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Reasonable cost in Rule 58 application


A Rule 58 application in the regional courts of South Africa is the equivalent of a Rule 43 application in the High Court. The rule simply has a different number. Both of them are applications for interim maintenance while a divorce is in progress. The application can be launched in fact before a divorce summons is served, at the same time as the divorce summons or after the divorce summons is served.

Signing of divorce summons

I argued a Rule 58 application recently in the Cape Town Regional Court.

As I do usually in high court matters, I argued the matter myself instead of instructing an advocate, in order to save my client money in legal fees. I have practised and specialized in family law matters for many years and have found that I often have more experience in family matters than advocates, particularly young and inexperienced advocates.

I acted for the husband in this case. He worked overseas, whilst his wife and two year old daughter lived in Cape Town. At the time the divorce summons was served my client’s wife did not work. However, now two years later she had found employment and claimed to be earning a gross salary of R35 000 per month. My client was earning R95 000 gross per month.

My opponent and I were unable to settle the matter. His client wanted R20 000 maintenance per month in respect of the minor child, plus that my client retain the minor on his medical aid scheme. My client in his opposing papers was only prepared to offer R8 000 per month in respect of the minor child plus that the minor be retained on his medical aid. The parties were unable to settle the matter or even to meet each other half way, and it therefore had to be argued in court.

My opponent was a younger attorney than myself and he argued first in court, on behalf of the applicant (the wife) and thereafter I argued on behalf of my client (the husband). Neither the husband nor the wife attended the hearing (nor are they required to in terms of the Court Rules).

My opponent raised the point in his argument that even though his client was employed, she may not be in the future. He also went through his client’s monthly expenses as averred by her in her application. His argument was that all the expenses were reasonable and that my client had a legal duty to contribute in accordance with his monthly income.

In my heads of argument filed at court a week before the court hearing, as well as in court on the day of hearing, I argued that the expenses claimed were not reasonable. She was driving a BMW motor vehicle with an instalment of R5 000 per month. She was also living in a house where the monthly rental was R15 000, whilst my client now rented a house where the monthly rental was only R6 000. The applicant also had a domestic worker as well as an au pair to assist with the minor child, and my argument was that that was not a reasonable expense.

As regards the point argued by my opponent that his client may not have work in the future, my argument was that the court must look at what her expenses are now today i.e. her actual expenses, and that what she may earn in the future is irrelevant to the case. The court accepted this argument. I also argued that if the court were to take into account a situation where the wife in the future would have no employment, they would similarly have to take into account a situation where my client, the husband, would have no employment in the future.

In the end, the court accepted my argument. The wife’s expenses were not actual and furthermore were not reasonable. She was unable also to account and give proof of what she averred her expenses to be. She furthermore owned a rental property for which she received a monthly rental income, and no mention was made of this property either on her papers or in court. The court took this quite seriously. My client was ordered to pay exactly what he had asked for in his opposing papers (i.e. R8 000 per month maintenance for the minor child and for the minor child to be retained on his medical aid).

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