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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024-116399
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
DATE 04 April 2025
SIGNATURE
In the matter between:
L[...] K[...] Applicant
and
B[...] R[...] K[...] Respondent
JUDGMENT
Mazibuko AJ
INTRODUCTION
[1] This is an opposed Rule 43 application seeking interim maintenance for the
applicant ( 'Mrs K '), Mrs K and the respondent ( 'Mr K ') 's two minor children , and
the initial contribution towards Mrs K's legal costs. Mr K and Mrs K agree on
their children's primary residence, care and contact issues .
BACKGROUND
[2] Mr and Mrs K were married out of community of property with the inclusion of
the accrual system in May 2004. Mr K vacated the matrimonial home in 2020 ,
and the parties have largely moved on with their respective lives. Their two
minor children reside with Mrs K in their matrimonial home. Divorce
proceedings were instituted in October 2024.
CONDONATION
Late filing of the respondent's answering affidavit
[3] Mrs K filed the Rule 43 application on 3 February 2025 and the completed
Financial Disclosure Form ( 'FDF') on 11 March. Mr K's answering affidavit was
due on 17 February . However, he only filed same on 26 February. He seeks
leave for condonation of the late filing of his opposing affidavit. He attributed the
lateness to the late filing of Mrs K's FDF following his unsuccessful request for
same in preparation for his answering affidavit . He stated that he could not
properly answer her founding affidavit without the FDF. Further, in February, he
received an offer of employment and had to include that information in his
affidavit. Mrs K d oes not oppose the condonation application.
[4] A party in a Rule 43 application must act with the utmost good faith and fully
disclose all material information regarding their financial affairs. I accept that
the illustrated circumstances contributed to the late filing of the answering
affidavit. Further, Mrs K will suffer no prejudice due to the late filing of Mr K's
answering affidavit . I accept the explanation as reasonable and find that the
court is justified in granting condonation for the late filing of Mr K's answering
affidavit.
POINT IN LIMINE
[5] Mr K raised a point in limine that the application was mala fide. In support of his
submission, the following was raised. Mrs K had no basis for launching the
application, as she was already in July 2024, during a roundtable meeting,
informed of Mr K's retrenchment with effect from the end of September 2024.
He had always met his financial obligations, even when unemployed , between
Octo ber 2024 and February 2025 , earning only a monthly rental income of R8
000. Despite his request for water usage reduction in the matrimonial home due
to unaffordability, instead of cutting expenditures, Mrs K elected to install a new
watering system , even after learning of his retrenchment, which caused the
escalation of the water account .
[6] It was argued on behalf of Mrs K that Mr K can afford the increase in
maintenance as he has a net asset value of R13 764 852.04 plus savings
amount of R568 840.22 , whilst Mr s K's net asset value is R743 016.71.
[7] It is beyond dispute that both parents have a legal duty to maintain their
children. This obligation is allocated based on each parent's respective
financial resources, the children's needs , and other relevant factors. A parent
who is unemployed or facing financial difficulties is not exonerated from their
legal obligation to pay child maintenance. The emphasis is on the need to
provide for the children.1 Where the parent is unemployed or has financial
difficulties , the court will consider the reasons thereof , the parent's earning
potential, and their efforts to find employment.
[8] In casu , Mr K was retrenched and informed Mrs K more than 8 weeks before
his last day of employment. I accept that Mr K's loss of employment was not of
his own doing and recognise that his unemployment may affect his ability to
contribute to maintenance.
[9] Notwithstanding that Mr K was not employed at the time of the application and
was making contributions to almost all household and children's expenses ,
nothing prevented Mrs K from approaching this court for an increase in
maintenance, considering the parties' financial resources . The application for
an increase cannot be viewed as mala fide. Therefore, the point in limine
cannot be upheld.
ISSUE
[10] The issue for determination is whether Mrs K has made out a case for an
increase in maintenance and whether Mr K is to contribute to Mrs K's legal
cost.
MAINTENANCE PENDENTE LITE
1 L.N v N.N ZAGPJHC 772
[11] It is common cause between parties that Mr K makes monthly payments
towards children's school fees and related costs, R3 500 for the au pair, R1 400
for the gardener, household insurance, Mrs K and the children's medical aid
and extra costs not covered by the medical aid, R7 000 for groceries, R3 000
for the domestic worker, Municipal account, including rates, levies, water and
electricity, children's clothing, dance and hockey classes' fees, bicycle
extramural expenses, other miscellaneous and ad hoc expenses, including data
and children's pocket money.
[12] The application seeks additional payment. Mrs K averred that she has a
monthly shortfall of R35 320.92 , has depleted all her savings , had to withdraw
from the children's investments and has been unable to make provision for
payment of her provisional tax. She had to drastically lower her standard of
living, as well as that of the children, which standard they had become
accustomed to during their marriage with Mr K. Mr K's R10 000 monthly
contribution towards their maintenance is insufficient. Mr K ca n afford to pay the
maintenance as claimed.
[13] What is in dispute between the parties for the purposes of this Rule 43
application is the claim for children's maintenance of R13 500 per month per
child, spousal maintenance of R8 320,93 per month, the capping of Municipal
rates, taxes, water and electricity to R6000 per month, and the initial
contribution of R70 000 towards Mrs K's legal costs.
[14] An argument was advanced on behalf of Mr K that t he financial benefit Mrs K
and the children receive, directly and indirectly, from him amounts to around
R92 000 per month , as the beneficial enjoyment of the matrimonial home by
them is worth R35 000 per month . In addition, Mrs K earns R50 000 , which
then amounts to an income and benefits of at least R142 000 per month .
Further, t he spousal maintenance of R8 320 .93 per month was unreasonable ,
as she does not require a contribution other than what she already receives to
meet her own personal needs.
[15] They had been separated for 5 years; she had by now managed to completely
rehabilitate herself financially. She is a registered Professional Accountant in a
position to increase her own income . She has an au pair for the children, paid
for by him , so that she spends time on her business to increase her income.
[16] Further, there is no justification for the contribution of R70 000 towards Mrs K's
legal costs. He has made several attempts to settle the matter with no success ,
as Mrs K would derail the negotiations in an effort to gain from him unduly .
[17] Rule 43 applications ensure that no party is substantially prejudiced and lacks
resources to maintain a reasonable standard of living enjoyed by the parties
during the marriage and to supplement expenses the applicant cannot meet in
pursuing their cases in the main divorce action. They relate to the applicant's
reasonable needs and the respondent's ability to meet them .
[18] The reasonableness of the claim to maintenance pendente lite is determined by
the parties' standard of living during the marriage, the ability and affordability of
the respondent to pay, assessing their needs, and the responsibilities they have
carried , including the ones they are to assume. The applicant's resourcefulness
and the period of marriage should be considered .
[19] The parties have been married for over 20 years and separated for 4 years.
During the marriage and when the parties lived together, t hey earned an
income and enjoyed a comfortable standard of living. Mr K has been
unemployed since October 2024 and resumed employment in March 2025 . On
his own accord, since he vacated the matrimonial home, Mr K has been
contributing considerably to the household and maintenance of the children and
Mrs K, including ad hoc necessities.
[20] No contingent facts or evidence had been presented before the court that
contributed to Mrs K and the children to drastically lowering their accustomed
lifestyle . Mr K has been making the contributions since he left the matrimonial
home in 2020. Considering Mr K's contribution towards the children, i t was
unclear from Mrs K's financial disclosure what informed the sudden claim for
cash maintenance of R13 500 per month per child. For about six to eight days a
month , the children are with Mr K , and during that period, he also take s care of
their needs .
[21] Concerning spousal maintenance, Mrs K's financial disclosure failed to show
why her claim of R8 320,93 would be reasonable when regard is had to her
monthly income . I am of the view that her monthly income is adequate for her
personal expenses and requires no supplement contribution from Mr K.
[22] Regarding the Municipal rates, taxes, water and electricity, the evidence is that
Mr K has been paying and wants to continue paying. There is no evidence that
the account is in arrears. It is unclear why Mrs K elected to bring an application
seeking an order for Mr K to continue to pay this account. Further, she stated
that sometimes the account goes up with just less than R1 500 above R6 000
per month. In my view , such a difference can be covered by herself ; there is no
need for a court order .
[23] In the context of the standard of living enjoyed by the parties when they shared
a home, the parties' obvious means and current responsibilities, and the current
contribution Mr K makes towards the household and the children, including Mrs
K, it does seem to me that the claim is wholly unreasonable and exorbitant. I
conclude that Mrs K earns adequately to cater for her financial needs, and Mr
K's contribution is also sufficient to cater for the household, the children and
Mrs K, and does not require an orde r for the interim maintenance for herself
and their children .
CONTRIBUTION TO LEGAL COSTS
[24] Regarding the contribution towards legal costs, Mrs K claims R70 000 from Mr
K for counsel , attorneys' fees and related legal costs. The law is settled that the
contribution towards legal costs ensures that a party litigates on the same scale
as the other and is not disadvantaged in the divorce action. The applicant is not
entitled to the entire legal costs but a contribution. In determining the
contribution, the court must consider the circumstances of the case, the
financial position of the parties , and the issues involved in the pending litigation.
[25] Mr K contends that there is no need for him to pay a contribution towards Mrs
K's legal costs since she can and has been affording same since June 2024.
Further, she has contributed to the delay in finalising the divorce action by
making unreasonable demands.
[26] Having regard to the circumstances of the pending divorce action, the parties'
financial position and the issues involved in the pending litigation, I agree that
both parties need funds for their legal costs. With respect to the pleadings in
the divorce action, Mrs K delivered her plea and counterclaim in January.
[27] Though there is a significant disparity between the parties' incomes, Mrs K
must show that she has insufficient means of her own. She is only entitled to a
contribution to adequately put her case before the court . No cogent evidence is
placed before the c ourt showing that Mrs K is unable to present her case
against the respondent should the court not grant an order for a contribution
towards costs.
COSTS
[28] It was argued on behalf of Mr K that the application should be dismissed with
costs. I share the views expressed by counsel on behalf of Mrs K that costs
be costs in the main action.
[29] Consequently, I make the following order.
Order:
a) The respondent's point in limine is not upheld.
b) The Rule 43 application is dismissed .
c) Costs shall be costs in the main divorce action.
N G M MAZIBUKO
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Heard on: 26 March 2025
Judgment delivered on: 04 April 2025
For the applicant : Adv K Fitzroy
Instructed by: Weavind & Weavind Attorneys
For the respondent: Adv R Ferreira
Instructed by: Riette Oosthuizen Attorneys