Moolman v Moolman (36397/2007) [2007] ZAGPHC 273 (15 November 2007)

Moolman v Moolman (36397/2007) [2007] ZAGPHC 273 (15 November 2007)

The court held that for an applicant to launch a Rule 43 application, divorce summons must at least have been issued. The intention of the parties or the fact that they are living apart is irrelevant; there must be a pending action, which requires the issuing of summons. At the time the Rule 43 application was launched, no divorce summons had been issued, and therefore the applicant was not entitled to approach the court for interim relief under Rule 43. The subsequent issuing of summons did not cure the defect. The point in limine was upheld and the application dismissed.

Citation
[2007] ZAGPHC 273
Parties
Applicant: Marli Moolman; Respondent: Coen Jules Moolman
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
15 November 2007
Case Number
36397/2007
Procedural Posture
Urgent Application / Rule 43 Application Prior to Divorce Summons
Outcome
Application dismissed; costs awarded against applicant.
Judges
Seriti
Legal Topics
Rule 43 Applications, Maintenance Pendente Lite, Pending Matrimonial Action
Family and Children Civil Procedure Rule 43 Applications Maintenance Pendente Lite Pending Matrimonial Action

Case Brief

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Parties

Marli Moolman

Applicant

Coen Jules Moolman

Respondent

Procedural Posture

Urgent Application / Rule 43 Application Prior to Divorce Summons

Legal Issues

  1. 1 Whether a Rule 43 application may be launched before divorce summons are issued.
  2. 2 Whether there was a pending matrimonial action at the time of the application.
  3. 3 Whether the applicant was entitled to interim maintenance and legal costs under Rule 43.

Ratio Decidendi

The court held that for an applicant to launch a Rule 43 application, divorce summons must at least have been issued. The intention of the parties or the fact that they are living apart is irrelevant; there must be a pending action, which requires the issuing of summons. At the time the Rule 43 application was launched, no divorce summons had been issued, and therefore the applicant was not entitled to approach the court for interim relief under Rule 43. The subsequent issuing of summons did not cure the defect. The point in limine was upheld and the application dismissed.

Court Disposition

Application dismissed; costs awarded against applicant.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the respondent's costs on a party and party scale.