Rule 43 Application – Maintenance Pendente Lite – High Court – Cape Town

Whilst you are in the process of divorcing your spouse, you may require the Western Cape High Court to assist you with regard to maintenance, or contact with your child. You may want the Court to Order t your spouse pays a portion of your legal fees, as well. This can all be done while the divorce is still pending. In the High Court, the court procedure to follow is outlined in its Uniform Rule 43.  That is where the term “Rule 43 Applications” come from.

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Below was provide you with the entire rule 43, as well with an example of the Notice when making use of the rule.

The entire rule 43 is as follows:

43 Matrimonial Matters
(1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:
(a) Maintenance pendente lite;
(b) a contribution towards the cost s of a pending matrimonial action;
(c) interim custody of any child;
(d) interim access to any child.
(2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed
and the grounds therefor, together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorney and shall give an address for service within eight kilometres of the office of the registrar, and shall be served by the sheriff.
(3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred.
(4) As soon as possible thereafter the registrar shall bring the matter before the court for summary hearing, on ten days’ notice to the parties, unless the respondent is in default.
(5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order  as it thinks fit to ensure a just and expeditious decision.
(6) The court may, on the same procedure, vary its decision in the event of a  material change taking place in the circumstances of either party or a child, or the  contribution towards costs proving inadequate.

How does it work

In short, you or your attorney would file an Affidavit with a Notice outlining in concise form, what you require. Then the other party would respond. The documents should be simple and straight to the point. The idea is to provide enough information for the court to make a quick decision. Now let’s look at an example of a rule 43 Notice used in the High Court.

An Example of a Rule 43 Notice

Below is an example of a Rule 43 Notice dealing with contact rights.

IN   THE   HIGH   COURT OF SOUTH   AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO:

In the matter between:

JOHN SMITH                                Applicant

and

JANE SMITH                               Respondent

NOTICE OF APPLICATION IN TERMS OF RULE 43

TO THE ABOVE MENTIONED RESPONDENT

MADAM

TAKE NOTICE that the abovementioned Applicant claims from the Respondent the following, pendente lite:

1. The minor child shall reside primarily with the Applicant who shall be her primary caregiver; and
2. The Respondent shall have reasonable contact with the minor child as follows:
   • Every alternative weekend, commencing from the Friday until the Sunday. The collecting and drop-off times shall be agreed to by the Parties in advance, which may vary from time to time;
   • Equal sharing of long and short school holidays, in that the minor child shall reside one half with the Applicant and the other with the Respondent which shall alternate each year;
   • The Applicant and/or the Respondent, as the case may be, shall further have contact with the minor child on the following days for 3 (three) hours notwithstanding in whose care the minor child is in on those days:
     • Christmas Day;
     • The minor child’s birthday;
     • Father’s day and Mother’s Day; and
     • The Parties’ birthday.

3. The Parties shall have telephonic contact with the minor child on a regular basis whilst the minor child is in the other’s care;
4. Notwithstanding the above, the Parties shall have reasonable contact with the minor child at all times, provided that any additional contact shall be arranged telephonically and shall only take place by prior arrangement and consensus between the Parties; and
5. The Parties shall respect each other’s privacy and shall not enter each other’s homes at any time without prior invitation, whether for the purpose of fetching or returning the minor child or any other reason whatsoever.
6. JOINT DECISION MAKING
   • The Parties shall make joint decisions about the following aspects of the minor child’s life:
     • Major decisions about the minor child’s schooling and tertiary education;
     • Major decisions about the minor child’s physical care, mental health care and medical care;
     • Major decisions about the minor child’s religious and spiritual upbringing;
     • Decisions about the minor child’s residence both within and outside the Cape Peninsula;
     • Decisions which are likely to significantly change the minor child’s living conditions or to have an adverse effect on her well-being; and
     • Decisions which affect the minor child’s everyday care and daily routine shall be made by the party in whose care the minor child is in at the relevant time.

7. Costs of this Application if opposed; and
8. Further and/or alternative relief.

TAKE NOTICE FURTHER that if you intend to defend this claim you must, within in 10 (ten) days, file a reply with the Registrar of this Honourable Court, Keerom Street, Cape Town, giving an address for service as referred to in rule 6(5)(b), and serve a copy on the Applicant’s attorneys.

If you do not do these things, you will automatically be barred from defending and judgment may be given against you as claimed. Your reply must indicate what allegations in the Applicant’s statement you admit or deny and must concisely set out your defence.

TAKE NOTICE FURTHER that the affidavit of JOHN SMITH (the Applicant) annexed hereto with confirmatory affidavits shall be used in support of this application.

DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2018.

——————————————                                   ABC  Attorneys

_____________________

Per.:

TO:        THE REGISTRAR

HIGH COURT

CAPE TOWN

AND TO:  JANE SMITH (RESPONDENT)

Working at:

XX

WESTERN CAPE

c/o

AND TO: THE OFFICE OF THE FAMILY ADVOCATE  CAPE TOWN

______________________o0o____________________

Do you need a lawyer or attorney?

It is always advisable to make use of a lawyer or an attorney when litigating in the High Court, or any court for that matter. However, sometimes the issue of costs comes into play. If however, you cannot afford the services of an attorney, we advise that you still proceed with the application.