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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 24232/2020
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
DATE: 17/01/25
SIGNATURE:
In the matter between:
C[...] W[...] L[...] Applicant
and
N[...] D[...] L[...] Respondent
REASONS FOR AWARDING A CONTRIBUTION OF R660 000 TOWARDS
APPLICANT'S LEGAL COSTS
Joyini J
[1] By way of introduction, when considering an application under Rule 43 for a
contribution towards legal costs, I take into account several factors. These include
the financial means of both parties, the complexity of the divorce case, and the
estimated cost of adequate legal representation. In these Rule 43 applications, I am
always guided by the principle of 'Equality of Arms' as it is a cornerstone in the
administration of justice, particularly in matrimonial disputes. This legal doctrine
ensures that both parties in a divorce have equal opportunities and resources to
present their cases, thereby maintaining fairness and balance in the judicial process.
[2] Firstly, as a starting point with regard to my reasons for awarding a
contribution of R660 000 towards Applicant's legal costs, it is common cause that the
Respondent's 1 net estate is worth R11 000 000 inclusive of all the moneys in bank
accounts, investments, immovable and movable property. I had to assess both the
Applicant's and the Respondent's ("parties") ability to pay the contribution. This
assessment includes examining the parties' income, assets, and overall financial
stability with a view to ensuring that the contribution ordered is within the parties'
financial capacity. During my assessment, I have established that the Applicant is
really in need a contribution towards her legal costs and the Respondent can afford.
Therefore, the ability of the Respondent to contribute towards the Applicant's legal
costs is the key factor in my decision. The Respondent is a man of means and
therefore, his wealth vis a vis the Applicant's need for help from her husband who
happens to be the Respondent guided me.
[3] Secondly, I am of the view that an important factor in determining the
quantum of contribution is the scale on which both parties are litigating. My decision
is trying to balance the scale so that both parties can litigate on an equal footing. It is
common cause that the Respondent in this case has raised the bar by engaging in
high-cost litigation against the Applicant by hiring Senior Counsel to represent him.2
It then became necessary for the Court to intervene by awarding a contribution to the
applicant to maintain the balance and fairness with a view to making it possible for
the Applicant to hire a Senior Counsel as well. The principle of 'Equality of Arms' is
fundamental in ensuring that divorce proceedings are conducted fairly and justly.
Through mechanisms like Rule 43, South African courts strive to uphold this
principle, ensuring that financial disparities do not translate into legal
1 Caselines Q406 to Q432.
2 Para [14] of my judgment reads : The applicant , in her founding affidavit,2 also revealed the
followinhg: "The Respondent is utilising the services of a very senior counsel and I trust he will inform
this Honourable Court as to what he has spent on his legal fees as well as the hourly and daily rate of
his senior counsel and attorney."
disadvantages. This approach not only reinforces the integrity of the judicial process
but also reflects a commitment to the equitable treatment of individuals, regardless of
their financial standing. When it comes to legal costs, Rule 43 serves to level the
playing field. It acknowledges that legal representation is not merely a luxury but a
necessity for fair participation in divorce proceedings. The rule allows for the Court to
order one party to contribute to the legal costs of the other, thereby preventing a
situation where financial muscle could skew the justice process. I am aware that
claims for contributions towards legal costs are unique and stem from the mutual
duty of support between parties. In A.F v M.F,3 the Court underscored the
importance of "equality of arms" in divorce litigation. The case highlighted the risk of
financial imbalances leading to unfair settlements, especially impacting the
financially weaker spouse, often the wife. This imbalance was seen as unfair and
contrary to constitutional rights, including equal protection, access to courts, and
dignity.
[4] With regard to Applicant's debts, she is quoted in paragraph [15] of my
judgment saying: "I am currently indebted to my attorneys of R152 018,62 (one
hundred and fifty-two thousand eighteen rand and sixty two cents). I have also since
deposing to my previous affidavits loaned funds from Mr Jacques Hans Botha
("Botha”) in the sum of R56 752,50 (fifty-six thousand seven hundred and fifty -two
rand and fifty cents) in order to place my attorney in funds, more specifically for
counsel." In this regard, the case of A.F v M.F,4 offers profound insights into the
complexities surrounding claims for contributions towards legal costs in divorce
proceedings. This case is particularly instructive in understanding how South African
Courts navigate the intricate balance between fairness, financial capacity, and the
necessity of adequate legal representation. A pivotal aspect of this case was
whether a Court can order a contribution to costs already incurred. The Court aligned
with the approach that past legal costs, especially debts incurred to fund legal costs,
should be considered in assessing a contribution under Rule 43. This stance is
supported by constitutional imperatives, particularly the right to equality and
equal
3 (6664/19) [2019] ZAWCHC 111; 2019 (6) SA 422 (WCC); [2020] 1 All SA 79 (WCC) (28 August
2019
4 (6664/19) [2019] ZAWCHC 111; 2019 (6) SA 422 (WCC); [2020] 1 All SA 79 (WCC) (28 August
2019
protection before the law. In my judgment, I have recognised the importance of
'Equality of Arms'. I have also considered the financial disparity between parties trying
to level the playing field. This approach is not only about ensuring fair representation
but also about upholding the dignity of the financially weaker party, who happens to
be the Applicant in this case. The Applicant's dignity is impaired when she must seek
financial support from others for legal costs. It is my considered view that the primary
duty of support should enable the Applicant who does not have means to secure
reasonable litigation costs from the Respondent who has sufficient mea ns. In this
case, you have, on the one hand, the Applicant who is, in debts, borrowing money
from other people for legal costs when the Respondent (her husband) is, on the other
hand, engaging in high-cost litigation against her by hiring Senior Counsel to
represent him and his (Respondent's) "net estate is worth R11 000 000 inclusive of
all the moneys in bank accounts, investments, immovable and movable property."
The Court also had to intervene here to balance the scale as this imbalance is unfair
and contrary to constitutional rights, including equal protection, access to courts, and
the Applicant's dignity.
T E JOYINI
JUDGE OF THE HIGH COURT,
PRETORIA
APPEARANCES:
For the applicants: Adv M Abro
Instructed by: Schuler Heerschop Pienaar Attorneys
Email: ice@shplaw .co.za
For the respondents: Adv T Strydom SC
Instructed by: Fuchs Roux Inc. Attorneys
Email: berna@frlaw.co.za or audrey@frlaw.co.za
Date of Request for Reasons: 10 January 2025
Date of Delivery of Reasons: 17 January 2025
These reasons have been delivered by uploading it to the Court online digital data
base of the Gauteng Division, Pretoria and by e -mail to the Attorneys of record of
the parties. The deemed date for the delivery is 17 January 2025.