REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number:099818/2023
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : NO
11 /04 /ao~S-:::....__--=--~ -.......-=---
DATE f SIGNATURE __ -,,,
In the matter between:
E.V.D.M
and
S.R.V.D.M
DOMINGO, AJ
Introduction JUDGMENT Applicant
Respondent
(11 The applicant (wife) approached this court for interim relief in terms of Rule 43 of
the Uniform Rules of Court, pending the finalisation of divorce proceedings
instituted by the respondent (husband) against the applicant.
[2] This is an opposed Rule 43 application seeking the regulation of contact and
maintenance in respect of two minor children. The applicant also seeks
contribution toward her legal costs.
[3] Following an incident on the 15 February 2025 between the respondent 's long -
term partner and the elder minor child during the minor children's contact
weekend, the applicant filed a supplementary affidavit dealing with this event.
[4] Based on the facts contained in the applicant's supplementary affidavit, the
applicant filed a notice in terms of Rule 28 for leave to amend the prayers
regarding contact in her Rule 43 notice, to provide for, inter alia, contact between
the minor children and the respondent from 09h00 to 17h00 at a public venue on
Saturdays and Sundays of each alternate weekend, pending further investigation
by the Family Advocate and a supplementary , alternatively new,
recommendation regarding contact.
[5] The applicant's supplementary affidavit also dealt with compliance regarding the
issues of mediation as stipulated in the Judge President 's Revised Consolidated
Practice Directive 1 of 2024 issued on the 12 June 2024.
Condonation
Late filing of opposing papers
[6] The respondent filed his answering affidavit on the 20 February 2025. His reply
was out of time, and on attendance at court he sought leave for condonation of
the late filing of these papers.
[7] Counsel for the applicant submitted that the application in terms of Rule 43 was
filed on the 13 December 2024. Despite the fact that dies non shall not apply to
applications brought under Rule 431 the applicant provided the respondent with
an indulgence until 15 January 2025 to file his answering affidavit, considering
that most law firms were closed for the festive period. The respondent only filed
his answering affidavit on the 20 February 2025, after receiving a letter which
dealt with the contents of the the applicant's supplementary affidavit, without
1 Uniform Rule 6(5)(b)(iii)(c).
2
addressing the incident with the elder minor child mentioned in the letter or
seeking condonation for the later filing of his answering affidavit.
[8] In S.K v M.N2 in dealing with a condonation of late filing of opposing papers
where minor children are involved, the court stated:
"Whereas some of the submissions in opposition to condonation being granted are not
without merit, the respondent's explanation is on certain aspects inadequate.
Regardless it is in the interests of justice that condonation be allowed. Primarily on the
grounds that the matter concerns the best interests of three minor children. His
application raises important issues pertaining to their well-being . The prejudice to the
applicant was, in my view, insufficient to warrant the refusal of condonation . In all
litigation involving or concerning children, the best interest of the children affected are
paramount and must be properly ventilated and considered ."
[9] In this matter, it is in the interest of justice that the condonation be allowed. The
best interest and the well-being of the two minor children would be negatively
impacted if the condonation is not allowed. There is no prejudice to the applicant
that warrants the refusal of the condonation . It is for these reasons that I granted
the condonation.
Postponement
[1 O] The respondent sought a postponement to deal with the relief sought by the
applicant in her supplementary affidavit, primarily that his contact rights are
limited in order to place his version before court and to place the report of Dr
Olivier the children's therapist before court which dealt with recommendations
related to the 15 February 2025 incident.
[11] The respondent also requested the applicant through correspondence to
consider the appointment of a social worker or parenting coordinator to
investigate the contact, consult with the parties, the children's therapist and the
children and make recomme ndations as to contact in future. The respondent was
also in agreement that the matter in the interim be referred back to the office of
the Family Advocate.
2 (03532/24) [2024] ZAKZDHC 43 (20 June 2024) para 11.
3
[12] On attendance at court the parties agreed to the appointment of a parenting
coordinator , Ms Irma Schutte and the parties worked out interim contact
arrangements , however, the parties differed on the insertion of phased in contact
time frames. Despite this difference , substantively the parties were ad idem with
the contact arrangements .
[13] Having agreed on the appointment of a parenting coordinator the respondent
undertook to be liable for the payments of the parenting coordinator . In the
premises, the respondent contended that the appointment of the parenting
coordinator would have financial implications for the respondent , which has to be
considered in light of the cost contributions sought by the applicant and therefore
sought a postponement of the interim maintenance claims and costs towards the
legal contribution of the applicant.
[14] In MGM v MJM3 the court held:
"The purpose of Uniform Rule 43 applications is to ensure that no party is substantially
prejudiced and lacks resources to maintain a reasonable standard of living enjoyed by
the parties during the marriage when pursuing their cases in the main divorce action.
Courts are required to consider the applicant's reasonable needs and the responden t's
ability to meet them."
[15] The rule 43 application is meant to be an expeditious process, the reason sought
for the postponement based on the payment of a parenting coordinator was in
my view insufficient to warrant a postponement.
[16] The respondent uploaded a letter sent to the applicant's attorney's written by the
respondent 's life-partner setting out her version of events that took place on 15
February 2025. The report by Dr Olivier, the children's therapist was also
uploaded which set out his recommendat ions. In regard to the respondent
seeking a postponement to allow him an opportunity to file an answering affidavit
in response to the applicant's supplementary affidavit, in my view in light of the
information provided above, it was sufficient to proceed with the application and
not grant the postponement as there was written evidence setting out another
3 [2023] ZAGPJHC 405 para 9.
4
version of the 15 January 2025 incident as well as recommendations from the
children's therapist.
[17] Furthermore , the respondent was informed about the 15 February 2025 incident
and the relief sought by the applicant regarding the amended contact
arrangements and interim maintenance for the children through an urgent letter
sent to the respondent 's attorneys on the 19 February 2025. At that point in time
the respondent had not yet filed his answering affidavit. In my view, the
respondent suffers no prejudice in the matter proceeding , as he chose not to deal
with the relief sought in the urgent letter which included the 15 February 2025
incident in his answering affidavit.
[18] It was submitted by Counsel on behalf of the applicant, that a party who wishes
to adduce further evidence is entitled to ask the court to exercise its powers under
the provision of Uniform Rule 43(5).4 The court may also receive additional
affidavits under the sub-rule provided they are shown to be necessary for a just
and speedy resolution of the case. Where an applicant is obliged for the
necessary protection of minor children to apply urgently for their interim custody,
the court may make the necessary adaptations to the procedures .5 The
procedure together with the stipulated time limits has been designed to enable
the court to deal expeditiously with these interlocutory applications .6 This means
that the court may make findings, although not binding on the trial court, on
incomplete or untested facts or inferences drawn from them.7
[19] Thus, in the interest of justice and primarily in the best interests of the two minor
children, the postponement sought by the respondent was not granted.
Background
[20] The applicant and respondent were married on 23 August 2014, out of
community of property with the inclusion of the accrual system, which marriage
still subsists.
4 See Verster v Verster 1975 (3) SA 493 (W) and Dodo v Dodo 1990 (2) SA 77 (W).
5 See Henning v Henning 1975 (2) SA 787 (0).
6 See De Villiers v De Villiers (1) 1965 (2) SA 882 (C).
7 See Levin v Levin 1962 (3) SA 330 (W).
5
[21] From their marriage relationship two minor children were born, namely a boy,
born on 9 March 2016 and currently 9 years old and a boy born on 2 March 2018,
currently 7 years old.
[22] It is common cause between the parties, that their marriage relationship has
broken down irretrievably and no reasonable prospects exist for restoration
thereof.
[23] The respondent initiated divorce proceedings against the applicant on or about
3 October 2023 and the applicant has defended the action and delivered a
cou nterclaim.
[24] For the duration of their marriage the applicant and respondent resided together
at their co-owned property, until the minor children and the applicant moved out
during December 2022.
[25] The minor children are in the primary care of the applicant. Prior to the incident
on the 15 February 2025, the minor children exercised contact with the
respondent on alternate weekends from Friday at 18h00 until Sunday at 18h00
at which time the respondent returns the minor children to the applicants care,
and on a Wednesday weekly from after school until 18h00 at which time the
respondent returns the minor children to the care of the applicant. This position
has been the status quo since the parties were interviewed by the Family
Advocate in January 2024, and both parties believed that it would be in the best
interests of the minor children to exercise contact in terms of the Family
Advocate 's recommendation .
[26] Since the separation of the parties, the respondent has contributed the following
towards the children's maintenance :
a) The school and after-school fees of both children, including PTA and
registration fees and book levies of about R17 664, 34 per month;
b) The costs for both children to participate in karate at a cost of R800.00 per
month, including their grading exam fees of R 106, 67 per month;
6
c) The applicant's car instalment and car insurance of R4 512.00 per month;
and
d) In addition, the respondent pay's the applicant's life insurance policy of about
R939.11 per month.
[27] The respondent's payment of the above-mentioned expenses amounts to a
contribution of approximately R24 022, 12 per month.
[28] The respondent contends that the school fees amount has increased , and he
pays an amount of R18 980 per month for the two minor children. Thus, the
respondent contends that his payment of the above-mentioned expenses
amounts to a contribution of approximately R27 317.
[29] The respondent admits that during the period 2021-2022 , he on a monthly basis
provided an extra amount to the applicant for the minor children's extramural and
maintenance expenses as the applicant at that stage earned substantially less
that what she currently earns.
Interim care and contact of the minor children
[30] On attendance at court, I am grateful to the counsels who were able to get the
parties to reach an agreement on the contact and care arrangements .
[31] The applicant agreed to the appointment of a parenting coordinator and the
recommendation of the respondent on the appointment of Mrs Irma Schutte as a
parenting coordinator to monitor and implement the agreed upon contact
arrangements.
[32] The respondent has agreed to pay the full cost of the parenting coordinator .
[33] In regard to the agreed upon contact arrangement plan, the parties differed on
the inclusion of specific time frames for the phasing in of contact, in particular the
phasing in of contact between the eldest minor child and the respondent. The
applicant contended that time frames were important in delineating the powers
and functions of the parenting coordinator , while the respondent 's contention was
7
that it should be left in the discretion of the parenting coordinator together with
the children's therapist to decide the phased in contact time periods or frames.
[34) In T.C v S.C8 the court set out three factors that provides a useful starting point
or roadmap for a consideration of the limitations which should be placed on a
parenting coordinator 's powers:
"First, the AFCC [the Association of Family and Conciliation Courts] definition of
parenting coordination envisions the role of the PC as assisting high-conflict parents to
implement their parenting plans, and, to that end, with the consent of the parties or the
authority of the court, making decisions within the scope of the court order or
appointment contract. This definition of parenting coordination , which I endorse,
contemplates the existence of a parenting plan in which the parties' parental rights and
obligations have already been agreed or fixed by an order of court.
Second, the Act sets out the substantive matters which lie within the exclusive preserve
of a court to decide, having regard to the standard of the best interest of the child. These
matters include care and contact, guardianship , and the termination , extension ,
suspension or restriction of parental responsibilities and rights. Any purported delegation
to a PC of the power to decide these matters would be unlawful. Thus, for example, it
would be unlawful and invalid to confer on a PC the power to change the primary
residence of a child, or to alter the allocation of contact between the parents, or to
determine whether or not a parent's contact with a child should be supervised .
Third, section 34(5) of the [Children's] Act prescribes that parenting plans which have
been made an order of court may only be amended or terminated by an order of court
on application, while section 22(7) provides that only the High Court may confirm, amend
or terminate a parental responsibilities and rights agreement which relates to
guardianship of a child.These provisions make it clear that a PC cannot make a valid
directive which has the affect of amending a court ordered parenting plan".
[35) Having regard to the three factors stated in the case above, it is important to
provide a structured parenting plan for the parenting coordinator to implement
inclusive of time frames. It is for this reason that I have opted for the applicant's
phased in time frame contact arrangements which forms part of my order. The
contact arrangements include bonding therapy, phased in contact after therapy,
8 2018 (4) SA 530 (WCC) para 51.
8
extension of contact after one month and phased in contact after the expiry of
the one month.
[36] The parties also included in the contact agreement a clause whereby "if the
therapist is not satisfied with the elder minor child's progress, the parenting
coordinator is mandated to direct alternative contact arrangements which is
binding upon the parties, until and unless a court has ordered otherwise ".
[37] The inclusion of such a clause in my view is a purported delegation of the power
of the court to a parental coordinator; this type of decision-making power by the
parenting coordinator constitutes an improper delegation of judicial authority
despite the fact that the clause allows for judicial oversight. It would be unlawful
and invalid for this court to delegate power to a parenting coordinator that
mandates the parenting coordinator to direct alternative contact arrangements
which is binding on the parties.
[38] It is of utmost importance that parenting coordination be appropriately limited
and practiced in a manner that does not violate the prescripts of the Constitution 9,
in particular section 2, which deals with the supremacy of the Constitution ,
section 28(2), which deals with the best interests of children, section 34 which
deals with the right to access to courts and section 165 of the Constitution which
deals with judicial authority.
[39] The boundaries must be clearly set that no parenting coordinator should ever be
allowed to determine or amend the parental responsibilities and rights of parents.
Decisions about parental responsibilities and rights can only be made by the
parents themselves and if they cannot agree on the aspects thereof, only the
courts would have the judicial authority to determine or amend the parents'
parental responsibilities and rights.
[40] While the contact arrangements set out in this court order is interim, it is important
that the trial court be provided feedback on these interim arrangements . I have
therefore, included as part of the parenting coordinator 's mandate in this court
9 Constitution of the Republic of South Africa, Act 108 of 1996.
9
order, that Mrs Irma Schutte provide the trial court with written feedback. The
written feedback may assist the trial court in its final decision-making process.
Maintenance for the minor children pendent lite
Applicant and Respondent 's submissions
[41] The applicant submits that the parties contribute to pro rata their respective
incomes to the maintenance of the minor children, whereof 63% is to be paid by
the respondent and the applicant to contribute 37%.
[42] The respondent consents to the maintenance obligation but disputes the
applicant's version of expenses and that he is liable for 63% thereof pro rata of
his income. The respondent claims that the parties' pro rata contribution in
accordance with their respective incomes amounts to 56% liability incurred by
him and holds that he should only be liable for maintenance in accordance with
his affordability.
[43] The applicant contends that the respondent pays a cash amount of R7 729, 51
per month per child in respect of maintenance.
[44] The respondent tenders R2 000 per month per child as a cash contribution for
maintenance of the minor children, subject to the respondent no longer being
responsible for the car instalment , car insurance and life policy of the applicant.
[45] The parties are in agreement that the applicant retain the minor children on her
medical aid scheme and pay the monthly premiums thereof, together with any
increase that may be imposed.
[46] In regard to the medical aid, the respondent contends that all claims shall be
submitted to the medical aid scheme for any medical expenses allowed by the
rules of the medical aid and service providers.
[47] The applicant seeks that both parties be liable for the payment of the children's
medical expenses not covered by the medical aid scheme in accordance with
their pro rata means.
10
[48] The respondent contends that only in the event that the savings plan is depleted
and/or service providers are not registered to be paid by the medical aid, will
parties be liable to pay medical aid excess. He will only be liable for 60% of
payment of medical expenses not covered by the medical aid, and the applicant
liable for 40% of such payments .
[49] The parties are in agreement that payments not covered by the medical aid
scheme is to be paid directly to the service providers, unless the party who pays
said expense in full, in which event the non-paying party shall reimburse the
paying party within 7 days after receipt of proof of payment.
[50] The applicant contends that the respondent remains liable for payment of the
minor children's school and after-school fees, including registration fees, PTA
fees and book levies.
[51] The respondent tenders to continue to make payment of the minor children's
school and after school fees, including registration and PT A fees and book levies
on a monthly basis directly to the school, despite objection thereof that the minor
children attend a private school.
[52] The applicant contends that she and the respondent be liable in accordance with
their pro rata means for the payment of the minor children's scholastic expenses,
including but not limited to school uniforms, school shoes, stationary , prescribed
books not including the book levies, school camps and extra classes, which
payments be made directly to the service providers.
[53] The respondent disputes the above scholastic expenses based upon the
allegation that the applicant insists on keeping the minor children in a private
school despite the parties not being able to afford this. Therefore , the applicant
should be held responsible for the scholastic costs.
[54] The respondent contends that she and the respondent be liable in accordance
with their pro rata means for the minor children's extra-mural activities, and fees
and equipment associated therewith, including but not limited to uniforms,
clothing, participation fees, camps or tours.
11
[55] The respondent tender's full payment of one extra-mural activity per child, being
karate, including participation fees, equipment , uniforms, tours and camps. To
date the applicant makes payment of R800.00 for the minor children's
participation in karate, including the payment of R106. 67 for their karate grading
exam fee.
[56] Counsel for the applicant has contended that the total reasonable maintenance
needs of the minor children per month amounts to R60 265 while the respondent
submits that the reasonable expenses of the children amount to R42 076.99.
Contribution to legal costs
[57] The applicant seeks a contribution to her legal costs in the initial amount of R30
000, payable in instalments of R5 000 per month.
[58] The applicant in her founding affidavit states that she has been advised by her
attorneys of record that a conservative estimation of the legal costs associated
with a divorce with all it entails is between R150 000 and R250 000.
[59] The respondent disputes the payment of contribution to the legal costs of the
applicant, claiming that the applicant has significant assets which can be utilised
towards payment of her legal fees.
Costs of the Rule 43 application
[60] The applicant avers that costs of the application be paid by the respondent ,
alternatively to be costs in the pending divorce action.
[61] The respondent contends that costs of the application to be costs in the divorce
action.
Financial disclosures
[62] The applicant's net income is R48 285.04 and the respondent has a net income
of R85 659.36.
12
[63] The respondent receives a 13th cheque annually and he also engages in work
that attracts additional income. In the last 12-month period he did training and
earned an amount of R30 000.
[64] The applicant on the other hand also receives additional income in the form of a
13th cheque, bonus and share dividends in April and August/September which
after tax approximately amounts to R 100 000. This is evidenced from the
applicant's September 2024 salary payslip in which she received dividends in the
amount of R34 164, 70 and her net income for that month was R57 089.06.
[65] Both the applicant and the respondent 's monthly expenses exceed their net
income.
[66] It is common cause that the outstanding bond is over R1 000 000 and the
respondent continues to pay the bond.
[67] The respondent disputes the fact that the applicant pays for rental as nowhere in
her bank statements is it reflected that she does pay rental to her parents.
[68] The applicant in her founding affidavit states that since she has moved out of the
marital home in December 2022, she does not have the financial means to litigate
against the respondent and she has borrowed a total amount of R331 465 from
family and friends, to meet the minor children's needs and pay her legal fees.
[69] The applicant's loans from family and friends are at the lender's discretion
payable on demand.
[70] The applicant notes that her family and friends are no longer able to come to her
assistance thus she has now resorted to applying for a personal loan in the
amount of R400 000.
[71] Three of the loan agreements referred to by the applicant in her affidavit were
entered into prior to the parties' separation and the institution of divorce
proceedings during September/October 2023. The respondent denies that that
these loans were entered into to sustain the applicant in caring for their children
or for legal costs. The total amount borrowed in terms of these three loans is
R190 000.
13
[72] It is submitted by the respondent that the applicant to date has failed to provide
proof of the payment of the loan of 17 January 2024 in the amount of R36 265.
Furthermore , in respect of the loan dated 22 November 2024 in the amount of
R105, 200, the applicant attaches bank statements for the said period which
shows internet bank transfers respectively on 21 November of R35 000 and on
the 22 November 2024 in the amount of R21 000, totalling an amount of R56
000. No further credits for the period are reflected in the bank statements .
[73] The respondent submits that the only logical conclusion is that the applicant
either has another account which she did not disclose in which these amounts
were paid from and or she is untruthful in her version that these amounts were
borrowed to her, and she initiated these amounts to increase the liability in her
estate.
[74] The respondent also submits that the applicant has failed to attach the
application for the personal loan of R400 000 and questions why she would apply
for such a loan while still having a substantial credit amount.
[75] In regard to the issue of contribution to legal costs, the respondent contends that
after the payment of an attorney's fees on 30 October 2024 in the amount of R55
065.43, the applicant still had a credit balance in her FNB Premier Current
Account in the amount of R78 898,34 on the 2 December 2024. It is submitted
by the respondent that it is clear that the applicant's financial position is not as
dire as she attempts to illustrate in this application and after payment of all her
months disbursements , she has a substantial amount in her bank account.
[76] The respondent in his answering affidavit refers the court to his bank statements
for the period 16 November 2024 to 2 December 2024 and to the two credits
respectively on 22 November 2024 being the respondent's salary paid in and a
further credit on 20 November 2024 of R44 500. The latter amount was a loan
from the respondent 's mother to him in order for him to pay his legal fees, which
was paid from the deposit on 21 November 2024 in the amount of R33, 313,90.
[77] The respondent submits that the principles of accrual is trite, currently the
applicant owes the respondent an amount in accrual in her estate, she refuses
to pay this and is trying her level best to prevent payment to the respondent , by
14
either increasing her liabilities and or continuing with litigation such as bringing a
Rule 43 application to seek in essence more maintenance and a cost contribution
in order to pay for her litigation in the accrual. The respondent states that he has
been willing to settle the matter with the applicant by accepting a payment of a
substantial lesser amount than what he is entitled to from the accrual, but this
was rejected by the applicant.
Discussion
[78] Having regard to the net income of applicant and respondent , the pro rata ratio
submitted by the applicant is correct. The pro rata ratio of the applicant and the
respondent is in the ratio of 37% and 63% respectively . This pro rata ratio is
calculated by combining the net incomes of the the applicant and the respondent
and then dividing each of the parties' net income by their total combined net
income.
[79] Regarding the three loans taken out by the applicant, dated 1 June 2022, 3
November 2022 and 1 December 2022, it is disingenuous of the applicant to
under oath state that she took out these loans to pay for her legal costs when the
respondent only instituted legal proceedings against the applicant in
September /October 2023. Furthermore , the applicant only moved out of the
marital home in December 2022. Thus, these three loans were taken out before
her separation from the respondent.
[80] In respect of the loans dated 17 January 2024 and 22 November 2024, as per
paragraph 72 above, I am wary of the veracity of the loan as the full amount of
these loans as contended by the respondent are not reflected in the applicant's
bank account. It is unknown whether the applicant received part of these loan
payments in cash. The applicant has not under oath taken the court into her
confidence and stated that she received some of these loan payment amounts
in cash.
[81] The November 2024 loan agreement contract is dated at the top of the contract
as the 22 November 2024, but the first line in the contract sets out the loan date
as 17 January 2024. This may have been an error, but it does cast doubt on the
authenticity of the loan agreement , particularly where there is no evidence
15
reflecting the full payment of this loan being made to the applicant. There are two
credit payments reflected in the applicant's November 2024 bank statements
which prima facie may be the partial payment of the loan to the applicant.
However, what is rather odd is that the first prima facie payment is made on the
21 November 2024 a day before the conclusion and signing of the loan contract.
[82] I have perused the bank statements of the applicant and there is no rental
payment reflecting in the applicant's bank statements as contended by the
respondent. Once again, the applicant has not taken the court into her
confidence by disclosing that she pays the rental amount in cash.
[83] Maintenance pendente lite is dependent upon the marital standard of living of the
parties, the applicant's actual and reasonable requirements and the capacity of
the respondent to meet those requirements.10
[84] Having taken into account all the financial information provided by the parties, I
am not entirely convinced that the actual and reasonable maintenance needs of
the two minor children totals an amount of R60 265 and that the respondent
should pay a cash amount of R7 729, 51 per child per month in respect of
maintenance. I am also not entirely convinced that the payment of an extra R2
000 per child, per month tendered by the respondent will suffice to cover the
reasonable costs of the two minor children. It is for this reason that I have decided
on a cash payment amount of R3 500 per child per month.
[85] The court when considering a contribution to legal costs, it takes into account
several factors. These include the financial means of both parties, the complexity
of the divorce case, the overarching aim of the principle of "equality of arms"
which aims to ensure that both parties can engage competent legal counsel and
that the proceedings are conducted on an equal footing.11
[86] In respect of the contribution to legal costs, an applicant in a Rule 43 application
is entitled to recover a contribution towards past costs. The court is entitled to
take into account legal costs incurred, including debts incurred to fund legal
10 See Nilsson v Nilsson 1984 (2) SA 294 (C) and JK v ESK (2024) 1 SA 775 (WCC).
11 EVG v AJJV [2023) ZAGPJHC 1473 (22 December 2023).
16
costs, in the assessment of an appropriate contribution to costs in terms of Rule
43_12
[87] In AF v MF 13 the court held:
"[A] person's dignity is impaired when she has to go cap in hand to family and friends to
borrow for legal costs, ... The primary duty of support is owed between spouses, and a
wife who is without means should be entitled to look to the husband, if he has sufficient
means, to fund her reasonable litigation costs. (The same of course applies if the
husband is indigent and the wife is affluent)."
[88] In the present matter both the applicant and respondent state in their affidavits
that they have incurred debt by taking out loans to pay for their legal costs. The
applicant states that she has taken loans from family and friends, while the
respondent states in his affidavit that he has taken a loan from his mother to pay
for his legal fees. It may be inferred that both the applicant and the respondent
are experiencing financial strain in meeting the payment of their legal fees.
[89] Taking into account the totality of information regarding the respondent and
applicant's financial disclosures and in particular that the applicant may receive
dividend payments in April 2025 and then again in August/September 2025
before the pending divorce hearing set down for 13 October 2025, I find the
applicant's request for contribution to legal costs premature . Furthermore , the
applicant has not taken the court into her confidence by providing the court with
pro forma invoice(s) of her legal fees to date, past payments and future legal
expenses .
Costs
[90] In light of the circumstances and context of this application , it is fair and just to
both parties that costs are costs in the cause.
Pendente Ute Order
[91] I accordingly make the following order:
12 AF v MF (2020] 1 All SA 79 (WCC); 2019 (6) SA 422 (WC).
13 Supra para 42.
17
1. Both parties shall retain full parental responsibilities
and rights with regard to the care and maintenance
of the minor children as contemplated in section
18(2)(a) of the Children's Act 38 of 2005 ("the
Children's Act").
2. Both parties shall retain guardianship of the minor
children in accordance with the provisions of sections
18(2)(c) of the Children's Act.
3. The parental responsibility and right of primary
residence of the minor children is vested with the
applicant.
4. Specific parental responsibilities and rights in respect
of contact with the minor children as contemplated in
section 18(2)(b) of the Children's Act be awarded to
the respondent , which specific parental
responsibilities and rights be exercised as follows:
4.1 BONDING THERAPY
4.1.1 The parties agree that the respondent 's
contact be reinstated with the assistance of
the children's therapist and the parenting
coordinator.
4.1.2 The contact will be reinstated after the
following has taken place:
4.1.2.1 The respondent and the elder minor
child has attended at least one
individual parent-child relationship
therapy session (attachment therapy)
with Dr N Olivier.
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4.1.2.2
4.1.2.3 The appointed parenting coordinator
has consulted with Dr Olivier, the
children's therapist and is satisfied
that contact may be reintroduced
between the elder minor child and the
respondent.
The respondent will be responsible for
all other costs relating to the bonding
therapy.
4.2 CONTACT AFTER THERAPY AND
FOR A PERIOD OF ONE MONTH
4.2.1. After completion of at least one session
attachment therapy the respondent will
exercise contact with the minor children as
follows:
4.2.1.1
4.2.1.2 Every weekend on Saturday or
Sunday, the first contact will take
place on Sunday, 9 March from 09h00
until 12h00 at a public venue under
the supervision of a social worker
nominated by Mrs Irma Schutte, if
deemed necessary and so prescribed
by Mrs Irma Schutte after she has
consulted with Dr Olivier.
Thereafter every Saturday or Sunday,
from 9h00 until 15h00 at a public
venue, subject to the children's social,
school and cultural responsibilities .
4.2.2. The aforesaid contact is subject to the
following:
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4.2.2.1
4.2.2.2
4.2.2.3
4.2.2.5 Dr Olivier and Mrs Schutte is satisfied
that the elder minor child is ready to
exercise the contact.
The minor children must continue with
the therapy with Dr Olivier or as
prescribed by the parenting
coordinator at least once a month to
enable the therapist to monitor the
elder minor son's progress and to
consider his views during the
reinstatement period.
The contact will be exercised without
the partner of the respondent, Mrs
TMcN being present, until such time
as the parenting coordinator makes a
recommendation that Mrs TMcN may
be reintroduced to the children.
The contact will be exercised for a
month.
4.3 EXTENSION OF CONTACT FOR
ONE MONTH
4.3.1. For a period of one month, the respondent will
exercise contact with the minor children every
Saturday from 09h00 until 18h00 and Sunday
from 09h00 until 18h00 (without sleepover) .
The respondent will collect the minor children
from the applicant's residence and return them
to the applicant.
4.3.2 The aforesaid contact is subject to the
following:
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4.3.2.1
4.3.2.2
4.3.2.3
4.3.2.5
4.4 Dr Oliver and Mrs Schutte is satisfied
that the elder minor son is ready to
exercise the contact.
The minor children must continue with
therapy with Dr Olivier or as
prescribed by the parenting
coordinator at least once a month to
enable the therapist to monitor the
elder minor son's progress and to
consider his views during the
reinstatement period.
The contact will be exercised without
the partner of the respondent , Mrs
TMcN being present, until such time
as the parenting coordinator makes a
recommendation that Mrs TMcN may
be reintroduced to the children.
The contact will be exercised for a
period of one month.
AFTER EXPIRY OF THE ONE
MONTH PERIOD
4.4.1 After the completion of the period set out in
paragraph 4.3 the respondent will exercise
contact with the minor children as follows,
subject to the following:
4.4.1.1 The children's therapist and the
parenting coordinator is satisfied that
the elder minor son is ready to
exercise the contact as set out
hereinafter.
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4.4.1.2
4.4.1.3
4.4.1.4
4.4.1.5 The contact will be exercised without
the partner of the respondent, Mrs
TMcN being present, until such time
as the appointed parenting
coordinator makes a recommendation
that Mrs TMcN may be reintroduced
to the children.
Every alternative Friday from after
school until Sunday 18h00 whereafter
the respondent will return the minor
children to the applicant's residence ,
taking into account the minor
children's scholastic and extra-mural
activities.
Every alternate public holiday which
does not form part of a long weekend
or a school holiday, from 09h00 until
17h00, and every alternate long
weekend that does not form part of a
school holiday.
Short school holiday (March/April and
September/October) to alternate
between the parties, with the
understanding that Easter weekend
shall rotate between the parties.
4.4.2. The minor children shall spend half of every
long school holiday (June/July and
December /January) with each party, with the
understanding that Christmas and New Year
shall rotate annually between the parties and
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4.4.2.1 the children shall not spend the same holiday
with one parent for two consecuti ve years.
The party in whose care the minor
children ought to be for a holiday
period will be responsible for the costs
to arrange alternative care
arrangements if that parent is not able
to care for the children during a
holiday.
4.4.3. The respondent shall be responsible in the
case of short holidays and long school
holidays, to return the minor children at least
two (2) days prior to re-opening of the school.
4.4.4. On Mother's Day the applicant shall have
contact with the minor children from 08h00 to
17h00, if such a day does not form part of her
contact weekend.
4.4.5. On Father's Day the respondent shall have
contact with the minor children from 08h00 to
17h00, if such a day does not form part of his
contact weekend. The parties shall
accommodate each other insofar as it may
be necessary to exchange their weekend
contact to ensure that they are able to enjoy
the contact envisaged in said paragraph .
4.4.6. On the parties' respective birthdays or on a
day as close as practically possible thereto,
the parties shall each have contact with the
minor children, from after school until 17h00
should the parties' birthday fall on a
weekday, and from 09h00 to 17h00 in the
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event of either of the parties' birthday falling
over a weekend irrespective of with whom
the minor children were to have spent the
weekend, subject thereto that the contact
shall not interfere with the minor children's
scholastic and extra-mural activities.
4.4.7. On the minor children's respective birthdays
or on a day as close thereto as practically
possible, both parties shall have contact with
the minor children for a period of at least
three (3) hours, alternatively as agreed to
between the parties, subject thereto that
such contact shall not interfere with the minor
children's scholastic and extra-mural
activities, and irrespective of with whom the
minor children were to have spent the
weekend if either minor child's birthday fall
over a weekend.
4.4.8 Both parties shall exercise unmonitored
telephonic or electronic contact through
video call on platforms such as WhatsApp ,
when the minor children are not in his/her
care, subject thereto that such contact does
not unduly interfere with the contact time of
the other party and considering the
scholastic and extramural activities of the
minor children as well as their daily routine.
4.4.9 The party in whose care the minor children
are, shall ensure that the minor children
attend their individual scholastic activities
and fulfil their scholastic obligations including
homework and test or exam preparation, and
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will ensure that the minor children participate
in their extramural activities.
4.4.10 The contact as set out supra will be
exercised with the responde nt without the
partner of the respondent , Mrs TMcN being
present, until such time as the appointed
parenting coordinator makes a
recommendation that Mrs TMcN may be re
introduced with the contact between the
respondent and minor children.
5. Mrs Irma Schutte is appointed as parenting
coordinator with the following mandate:
5.1 To implement and facilitate the contact as set
out in this court order, between the
respondent and the minor children.
5.2 To educate the parties, if necessary , about
the minor children's needs and to provide
parenting guidance therapy to both parties.
5.3 To mediate disputes between the parties
relating to the exercise of their parental
responsibilities and rights in respect of the
minor children.
5.4 To issue directives in the event of a dispute
arising and the parties being unable to
resolve the dispute in a timely manner.
5.5 To consult or inteNiew any party, their legal
representative , the minor children, a
therapist, a teacher or expert and anyone
else whom the parenting coordinator
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determines to have a significant role in
contributing to or resolving the conflict and to
enable the parenting coordinator to make
written recommendations or issue directives
within the best interests of the minor children.
5.6 To report to the court as soon as the
parenting coordinator considers it within the
best interests of the minor children to revert
to the residency and care arrangements
and/or when the parenting coordinator
considers the progress made by the
respondent and the eldest minor child as
being unsatisfying and the current contact
arrangements in terms of this order to not be
within the best interests of the minor children.
5.7 To ensure and monitor that the minor
children continue and/or attend their
occupational therapy and/or psychiatric
therapy at a suitable therapist.
5.8 To provide the trial court in the pending
divorce proceedings with a written feedback
report on the pende life contact and care
arrangements set out in this court order.
6. The respondent will be responsible for the costs of
the parenting coordinator .
7. The parties shall contribute towards the
maintenance of the minor children as follows:
7.1 The parties shall contribute pro rata towards
the maintenance needs of the minor children,
that is, 63% to be paid by the respondent and
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37% to be paid by the applicant. The parties
to revise the pro rata contribution in January
of each year by making their salary advices
for the immediate preceding six (6) months
available to each other.
7 .2. The respondent to pay a cash component in
an amount of R3 500.00 per month per child,
which payment shall be made into the
applicant's nominated bank account free
from any surcharges or deductions and
which amount shall escalate annually, at the
end of the month in which this order is
granted a rate equal to the average
consumer price index published by the
Department of Statistics for the immediate
twelve (12) preceding months.
7.3. The applicant to retain the minor children on
her medical aid scheme and pay for the
monthly premiums thereof, together with
annual increases which may be imposed by
the medical aid scheme.
7.4 The parties to be liable for payment of any
medical expenses (including therapy)
regarding the minor children not covered by
the medical aid scheme in accordance with
their pro rata means. Payment of any
medical surcharges to be made directly to
the service providers, unless the respondent
or applicant paid the said expenses in full, in
which event the non-paying party shall
reimburse the paying party within seven (7)
days from receipt of proof of payment.
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For the Applicant:
For the Respondent: 7 .5 The respondent remains liable and
responsible for the minor children's karate
fees, school and after-school fees, including
registration fees, PTA fees, and book levies.
7.6 The parties to be liable and responsible , in
accordance with their pro rata means, for the
payment of the minor children's prescribed
books not included in the book levy, school
camps and extra classes, which payments
are to be made directly to the service
providers, to allow the minor children to
reach their full potential.
8. The applicant's application for contribution towards
her legal cost by the respondent is dismissed.
9. That the costs of this application be the costs in the
pending divorce action~
WDOMI
ACTING JUDGE OF THE HIGH COURT
PRETORIA
Adv. K Fitzroy instructed by Sanet De Lange INC.
Adv. S Strauss instructed by Rautenbach Attorneys
Delivered: This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties legal
representat ives by email and by uploading it to the electronic file of this matter on
Caselines . This matter was heard in open court on 3 March 2025. The date for the
hand-down is deemed to be 11 April 2025.
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