REPUBLIC OF SOUTH AFRICA
nce Di¢ 7
OY We 2
~ z' 4
& SAE SOK we
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2024/148225
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: NO
ar /o +/2 025
DATE SIGNATURE
In the matter between:
AC Applicant
and
HC Respondent
This judgment was handed down electronically by circulation to the parties’ and or
parties’ representatives by email and by being uploaded to CaseLines. The date for
|
the hand down is deemed to be 28 July 2025.
JUDGMENT
}
1

ABRO, AJ
Summary — Rule 43 — whether the rule may be utilised prior to the issue of summons
— in other words where there is no pending divorce action between the parties — or
whether the issuing of a divorce summons is a prerequisite in order to institute
proceedings utilising the rule — whether the amendment to rule 43(1)(b) and the
inclusion of the words ‘or about to be instituted’ therein provides a blanket exemption
for parties to ignore the rule and the established principles in circumstances where the
application is not simply one for a contribution towards the costs of a matrimonial |
action which is required to institute divorce proceedings
Introduction
[1] This matter concerns an important question which arises with regard to
applications in terms of rule 43 of the Uniform Rules of the High Court.
|
|
[2] In the present application the applicant launched an application in terms of rule j
43 wherein she sought orders pendente lite inter alia in respect of the primary
place of residence of the four minor children born of her marriage to the
respondent, the children’s defined contact with the respondent, the payment of
cash maintenance by the respondent for herself and the children and a |
contribution towards her legal costs in the sum of R100 000.00. Costs of the
application were sought on the scale as between attorney and client.
[3] The founding affidavit was commissioned on 16 December 2014 and the Notice
in terms of the rule was signed by the applicant's attorneys on said date. That
the application was then issued is evident from the 2024 case number assigned
to it.
2

[4] The application was served on the respondent on 6 January 2025 in terms of the
rules of court.
[5] The respondent opposes the relief sought and delivered a sworn reply thereto
together with a conditional counterclaim.
[6] The respondent, in his sworn reply, raised a point in limine that the application
was launched prior to the institution of a divorce action. He thus sought an order
dismissing the application together with an order that the applicant make |
payment of the wasted costs occasioned by the application on the scale as |
between attorney and client. His conditional counterclaim is in the alternative.
[7] On receipt of the respondent's sworn reply, the applicant filed a replying affidavit
which consists of some 305 pages with annexures.
[8] The matter came before me on Wednesday morning 23 July 2025 and | directed |
the parties to address me on the point in limine. |
[9] | informed the parties that the matter was not properly before me as a |
consequence of the fact that at the time of launching the application and at best
for the applicant on 6 January 2025 when the application was served summons
had not been issued. This was the position up until Thursday 17 July 2025 being
3 court days before the allocated date and time of the hearing at which time | |
was informed from the bar, by Mr Kloek for the applicant, that summons had |
been issued on said date. Ms van Antwerpen for the respondent informed me
that summons was to be served that day as the respondent had made
arrangements to attend at the sheriff's office later in the day to accept service
thereof.
[10] | was informed further that the summons was issued under a different case
number to that of the rule 43 application. | was not provided with a copy of the
summons and particulars of claim or an explanation for the lengthy delay in
issuing summons or as to why the applicant had sprung into action at the
eleventh hour.
3