Summary of Judgment

Introduction

This was an application for interim relief (pendente lite) brought in terms of Rule 43 of the Uniform Rules of Court in the context of pending matrimonial litigation. The Applicant and the Respondent are spouses (their identities redacted in the published report), and the relief sought related to interim arrangements while the main action remained pending.

The matter was heard in the High Court of South Africa, Free State Division, Bloemfontein, before Cronjé AJ. Argument was heard on 15 June 2023, after which judgment was reserved. The court requested the parties to attempt to reach agreement on the issue of specific movable items, and invited further input by 20 June 2023. A letter from the Respondent’s attorneys dated 20 June 2023 was received by the court on 21 June 2023. Judgment was delivered electronically on 22 June 2023.

The dispute concerned typical Rule 43 subject-matter, namely interim arrangements relating to parental responsibilities and rights, care and contact, interim maintenance and household expenses, a contribution to legal costs, and—centrally for purposes of the reserved issue—whether and on what basis the court could order delivery/making available of specified movable items listed by the Applicant.

Material Facts

It was common cause, at least at the level relevant to the court’s order, that the Applicant had launched a Rule 43 application seeking interim relief pending the finalisation of the main action. Among the relief sought was an order for the delivery of movables identified in Annexure “D” to the Applicant’s founding affidavit.

A material procedural fact was that, during the hearing, the court queried (with Applicant’s counsel) whether an order for delivery of movables could competently be made in the absence of a tender by the Respondent. Applicant’s counsel expressed the view that such an order could be granted, but the court indicated it was not convinced.

Given that concern, the court requested that the parties engage with one another with a view to reaching agreement on which movable items could be made available, and to revert by a stated deadline. The Respondent’s attorneys thereafter furnished a letter indicating which assets were the Respondent’s and noting that there was more than one of certain items. The court treated the contents of the letter and its annexure as reflecting what it considered to be the Respondent’s tender regarding the movable items.

The court’s determination of the movable-items relief was consequently made on the basis of the tender as understood from the Respondent’s attorney correspondence, rather than on an evidentiary adjudication of ownership disputes item-by-item on the papers.

Legal Issues

The central legal questions the court was required to determine were, first, what interim relief should be granted under Rule 43 in respect of the minor children and financial arrangements pending the main action, and second, whether an order could be made compelling interim delivery or availability of listed movable property where the court was not satisfied that such relief could be granted absent a tender by the Respondent.

The dispute involved a mixture of application of law to fact (granting interim relief in terms of Rule 43 in the circumstances of the parties and the children) and a procedural/value judgment concerning the appropriate approach to contested movable items in interim proceedings, particularly given the court’s reservation about granting such relief without a tender and its decision to facilitate agreement.

Court’s Reasoning

The court’s reasoning, as recorded, focused primarily on the appropriateness and basis for interim relief relating to the movable items. During the hearing, the court expressly raised a concern about whether it could properly grant an order for delivery of movables where there was no tender from the Respondent. Although Applicant’s counsel contended such an order could be made, the court remained unpersuaded on that point.

Rather than finally determining that legal debate on the papers as presented, the court adopted a practical procedural course. It directed the parties to engage to attempt to reach agreement on the movable items and to report back within a fixed time period. When the Respondent’s attorneys subsequently provided a letter setting out the Respondent’s position as to which items were his and indicating that there were multiple instances of some items, the court considered that material and crafted an order that reflected what the court understood to be the Respondent’s tender.

On the remaining aspects of Rule 43 relief, the court issued interim orders regulating parental responsibilities and rights and financial obligations. The reasoning is not set out in extended form in the judgment; the court moved from the identification of the application and the movable-items difficulty to the formulation of an order granting interim arrangements in terms of the Children’s Act 38 of 2005 (specifically referencing section 18(2)(a), section 18(2)(b), and sections 18(2)(c) and 18(3)), and interim financial contributions (maintenance, bond instalments, partial school costs, and a contribution towards legal costs), with the costs of the Rule 43 application reserved for the main action.

Outcome and Relief

The court granted interim relief pendente lite. It ordered that both parties hold full parental responsibilities and rights as envisaged in section 18(2)(a) of the Children’s Act 38 of 2005, that the Applicant be awarded primary care and residency of the minor children, and that the Respondent be awarded contact rights in terms of section 18(2)(b) in a structured manner.

The Respondent was ordered to pay interim maintenance in respect of the minor children in the amount of R3 000 per month per child, commencing on or before 1 July 2023 and monthly thereafter. The Respondent was also directed to pay the bond instalments on the identified immovable property, and to pay 50% of home school registration and book fees.

In relation to the movable items listed in Annexure “D”, the Respondent was ordered, pendente lite, to make the listed items available to the Applicant, subject to specific exclusions of enumerated items; further directions were made that, for certain listed items, half was to be made available to the Applicant, and that in respect of one item number, a specified quantity (three) was to be made available.

The Respondent was ordered to contribute R5 000 towards the Applicant’s legal costs, payable in instalments of R500 per month commencing on or before 1 August 2023 and monthly thereafter. The costs of the Rule 43 application were ordered to be costs in the main action.

Cases Cited

No cases were cited in the text of the judgment as provided.

Legislation Cited

Children’s Act 38 of 2005, section 18(2)(a)

Children’s Act 38 of 2005, section 18(2)(b)

Children’s Act 38 of 2005, section 18(2)(c)

Children’s Act 38 of 2005, section 18(3)

Rules of Court Cited

Uniform Rules of Court, Rule 43

Held

The court held, in effect, that interim relief under Rule 43 should be granted regulating parental responsibilities and rights, care and contact, interim financial support, and interim arrangements concerning the availability of movable items. In relation to the movable property, the court did not accept without qualification that it could grant an order absent a tender and therefore facilitated party engagement; it ultimately crafted relief that reflected what the court understood to be the Respondent’s tender regarding the movable items, including specified exclusions and division of certain items.

LEGAL PRINCIPLES

Rule 43 proceedings provide a mechanism for obtaining interim (pendente lite) relief pending finalisation of the main action, including interim arrangements relating to children, maintenance, and contributions towards costs.

Parental responsibilities and rights and contact arrangements may be framed by reference to the Children’s Act 38 of 2005, including the allocation of responsibilities and rights contemplated in section 18(2)(a), the structuring of contact in terms of section 18(2)(b), and the joint allocation of guardianship responsibilities as contemplated in sections 18(2)(c) and 18(3).

Where interim relief is sought in relation to movable property, the court may adopt a facilitative approach aimed at securing agreement between the parties, and may craft interim orders reflecting what is regarded as a tender on the papers, particularly where the court is not persuaded that compelled delivery should be ordered in the absence of such tender.

Costs in Rule 43 applications may be directed to stand over as costs in the main action, rather than being finally determined in the interim proceedings.