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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 046725/23
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 17 January 2025
Signature:
In the matter between:
W[...] A[...] S[...] B[...] Applicant
(Identity Number: 7[...])
And
J[...] M[...] K[...] Respondent
(Identity Number : 8[...])
JUDGMENT
NYATHI J
A. Introduction
[1] This is an application in terms of Rule 43 of the Uniform Rules of Court, for the
granting of an order, pendente lite , towards the applicant’s reasonable, spousal
maintenance needs, as well as for an initial contribution towards his legal costs.
[2] The applicant and respondent (“the parties”) were married to each other on 7
September 2019 out of community of property, with the inclusion of the Accrual
System.1
[3] No children were born from the marriage.
[4] The applicant claims monthly maintenance of R 65 000.00 per month and
R100 000.00 payable in monthly inst alments of R10 000.00.
B. BACKGROUND
[5] The applicant submitted that during the parties’ romantic relationship, and
subsequent marriage, he made contribut ions in cash and in kind towards the
establishment, growth and development of various business enterp rises
conducted by the respondent, such as C[...] P[...] P[...] D[...] and Dr [...] D[...]
H[...] .
[6] Before the parties separated, their joint household and living expenses were
funded at the instance and request of the respondent , by the entity known as
C[...] P[...] P[...] D[...] , until approximately April 2022, whereafter the entity
known as Dr [...] D[...] H[...] , catered for all their joint maintenance needs , by
mutual decision between the parties.
[7] The respondent had employed the applicant in her business and remunerated
him as an employee.2 Applica nt then alleges that the respon dent decided that
she no longer wished to remain married to him, she unfairly, and without due
reason or proper process, terminated his employment, thereby effectively
"ousting" him from the business that they had built together. Th is result ed in the
applicant being completely cut off financially.
1 Chapter 1 of the Matrimonial Property Act 88 of 1984.
2 Applicant submits that he was paid a salary of R50 000.00 per month.
[8] As a result of the termination of his employment, the applicant is without any
income. The respondent fails to make any meaningful contribution towards the
applican t’s reasonable and actual needs. From the applicant’s Financial
Disclosure Form (“ FDF”) it is reflected that he has liabilities totalling
R782 473.71 . There are, however, no bank statements attached .
[9] The applicant has sketched out a monthly expenditure requirement of
R65 300.00.3
[10] The respondent has in the meantime sold the luxur ious matrimonial home
which she had purchased in Silverlakes Road, Pretoria for nearly R4 million.
The respondent makes no contribution towards the applicant’s accommodation
costs.
[11] The applicant has tried to find new employment but without any success.
[12] The respondent has removed the applicant fro m her medical aid scheme.
[13] In the face of the applicant’s application, the respondent makes no tender at all
but pleads poverty.
The respondent’s version
[14] The respondent contends that it was not the applicant who was employed by
Cosmo Farm but a cor porate entity. The Commission for Conciliation,
Mediation and Arbitration (“CCMA”) ruled that the applicant has successfully
established the existence of an employment re lationship between himself and
the respondent.4
3 FDF para 3.
4 Para 45 of the CCMA Jurisdictional Ruling dated 04 September 2023 filed with the Rule 43 application.
[15] The respondent alleges that on or about 21 December 2022, the applicant
transferred from her personal credit card account an amount of R65 000.00 into
his own bank account, without her knowledge or authorization.5
[16] The respondent details malicious, abusive , aggressive , threatening and
unbecoming conduct on the part of the applicant, which eventuated in her
obtaining a Protection Order at the Magistrat es’ Court.6 The prohibitions in
force from the order are far -reaching, I deem it not necessary to repeat them
herein.
[17] According to the respondent, the applicant continued to occupy the matrimonial
house even after the official transfer was d one, therefore she had to initiate
legal proceedings to evict him.
[18] The respondent submits that she is hopelessly insolvent, with debts in the
region of R1,4 million rand. The respondent lists her indebtedness in her
Financial Disclosure Form (“FDF”) broken down as follows:
18.1 Nedbank Covid Loan – R50 334.58
18.2 Nedbank Credit Card – R52 962.95
18.3 Standard Bank Credit Card – R168 078.60
18.4 Standard Bank Revolving Credit Account – R277 616.90
18.5 Nedbank Current Account – R5 674.32
18.6 Cosmo Pharm – Loan Account – R852 213.00
[19] Respondent lists her total income from her consultancy business as
R690 000.00 per annum. Her monthly expenses are R 62 740.00 per month.
5 Respondent’s answering affidavit para 11.
6 Ibid para 12 – 19.
[20] The respon dent acknowledges that the applicant did advance R300 000.00 to
Cosmo Pharm at its inception . The loan was repaid in full by way of three
payments : R150 000.00 on 1 April 2022, R100 000.00 on 4 April 2022 and
R50 000.00 during January 2023.
[21] The applicant , on his version, has not earned an income since January 2023 .
He waited nearly 14 months before launching this application.
[22] The respondent has sought a forfeiture order in the divorce action.
Common cause facts
[23] The respondent instituted divorce action in May 2023. The applicant filed his
plea and counterclaim, to which respondent has pleaded. Pleadings have
closed. What remains is application for and allocation of a trial date.
C. DISCUSSION AND CONCLUSION
[24] The applicant has not taken the court into his confidence by providing his bank
statements and other documents to support his predicament. He has not set
out in his founding affidavit any efforts on his part to secure employment since
his alleged dismissal. He has not explained, as the responde nt did, how he has
managed to get by for the 14 months before he initiated this application.
[25] The applicant’s non-disclosure of his bank financial statements and other
supporting documents as well as the means of securing employment in the
previous 14 months is substantial, as this information is material for Rule 43
Application s and such information would draw a clear picture of the applicant’s
financial situation.
[26] In Du Preez v Du Preez7 Murphy J states that “ A mistreatment of one aspects
of relevant information invariably will colour other aspects with the possible (or
likely) result that fairness will not be done . Consequentlly I would assume there
is a duty on applicants in rule 43 applications seeking equitable redress to act
with the utmost good faith (uberrimae fidei) and to disclose fully all material
information regarding their financial affairs. Any false disclosure or material
non-disclosure would mean that he or she is not before court with ‘clean hands’
and, on that ground alone, the court will be justified in refusing relief.”
[27] The applicant, in su pport of his claim for contributions towards his legal costs ,
attached a bill of costs marked “annexure I” totalling some R145 725.40. Items
58 and 59 thereof simply read as follows: “Letters written (58pg) ” and “Letters
received ( 75pg)” and are billed at R11 926.54 and R7 809.75 respectively.
These amounts are food for thought as to their reasonableness for what they
purport to represent.
[28] In Nilsson v Nilsson 1984 (2) SA 294 (C) at 295F, VAN DEN HEEVER J held
that a rule 43 order is not meant to provide an interim meal ticket to a person
who quite clearly at the trial would not be able to establish a right to
maintenance. The court further determined that “The shorter the duration of the
marriage, the more important the conduct of the parties within the relationship –
their respective 'guilt' or 'innocence' – would ordinarily be in relation to the
question whether maintenance should be paid at all.” This is so , mindful of the
fact that the trial court will be best placed to make a final determination on th e
issue of maintenance.
[29] It is trite that it was held that a claim supported by reasonable and moderate
details carries more weight than one which includes extravagant or extortionate
7 2009 (6) SA 33 para 16.
demands.8 Similarly, more weight will be attached to the affidavit of a
respondent who evinces a willingness to implement his lawful obligations than
to that of one who is seeking to evade them .
[30] In Taute v Taute9, reference was made to Levin v Levin 1962 (3) SA 330 (W) at
p331D , where LUDORF J said the following:
“To decide the issues I am compelled to draw inferences and to look to the
probabilities as they emerge from the papers. Obviously my findings are in no
way binding on the trial Court and indeed after hearing the evidence it may
emerge that some or all of the inferences I have drawn are wrong. On this
basis I now turn to the issues as they emerge from the papers.”
[31] This is one such instance where I am compelled to look to the probabilities as
appears from the papers and draw inferences therefrom. I have referred to the
parties’ marriage on 7 September 2019 . The respondent commenced divorce
proceedings in May 2023. The respondent has detail ed the circumstances
leading to the breakdown of the marriage and th e applicant’s conduct resulting
in the prayer for forfeiture in the particulars of claim.
[32] All these allegations will be dealt with by the trial court in due course. The
allegations cannot be disregarded in the rule 43 proceedings. The respondent’s
prospects of success in due course will have a bearing on whether the
applicant prevails in the interim application for maintenance and contribution to
legal costs.
[33] On a holistic consideration of the papers , I am not persuade d that the applicant
is wholly in capable of supporting himself . The respondent is not a big shot
businesswoman as the applicant makes her out to be.
8 Taute v Taute 1974 (2) SA 675 (E).
9 1974 (2) SA 675 (E).
[34] The normal rule regarding costs in litigation is that the costs follow the
outcome, unless a case is made out for a different order as to costs.
In the result, the following order is made:
The application is dismissed with costs.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 28/10/202 4
Date of Judgment: 17 January 2025
On behalf of the Applicant : Ms. M. Fabricius
Duly instructed by: Shapiro & Haasbroek Inc. ; Pretoria
e-mail: leon@shinc.co.za / geraldine@shinc.co.za
On behalf of the Responde nt: Ms. S. Liebenberg
Duly instructed by: ALAN JOSe Inc. c/o Griesel van Zanten Attorneys, Pretoria.
e-mail: alanj@alanjoseatt.co.za
Delivery : This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand -down is deemed to be 17 January 2025.