- A divorcing wife brought a Rule 43 application seeking maintenance for herself while the divorce proceedings were pending.
- She set the matter down for hearing while her husband was still preparing his answering affidavit and before the period allowed for his response had expired.
- The High Court in Mahikeng set aside the notice of set-down and ordered the wife to pay the costs of her husband’s application.
A divorcing wife was not allowed to push ahead with a maintenance application before her husband had been given the full opportunity to respond. The High Court in Mahikeng found that setting down the application prematurely was an irregular procedural step that placed the husband at an unfair disadvantage.
The dispute arose from pending divorce proceedings between the couple, who are married under an ante-nuptial contract with the accrual system. They have a minor child who is in the wife’s custody, while the husband is providing maintenance for the child. The wife also sought maintenance for herself through a Rule 43 application.
Wife sets maintenance application down
The wife served her Rule 43 application on her husband on 12 March 2026. He delivered a notice of intention to oppose the application on 18 March.
The following day, 19 March, the wife served a notice setting the matter down for hearing on 7 May 2026. The husband was still preparing his answering affidavit, which was due on 26 March. The judgment records that the matter had been set down within four working days while the husband was still preparing his response.
The husband objected to the early set-down and asked the wife to withdraw the notice. He argued that he had not yet been given the full period allowed by the rules to prepare and file his response.
The wife refused to remove the notice, arguing that the set-down was not an irregular step and that her husband still had time to file his answering affidavit. He then approached the High Court in Mahikeng under Rule 30, asking for the notice to be declared irregular and set aside.
Rule 43 gives the respondent time to answer
Acting Judge B.F. Mnyovu considered the procedure governing Rule 43 applications, which allow a spouse to seek interim relief during pending matrimonial proceedings, including maintenance.
Under Rule 43, a respondent has 10 days after receiving the application to deliver a sworn response. The Registrar may then bring the matter before the court for a summary hearing, with 10 days’ notice to the parties, unless the respondent is already in default.
The judge rejected the argument that the husband had already been barred from filing his answering affidavit when the wife approached the Registrar. His time to respond had not yet expired, and the procedure for bringing the matter before the court had therefore not been completed.
The court also considered the financial disclosure required in the matrimonial proceedings. Because the husband had not yet filed his answering affidavit, allowing the application to proceed would have denied him the opportunity to place his full case and financial position before the court.
Court sets aside premature notice
Judge Mnyovu concluded that the husband had suffered real and substantial prejudice because the application had been set down before he had been given the procedural opportunity to respond. The court held that this disadvantage could not be cured by simply allowing the matter to proceed without his answering affidavit.
The 19 March 2026 notice of set-down was therefore declared an irregular step and set aside. The wife was ordered to pay the costs of the husband’s Rule 30 application on an attorney-and-client, scale B.
The ruling did not determine whether the wife is ultimately entitled to the maintenance she is seeking. It dealt only with the procedural question of whether her Rule 43 application could be heard before the husband had been given the required opportunity to respond.
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