What is a Notice of Motion in Terms of Rule 43?

A notice of motion in terms of Rule 43 is the formal application document used by a spouse in a pending divorce to claim interim relief — typically maintenance for themselves and minor children, contributions towards school fees and medical costs, and the care, contact, or guardianship of minor children — from the other spouse under the Uniform Rules of Court. The notice of motion is supported by a founding affidavit setting out the factual basis for the relief, is set down on the unopposed motion court roll, and ordinarily carries a short return date (typically around seven days) because the relief is interim and time-sensitive. The responding spouse is free to file a notice of opposition once served, and the matter is then argued on the opposed motion court roll; if the responding spouse does not oppose, the relief can be granted on the unopposed roll.

What Rule 43 Is and Where It Comes From

Rule 43 is a rule of the Uniform Rules of Court and applies to every divorce action in South Africa, regardless of whether the divorce itself is being run in a High Court division or a Regional Court. It is the procedural mechanism for interim relief — relief that is needed while the divorce is still being finalised — and it is designed to be fast because the underlying financial and care arrangements for the family cannot wait for the divorce itself to be concluded.

The substantive scope of Rule 43 covers maintenance (for the spouse and for minor children), contributions towards school fees and medical costs, the payment of bond instalments and utility accounts, and the care, contact, or guardianship of minor children. Rule 43 is the pending-divorce interim relief rule; it should not be confused with Rule 58, which deals with variation of maintenance and similar orders after a divorce order has been granted. The two rules are routinely confused because both deal with maintenance, but they operate at different stages of the matter.

What a Notice of Motion in Terms of Rule 43 Actually Is

The notice of motion is the formal written application document that launches the Rule 43 application — the procedural equivalent of a summons, but used in motion court practice rather than in action proceedings. It is filed in the court where the main divorce action is pending: the relevant High Court division (such as the Gauteng Division, Johannesburg or Pretoria seat) or the Regional Court where the parallel divorce is being run, depending on which forum the divorce itself has been issued in. The Magistrates’ Courts do not have jurisdiction over Rule 43, so the application cannot be launched on a magistrate’s court roll.

The notice of motion is supported by a founding affidavit — a sworn statement by the applicant setting out the facts relied on for the relief, including the financial position of both parties, the needs of the minor children, and the existing contributions being made by the respondent. Because the relief is interim and any undue delay prejudices the applicant and the children, the application ordinarily carries a short return date — typically around seven days, although the exact timetable depends on the practice directive of the court in which it is filed.

How a Rule 43 Notice of Motion Differs From an Ordinary Notice of Motion

A Rule 43 application is brought on the unopposed motion court roll and is heard without the requirement that the responding party be given prior notice before the application is launched — although the application itself must be served on the respondent once it has been filed. An ordinary application on notice is typically preceded by a longer notice period; Rule 43 short-circuits that procedural step because the relief is interim and the financial and care needs of the family are ongoing.

Feature	Ordinary notice of motion	Rule 43 notice of motion
Notice period to respondent	Longer, set by the Uniform Rules or practice directive	Short — typically around seven days to the return date
Court roll on filing	Ordinary opposed or unopposed motion roll	Unopposed motion court roll
Purpose	General interim or final relief in motion proceedings	Pending-divorce interim relief only
If respondent does not oppose	Court may grant on unopposed roll	Court may grant on the founding affidavit alone
If respondent opposes	Matter enrolled on opposed roll for hearing	Same — matter placed on opposed motion roll

The unopposed-roll setting means that if the responding party does not file a notice of opposition within the time allowed, the applicant can seek the relief on the unopposed roll without a contested hearing. Practitioners planning a Rule 43 application must therefore draft the founding affidavit to stand on its own, because the application may be granted without an oral hearing if the respondent does not oppose.

What the Notice of Motion Must Contain

Although the precise form varies between courts, a Rule 43 notice of motion ordinarily includes the following elements. These requirements are drawn from the Uniform Rules and standard motion court practice.

Required element	What it captures
Parties	The full names of the applicant and the respondent
Forum	The court and case number (or the indication that the divorce action is pending in that court)
Relief claimed	A clear, itemised list — for example, interim maintenance of a stated monthly amount, payment of school fees, maintenance for the children, and a specific arrangement for the care and contact of minor children
Supporting evidence	A reference to the founding affidavit that supports the application
Hearing details	The date, time, and place (the unopposed motion court roll) when the application will be heard
Signature	The signature of the attorney of record, or of the applicant personally if unrepresented

The Role of the Founding Affidavit

The notice of motion is the application document; the founding affidavit is the evidence in support of the application. The founding affidavit sets out the marital history, the breakdown of the relationship, the financial position of each party (income, assets, liabilities), the needs of the minor children, and any history of non-payment or non-contribution by the respondent. Because the court may grant the relief on the founding affidavit alone where the respondent does not oppose, the affidavit must be self-contained and must deal frankly with any facts that cut against the relief claimed.

Typical annexures to the founding affidavit include:

• Recent payslips and bank statements for both parties
• The marriage certificate
• The minor children’s birth certificates
• School fee statements and any medical aid or medical cost statements
• Bond statements, where the contribution towards bond instalments is sought
• Prior written correspondence about maintenance or contributions, where it exists

The founding affidavit must be properly commissioned — sworn before a Commissioner of Oaths — and the original must be filed together with the notice of motion.

The Return Date and the Unopposed Roll

Once filed and served on the respondent, the application is placed on the unopposed motion court roll for a return date roughly seven days later. The exact timetable depends on the practice directive of the court in question — practitioners should always confirm the current directive before issuing the application. On the return date, the application is called:

1. If the application is unopposed, the court reads the founding affidavit and may grant the relief in the terms of the notice of motion.
2. If the application is opposed, the court cannot grant relief on that date and the matter is allocated a hearing date on the opposed motion court roll.

If the respondent opposes, they file a notice of opposition together with an answering affidavit before the return date, and the matter proceeds to a contested hearing on a later date. The applicant may then file a replying affidavit. The short timeline is the central feature of Rule 43 — it is built for interim, time-sensitive relief, not for disputes that can wait.

What Happens at the Hearing

On an unopposed application, the court reads the founding affidavit and annexures and grants the relief in the terms of the notice of motion if the facts support it; the respondent need not be present, although the application must have been properly served. On an opposed application, both parties file affidavits (the applicant may file a replying affidavit), and the matter is argued in motion court by counsel or the parties’ attorneys. The court has a discretion to refuse, vary, or grant the relief, and to make cost orders against either party.

A Rule 43 order is by its nature inter partes — an order made between the parties — and remains in force until it is varied or until the divorce itself is concluded. The order does not automatically fall away when the divorce is finalised; if ongoing maintenance or care arrangements are required after the divorce, a fresh application or a Rule 58 application (post-divorce variation) will be needed.

Why Rule 43 Matters in Practice

Without Rule 43, the formal finalisation of a divorce — which can take many months — would leave the financially weaker spouse and the children without a court-ordered maintenance or care arrangement in the meantime. Rule 43 is the procedural mechanism that operationalises the constitutional and common-law duty of support between spouses and between parents and children during the divorce. From the applicant’s side, the notice of motion is the entry point to that relief; from the respondent’s side, it is the document that triggers their obligation to file a notice of opposition if they intend to defend the application.

Frequently Asked Questions

Is a Rule 43 application the same as a divorce summons?

No. A divorce summons (or petition) starts the divorce itself; a Rule 43 application is an interim application brought during the divorce to claim maintenance, care and contact, and related relief while the divorce is still pending. The two are usually filed together but they are separate procedural documents with separate case numbers.

How long does it take to get a Rule 43 order?

The application is set down on the unopposed motion court roll with a return date typically around seven days after filing. If unopposed, the order can be granted on the return date; if opposed, the matter is rolled over to the opposed motion court roll and the timeline depends on the court’s roll and the length of the affidavits.

Can I bring a Rule 43 application without a lawyer?

A litigant in person can file a Rule 43 application, but the application must follow the Uniform Rules of Court strictly, the founding affidavit must stand on its own, and the application must be properly served. Most applicants engage a family law attorney because the relief is urgent and the costs of a defective founding affidavit are immediate — a refused or postponed application and a wasted return date.

What happens if the other side does not oppose?

If the respondent does not file a notice of opposition within the time allowed, the application is dealt with on the unopposed motion court roll and the court can grant the relief in the terms of the notice of motion on the founding affidavit alone. The order stays in force until it is varied or the divorce is concluded.

Can a Rule 43 order be changed once it is granted?

Yes. A Rule 43 order is interim and can be varied on application by either party if there is a material change in circumstances — for example, a change in income or a change in the children’s living arrangements. Variation applications are typically brought on the same Rule 43 procedural framework.

Is Rule 43 the same as Rule 58?

No. Rule 43 is the pending-divorce interim relief rule. Rule 58 is the post-divorce variation rule and is used to change a maintenance or similar order after the divorce has been finalised. The two are routinely confused because they both deal with maintenance, but they operate at different stages of the matter.

If you are considering a Rule 43 application — or have received a Rule 43 notice of motion and need to respond — Burger Huyser Attorneys’ Divorce Law department can advise on the merits, the supporting documents, and the timing. The firm runs Rule 43 applications through its family law and litigation practices across Gauteng, with intake available at the Linden (Randburg) head office on 011 888 0246 and at the Sandton branch on 011 253 3080. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”). Initial consultations are booked directly through the relevant branch.