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THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

Case 2024-143234
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
28 February 2025

In the matter between:

C[…] A[…] S[…] Applicant

and

K[…] V[…] S[…] Respondent


JUDGMENT


DU PLESSIS J

Introduction
[1] This is an opposed Rule 43 application, in which the applicant seeks interim
relief pending the finalisation of the divorce proceedings between her and the
respondent. She seeks relief pertaining to interim maintenance and contributions to
legal costs and arrangements regarding the minor children's primary residence and
contact rights.

[2] The parties were married on 24 March 2012, with two minor children born of
the marriage in 2013 and 2015. A Parenting Plan and Agreement (“the agreement”)
was concluded between the parties on 16 May 2024, regulating the issues of primary
residence, contact and maintenance. The applicant states that changing
circumstances necessitate a variation of the agreement. The respondent disagrees
and regards this application as an abuse of Rule 43 proceedings.

[3] The applicant states that her financial position significantly deteriorated since
the signing of the agreement. She submits that the respondent is not contributing
adequately to the maintenance and education of the minor children. She seeks an
order for increased interim maintenance and a contribution of R300 000 towards her
legal costs.

[4] The respondent opposes the application, contending that he has fully
complied with the 16 May 2024 agreement. He indicates that the applicant earns a
higher monthly income and that her claims are excessive and unreasonable. He
states that the applicant is now abusing the Rule 43 process as she seeks to
overread a binding agreement without a material change in circumstances.

Joint parenting plan
[5] The agreement concluded between the applicant and the respondent on 16
May 2024 provides for the primary residence of the minor children to be with the
applicant. The agreement sets out contact arrangements for the respondent,
ensuring that he has meaningful engagement with the children.

[6] Concerning financial responsibilities, the agreement stipulates that the
respondent is to contribute 50% of the key expenses related to the children,
including school fees, medical aid, au pair services, and agreed extramural activities
per child per month. No specific provision was made for direct monetary
maintenance payments beyond these shared costs.

[7] Clause 4 of the agr eement allows for changes to the agreement but only

[7] Clause 4 of the agr eement allows for changes to the agreement but only
when both parties agree in writing. It also stated that both parties have the right to
make the agreement an order of court. This did not happen.

[8] The respondent states that he fully complied with the agreement and that the
applicant's Rule 43 application seeks to alter it without any material change in
circumstances or showing how he breached the agreement. He relies on contract
law principles of pacta sunt servanda, stating that the contract binds the applicant
unless the contract is cancelled due to breach or unless, in the R ule 43 context, she
can indicate a material change in circumstances.

Does the agreement bind the applicant?
[9] The principle of pacta sunt servanda, a fundamental tenet of contract law,
holds that agreements freely and voluntarily entered into must be honoured and
enforced.
1 This principle underpins the stability and predictability of contractual
relationships, ensuring that parties can rely on the enforceability of their
commitments. Pacta sunt servanda is essential to upholding legal certainty and
fostering good faith in contractual dealings.

[10] However, it is not an absolute rule. It is subject to public policy
considerations,
2 fairness, and legislative intervention, 3 particularly in contexts where
strict enforcement would lead to injustice, hardship, or contravene fundamental
rights. In family law, for instance, courts may depart from rigid contractual
enforcement where it conflicts with the best interests of a child or broader equitable
principles. Thus, while pacta sunt servanda remains a cornerstone of contract ual
law, its application must be balanced against competing legal and constitutional
imperatives.

[11] In PP v MP
4 the court, in the context of a divorce settlement, acknowledged
that pacta sunt servanda is a foundational principle of contract ual law. However,
maintenance agreements in divorce are distinct due to the ongoing nature and the
potential for unforeseen future developments. Thus, the court has an equitable
discretion on modifying agreements to changing circumstances, balancing the need

1 Barkhuizen v Napier [2007] ZACC 5.

1 Barkhuizen v Napier [2007] ZACC 5.
2.Beadica 231 CC v Trustees for the time being of the Oregon Trust [2020] ZACC 13.
3 For instance, the Consumer Protection Act 68 of 2008.
4 [2018] ZAWCHC 140.

for contractual certainty with circumstances of fairness. While agreements between
parties are thus considered, the court retains the discretion to adjust maintenance
obligations to address immediate needs and prevent undue hardships. This is
especially important in cases where the welfare of minor children is involved, and the
children's best interest will always be paramount. It cannot be contracted out.

[12] This is more so in Rule 43 applications that are interim in nature, with a strong
focus on the children's best interest.

[13] The fact that an agreement was concluded does thus not mean that the
applicant cannot launch a Rule 43 application. Whether she is entitled to the relief
she seeks will be discussed next.

Rule 43 application
[14] The applicant aver that the respondent uses the bank account of his company
to pay for all his personal expenses. She points out that the company pays for his
golf, haircuts, groceries, alcohol, restaurant and carwash. She claims that in 2023
the company earned an average income of R243 428 per month.

[15] The applicant discloses that she receives a monthly net salary of R57 023 ,
quarterly commission, and a discretionary bonus. This brings her net income to R72
811 per month. Her monthly expenses amount to R48 538 per month, and the cost s
for the children are about R60 059 per month. She cites a deficit of R38 685. She
had to sell the matrimonial home to enable her use the proceeds to pay for the deficit
and incurring debt on her credit card. All her accounts considered together show a
deficit of about R116 000.

[16] The first area of dispute concerns the maintenance contribution. The applicant
seeks an order compelling the respondent to pay R30 800 monthly to maintain their
minor children, arguing that her financial position has deteriorated and that the
current arrangement does not adequately meet their needs. In contrast, the
respondent opposes this request, maintaining that he has fully complied with the

respondent opposes this request, maintaining that he has fully complied with the
terms of the May 2024 agreement, which requires both parties to equally contribute
to key expenses such as school fees, medical aid, au pair services, and

extracurricular activities. He contends that there has been no material change in
circumstances to warrant an increase and that the applicant 's financial position
remains stable, if not superior to his own.

[17] The respondent points out that the applicant 's net income exceeds his of R20
000 per month and that she made lifestyle choices – like purchasing a BMW X 3 and
holiday travel – which by no means indicate that she is destitute. She cannot rely on
his company's statements as the company is not cited as a party , and she has not
made a case that the company is his alter ego by piercing the corporate veil. He
attached no financial disclosure form s to his sworn statement . He also does not
attach his bank accounts.

[18] The respondent's failure to submit financial disclosure form s suggests a lack
of candour before the court. The available financial information indicates that he is
his company's sole shareholder and director, which generated an average monthly
income of R243 000 over a three- month period in 2023. Furthermore, he funds
personal expenses—including golf, haircuts, alcohol, restaurants, and carwashes —
directly from the company's account. His reliance on a declared salary of R20,000
per month is an apparent attempt to downplay his actual financial capacity.

[19] Despite his financial means, the respondent's contributions towards the
children's expenses have been limited and inconsistent , according to the applicant.
He pays 50% of their medical aid, au pair fees, and school fees per month —and
only since June 2024 —leaving the applicant to bear the remaining financial burden.
She had to incur debt to pay the household expenses.

[20] This partial contribution is especially concerning given that the children faced
the risk of expulsion due to unpaid school fees, forcing the applicant to pay R40 000
from her own pocket to secure their continued education. Despite this, the
respondent has refused to reimburse her, effectively shifting the full financial

respondent has refused to reimburse her, effectively shifting the full financial
responsibility onto the applicant while maintaining his own discretionary expenses
and lifestyle. His failure to prioritise his children's educational stability and well -being
demonstrates an avoidance of his financial obligations. Apart from the respondent's
lack of full financial disclosure, he has failed to engage meaningfully with the specific

financial needs outlined in the applicant's financial disclosure form, dismissing them
as "excessive" without providing a detailed rebuttal or alternative financial
breakdown.

[21] A second central point of contention is the contribution towards legal costs.
The applicant seeks R300 000 from the respondent to cover her legal expenses,
arguing that she lacks sufficient funds to continue the divorce proceedings. The
respondent strongly opposes this, asserting that the amount is excessive and
unaffordable, particularly in light of his monthly income of R20 000. He argues that
the applicant has substantial financial resources, including a higher monthly income
of R72 811.46 and access to prior legal funding. While he acknowledges that a
contribution towards legal costs may be justified, he submits that any such order
should be reasonable and proportionate to his financial means.

[22] The third dispute pertains to retrospective relief. The applicant seeks an order
backdating maintenance to March 2024 and compelling the respondent to reimburse
her R40,000 for past school fees. The respondent contends that Rule 43 does not
allow for retrospective relief, emphasi sing that the parties had already settled their
financial arrangements in the May 2024 agreement – and that the R40000 stems
from March 2024, thus two months before signing the settlement . He argues that the
applicant attempts to override a binding agreement without legal justification.

[23] The final area of disagreement concerns alcohol and conduct restrictions. The
applicant seeks to impose stricter conditions on the respondent 's time with the
children, including potential liver function tests. The respondent, however, asserts
that the existing agreement already includes safeguards and that there is no basis
for additional restrictions.

The law
[24] Rule 43 provides expeditious and interim relief in matrimonial matters,
ensuring fairness pending the final determination of the divorce. In Du Preez v Du
Preez

ensuring fairness pending the final determination of the divorce. In Du Preez v Du
Preez
5 the court stated it as follows:

5 [2008] ZAGPHC 334 para 14.

"Moreover, the power of the court in Rule 43 proceedings, in terms of Rule
43(5), is to "dismiss the application or make such order as it thinks fit to
ensure a just and expeditious decision". The discretion is essentially an
equitable one and has accordingly to be exercised judicially with regard to all
relevant considerations. A misstatement of one aspect of relevant information
invariably will colour other aspects with the possible (or likely) result that
fairness will not be done. Consequently, I would assume, there is a duty on
applicants in Rule 43 applications seeking equitable redress to act with the
utmost good faith (uberrimei fidei) and to disclose fully all material information
regarding their financial affairs . Any false disclosure or material non-
disclosure would mean that he or she is not before the court with "clean
hands" and on that ground alone the court will be justified in refusing relief. "
(own emphasis)

[25] In this case, the respondent did not disclose his personal bank accounts or
those of the company despite the applicant's pertinently raising the issue. This was
also the applicant's experience in the divorce proceedings, where certain documents
were requested to calculate the accrual but was not provided. In SK v MN
6 the court
examined the respondent's lifestyle and evasiveness in financial disclosure on
similar facts. Based on that dictum, this court can echo that a lack of transparency
hinders the court from assessing his true financial capacity, leaving the court with
only the applicant's version.

[26] As for the argument that the respondent 's company had to be joined, this
does not accord with the legal position. GRW v SLW
7 stated that while this might be
the factual legal position, the fact that the respondent manages and controls the
company's operation and refuses to provide financial documentation leaves the court
with the interpretation that he attempts to conceal his actual income.


6 [2024] ZAKZDHC 43.
7 [2023] ZAGPJHC 202.

[27] As for retrospective maintenance, this was extensively dealt with in AF v MF8 ,
which dealt with legal costs in divorce proceedings. The court stated

"32. At common law a claim for arrear spousal maintenance is barred by
virtue of the principle in praeteritum non vivitur (one does not live in arrear),
the argument being that if the spouse managed on her own resources, there
was no need for support. An exception to this rule is recogni sed where the
spouse has incurred debts in order to maintain herself."

[28] Cockrell et al
9 also clarify that the rule against retrospective maintenance
does not apply to claims made on behalf of a child, as the duty of support is shared
by both parents. Consequently, the applicant is not barred from seeking
retrospective maintenance in a divorce action. While I do not rule out the possibility
that the same principle could apply in Rule 43 applications, I am not persuaded that
it applies in these circumstances. Here, an existing agreement was in place, which
the respondent asserts he has honoured. If he failed to do so, the applicant has
alternative legal remedies available. The agreement expressly provided for
amendment, meaning the applicant could have sought its revision or pursued this
Rule 43 application to regulate interim maintenance. Considering these factors, I am
not inclined to grant retrospective cash maintenance in this instance. However, since
he was responsible for 50% of the school fees per the agreement, he is liable for half
of the R20000 of the school fees that the applicant had to pay to keep the children in
school.

[29] The draft order submitted by the applicant contained inconsistencies. The
R30,000 request for monetary maintenance included school fees, au pair costs, and
medical expenses, while a separate provision for these expenses was also made.

[30] I am of the view that the applicant cannot claim the vehicle instalment, as it
does not qualify as a necessary expense for the children's transport needs. The

does not qualify as a necessary expense for the children's transport needs. The
BMW X3 appears to be a personal luxury expense for the applicant rather than an

8 [2019] ZAWCHC 111 para 27 onwards.
9 Cockrell A, Keightley R and Van Heerden B Boberg’s Law of Persons and the Family (1999) Juta p 238.

essential cost related to the children's well -being. However, car maintenance and
related costs will be allowed, as they directly cover the children's transportation
needs.

[31] As a result, I have recalculated the necessary maintenance amount to ensure
a transparent and equitable division of financial responsibility , as indicated in the
table below. The amount comes to R40 455, which means a monthly cash
contribution (rounded up) of R22230.

Item The c hildren's portion
asked for
The amount awarded by
the court
Rent R 13 000,00 R 13 000,00
Food R 5 400,00 R 5 400,00
Toiletries R 860,00 R 860,00
Electricity R 1 500,00 R 1 500,00
Insurance R 80,00 R 80,00
Phone (combined) R 420,00 R 420,00
Domestic help R 2 600,00 R 2 600,00
Clothing R 1 300,00 R 1 300,00
Haircuts R 300,00 R 300,00
BMW instalment R 5 900,00 R -
Vehicle maintenance R 250,00 R 250,00
Fuel R 1 925,00 R 1 925,00
Licence R 500,00 R 500,00
Insurance R 790,00 R 790,00
School R 8 068,00 R -
Au pair R 4 000,00 R 4000,00
Stationary R 350,00 R 350,00
Outings R 500,00 R 500,00
Sports R 1 740,00 R 1 740,00
Extramural R 160,00 R 160,00
Medical aid R 1 670,00 R -

Doctors R 500,00 R -
Excess R 1 400,00 R -
Pocket money R 400,00 R 400,00
Holiday R 2 000,00 R 2 000,00
House maintenance R 250,00 R 250,00
Household appliance R 200,00 R 200,00
Linen etc R 250,00 R 250,00
DSTV R 550,00 R 550,00
Entertainment R 1 000,00 R 1 000,00
Religious
contributions
R 3 380,00 R 3 380,00
Gifts R 500,00 R 500,00
Pets R 250,00 R 250,00
R 61 993,00 R 44 455,00

[32] The best interests of the children remain the guiding principle in this decision.
The respondent's partial and inconsistent contributions are inadequate, particularly
given his financial capacity. Given that he was responsible for 100% of the school
fees during the marriage, it is both just and reasonable that he be ordered to
reimburse the applicant for this expense.

[33] Lastly, the respondent disputes the claim for legal costs, arguing that the only
documented legal expense is R90 000 from a previous domestic violence application
and that no bill of costs has been submitted for the divorce proceedings. However,
given the hostility of these proceedings, the respondent 's reluctance to cooperate,
his failure to disclose requested financial documents, and his overall lack of
transparency, the applicant 's request for R300 000 in legal costs —which includes
expenses from prior li tigation and an R60 000 deposit for this application —is not
unreasonable or exaggerated.

[34] As for the contact with the children, the order will clarify holiday contact. I see
no reason, based on the fact presented, why a more honour condition should be

placed on the parties regarding alcohol consumption when they are responsible for
the children than the agreement provided for.

[35] As for the costs of this application, there is no reason why costs should not
follow the cause. The element of the agreement makes this not a straightforward
Rule 43 application, but it is not an overly complicated matter. The scale can thus be
taxed at scale B.

Order
[36] The following order is made:
1. The parties remain holders of full parental responsibilities and rights in
respect of the two minor children D […] K[…] S[…] and A […] B[…] S[…],
including the parental responsibilities and rights of guardianship, care, contact
and maintenance as follows:
1.1. The right of primary residence is awarded to the applicant, subject to
the following reasonable rights of contact to the respondent:
1.1.1. Weekend contact - to collect the minor children every alternative Friday
from after school and/or extramural activities and to return them to the
applicant on Sunday at 17:00;
1.1.2. Midweek contact after weekend contact – Every Wednesday from after
school and/or extramural activities until 19:00. The r espondent is to collect
and return the minor children to the applicant;
1.1.3. Midweek contact in the week after the children spent the weekend with
the applicant – Every Tuesday from after school and/or extramural activities
until 19:00. The Respondent is to collect and return the minor children to the
applicant and
1.1.4. During school holiday periods and subject to paragraphs 1.1.5 and
1.1.6, the weekend contact will be extended from a Friday at 14:00 to Monday
at 8:00.
1.1.5. Long School Holiday contact:
1.1.5.1. The respondent is to have contact with the children for half of
the available time during long school holidays, Christmas and New Year 's
Day, to rotate every year between the a pplicant and the r espondent. Should
the respondent not be able to exercise this contact during school holidays, he

will be entitled to the contact as stipulated in paragraphs 1.1.1 to 1.1.3 for half
of the long school holidays.
1.1.5.2. Short School Holiday contact – The short school holidays rotate
between the parties and to further rotate yearly to allow each party to have the
children with them every second year during the Easter holiday.
1.1.6. Telephonic or virtual contact – Both Parties are to have this contact
between 18:00 and 19:00 at least twice a week or at least once over a
weekend when the minor children are in the other parent's care.
1.1.7. The contact is subject to neither party conveying the children whilst
under the influence of alcohol or being intoxicated.
2. The respondent is to pay monetary maintenance for the two minor
children in the sum of R22 230 per month on the first day of every month,
which amount shall escalate at a rate equal to the consumer price index for
the previous year on the anniversary of this order. These payments will start
on the first day of the month following the order.
3. The respondent is to pay the applicant R20 000 for the school fees she
paid.
4. The respondent is to pay 100% of the children's school fees.
5. The respondent is to pay 50% of the medical aid contribution and all
medical treatment not covered by the medical aid, including excess payments.
6. The respondent is to reimburse the applicant for the children's school
fees of R40 000, payable in two consecutive equal instalments, with the first
payment to be made on the 1st day following the month of the order.
7. The respondent is to contribute towards the applicant's legal fees of
R300 000, payable in six equal monthly instalments of R50 000 on the first
day of each month.
8. The respondent is to pay the cost of th is application, which is to be
taxed on scale B.

WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg

Date of hearing: 24 February 2025
Date of judgment: 28 February 2025

For the Applicants:

JC Kotze instructed by Du Plessis De
Heus Van Wyk & Chiba attorneys

For the Respondents EJJ Nel instructed by Jansen & Jansen
attorneys