2
divorce proceedings, accordingly, it is now standard practice that where children
are involved the parties and children will be referred to by their initials only.
[2] The applicant approached this court in terms of Rule 43 of th e Uniform Court
Rules , for interim relief pending the finalisation of the divorce proceedings
between the parties. This is an opposed Rule 43 application, in which the
applicant seeks interim relief for spousal maintenance, child maintenance for
three child ren (only one of which was born from the marriage) , care, contact and
guardianship arrangements and contribution to legal costs.
[3] On the 18 February 2025, the applicant’s Rule 43 application was postponed to
to provide leave in terms of Uniform Rule 43(5) for the filing of the applicant’s
supplementary affidavit and for the respondent to file his supplementary
opposing affidavit within five days of the court order. The court also ordered the
respondent to pay maintenance pendente l ite for the minor child born of the
marriage in an amount of R2 500.00 (Two Thousand Five Hundred Rand) per
month on or before the 25th day of February subj ect to reconsideration by the
Judge hearing the matter on the next hearing date.
[4] The respondent seeks access and contact with the minor child born of the
marriage.
Background
[5] The parties married each other in terms of Customary Law on 1 July 2022 and
the marriage was celebrated on 24 September 2022. However, on the 13
February 2023 the parties entered into an antenuptial contract and the parties
registered their civil marriage on 21 February 2023. On attendance at court both
parties’ counsel acknowledged that the parties recognise d their marriage as a
civil marriage out of community of property with the accrual system.
[6] The applicant instituted the divorce action between the parties, by serving the
divorce combined summons on the respondent on 8 November 2024. The
respondent has filed a notice of intention to defend and also fi led a plea and
counterclaim to the divorce.
3
[7] One child was born from the marriage, and it is submitted by the applicant that
she brought with her two children from her previous relationship. It is submitted
by the applicant that the parties agreed to form a blended family in terms of the
customary marriage, it was negotiated and agreed between the families, that the
respondent would marry the applicant together with her two children born of a
previous relationship as it is custom in terms of the Zulu Culture, customs and
traditions . The applicant also provided this court with a whatsapp communication
where the applicant claims th e communication further provides evidence that the
respondent agreed to a blended family. The respondent averred that he had not
agreed to form a blended family.
[8] The minor child born of the marriage is N Z M (female, presently 2 years old ).
The two minor children from the applicant’s previous relationship are E I N,
(female, presently 15 years old ) and L P N (male, presently 11 years old).
Issues for determination and relief sought
[9] The applicant seeks the following relief:
9.1 The applicant seeks interim relie f in regard to interim contact , care,
and guardianship of the minor child ren and that the minor children shall
reside with the applicant.
9.2 The respondent shall have reasonable and regular physical and
telephonic contact with the minor children.
9.3 The respondent be ordered to pay maintenance pende nte lite in the
amount of R6 000 .00 (Six Thousand Rand) per month, for child
maintenance, per minor ch ild, in favour of the children.
9.4 The respondent is ordered to pay maintenance pende nte lite in the
amount of R14 000.00 (Fourteen Thousand Rand) per month, for
spousal maintenance in favour of the applicant.
9.5 The respondent be ordered to pay all the applicant’s and minor children’s
medical expenses not covered by the applicant’s medical aid.
4
9.6 The respondent be ordered to make a contribution towards the
applicant’s legal costs in the amount of R200 000 .00 (Two Hundred
Thousand Ran d) payable to the applicant’s legal representative of
record by way of 10 (ten) equal monthly instalments .
9.7 The respondent be liable for the legal costs of this application only if
oppose d.
Contact, care, guardianship and maintenance of the minor children
(a) Applicant and respondent’s submissions
[10] At the time of the hearing, the parties were still awaiting the Family Advocate ’s
report. The applicant submitted that she had no issue with the respondent having
regular contact with and access to the minor child, N Z M as long a s it would be
in the best interest of the minor child.
[11] The respondent submitted that he had not seen the minor child, his daughter in
five (5) months, except for the time he was called for an interview with the Family
Advocate, which was an hour, and he could not spend time with his daughter
since they were busy with the Family Advocate interview. The respondent
averred that he has made a lot of effort to be a responsible father to his daughter,
but the applicant has refused him access and contact to his daughter , for
example, on the respondent’s birthday, he was told that he could only call his
daughter between 12h00 and 13h00. He had requested time to spend with his
daughter on his birthday on 6 December 2024, which was denied.
[12] The applicant submitted that the respondent made it clear that, he did not want
a relationship with the two children E I N and L P N, from the applicant’s previous
relationship. The applicant further submitted that she cannot force the
respondent to continue to have a relationship with the two minor children, which
she called his stepchildren, and this had already been explained to the the two
minor children. The applicant submitted that the Family Advocate ’s report and
recommendation s in respect of this ma tter is still awaited.
5
[13] After the hearing, the applicant’s counsel submitted the Family Advocate ’s report
and recommendations on the 12 May 2025 . The report only dealt with the minor
child born of the marriage and not the two minor children born from the
applicant’s previous relationship as noted from the report the request made to
the Office of the Family Advocate was only in respect of the minor child born of
the marriage.
[14] In regard to the minor child born of the marriage, the family advocate
recommend ed that both the applicant and respondent retain full parental
responsibilities and rights with regard to care of the minor child , as contemplated
in section 18(2)(a) of the Children’s Act 38 of 2005 [Children’s Act]. The parental
responsibilities and rights with regard to the guardianship of the minor child as
contemplated in section 18(2)(c) and 18(3) of the Children’s Act , be awarded to
both parties jointly. The residence of the minor child be awarded to the applicant.
The specific parental responsibilities and rights with regard to contact with the
minor child as contemplated in section 18(2)(b) of the Children’s Act be awarded
to the respondent, in a phased in manner in accordance with the yearly age of
the minor child .
[15] As regards, the parties ’ child born of the marriage, the applicant averred that the
respondent made it very clear that he would be 100 percent responsible for the
minor child’s maintenance, this was evidence d by a WhatsApp communication
between the parties.
[16] The applicant submitted that the respondent in his opposing affidavit pleaded
that he pays R2 500 .00 for the minor child’s maintenance and R2 000.00 for
family support, without providing supporting documentation. Furthermore, the
applicant submitted that the respondent claim ed to pay R2 500.00 for the minor
child’s baby food and R1 000.00 for medication (excess) but has also not
provided any supporting documents.
[17] The respondent submitted that he denies any legal obligation of financial support
to the two minor children from the applicant’s previous relationship. It is further
submitted by the respondent , that he is not legally bound to support the two minor
children, as he has not legally adopted the children, he has never been a legal
6
guardian to the children, their biological father is still alive and their biological
father has not waived his parental rights over his children.
[18] It is submitted by the respondent, that he has always know n about the two minor
children, but he has never been involved in their financial support, the children
had always lived with their maternal grandmother in Kwa -Zulu Natal , until
December 2023 when the applicant brought them to their matrimonial home
under the pretence that they were visiting for the festive holidays, However, the
children never left thereafter. The respondent also submitted that the children at
some point in time also lived with thei r biological father.
[19] The respondent alleges that the applicant never discussed the two minor
children’s stay with the respondent, and this had in fact created more arguments
between the parties. It is further submitted by the respondent that the applicant
deliberately imposed the children onto the respondent, which created an
increased financial burden on an already constrained financial situation in their
household. It is submitted by the respondent that he only lived with the children
for ten (10) months, and now he is expect ed to support them. The respondent
averred that during the two minor children’s stay at the matrimonial home, he
provided essentials for the household and if the children benefitted from that it
cannot be perpetual, when circumstances have changed and he is no longer
living with them, or they are no longer staying in the same household . It is
submitted by the respondent that the applicant should seek maintenance from
the two minor children’s biological father ; the father of the two minor children is
very capable of supporting the children as he has a viable business in KwaZulu
Natal.
[20] It is submitted by the applicant that the respondent assumed an in loco paren tis
role of the two minor children ; the respondent provided financial support,
presented himself as responsible for the children to the blended family and the
community, and had been actively involved in their lives, including moving one
of them to a private school, and spoiling them with luxury which they had become
accustomed with. The applicant further submitted that the two minor children
were not receiving any maintenance from their biological father, because the
respondent made it clear that, he did not want the applicant to pursue
7
maintenance for the two minor children from their biological father. The applicant
contended that the respondent thus, created a reasonable expectation of
continued financial and emotional support to all the minor children which was
abruptly terminated when he vacated the matrimonial home leaving the applicant
and the child ren destitute .
[21] The applicant’s counsel directed this court to the case of N.M v B.M and Others1
where the court considered the concept of the reliance on representations made
by a stepparent and found that, the idea that a stepparent’s action s and
commitments during the marriage can create expectations and obligations that
may persist after separation. The court interpreted section 28(1)(b) of the
Constitution to include extending the right to parental care to stepparents who
have assumed an in loco parentis role. A more interventionist approach is
required from courts, as it is not in the best intere st of children for a stepparent
to abruptly abandon them when the marriage ends and there are pending divorce
proceedings.
[22] In the present matter the applicant submitted that the respondent unprovoked,
arranged for the applicant’s two children from the previous marriage to be
brought to Pretoria from KwaZulu Natal in November 2023, to come live with
them and form a blended family. The applicant has submitted that the respondent
on the 26 July 2024, transferred an amount of R1 500 from the respondent’s
bank account to the applicant ’s bank account for the payment of one of the minor
children’s (L P N) school fees . Thus, the applicant submitted that the respondent
assumed an in loco parentis role in respect of the applicant’s minor chil dren and
that pending the determination of the divorce, the respondent must be ordered
to pay interim maintenance for the minor children as he created this reasonable
expectation.
[23] It is submitted by the respondent that he admits being legal ly responsible for N
Z M, as he is the biological father of the minor child but denies any parental
responsibilities and rights in respect of the applicant’s two minor children. Since
the respondent is the biological father of the minor child , it is submitted by the

1 (1138/2024) [2024] ZAWCHC 254 (11 September 2024).
8
respondent, that he seeks the courts assistance in obtaining access and contact
with the minor child, so that he can exercise his parental responsibilities and
rights towards the minor chid in terms of section 18(2) of the Children’s Ac t.
[24] To this effect, the respondent submitted that he is already paying R2 500 .00
towards the maintenance of the minor child, N Z M. The respondent submitted
that he has also bee n buying essential i tems for the minor child, but the applicant
contended that these items are irrelevant and would have the respondent rather
send her money and she buys the items for the minor child. It is further submitted
by the respondent that he is also paying for the minor child’s medical aid and has
undertaken to pay for the mino r child’s day care and transport based on
affordability .
[25] It is submitted by the respondent that he is willing to contribute R1 000.00 for the
minor child’s, portion of accommodation.
Spousal maintenance
(a) Applicant and respondent’s submissions
[26] The applicant submitted that at all material times during the subsistence of the
parties’ marriage , the applicant was a housewife and financially dependent on
the respondent. The applicant further submitted that the respondent instructed
her to devote her time to the general upkeep of their common household and
raising and taking care of the children.
[27] It is submitted by the respondent that the applicant was employed at OUTsurance
as a call centre agent. She resigned in July 2022, realising that she was facing
dismissal charges. While the applicant submitted that one of the reasons she
resigned was due to health issues related to a miscarriage. The respondent
further submitted that the applicant is currently employed by an international
company . The applicant maintained that she is unemployed.
[28] The respondent denied that the applicant needs any financial support from him
in the form of spousal maintenance, on the basis that the applicant can sustain
9
herself and furthermore, it is submitted by the respondent that he cannot afford
to pay the applicant R14 000 .00 spousal maintenance.
[29] It is submitted by the applicant that the respondent abruptly abandoned the
applicant in October 2024 on his own volition and has never given the applicant
any financial support for the minor child who he claims to be 100 percent
responsible for.
[30] It is submitted by the respondent, that he did not abandon the family home, it is
averred by the respondent that the applicant served the respondent with an
application for a domestic violence protection order, where the respondent was
called upon to answe r for the domestic violence that the applicant claimed
against the respondent.
[31] The respondent averred that to avoid entrapment by the applicant, as it had
become clear that she was vindictive , he found it necessary to vacate the
matrimonial home. As a result, it is submitted by the respondent, that he had to
find alternative accommodation and upon that he then terminated his lease
agreement for the rent of the matrimonial home, as he could not afford paying
rent for two accommodations. Subsequent to this, the respondent submitted that
the applicant then served him with divorce summons , this clearly indicated to him
that there was no longer a healthy marriage between them, and the environment
was hostile which necessitated the respondent to leave the matrimonial home.
[32] Thus, it is averred by the applicant that with the termination of the rental
agreement, the applicant and the three minor children have been left destitute,
as they are unable to pay the rental . Since the rental contract has been
terminated by the respondent, the applicant and the children have b een
requested to vacate the rental propert y. It is submitted by the applicant that th e
rental agent also offered to pay for the storage of the applicant’s movables should
the applicant elect to vacate the premises. The applicant contends that the rental
agent is acting on behalf of the instructions of the respondent.
[33] It is submitted by the respondent that through this application, the applicant
believes that the respondent should maintain or continue to pay the rent of the
10
matrimonial home. Whereas, upon the termination of the lease, the respondent
was no longer liable or responsible for payment of that rental.
[34] The respondent has submitted that the applicant has been advised to either
contribute to paying the rent or vacate the rental property, but she has insisted
on staying there, knowing very well that she cannot afford the accommodation
and this is the same position that the respondent is currently in, he cannot afford
to pay that rental.
[35] It is submitted by the applicant that the respondent was responsible for the
following monthly payments :
35.1 Rent in the amount of R10 000 .00 per month.
35.2 Water, sanitation and electricity for the rental property in the amount of
R2 000 .00 per month.
35.3 Motor vehicle instalment in the amount of R4 149.31 per month.
35.4 Personal loan instalment with FNB in the amount of R1 176.78 per
month.
35.5 Medical Aid premiums with Discovery in the amount of R2 854 .00 per
month.
35.6 Motor vehicle insurance in the amount of R1 600 .00 per month.
35.7 Life Cover with FNB in the amount of R254.53 per month.
35.8 Hospital Plan with FNB in the amount of R150.50 per month.
35.9 Funeral cover with OUTsurance in the amount of R600.00 per month.
35.10 A monthly allowance in the amount of R3 500 .00 per month.
35.11 Car tracker with Netstar in the amount of R200.00 per month.
35.12 Groceries in the amount of R4 500 per month.
35.13 Minor children’s school fees in the amount of R3 500 per month per c hild.
11
[36] As such, the applicant contended that the respondent should be ordered to
continue to pay for the household expenses and maintenance for the applicant
and the three minor children until such time as the applicant is self -sufficient .
[37] It is submitted by the applicant drawing on the respondent’s bank statements that
he provided the applicant a monthly allowance in August 2024 of R3 500 .00 and
paid her expenses in an amount of R16 947.00. In September 2024, the
respondent provided the applicant a monthly allowance and paid her expenses
which amounted to R25, 070, 00, her expenses for the month totalled R15
758.60. While in October 2024, the respondent p rovided the applicant with a
monthly allowance of R2 800 .00 and paid her expenses which totalled R9 105,
30.
[38] The respondent conceded in his answering affidavit that he had been paying the
essential household expenses as a requirement of subsistence for their daily
living. He contended that the loans, medical aid premiums, life cover, the funeral
cover, the hospit al pla ns, and the school fees are expenses that were acquired
by the applicant at the time when she was employed or with the assistance of
her mother. The respondent also averred that the expense for groceries is
exaggerated by the applicant, as he would s pend approximately R2 000 .00 per
month for the entire household.
[39] The respondent averred that the applicant has made many unreasonable
financial demands, all in the name of her saying that she is unemployed and that
the respondent promised to financially take care of her and her children. The
respondent further averred that the applicant has not disclosed to this court that
she has some source of income evidenced by her bank accounts, and therefore
she can sustain herself.
[40] The applicant contended that he never agreed to paying the school fe es of the
two minor children born of the applicant’s previous relationship, as a result he
refused to enrol the children into any school, it submitted by the respondent that
the applicant and her mother eventually registered the children at the school and
agreed to payment terms with the school. The applicant also submitted that at
12
no point during the two minor children’s stay at the matrimonial home di d he
purchase any luxury items for the children.
[41] It is averred by the respondent that the applicant is insensitive to his health
condition (the applicant has chronic hypertension, chronic renal failure and
anaemia of chronic disease), which causes the respondent to attend d ialysis
treatment three times a week, and he also takes oral medication daily). The
respondent submitted that he is deeply affected by this condition, to the point that
he cannot perform in accordance with what is expected of him at work, he has
been on disability insurance from his emp loyment (OUTsurance), which has
reduced his salary and his earning capacity. The respondent submitted that his
disability insurance will be subject to review in May 2025, to which there is a
chance that the employer might not renew the disability salary, and this is the
money that the respondent uses to p ay for his treatment and medication.
[42] It is submitted by the respondent that he supplements his income by operating
as a traditional healer. He at times sells herbal medication and also treats people
traditionally, to which he submitted he does not make much from, but this income
keeps him afloat on a month -to month basis.
[43] It is averred by the respondent that the applicant wants to exploit him financially,
for all that he earns. It is submitted by the respondent that the applicant was
employed at OU Tsurance before she resigned in July 2022. The applicant is a
highly skilled individual, who is capable of earning an income. It is further
submitted by the respondent that the applicant is healthy, full bodied, and able d
person, with full mental capacity, who claims to be unemployed to exploit the
respondent’s situation, to the po int where the applicant is claiming that the
respondent pay for the maintenance of her two minor children that is not
biologically the respondent’s children. It is submitted by the respondent that the
applicant is self -sufficient and can support herself and she should also pa y her
own legal fees as arranged. Furthermore, the applicant should find affordable
accommodation for herself and the children.
Contribution to Legal Costs
(a) Applicant and respondent’s submissions
13
[44] It is submitted by the applicant, that she sought to obtain legal assistance from
the Legal Aid Offices and was told that, she will have to complete a form in order
to pass the means test and wait for the outcome which may take weeks to
process due to the long list of applications for free legal assistance. The applicant
further submitted that she was told that there is no guarantee that even if she
passes the means test, that there m ay be no immediate help for her as Legal Aid
is understaffed and the avail ability of lawyers is limited. Therefore, the applicant
submitted that she had no choice but to seek private legal representation to assist
her with this matter, and she made arrangements to pay her legal costs in
instalments of R1 500.00 per month . To date she has not made any payments ,
it is submitted by the applicant that she hopes she will be able to obtain
assistance from friends and family as she could not pay the required legal fee
deposit.
[45] It is averred by the applicant that the importance of equality of arms in divorce
litigation should not be underestimated especially where there is a marked
imbalance in the financial resources available to the parties to litigate, there is a
real danger that the poorer spouse, may be forced to settle for less tha n that to
what she is legally entitled to, simply because she cannot afford to go all the way
to trial. It is submitted by the applicant, that her case is no different , and it is
further submitted by the applicant that the respondent controls the purse strings
of the parties’ finance, he has been able to deploy financ ial resources in the
service of his legal action and has since the commencement of the action and
this present application, paid his attorney R60 000 .00.
[46] It is submitted by the applicant that she has no -one to assist her to pay her legal
costs which keeps mounting as long as the legal action proceeds. The applicant
further submitted that this court has an obligation to promote and safeguard the
constitutional rights to equal protection and benefit of the law2 and access to the
court3; it requires that courts come to the aid of spouses who are without means
to ensure that they are equipped with the necessary resources to come to court
to fight for what is rightfully theirs.

2 See section 9( 1) of the Constitution.
3 Section 34 of the Constitution.
14
[47] The applicant directed the court to the case of Van Ripken v Van Ripken4 where
the court articulated the guiding principle to the exercise of that discretion as
follows:
”[T]he Court, should , I think, have the dominant object in view that, having regard to the
circumstances of the case, the financial position of the parties, and the particular issues
involved in the pending litigation, the wife must be enabled to present her case
adequately before the Court.”
[48] The applicant submitted that her right to dignity so far has been impacted, as she
has been deprived of the necessary means to litigate against her husband in the
pending divorce action ; she may be force d to settle for less and/or walk out with
nothing . In approaching the question of an appropriate contribution towards the
applicant’s legal costs, the applicant implored the court to follow the approach in
Zaduck v Zaduck5 where the court declined to follow the rule that a contribution
to costs should not cover all the wife’s costs; the court stated:
“[T]he correct approach is to endeavour or ascertain in the first instance the amount of
money which the applicant will have to pay by way of costs in order to present her case
adequately. If she herself is unable to contribute at all to her costs, then it seems to me
to follow that the respondent husband must contribute the whole amount required. I see
no validity in the contention that in those circumstances he should only be required to
contribute part of the amount involved.”
[49] It is submitted by the applicant that the contribution to legal costs was calculated
considering the rate at which the main divorce action is going, if the action
continues for a long period of tim e, the applicant may find herself without legal
representation.
[50] The respondent submitted that the applicant is the instigator of all the legal
proceedings. She started with the protection order, which was served on the
respondent on 21 October 2024 . The respondent was then served with the
divorce summons on the 11 November 2024 , and then he was served with the
Rule 43 application on 26 November 2024. All these legal proceedings are

4 1949 (4) SA 634 (C) at para 37.
5 1966 (1) SA 78 (R) at 81 A -B.
15
running simultaneously, with the application for the protection order being
dismissed with costs, as the applicant did not appear in court for that matter,
along with her legal representatives. In turn, the respondent submitted that he
had to appear in the domestic violence matter with his legal representatives .
Furthermore, the applicant fi led for a Rule 43 application, which was postponed,
due to the applicant’s non -compliance with the Rule 43, rules and directives of
court ; the applicant filed a replying affidavit, in the name of a supplementary
affidavit , the court then postponed the matter to allow the respondent to respond
to the the issues raised by the applicant in her supplementary affida vit.
[51] The respondent has submitted that the applicant is claiming a legal cost
contribution fee of R200 000.00, there is no information where these figures
come from, the rates of the legal representative, and there is no pro -forma invoice
to the suggested figure. The respondent further submitted that he is finding it
hard to pay his own legal fees wh ich are less that the applicant’s . It is averred by
the respondent that if the applicant cannot afford her legal fees, then she should
find a legal representative sh e can afford.
Financial disclosure
(a) Applicant and respondent’s submissions
[52] The applicant directed the court to the following in order to determine the
responde nt’s financial position. The respondent is a businessman and the sole
director of a company . Apart from being a director of a company the respondent
is also gainfully employed by OUTsurance and is on disability. It is submitted by
the applicant that the respondent paid all the domestic expen ses by transferring
funds to the applicant’s bank account, and this is evidenced by the amount s
reflect ed in the a pplicant’s bank statem ents.
[53] The applicant directed the court to the transactions of the respondent’s disclosed
bank statements as attached to his financial disclosure forms and some later
discovered per reply in terms of a Rule 35 Notice. The applicant created an excel
spreadsheet for ease of reference to deal with the respondent’s monthly income
and expenditure as extracted from the bank statements.
16
[54] It is submitted by the applicant that for the month of August 2024, the
respondent’s combined income from his b usiness and OUTsurance salary was
R160 160.20. The respondent’s household expenses for the month of August
2024, paid for by the respondent was R46 149.39.
[55] It is submitted by the applicant that for the month of September 2024, the
respondent’s combined income from his business and OUTsurance salary was
R189 460.29. The respondent ’s household expenses it is submitted by the
applicant amounted to R46 149.39.
[56] It is further submitted by the applicant that the respondent’s bank account shows
that he was responsible for the household expe nses inclusive of the applicant’s
financial needs (see paragraph 37 above).
[57] The applicant averred that the above -mentioned figures does not reflect the true
and accurate figures of the respondent’s income and expenditure, because the
respondent on a social media platform claimed to be transacting in cash to avoid
SARS . The respondent submitted that the SARS social media posting was made
in the cont ext of him respon ding to someone’s comments and it was not related
to his own financial dealings.
[58] The respondent has alleged that the applicant is employed by an international
company and is involved in a business with a friend . The applicant submitted
that, “he who alleges must prove.”6 The respondent has made these allegations
without tendering any proof thereof.
[59] The respondent submitted that his chronic illness has resulted in him having been
granted a disability grant from his employer which allows him to earn R16 612.36
monthly, which will be reviewed in May 2025 . Regardless, of his disability
payment the respondent averred that it is still impossible for him to meet the
financial demands of spousal support. The respondent has submitted that at the
end of each month his expenses exceed his income.
[60] The respondent averred that the applicant has not managed her finance s very
well and has contributed to her own financial struggles, this she did by the

6 See S v Mmaki and Others (13/2017) [2017] ZAFSHC 93 (20 June 2017) at para 20.
17
countless loans she took out without consulting the respondent. He further
averred that when the applicant resigned from her previous work she cashed out
all her benefits including her provident/pension fund and she never disclosed to
the respondent what s he did with the funds as she did not contribute to the
upkeep of the household.
Costs
[61] It is submitted by the applicant that the respondent has opposed the application,
as such an appropriate punitive costs order is warranted. The applicant has
requested a cost order on a party and party scale C.
[62] It is submitted by the applicant that Rule 41A 9(b) of the Uniform Court Rules,
mentions that one possible consequence for a party who unreasonably refuses
the referral of the matter to mediation is “costs of the action or application.” As a
result, if the matter is not referred to mediation and the court finds that the costs
incurred could have been avoided had the parties referred the matter to
mediation, the court may choose not to award costs to the party which refused
to refer the matter to mediation. The applicant directed the court to the case of
Koetsioe and Others v Minister of Defence and Military Veterans7 where it was
stated:
“In my view, it is clear that this matter could have (and still can) benefit from mediation.
The blunt refusal by the applicants to even consider, let alone attempt it is, in the
circumstances of the case, which include their own breach of their undertaking, so
disconcerting, that I shall reflect upon it when considering the issue of costs as this court
is entitled to do in terms of Rule 41 A(9) (b).”
[63] The applicant submitted that she invited the respondent to rather have this matter
mediated and the respondent refused stating that, “ the issues dealt with in a Rule
43 application are delicate and will need the court to adjudicate upon them.” It is
averred by the applicant that issues such as contact and access to the minor
child, N Z M could have easily have been dealt with inter parties through
mediation long before this matter made it wa y to this court’s roll as the

7 [2021] ZAGPPHC 203 (6 April 2021) at para 6.5 .
18
respondent had already accepted 10 0 percent responsibility towards the minor
child’s maintenance and accommodation.
[64] It is submitted by the respondent that previously, costs of this applica tion were
reserved on the day of hearing this application. The respondent prays for the cost
of this application to be awarded to him, including the costs for the postponement
of the 18 February 2025 application which was occasioned by the applicant .
Discussion
[65] In M G M v M J M8 the court held:
“The purpose of Rule 43 applications is to ensu re 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. Court s are
required to consider the applicant’s reasonable needs and the respondent’s ability to
meet them.”
(a) Contact, care, guardianship and maintenance of the minor child
[66] The parties are in agreement that the primary residence of the minor child born
of the marriage should be awarded to the applicant. The applicant has also
submitted that she has no problem with the respondent having regular contact
with the minor child , as long as it is in the best interests of the child. This aligns
with the recommendations of the Family Advocate that both parties retain full
parental responsibilities and rights with regard to care and guardianship of the
minor child as set out in section 18(2)(a) of the Children’s Act. I am in agreement
that this will be in the best interest of the minor child.
[67] The Family Advocate ’s recommendations provide for age related phased in
contact of the minor child with the father which in my view is in the best interest
of the minor child taking into account the age of the minor child.
[68] Regarding maintenance, the respondent has submitted that he is already paying
R2 500 .00 per month towards the minor child , this is in accordance with the
pendente lite maintenance order granted on 18 February 2025 and he is willing

8 [2023] ZAGPJHC 405 at para 9.
19
to pay an extra R1 000.00 towards the minor child’s housing accommodation
costs. In the circumstance, I have decided on a pendente lite maintenance
payment amount of R3 500.00 per month for the minor child , N Z M.
(b) Blended Family
[69] It is in dispute whether the parties agreed on a blended family, that is the
respondent stepping in and taking on full parental responsibilities and rights for
the two minor children. The applicant submitted that the parties agreed to form a
blended family in terms of the customary marriage negotiations ; it was negotiated
and agreed between the families that the respondent would marry the applicant
together with her children born from a previous relationship as it is custom to do
so in terms of Zulu cultur e. The applicant has not provided the court with any
confirmatory affidavits from any of the family members who negotiated the terms
of the customary marriage, which could corroborate the applicant’s submission
that the respondent agreed to marry her with her children as is custom in Zulu
culture. The marriage certificate presented to this court is a civil marriage and
not a customary marriage . It is common cause between the parties that the
marriage before this court is a civil marriage, out of community o f property with
accrual. While I am mindful of the role of culture and custom in communities, this
court is precluded from taking into account negotiations that were made during a
customary marriage ceremony wh en the parties instead o pted to register a civil
marriage out of community of property with the accrual system and not register
the customary marriage under the Recognition of Customary Marriages Act 120
of 1998.
[70] I now proceed with a WhatsApp message sent by the respondent to the
applicant, which the applicant submitted indicates the respondent stepped in as
in loco parentis . The WhatsApp message is as follows:
”Applicant: Z deserves growing up in a family environment with parents , unlike us.
Respondent: That’s why I’m so determined about the house, plus the kids are
depending on me to save their lives, I cannot mess this up.
20
Applicant: Mina ngizobona nege zenzo coz amzwi angiwa kholwa (loosely
translated ,“I will see by your actions.”)
Respondent: Ok no problem.”
[71] The above communication does prima facie provide an inference that the
respondent wanted to take responsibility for the applicant’s two minor children
born from her p revious relationship.
[72] The applicant has also submitted one month’s evidence of a school fee payment
made by the respondent for one of the minor children in July 20 24. However, the
applicant submitted that the respondent pays the two minor children’s school
fees monthly ; this is not very clear from the financial di sclosure information,
particularly payments of R3 500.00 made in this respect either directly to the
school or to the applicant.
[73] The relief sought by the applicant is that the respondent should pay maintenance
pendente lite in the amount of R6 000 per child per month. The applicant has not
provided this court with a breakdown of the maintenance needs of the two minor
children per month. Thus, I am not satisfied on how the applicant reached the
amount of R6 000 per child, per month. Furthermore, the applicant has also
submitted that she has informed the two minor children that the respondent does
not want any contact with them. I am c oncerned about the best interest of the
children in this matter. The applicant has submitted she is awaiting the Family
Advocate’s report in regard to the two minor children. The report submitted to
this court after the hearing only deals with the parties' minor child born of their
marriage and has not dealt with the blended family and the applicant’s two minor
children . There is no evidence before the court on the social, psychological and
emotional relationship the children have with the respondent. Thus, a Family
Advocate’s report will be helpful to the court to determine the nature of the
relationship between respondent and the two minor children and establish
whether the respondent did indeed take on the role of in loco parentis.
21
[74] In the case of N.M9 the court placed great emphasis on the representations made
by the stepparent to the family and society at large , the case brought to the fore
the very complex issue of stepparent maintenance and indeed challenged the
traditional understanding of parental responsibilities and rights. While I am of the
view that one has to t ake into account the lived realities of modern family life ,
including customary family life juxtaposed with that of the common law position
that a stepparent is not automatically subject to maintain a stepchild , while
interpreting the concept of parental care as set out in section 28(1)(b) of the
Constitution and as set out in section 18(2)(a), (b) and (d) of the Children’s Act ;
I am of the view that each matter must be decided on the facts b efore the court.
In the premises, u nlike the N.M10 case as submitted and argued by the
applicant’s counsel, in this matter , I find that there are insufficient facts before
me to establish and consider the social and emotional bonds formed , particularly
between the two minor children and the respondent in order for me to find that
the family is indeed a blended family and that the respondent took on the role of
in loco parentis. Thus, the question whether the respondent indeed agreed to a
blended family , I will leave to the trial court ; this includes the question whether
the respondent assumed the liability to maintain the appl icant’s two minor
children .
(c) Interim Spousal maintenance
[75] This application is for interim spousal maintenance; the applicant is currently
unemployed. There is no substantial evidence presented to this court that the
applicant is employed by an international company as alleged by the respondent.
When it comes to spousal maintenance , the respondent’s financial statements
reflect that he did cover the household expenses, including rental, as well as the
applicant’s personal expenses, which included inter alia her insurances, medical
aid, and he provided her with a monthly allowance. Based on the financial
disclosure i nformation provided by the applicant and the respondent, the
respondent, paid the applicant an amount which ranged from R13 000 .00 to R25
000.00 monthly to cover the applicant’s expenses, which included the provision

9 Supra note 1.
10 Supra .
22
of a monthly allowance . Therefore, the respondent’s averments that the applicant
is in no need of spousal maintenance is not persuasive in my view. I am in
agreement with the applicant that the respondent indeed held the “purse strings”
in the marriage. It would be an injustice if this court did not grant spousal
maintenance to the applicant, particularly given the fact that the respondent
abruptly left the marital home, cancelled the rental agreement and left the
applicant without the ability to pay for re nt, water and electricity with the
expectation that she has to fend for herself and all her children. This court must
determine the applicant’s need for spousal maintenance on the current status
quo. The applicant has submitted that she has undertaken to seek employment,
thus in the interim pending the finalisation of the divorce proceedings, having
regard to the financial disclosure information and the totality of evidence
presented in this case, I will grant the relief sought by the applicant for interim
spousal maintenance in the amount of R14 000 .00. I am of the view that the
spousal maintenance will be able to cover the costs of the applicant’s medical
expenses not covered by the medical aid scheme, thus I will not grant the relief
sought by the applicant that excess medical expenses be paid by the respondent.
(d) Contribution to legal costs
[76] It is trite that a contribution towards legal costs is granted to achieve an equality
of arms betw een litigating parties in a divorce proceedings ; this includes the court
taking into account the financial means of both parties and the complexity of the
divorce case to ensure both parties can engage legal counsel and partake in the
legal proceedings on an equal footing.11 In this matter, the applicant is
unemployed, while the respondent is gainfully employed and has a lucrative
traditional healer business . Thus, t here is a financial disparity between the
parties.
[77] The applicant is claiming an amount of R200 000 .00 for contribution to legal
costs, payable by way of 10 equal monthly instalments, which amount to R20
000.00 per month.

11 See EVG v AJJV [2023] ZAGPJHC 1473 (22 December 2023).
23
[78] It is submitted by the applicant that she did approach Legal Aid, however, she
had no choice but to seek alternate legal representation due to being informed
by Legal Aid, that should she pass the means test, they could not guarantee that
she would receive immediate legal assistance as they are understaffed. The
applicant submitted her legal fee arrangement in which she undertook to pay her
legal representatives a monthly instalment of R1 500 .00 per month . However,
the applicant has not provided the court with her legal fees to date and future
payments. The applicant has submitted that to date she has not made any
payment towards her legal costs. I am in agreement with the respondent’s
counsel that the applicant has not provided this court with information regarding
how the R200 000.00 cost contribution figure was calculated, what are the rates
of the legal representatives and a pro-forma invoice with the suggested amount.
[79] Having regard to t he totality of financial information regarding the respondent and
the applicant ’s financial disclosure’s , I find the applicant ’s request of R200 000
for contribution towards legal costs unsubstantiated . In the premises, based on
the applicant’s legal fee arrangement and the case law on this matter raised by
the applicant’s counsel , I grant the applicant a contribution to past and future
legal costs in the amount of R1 500 per month .
Costs
[80] In light of the circumstances and the context of this application , including the 18
February 2025 hearing, it is fair and just to both parties that costs are costs in
the cause.
[81] I will leave the issue of the refusal to mediate and the cost consequences there of
in terms of Rule 41A(9) (b) to the trial court for determination.
Pendente Lite Order
[82] In the premises, I accordingly make the following pendente lite order:
82.1 Both parties shall retain full parental responsibilities and rights
with regard to the care of the minor child born of the marriage as
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contemplated in section 18(2)(a) of the Children’s Act 38 of 2005
[“the Children’s Act”]
82.2 Both parties shall retain guardianship of the minor child born of
the marriage in accordance with the provisions of section 18 (2)(c)
of the Children’s Act.
82.3 The parental responsibility and right of primary residence of the
minor child born of the marriage is vested with the applicant.
82.4 Specific parental responsibilities and rights in respect of contact
with the minor child born of the marriage 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:
82.4.1 From now until age 2 and half years
82.4.1.1 Tuesday and Thursday midweek visits at the
applicant’s home for two (2) hours from
14h00 until 16h00.
82.4.1.2 Alternate Saturday and Sunday contact at
the applicant’s home for three (3) hours from
14h00 until 17h00.
82.4.1.3 The respondent to spend two (2) hours with
the minor child on her birthday and on
Father’s Day under the supervision of the
applicant.
82.4.1.4 Video -calls on Mondays, Wednesdays and
the alternate Sunday of no contact at 17h00.
82.4.2 From age 2 and half until 3 years
82.4.2.1 One midweek visit with removals from 14h00
until 17h00.
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82.4.2.2 Alternate weekend contact on Sa turday and
Sunday from 09h00 until 17h00 with
removals.
82.4.2.3 Video -calls to be maintained on Mondays,
Wednesdays and the alternate Sunday of no
contact at 17h00.
82.4.3 From age 3 until 4 years
82.4.3.1 Alternate weekend contact from Saturday
09h00 until Sunday 17h00.
82.4.3.2 The parties to share the minor child’s
birthday.
82.4.3.3 The child to spend the day with the
respondent on Father’s Day and with the
applicant on Mother’s Day.
82.4.3.4 Video -calls to be maintained on Mondays,
Wednesdays and the alternate Sunday of no
contact at 17h00.
82.4.4 From age 4 until 5 years
82.4.4.1 Alternate weekend contact from Saturday
09h00 until Sunday 17h00.
82.4.4.2 The parties to share the minor child’s
birthday.
82.4.4.3 The child to spend the day with the
respondent on Father’s Day and with the
applicant on Mother’s Day .
82.4.4.4 Video -calls to be maintained.
82.4.5 From age 5 until 6 years
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82.4.5.1 Alternate weekend contact from Saturday
09h00 until Sunday 17h00.
82.4.5.2 The parties to share the minor child’s
birthday.
82.4.5.3 The child to have two (2) holidays of five (5)
days each with the respondent per annum.
82.4.5.4 The child to spend the day with the
respondent on Father’s Day and with the
applicant on Mother’s Day.
82.4.5.5 Video -calls to be maintained.
82.4.6 From age 6 until 7 years
82.4.6.1 Alternate weekend contact from Friday
17h00 until 17h00 on Sunday.
82.4.6.2 The minor child to spend two (2) holidays of
ten (10) days each with the respondent per
annum.
82.4.6.3 The parties to share the minor child’s
birthday.
82.4.6.4 The child to spend the day with the
respondent on Father’s Day and with the
applicant on Mother’s Day.
82.4.6.5 Video -calls to be maintained.
82.4.7 From the age of 7 onwards
82.4.7.1 Alternate weekend contact from Friday
17h00 until 17h00 on Sunday.
27
82.4.7.2 The parties to alternate and share the short
and long school holidays with Christmas and
New Year to rotate.
82.4.7.3 The parties to share the minor child’s
birthday.
82.4.7.4 The child to spend the day with the
respondent on Father’s Day and with the
applicant on Mother’s Da y.
82.4.8 Regular telephonic contact to be maintained.
82.5 The respondent shall contribute towards the maintenance of the
minor child born of the marriage as follows:
82.5.1 The respondent to pay a cash component in an
amount of R 3 500.00 per month , on or before the
25th day of each month, which payment shall be
made into the applicant’s nominated bank account
free from any surcharges or deductions and which
amount shall escalate annually, on or before the
25th day of each month in which this order is granted
at a rate equal to the average consumer price index
published by the Department of Statistics for the
immediate twelve (12) preceding months.
82.5.2 The respondent is to retain the minor child on his
medical aid.
82.5.3 The respondent to be liable for payment of any
medical expenses regarding the minor child born
from the marriage not covered by the respondent’s
medical aid scheme . Payment of any medical
surcharges to be made directly to the service
providers, unless the applicant paid the said
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expenses in full, in which event the respondent (the
non-paying party) shall reimburse the applicant (the
paying party) within seven (7) days from receipt of
proof of payment.
82.5.4 The respondent shall be liable and responsible for
the payment of the minor child’s school fees and
transport to and from school , which payments are to
be made directly to the service providers, to allow
the minor child to reach her full potential.
82.5.5 The respondent shall be liable to pay all the school
levies, school books, school uniforms, all school
outings and tours, extra -mural activities, sporting
activities, any equipment and clothing required for
the afores aid extra -mural and sporting activities,
and extra -tuition in respect of the minor child.
82.6 The respondent shall pay maintenance pendente lite to the
applicant in the amount of R14 000.00 per month, on or before
the first (1st) of each month, which payment shall be made into
the applicant’s nominated bank account free from any surcharges
or deductions and which amount shall escalate annually, on or
before the first (1st) day of each month in which this order is
granted at a rate equal to the average consumer price index
published by the Department of Statistics for the immediate
twelve (12) p receding months.
82.7 The application that the respondent pay all the applicant’s
medical expenses not covered by her medical aid is dismissed.
82.7 The respondent shall contribute towards the applicant’s legal
costs she has incurred and the applicant’s future legal costs up to
and including the end of the divorce trial , in an amount of R1
500.00 per month, payable to the applicant’s representative of
record, the first instalment to be paid within one month from the
30