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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024 -052216
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: NO
DATE: 6 August 2025
SIGNATURE OF JUDGE :
In the matter between:
A[...] W[...] F[...] APPLICANT
and
K[...] S[...] R[...] RESPONDENT
This Judgment was prepared and authored by the judge whose name is reflected
and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines system and by release to SAFLII. The date for hand down is deemed to
be 6 August 2025.
JUDGMENT
BADENHORST, AJ
INTRODUCTION:
[1] This is an opposed application in terms of Rule 43(6) of the Uniform Rules of
Court in terms of which the Applicant seeks an order that the Respondent be
ordered to allow the Applicant to collect his personal belongings, household
effects and furniture as listed in Annexure “A” attached to the Founding
Affidavit.
[2] The Respondent opposes the application on the basis that no material
change in the Applicant’s circumstances exists.
[3] Rule 43(6) provides litigants with an avenue to approach the Court for a
variation of a previous decision, on the same procedure, where there is a
“material change occurring in the circumstances of either party and/or the
contribution towards cost proving inadequate”.
THE FACTS:
[4] The Applicant and the Respondent got married to each other on 28 October
2022, out of community of property, without the application of the accrual
system and the marriage still subsists.
[5] From the marriage relationship between the Applicant and the Respondent
one minor child w as born. The Respondent has a minor daughter born from
a previous relationship and the Applicant has two minor sons, born from a
previous marriage.
[6] The Applicant has two teenage sons from a previous marriage.
[7] The Applicant launched a Rule 43 application for relief pertaining to contact
and care in respect of two minor children , i.e. the biological daughter of the
parties and the Respondent’s daughter from a previous marriage.
[8] The Respondent opposed the Rule 43 application and applied for counter
relief in the form of interim maintenance, a contribution towards her costs ,
undisturbed/uninterrupted stay at the common home and pendente lite care
and contact relating to the parties’ biological daughter.
[9] The Rule 43 application was heard on 21 January 2025 and the Honourable
Mr Justice Nyathi J reserved the judgment.
[10] The order and judgment were handed down on 16 May 2025.
[11] At the time when the Rule 43(6) application was brought, the Rule 43
judgment was still pending.
[12] The Applicant served his Rule 43 (6) application on the Respondent's
attorneys of record on 1 April 2025 for the following relief:
[9.1] That the Respondent be ordered to allow the Applicant to collect his
personal belongings, household effects and furniture as listed in
Annexure “A” attached to the Rule 43 (6) application, within seven
days from the date of the order;
[9.2] Cost of this application in the event of the Respondent opposing
same on Scale B.
[13] The Final Notice of Set Down was served on the Respondent on 26 June
2025.
[14] The Respondent served and filed a Notice in terms of Rule 6(5)(d)(iii) on 16
July 2025 without filing an answering affidavit.
[15] The Respondent’s answering affidavit should have been filed on or before 15
April 2025.
[16] The Respondent prays that the points of law in terms of Rule 6(5)(d)(iii) be
upheld and that the Rule 43(6) application be dismissed with costs on Scale
B.
[17] The Applicant’s Rule 43(6) application is based on circumstances which
were not present at the hearing of the Rule 43 application.
[18] At the time the Applicant launched his Rule 43 application, he was entitled to
reside at the previous common home when he exercised his contact rights
with the minor children. This was in accordance with an inter partes
agreement reached between the Respondent and the Applicant.
[19] It is the Applicant's case that he would have had unfettered access to the
previous common home whilst exercising contact with the minor children.
This would include that he ha d access and use of his personal belongings,
furniture and household effects when he was at the previous common home.
[20] As a result of the aforementioned agreement between the Applicant and the
Respondent, the Applicant obtained alternative accommodation for himself
for the times, he was not exercising contact with the minor children.
[21] The Applicant informs the court that three days prior to the date upon which
the Rule 43 application was to be heard, the Respondent refused the
Applicant access to the previous common home to exercise his contact with
the children at the previous common home. The Applicant state s that the
Respondent changed the status quo, even though the Rule 43 order was still
pending, causing the situation where the Applicant had to request that his
personal belongings, furniture and household effects to be given to him to
enable him to set up home where all four the minor children can comfortably
exercise contact with the Applicant.
[22] The Applicant further avers that the Rule 43 application did not address any
reference to personal belongings, furniture or household effects because the
Applicant was still of the view that the shared residency agreement, where
the Respondent and the Applicant would live in the previous common home
on a rotational basis, could be granted.
[23] The Applicant avers that he is now compelled to live on a permanent basis in
a 3-bedroom furnished apartment which does not cater for the needs of the
minor daughters and the minor sons. The Applicant further avers that he
does not have furniture to set up a proper and bigger home for him and the
minor children.
[24] The Applicant has regular contact with both his sons and when he exercises
his contact with the minor children, he wants to provide them with a suitable
place to live but he requires some furniture, household effects and personal
items to be able to do so.
[25] The Applicant stated that he cannot accommodate both teenage sons and
two minor daughters in this confined space a s it is totally inadequate and the
circumstances are not what the children are used to . The Applicant stated
that there is no space and desks for the children to do homework, study or
do school projects.
[26] It is the Applicant’s case that he need s the listed items, set out in Annexure
“A” to the application for purposes of properly maintaining himself , the two
minor daughters as well as his two minor sons on a standard of living they
were used to.
[27] It is further the Applicant’s case that the application is not brought to vary the
Rule 43 application but it is brought on the basis of changed circumstances
which did not exist at the time of the Rule 43 application and/or order.
[28] The Respondent did not file an answering affidavit in reply to the Applicant’s
Rule 43(6) application dealing with the merits of the application and only filed
the a notice raising points of law.
[29] The undisputed facts before me are that:
[29.1] When the Rule 43 application was launched, the Applicant was
also living at the common home when he exercised contact with
the minor children. During the times when the Applicant did not
exercise contact with the minor children, he was living at Unit
1[…], Block 8[…], P[…] F[…] L[…] Estate, Waterfall, Midrand in a
3-bedroom furnished apartment.
[29.2] The Applicant had unfettered access to the previous common
home on the days and nights when he exercised contact to the
minor daughters which included the Applicant’s access and use of
all his personal belongings, furniture and household effects.
[29.3] That this living arrangement was in accordance with an
agreement reached between the Respondent and the Applicant
and that this arrangement was also part of the initial Rule 43
application when the Applicant requested that the minor children
remain at the common home during the week whilst the
Respondent would be entitled to remain there with them.
[29.4] As a result of the aforementioned agreement the Applicant obtain
temporary alternative accommodation for purposes of providing
accommodation only for himself when he did not exercise his
contact with the minor children.
[30] From the Founding Affidavit it is evident that several emails were sent to the
Respondent's attorneys of record and that the parties came to an agreement
that the Applicant may collect his belongings out of the common home.
[31] The Applicant’s attorneys of record wrote an email dated 19 February 2025
addressed to the Respondent’s attorneys of reco rd and stated that the
Applicant used to have access and use of his personal assets and belonging
in the joint common home and the Respondent is spoliating him of these
assets.
[32] The Applicant avers that t he Respondent’s refusal to deliver his assets and
personal belongings, is depriving him and the minor children of the standard
of living they are used to. The Applicant’s two teenage sons cannot sleep in
their own beds and do not have access to their furniture and personal
belongings which remained in the common home.
[33] On 3 March 2025 the Applicant's attorney wrote a further letter , attached as
Annexure “B” to the application, in a last attempt to avoid approaching the
Court and suggested that a mediator be appointed by the South African Bar
Association to assist the parties with the division of the items currently in the
matrimonial home to prevent further conflict regarding the division of
personal belongings as well at assisting the par ties navigating the shared
parental responsibilities.
[34] On 17 March 2025 the Respondent's attorneys of record sent a letter to the
Applicant's attorneys of record indicating that all disputes will be litigated in
the appropriate forum “through Court”.
[35] It is unfortunate that the Respondent refused to mediate the dispute given
the Mediation Protocol issued in this division.
POINT OF LAW TAKEN IN TERMS OF RULE 6(5)(d)(iii) :
[36] The Respondent is opposing the order sought by the Applicant by merely
filing a Notice in terms of Rule 6(5)((d)(iii), without filing a n answering
affidavit.
[37] It is the Respondent’s case in terms of its Notice in terms of Rule(6)(5)(d)(iii)
that the Court may vary its decision in the event of a material change
occurring in the circumstances of either party or a child or the contribution
towards costs proving inadequate.
[38] It is further the Respondent’s case that the Rule 43(6) is premature as there
was no Rule 43 order in place to vary and the relief sought is not competent
and there is no material change in the circumstances.
[39] It is further the Respondent’s case that Rule 43 does not make provision for
the relief sought by the Applicant i.e. for delivery of furniture, household
effects and personal items.
[40] The Respondent prays that the point of law should be upheld and that the
Applicant’s Rule 43(6) application be dismissed with cost on scale B.
[41] It was argued in reply that the Respondent chose not to file a n answering
affidavit to the Rule 43(6) application and that the Respondent must stand
and fall with her point in law and if not successful , then the Applicant should
succeed in the application.
[42] Counsel for the Applicant argued that the application is unopposed due to
the lack of any answering affidavit filed. Counse l for the Respondent argued
that even if the matter is unopposed, the Court had to ensure that the
application meet the requirements as envisaged in Rule 43(6).
[43] Counsel for the Applicant argued that the facts before Court are not changed
circumstances but new circumstances, which were not addressed during the
first Rule 43 application.
[44] On the eve of the application the Respondent's attorneys of record uploaded
an affidavit, without asking condonation from the Court to do so , as this
affidavit is well outside the time periods as stipulated in Rule 43 and not in
compliance with the Judge’s Directive issued the previous week.
LEGAL PRINCIPLES AND DISCUSSION:
[45] Rule 43(3) of the Uniform Rules of Court determines as follows:
“(a) The Respondent shall, within 10 days after receiving the
application delivery a sworn reply in the nature of a plea.
(b) The reply shall be signed by the Respondent or the
Respondent's at torney shall give an address for service
within 15 km of the office of the registrar, as referred to in
rule 6(5)(b).
(c) In default of delivery of the reply referred to in paragraph (a)
the Respondent shall automatically be barred.”
[46] Rules 43(6) determines:
“The court may, on the same procedure, vary its decision in the
event of a material change occurring in the circumstances of either
party or a child, or the contribution towards costs proving
inadequate.”
[47] “Rule 43 if a sui generis type of app lication. The rule itself makes provision
for the filing of affidavits and the time periods within which a party must do
so. It also makes provision for the manner in which a matter is to be set
down for the hearing. This being so, and the Rule being speci fic and self -
contained, Rule 6 of the Uniform Rules of Court does not apply to a Rule 43
application, and a party does not have a choice as to which Rule of Court to
follow when launching Rule 43 proceedings.”1
1 Leppan v Leppan 1988 (4) SA 455 W at 57E -G; Also refer ed to by Neukircher J in the matter of
M.N v A.L.N (094387/23) [2024] ZAGPPHC 402 (22 April 2024)
[48] Rule 43 provides for the affidavits to be filed in the nature of a declaration
and only two sets of affidavits may be filed unless the Court permits further
evidence under Rule 43(5). In terms of Rule 6(5)(d)(iii) a Respondent should
generally file his or her affidavits on the merits at the same time as he or she
takes a preliminary objection under a point of law.
[49] If a Respondent in opposing the relief sought by an Applicant have not filed
an answering affidavit but in a notice in terms of Uniform Rule 6(5)(d)(iii)
have raised questions of law , it follows that the averments in the founding
affidavit must be taken as established facts.2
[50] In this Rule 43(6) application the Respondent relies exclusively on the notic e
in terms of Uniform Rule 6(5)(d)(iii).
[51] “The procedure in Rule 43 is straightforward as:
“An Applicant seeking interim relief is required in terms of Rule
43(2)(a) to do so on notice with a sworn statement in the nature of a
declaration, setting out the relief claimed and the grounds therefore
….
A Respondent wishing to oppose the application is required by Rule
43(3)(a) to deliver (sworn reply in the nature of a plea). The parties
are expected to file concise affidavits and to avoid prolixity.””3
[52] A Respondent who files an affidavit on the merits is entitled to make any
legal contention open to him or her on the facts as they appear on the
affidavits and notice of such legal contention need not be given in terms of
this subrule, but the Respondent elected to file only a Notice in terms of Rule
6(5)(d)(iii). The Rule provides:
2 Boxer Superstores Mtatha v Mbenya 2007 (5) SA 450 (SCA)
3 TS v TS 2018 (3) SA 572 (GJ) at 585A
“If such person intends to raise any question of law only such person
shall deliver notice of intention to do so, within the time stated in the
preceding subparagraph-, setting forth such question.”
[53] In terms of Rule 6(5)(d)(iii) a party who intends to oppose an application that
that party should file “within 15 days of notifying the Applicant of intention to
oppose the application, deliver such person ’s answering affidavit, if any,
together with any relevant documentation”.
[54] In terms of a Rule 43 application the Respondent’s Notice should have been
filed within the prescribed 10 days . In terms of Rule 43 (3)(c) a party in
default of delivery of a reply referred to the Respondent shall automatically
be barred from doing so.
[55] In casu the Respondent failed to file an answering affidavit within the time
period stipulated by the Rule 43. The Respondent is therefore barred from
filing same and the matter is unopposed.
[56] Rule 43(6) determines:
“The court may, on the same procedure, vary its decision in the
event of a material change occurring in the circumstances of either
party or a child, or the contribution towards proving inadequate.”
[57] In Nicklem v Nicklem4 it was held as follows:
“Rule 43 does not provide for a rehearing of a formal application,
based on new evidence.”
[58] In a matter of Van der Spuy v Van der Spuy 5 the Court determined that a
Rule 43 application order can be made that furniture, household effects and
personal belongings be handed to an Applicant to place an Applicant in a
4 1988 (3) SA 259 (C) at 262 E-G
5 1981 All SA 227 (C)
position to maintain himself or herself and/or the minor children pending the
finalisation of the divorce action.
[59] Considering the case law referred to above , there is a lack in merit in the
Respondent’s legal point that a Court cannot order for the delivery of
furniture and household effects in a Rule 43 application.
[60] The undisputed facts before Court is that the furniture listed in Annexure “A”
is not needed by the Respondent to maintain herself and the minor children
in the interim, but the furniture and household effects listed are limited
household effects needed for the Applicant to set up home where he can
comfortably exercise care and contact to all four of the minor children.
[61] It bears mentioning that am ongst the furniture and household effects are the
Applicant’s sons’ beds, desks, chairs and linen.
[62] The Court’s focus should always be on the children’s best interest when
making interim orders in divorce proceedings . I deem it necessary for the
well-being of minor children to order the interim use of the household items
and furniture.
[63] In considering whether to grant the relief sought th is Court must consider the
reasonableness of such relief and ensure that the level of lifestyle of the
minor children, must not be worse off than that which they are used to. I am
also consider ing the fact that the Respondent initially agreed to the
arrangement that the Applicant may collect items from the common home
and refused to try and mediate the issue.
[64] It was held in Van der Spuy supra that where a Court makes an order
affecting the interest of children, in ignorance of a material fact which existed
but was not brought to its attention, the Court may vary the order.
[65] I am therefore of the view that this Court has the power to vary the initial
order and to consider the undisputed circumstances which caused a material
change as to the place where the Applicant can exercise contact with the
minor children.
[66] Rule 43(6) provides litigants with an avenue to approach the Court for a
variation of a previous decision, on the same procedure, where there is a
“material change occurring in the circumstances of either party or children.”
The changed circumstances in casu cannot be seen as a re -hearing of the
facts.
[67] The Respondent relies exclusively on the points of law raised in her Notice in
terms of Rule 6(5)(d)(iii) without addressing the merits of the application.
This caused the Applicant’s Counsel having to object to the Respondent’s
Counsel giving evidence from the bar , which evidence were not
substantiated in an affidavit before Court.
[68] Counsel for the Respondent asked for the matter to be postponed to enable
the Respondent to file her answering affidavit on the merits.
[69] Counsel for the Applicant objected to the request for a postponement
considering that the Respondent is automatically barred from filing a reply in
terms of Rule 43(3) and the Respondent has already uploaded an affidavit
without asking condonation to do so . Counsel for the Applicant reiterated
that the Respondent elected to only raise points in law without addressing
the merits at her own peril.
[70] I am of the view that the Respondent had ample time to file an affidavit
dealing with the merits of the application, but she elected not to do so. The
Respondent is barred from filing a further answering affidavit.
[71] I am satisfied that facts before Court are not changed circumstances but new
circumstances and meets the requirements as envisaged in Rule 43(6).
[72] This Court is not in a position to make an order as to the ownership of the
movable items sought by the Applicant. Therefore, the question of ownership
of the listed items in Annexure “A” will be left for the trial court to adjudicate ,
should the parties not be able to come to an agreement on the division
thereof.
[73] I am however satisfied that the Applicant has made out a proper case for the
interim use of the furniture and household effects listed in Annexure “A” to
the application.
COST:
[74] The Applicant requested mediation to amicably resolve some issues inter
alia division of movables , as is evident from the correspondence referred to
in the founding affidavit.
[75] The Respondent declined the avenue of mediation and challenged the
Applicant to approach the Court for relief.
[76] The Respondent further failed to file an answering affidavit addressing the
merits and then opportunistically uploaded an affidavit without leave of Court
and no condonation application.
[77] I intend to grant the cost order as prayed for by the Applicant.
ORDER:
[78] In the result the following order is made:
[78.1] The Respondent’s points in law in terms of her Rule 6(5)(d)(iii)
Notice are dismissed due to a lack of merit.
[78.2] The Respondent is ordered t o allow the Applicant to collect the
items listed in Annexure “A” (attached hereto) for the Applicant’s
pendente lite use thereof, within 7 days from date of this order.
[78.3] The Respondent is ordered to pay the costs of the Rule 43(6)
application on Scale B.
L BADENHORST AJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearing for the Applicant: Adv N van Niekerk
Cell: 082 789 7702
Email: natashavn@lawcircle.co.za
Instructed by: Van der Merwe & Bester Inc
Email:bennie@vdmatt.co.za
Appearing for the Respondent: Adv N Strathern
Cell: 082 940 0111
Email: nicky@strathern.co.za
Instructed by: Ashley Gittins Attorneys Inc
Email:ashley@gittins.co.za
Matter heard on 22 July 2025
Judgment handed down on 6 August 2025