A rule nisi is basically an interim order granted by a court when the person against whom the order is made, must on a return court date, come to court to give evidence as to why a final order in that specific matter should not be made. In other words it is basically a provisional court order.
I was involved in a case, where the mother of the child had taken the child and moved in with her family in a different province. The child was just over a year old. The father of the child, her husband, had launched, together with his mother, an application to have the child returned to them.
The father of the child and his mother were of the view that they should have primary residence of the child. They felt that the child was unsafe with her mother as she was allegedly living with her parents and her biological father had allegedly molested her when she was young.
The biological mother was of the view however that it was in the child’s best interests to move with her. The prima facie view of the judge was that the child should be returned to the biological father and his mother. The court however referred the matter to the family advocate for an urgent report.
An application of this nature consists of a founding affidavit annexed to a notice of motion, a replying affidavit by the respondent and then the applicant would have one further opportunity to respond to the respondent’s affidavit. Due to the urgency of this type of application, the family advocate is usually asked to make a decision based solely on what is on the papers.
In this particular case there was an allegation of sexual abuse. The family advocate usually views this in a very serious light. The family advocate was of the view that pending finalisation of a thorough family advocate investigation, the child should be returned to the father and his mother. The child had been staying there all along with her parents and paternal grandmother before the biological mother had left with her.
In this case, a rule nisi order was made, which is basically an interim order, in favour of the biological father and his mother. The mother of the child was therefore given a certain date to give notice to the court as to why the order which was made should not be made final.
One needs to show the court in a matter of this nature that it is extremely urgent that the matter be heard immediately. It must be a life-threatening situation. In this case because there was a family advocate report which had recommended that the child be returned to the father and paternal grandmother, the court was of the view that it was indeed an urgent application.
As soon as the family advocate sees an allegation of sexual abuse, they will not hesitate to act in what they perceive to be a child’s best interests. If a matter is extremely urgent the court will usually follow the family advocate’s report and make rule nisi order, as the court did in this case.
article written by Cape Town divorce attorney, Peter M Baker
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