensive relief and lastly, the granting of leave to appeal on an interim order, would defeat the interim nature of said order.

As a result of Rule 43 orders not being appealable, there is a lot at stake for the parties involved: the order granted can have long lasting effects. Consequently, these applications have become increasingly voluminous. Mindful of the fact that no additional affidavits are allowed, the parties raise all relevant considerations in the initial affidavit filed. The growing tendency of Rule 43 applications to be lengthy has raised the question whether courts can dismiss a Rule 43 application solely on the ground of being prolix.

The Gauteng High Court considered this issue in a recent judgment of E v E; R v R; M v M [2019] ZAGPJHC 180. The Judge President referred the above cases to the full court for simultaneous determination. In its judgment, the Court highlighted the important considerations that must be borne in mind when deciding on a Rule 43 application. These considerations include the best interests of minor children, fairness and transparency. Taking due cognisance of these factors the Court found that it is imperative constitutionally that one should be permitted to file Rule 43 applications without restrictions.

The Court also issued a practice directive providing for a “financial disclosure form” to accompany the parties’ respective affidavits. This “financial disclosure form” sets out the parties’ financial and other relevant circumstances. In the view of the Court this will eliminate the need for lengthy affidavits and “force” parties to be transparent with each other from the outset. This would also be conducive to early settlement.

This case was decided in the Gauteng High Court, but it is likely that in time a similar practice will develop in the Western Cape High Court. The result is likely to be a change of approach by divorce lawyers in Rule 43 applications, characterised by greater transparency and detail from the outset.