D v D (23031/2017) [2017] ZAGPPHC 293 (29 June 2017)

D v D (23031/2017) [2017] ZAGPPHC 293 (29 June 2017)

The court held that Rule 43 proceedings are intended to provide interim relief only pending the finalisation of divorce actions. The issuing and serving of divorce summons is a prerequisite for instituting Rule 43 proceedings. While some authorities suggest that a proposed matrimonial action may suffice, the court aligned with the stricter approach in Moolman v Moolman, requiring summons to be issued and served. However, considering the best interests of the minor children and the fact that summons was issued prior to the hearing, the court adopted a pragmatic approach: the point in limine was upheld, but the applicant was permitted to proceed with the Rule 43 application on the same...

Citation
[2017] ZAGPPHC 293
Parties
Applicant: A D; Respondent: Z D
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 June 2017
Case Number
23031/2017
Procedural Posture
Urgent Application / Rule 43 Interim Relief Application Prior to Divorce Summons
Outcome
Point in limine upheld; application dismissed with leave to re-enrol after divorce summons is filed; each party to pay own costs.
Judges
R G Tolmay
Legal Topics
Rule 43 Interim Relief, Pending Matrimonial Action, Maintenance Pendente Lite, Custody and Access, Best Interests of Child
Family and Children Civil Procedure Rule 43 Interim Relief Pending Matrimonial Action Maintenance Pendente Lite Custody and Access Best Interests of Child

Case Brief

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Parties

A D

Applicant

Z D

Respondent

Procedural Posture

Urgent Application / Rule 43 Interim Relief Application Prior to Divorce Summons

Legal Issues

  1. 1 Whether Rule 43 proceedings may be instituted before divorce summons is issued and served.
  2. 2 Whether interim relief under Rule 43 can be granted in the absence of pending divorce litigation.
  3. 3 Whether the best interests of minor children justify a pragmatic approach to procedural requirements.

Ratio Decidendi

The court held that Rule 43 proceedings are intended to provide interim relief only pending the finalisation of divorce actions. The issuing and serving of divorce summons is a prerequisite for instituting Rule 43 proceedings. While some authorities suggest that a proposed matrimonial action may suffice, the court aligned with the stricter approach in Moolman v Moolman, requiring summons to be issued and served. However, considering the best interests of the minor children and the fact that summons was issued prior to the hearing, the court adopted a pragmatic approach: the point in limine was upheld, but the applicant was permitted to proceed with the Rule 43 application on the same...

Court Disposition

Point in limine upheld; application dismissed with leave to re-enrol after divorce summons is filed; each party to pay own costs.

Orders

  • The point in limine is upheld.
  • The application is dismissed.