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Postponement of Rule 43 hearings


First hand court experiences where Rule 43 hearings have been postponed. A Rule 43 order is an order of court normally granting temporary financial relief to the applicant to cover legal costs of the divorce as well as interim maintenance.

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I had a matter last week in the high court where opposing papers had not been filed by the respondent (husband). I was acting on behalf of his wife (the applicant). We had followed the correct procedure to get the court date and had properly indexed and paginated the court file. In the normal course of events, respondent would have had to serve a notice of intention to oppose on us as well as serve and file an opposing affidavit. None of this had been done in this particular case.

On attendance at court, we entered into settlement discussions with the man. His attitude was the same as it had been throughout the matter, i.e. that he was prepared to pay for the motor vehicle instalment and insurance on that vehicle for my client, the school fees of the two minor children, and that was it. He was not prepared to make a cash contribution towards the upkeep of the children. My client on her papers was asking for the sum of R2000 per month per child in addition to what the respondent was offering. I advised my client not to accept defendant’s proposal as the courts want to see a contribution towards everything, including a cash contribution.

The end result of the case was that the respondent was ordered to pay R1000 per month per child in addition to the school fees and vehicle instalments and insurance on my client’s vehicle. The matter was heard in the open court. My client was therefore successful in the end as she got the cash contribution which she wanted throughout the case. The respondent earned two or three times more than her. At the time of making a Rule 43 application we disputed the validity of his payslip, as it indicated a net income, but no mention was made of the fact that his employer also paid for his rent and his own personal motor vehicle instalment. His bank statements also indicated that he was spending money on unnecessary expenses, such as at the liquor store, dating sites, and money at restaurants such as kfc and wimpy.

Outside the court before the Rule 43 application was heard in the open court, I discussed the possibility of a postponement with the respondent (he was unrepresented). He said that he wanted a two month postponement to file his opposing papers. I advised him that no court would afford him a two month postponement, as the aim of Rule 43 is to provide immediate financial relief to the applicant.

I suggested a one week postponement, but he was not happy with that, and then the matter was heard in the open court that same day.

In another one of my matters I was again acting for the woman (the applicant). The Rule 43 application was set down for the Monday, and the other side had only filed their opposing papers the Friday prior to the court date. We then attended court, and the other side wanted a postponement in order to file supplementary papers. They did not know what expenses of our client exactly their client was paying for. We went to the judge’s chambers, and the judge allowed a one week postponement for the Rule 43 date of hearing. The judge was of the view that even though the aim of the rule 43 is to provide immediate financial relief, he should allow the postponement, as it was only the first time that the respondent was asking for a postponement.

Courts do not easily allow postponements, particularly Rule 43 hearings. They will however allow at least one postponement if necessary. Different judges have different ways of handling a Rule 43 application. I was involved in a Rule 43 matter in the open court before, where the judge only allowed a few minutes for each counsel to present their argument. In other Rule 43 matters before other judges, the court sometimes allows each counsel ten to fifteen minutes to present their argument.

When acting for the applicant, the attorney should take all steps possible to have the matter heard as soon as possible so that the applicant can be awarded immediate financial relief. Any application for postponement by the respondent should be strenuously resisted when you are acting on behalf of the applicant.



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