Divorce – The Rule 43 Banana Skin

Bright Stars Safe Home
May 18, 2017
Can counsel’s advice on evidence be recovered?
July 11, 2017

As many Attorneys may be aware, the sometimes unavoidable Rule 43 proceedings that follow matrimonial proceedings can easily take up more of the Attorney and Counsel’s time than the actual divorce case itself.

To add salt to the wound, the costs of conducting Rule 43 proceedings almost always exceed those of the divorce proceedings by a country mile. As many Attorneys may be aware, the sometimes unavoidable Rule 43 proceedings that follow matrimonial proceedings can easily take up more of the Attorney and Counsel’s time than the actual divorce case itself. To add salt to the wound, the costs of conducting Rule 43 proceedings almost always exceed those of the divorce proceedings by a country mile.

Rule 43 was originally designed to give parties fast and affordable relief i.r.o interim disputes regarding maintenance and access. To regulate fees, the Law makers at the time put a limit to the amount that an Attorney and their Counsel may recover. Back in 1978 when the Rule was drafted, it seemed reasonable to allow the Attorney to claim R 300 and Counsel R80 if proceedings were unopposed; R 350 for the Attorney and R 170 for Counsel if opposed. Today, Rule 43 has become a banana skin that traps many an unwary Attorney.

Furthermore the Taxing Masters have no discretion in this regard either in the absence of a Court Order or Agreement to the contrary.

For a party with limited financial resources this can be devastating and traumatic ! We have seen many a time that the party controlling the family’s income actually holds the the other party and the rest of the family at financial ransom !

It is therefore important to be aware at all times of the limitations of Rule 43 i.r.o the recovery of costs and to ensure, without fail, that the Court is addressed specifically on this issue in order to ensure fair and just recovery of Legal Costs. The Rule 43 tariff limitations are indeed arcaic and not nearly in pace with inflation trends since the late 70’s, but we are stuck with this until such time that it is reviewed and rectified, which we hope will be sooner rather than later.

Our advice is to simply request the Court to include in its order that : ” The terms of Rule 43 (7) and (8) shall not apply i.r.o costs. ” This will make all the difference to the successful party’s life.