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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

Reportable/Not Reportable
Case no: 2025-047845

In the matter between:

L[....] C[....] APPLICANT

and

C[....] B[....] C[....] RESPONDENT

Coram: Jonker AJ
Heard: 25 July 2025
Delivered: 28 July 2025


JUDGMENT

JONKER AJ

1. This is an urgent application brought in terms of Rule 43 of the Uniform Rules
of Court in the fast lane, in which the applicant, the wife of the respondent,
seeks a contribution towards her legal costs pendente lite. The matter is
limited solely to this aspect.

2. The respondent filed his answering affidavit 4 days after it was due. The
reasons set out for the delay is adequately set out therein. I find the
respondent has down good cause for the delay and as a result I grant
condonation for the non-compliance.

3. The respondent has raised an abuse of process argument, contending that
the applicant was aware of the trial date for over a year and elected to bring
this application only on the eve of the hearing in the urgent court. While it is so
that the applicant could, and arguably should, have approached the court
earlier for this relief, the court finds itsel f in a difficult position . On the one
hand, the delay is not insignificant and on the other hand the right to a
contribution towards legal costs pendente lite is well -established in our law ,
and is designed to ensure fairness and equality between spouses i n
matrimonial litigation.1 This is confirmed in AF v MF 2019 (6) SA 422 (WCC) 2
by Davis AJ . It can be said that the law is settled. The respondent’s counsel
also accepts that applicant is entitled to the contribution.

4. To deny the applicant relief on the grounds of delay alone —when the
substantive requirements for a contribution are met —would result in an
inequality of arms, particularly given the complexity of the matte r and the
imminent hearing date. The court cannot ignore the applicant’s legal
entitlement to be placed in a position to participate meaningfully in the
litigation. While her dilatory conduct is not condoned, it cannot operate to
deprive her of a right recognised in both common law and Rule 43.


1 Cary v Cary 1999 (3) SA 615 (C) at 621D.
2 AF v MF 2019 (6) SA 422 (WCC) at par 30.

5. The appropriate balance, in the Court’s view, is to grant the relief with a
contribution reflective of the stage of proceedings and to reserve the question
of costs in the application, thereby allowing the trial co urt to consider the full
context, including the timing of this application.

6. The applicant seeks in her notice of motion a contribution of R1.3 million, a
portion of which relates to legal expenses already incurred and a portion to
anticipated future legal costs, primarily in relation to the adjudication of of a
special plea set down for hearing on 11 August 2025.

7. It was conceded by the applicant’s counsel that the amounts already
expended are not urgent, as no demand for repayment by the applicant’s
father—who funded those costs —has been made. Th is Court, accordingly,
does not consider past expenses in this determination.

8. The application is urgent, and ri ghtly so. The trial of the special plea is
imminent, and the applicant requires funds to ensure that her legal team is
adequately resourced to prepare and present her case. Delays in securing
funding at this stage would likely prejudice the applicant and m ay affect her
ability to present her case on equal footing with the respondent.

9. It is accepted by the parties that the respondent has the financial means to
contribute. The only issue for determination , as conceded by both parties, is
the quantum of the c ontribution that would be reasonable in the
circumstances to ensure fairness and an “equality of arms” between the
parties in the upcoming litigation.

10. The applicant is represented by a legal team consisting of senior and junior
counsel—while the senior co unsel is not formally conferred silk status, they
are of comparable standing—as well as both a senior and junior attorney. The
respondent’s legal team comprises senior counsel (silk) of considerably
experience and stature, a junior counsel, and a senior at torney. The

experience and stature, a junior counsel, and a senior at torney. The
composition of both teams appears to be closely matched in terms of size and

seniority. Such parity naturally entails high hourly rates, which is to be
expected and which is not unreasonable.

11. It is noted that the respondent’s team has taken th e view that the matter may
not proceed and has sought directions from the Judge managing the trial. The
applicant, however, remains intent on proceeding with the matter as set down.
I was told that there are other applications, between the same parties, th at
have also been set down for the same date. A practice note is due to be filed
soon which shall inform the presiding Judge in charge of the case
management of the matter where the matter is in fact ripe for hearing. Be that
as it may, whether the matter continues on 11 August 2025 or not, the matter
will proceed at some other time which will necessitate legal cover required by
the applicant.

12. The court is mindful that the purpose of a contribution towards legal costs is
not to equalise the financial positions of the parties in absolute terms, nor to
finance the applicant's litigation on a scale of her choosing, but to enable her
to adequately and meaningfully participate in the litigation process.

13. In light of the proximity of the trial dat e, the complexity of the matter, the
composition of the legal teams, and the principle that both parties should be
afforded a fair opportunity to present their case, I am satisfied that a
contribution is warranted.

14. However, I do not find that the full amount claimed—R1.3 million—is justifiable
at this stage, particularly as it includes past expenses . The applicant is not
precluded from seeking a further contribution towards those expenses should
circumstances justify it, at a later stage.

15. Applicant’s atto rney has, in relation to the future preparation of the specific
hearing of 11 August 2025, furnished the Court with a proforma account
setting out the legal work done to date and what is still anticipated to be
incurred. The charges of the two attorneys, a nd counsel, are duly set out. I

incurred. The charges of the two attorneys, a nd counsel, are duly set out. I
have carefully considered the listed charges.

16. In my view, a contribution of R 600,000.00 would be reasonable in the current
circumstances to enable the applicant to instruct her legal representatives and
prepare for the trial of the special plea having regard to the items as reflected
in the pro forma invoice.

17. Accordingly, I make the following order:

ORDER

(a) The respondent is directed to pay a contribution towards the applicant’s
legal costs, in respect of the future preparation of the specific hearing
of 11 August 2025, in the amount of R 600,000.00 ( Six Hundred and
Thousand Rand) within 5 (five) days of this order;
(b) The applicant is not precluded from seeking a further contribution
should circumstances materially change or the litigation expand
beyond what is presently contemplated by the applicant;
(c) The costs of this application are to be costs in the main divorce action.


________________________
E JONKER
Acting Judge of the High Court


Appearances

For applicant: Adv P Gabriel
Instructed by: Abrahams & Gross Inc.

For respondent: Adv BK Pincus SC with Adv SL Sundelson
Instructed by: Barkers Inc.