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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 076638/2023
(1) REPOR TABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
(4) Date: 17 March 2025
Signature:
In the matter between:
M[...] M[...] V[...] Z[...] Applicant
(Identity Number: 7[...])
And
R[...] T[...] D[...] M[...] V[...] Z[...] Respondent
(Identity Number : 7[...])
JUDGMENT
NYATHI J
A. Introduction
[1] The applicant is seeking relief in terms of the provision s of Uniform Rule 43
pending the finalization of a divorce in which she is the defendant . The
respondent opposes the application.
[2] The parties are married out of community of property with the exclusion of the
accrual. They are joint owners of the immovable property whereat the
respondent resides.
[3] Two children were born from the marriage. They are :
3.1 RVZ a major dependant male , born on the 22nd of April 2006,
currently 18 years old , and
3.2 CVZ, a minor male born on the 21st of September 2007,
currently 17 years old.
3.3 Both children are in the primary care of the respondent. The
applicant has no objection to an interim order confirming same.
B. Disputes between the parties:
[4] The following issues remain in dispute between the parties :
4.1 Spousal maintenance, the Applicant is claiming an amount of
R5 500.00 per month which remains contested ;1
4.2 Payment of the bond instalments;
4.3 The applicant seeks an order in relation to a motor vehicle
which remains contested;
4.4 Insurance contributions (in respect of the home and motor
vehicle) which remains contested;
4.5 Maintenance in relation to the children which remains
contested;
4.6 Legal cost contribution(s) in the amount of R50 000.00 (Fifty
thousand Rand) which remains contested.
[5] At the commencement of the hearing the applicant sought an indulgence to
have her supplementary affidavit admitted into evidence . The applicant
1 As per the applicant's supplementary affidavit.
submitted that the document was necessary due to changes in circumstances
as a result of her obtaining employment after institution of the Rule 43
application. The respondent did not object to the application, the
supplementary affidavit was accordingly admitted.
[6] In the supplementary affidavit, the applicant confirm s that on or about the 20th
of August 2024 Combrink & Jamneck Attorneys offered her a receptionist
position. She accepted the offer and commenced with the employment on
Friday the 23rd of August 2024 and was paid a pro rata amount of R 2181.82
for the month of August 2024. Her monthly salary for September 2024 was an
amount R 8000.00 (EIGHT THOUSAND RAND) .
[7] Because she has obtained employment , she is no longer able to devote her full
attention and time to the Africa Condiments cottage industry which she
disclosed in her founding affidavit.
[8] She confirms that the communal home is currently placed on the open market
for sale. She therefore continues to reside in the flatlet situated on the property
pending the sale .
[9] The applicant then lists her expenses totalling R 13 215.00 less her income of
R 8000.00 , this leaves a shortfall of R 5 215.00.
C. Common cause facts and what the respondent tenders:
[10] The vesting of the children with the respondent subject to reasonable access
by the applicant.
[11] The need for the appointment of a Clinical Psychologist has been identified .
[12] The respondent has expressed a willingness to continue payment of the bond
until the sale of the house is achiev ed, he has however, arranged for a
payment holiday with the bank due to his financial constraints. The
respondent’s Financial Disclosure Form (“FDF”) provides for the bond
payments.
[13] The respondent offers to continue payments for the bond and to give his co -
operation to efforts to sell the house . Each party has a 50% share of the
property.
[14] The applicant alleges that the respondent receives big amounts of cash whi ch
are not disclosed in his FDF. On his version , the respondent earns R42 000.00
per month. This is as per his salary slips.
[15] Once the bond amount of R11 000.00 is deducted, t ogether with the R5 500.00
prayed for by the applicant, then the respondent is left with R25 500.00 per
month. The applicant in her submissions considers this to be not unfair.
D. The legal position .
[16] In Taute v Taute2 it was held that a claim supported by reasonable and
moderate details carries more weight than one which includes extravagant or
extortionate demands. 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.
[17] The concept of a spouse being ordered to contribute towards the other spouse
in a matrimonial suit is unique in nature and is a product of constitutional and
common law fairness in litigation arising from the duty of support the spouses
owe each other . The a im is to afford the spouse who is financially
2 1974 (2) SA 675 SA 675 (E) at 676 H.
disadvantaged in re lation to the other “an equality of arms” to present their
case adequately before the court hearing their divorce.3
E. Discussion
[18] Spousal maintenance arises out of the duty to maintain each other that
spouses owe each other. Their standard of living during the subsistence of the
marriage and their earning power and ability to afford it are cardinal
considerations.
[19] In this case, the applicant has always endeavoured to make a meaningful
contribution to the household finances by applying herself to home -based
industries such as the family business of breeding dogs for sale4 and Africa -
Condiments . She has while this application was pending, obtained employment
and filed a supplementary affidavit as a result .
[20] One of the applicant’s prayers relates to her need to gain access to the
respondent’s Chevy Spark motor vehicle . The respondent in his answering
affidavit responds as follows :
“…83.3 I wish to make it clear that I have not denied the Applicant access to
the newly purchased vehicle (Chevrolet Spark). She is free to use it during the
day (when I am at work), yet over weekends and after working hours we need
to share the vehicle. It is however unnecessary for the Court to make an order
to this effect. I will continue to pay the insurance instalment on this vehicle
insofar as my finances allow. ”
[21] This ought to be a resolution of this conundrum, pending the finalization of the
main application.
3 See amongst others: B.J.M v W.R.M (unreported, GJ case No. 2022/9405 dated 26 April 2023) at
paragraph [43] and the case s referred to therein.
4 SA Labradoodles. Para 4.3 respondent’s FDF.
[22] The respondent counters the application for maintenance in respect of the
minor child by seeking a declaration that the applicant be ordered to pay
maintenance to him in respect of the minor child, C VZ as well as the major
dependent child, RVZ, in the amount of R3 500,00 ( Three thousand five
hundred Rand ) per month per child. This needs a resolution.
[23] It was argued on behalf of the respondent that the applicant did not attach the
report of the Family Advocate to this application solely because it did not suit
her.
[24] The parties agree that the respondent shall be the custodial parent of the two
children. Therefore, the issue of maintenance for the boys needs no further
pronunciation. Nothing stops the applicant whenever she can, to contribute
thereto.
[25] Legal costs: the respondent disputes that the applicant is entitled to any
contribution towards her legal costs. He pleads poverty . Similarly , the court is
called upon to resolve this.
[26] The issue of primary residence of both sons being awarded to the respondent ,
subject to the applicant’s right to contact the minor child at all reasonable times,
such contact to be arranged directly with the minor child directly, is from the
papers and submissions already a settled matter .
F. Conclusion
[27] Deter mining the quantum of contribution towards legal costs lies within the
discretion of the presiding judge. It underscores the judiciary’s flexibility in
determining appropriate contributions to legal costs, based on the specifics of
each case.5
5 A.F. v M.F. 2016 (6) SA WC C at para 27 to 48.
[28] In Van Rippen v Van Rippen6 the court’s judicial discretion in matters of
maintenance and contribution towards legal costs was confirmed. The court
emphasised the importance of ensuring that the financially weaker spouse is
enabled to litigate on an equal basis with her/his spouse . The court
underscored the need for fairness to both parties and the just and equitable
treatment of vulnerable spouses in divorce proceedings. These are usually but
not exclusively the house wives .
[29] In Nilsson v Nilsson7, the court stated the following : "Primarily Rule 43 was
envisaged to provide temporary assistance for women, who had given up
careers or potential careers for the sake of matrimony with or without maternity,
until such time as at a trial and after hearing evidence maintenance claims and,
if children had been born, custody claims could be properly determined. It was
not created to give an interim meal ticket to women who quite clearly at the trial
would not be able to establish a right to maintenance. The grey area between
the two extremes causes problems.”
[30] There is a residual aw kward situation that arises in the event that the court
orders the sale of the house , the applicant will have a need for accommodation.
[31] The respondent submits that the applicant has moved into a flatlet /cottage
outside the main house, this caused the respondent to endure a loss of rental
income of R7000 per month. In the final ana lysis the parties may agree and co -
operate in the sale of the house, but t his is an issue best left for the final
adjudication by the divorce court in the main trial.
[32] The respondent insists that the applicant’s dog breeding business is still
ongoing and earning applicant income.8
6 1949 (4) SA 634 (C).
7 1984 (2) SA 294 (C) at 295F .
8 Para 15, respondent’s answering affi davit.
[33] The applicant and respondent have made numerous accusations and counter
accusations regarding incomplete and inaccurate information concerning their
finances. These are taken on board, though not repeated herein.
[34] In Du Preez v Du Preez9, it was held that:
“…there is a tendency for parties in rule 43 applications, acting expeditiously or
strategically, to misstate the true nature of their financial affairs. It is not
unusual for parties to exaggerate their expenses and to understate their
income…To my mind the practice is distasteful, unacceptable, and should be
censured. Such conduct, whatever the motivation behind it, is . dishonourable
and should find no place in judicial proceedings…Should such conduct occur in
rule 43 proceedings at the instance of the applicant, then relief should be
denied.”
[35] In the totality of the evidence before me , the application cannot succeed at this
stage . The following order is made:
The application is dismissed . The costs of the application to be costs in the
divorce .
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 23/10/202 4
Date of Judgment: 17 March 2025
On behalf of the Applicant : Ms. C. Spangenberg
9 2009 (6) SA 28 (T) at 32C -H
Duly instructed by: Van Dyk & Horn Attorneys ; Pretoria
e-mail: chris@vdha.co.za
On behalf of the Responde nt: Ms. T. Ellerbeck
Duly instructed by: Arthur Channon Attorneys; Pretoria.
e-mail: arthur@channonattorneys.co.za / kristen@channonattorneys.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 March 2025.