RULE 43 APPLICATIONS AND MAINTENANCE PENDENTE LITE

AN OVERVIEW OF MC V JC (29301/2020) [2021] ZAGPJHC 373 (8 SEPTEMBER 2021)

Rule 43 of the Uniform Rules of Court provides for interim measures to assist an applicant quickly and with minimal legal costs. This rule aims to avoid any considerable prejudice to either party pending divorce. Rule 43 is used for matters relating to interim care or contact with the parties’ child/children; maintenance for the spouse and/or children; and enforcing certain payments and interim contributions towards divorce or legal fees. 

The Applicant (“Mrs C”) in this matter sought interim maintenance pending the finalisation of her action for divorce from the Respondent (“Mr C”). The Applicant also sought a contribution towards her legal costs. 

The Applicant in this case is a qualified teacher who gave up her career to become a homemaker and care for the couple’s two children. While caring for her children, Mrs C was unable to develop a profitable source of income or pursue a successful career outside of the couple’s marital home. The two minor children continued to remain in her care after the separation. The Respondent is a senior banking executive, and the court found little doubt that Mr C earns a substantial income. 

Legal representation on behalf of Mr C emphasised his net basic salary, in argument, to be just under R100 000 per month. However, Mr C’s financial disclosures revealed a true net income of just under R7-million in the last financial year, of which R4-million was a “cash component”. The court held that there was no real dispute that, when they lived together, Mr C and Mrs C lived a very comfortable lifestyle. 

The Applicant sought maintenance for herself in the sum of R46 123,69 per month and R21 289,31 per month for each one of the parties’ minor children. Mrs C also sought an order directing Mr C to cover the cost of Mrs C and the children’s new rental accommodation; the children’s educational and medical costs; as well as to contribute towards the cost of setting up the new household in which Mrs C and the parties’ two children reside. The court found that in the context of the standard of living enjoyed by the parties when they shared a home, and Mr C’s financial means, these requirements were not unreasonable. 

The court discussed and emphasised the temporary nature of the order pending finalisation of the main action. 

In terms of contribution towards her legal fees, Mrs C sought a payment of R91 995 in arrears due to her attorneys, as well as a contribution cost of R 1 480 950,05 until the trial certification stage. This amount was justified in court by means of reference to a bill of costs included in the papers. The amount was also justified by means of reference to the complexities raised by division of the accrual in the main action. In rule 43 proceedings, a court has the authority to direct the payment of legal costs that a party has already incurred (as seen in AF v MF 2019 (8) SA 422 (WCC), paragraph 45). 

In conclusion, the court ordered the following: 

1. While awaiting the finalisation of the main action for divorce, the Respondent had to pay – 
   1. Maintenance to the Applicant in the amount of R46 123,69 per month, as of 1 October 2021; 
   1. Maintenance in the amount of R21 289 per month for each of the parties’ two minor children; 
   1. The rental of the Applicant’s new residence where she resides with the parties’ two children, or R20 000 per month in respect of such accommodation – whichever of the two are the lesser amounts; 
   1. The utilities of the Applicant’s residential accommodation, if these expenses are not included in the rent charged; 
   1. School fees for the parties’ minor children and any costs associated with extra-curricular activities; 
   1. The Applicant’s and the parties’ children’s medical aid contributions, as well as any non-elective medical treatment required that is not covered by their medical aid; and 
   1. A contribution of R34 656,39 towards the Applicant’s costs in relocating from the family home they shared.

• In terms of the contribution towards the legal costs, the court ordered the following contributions to be made by the Respondent on or before 1 October 2021: 
  • R91 995,75 in settling the Applicant’s arrears; and 
  • A contribution of R 1 480 950,05 up until the trial certification stage.

The court ordered that, should the main action be settled before reaching the trial certification stage, any funds not used must be returned to the Respondent. The prayers for a contribution to costs between the trial certification stage and the first day of trial, and for a contribution to the costs of the trial itself, are postponed indefinitely. Lastly, the costs in the application were also to be the costs in the main action.