SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not Reportable
Case no: 2226/2025
In the matter between:
M[…] M[…] G[…] APPLICANT
And
J[…] G[…] RESPONDENT
Neutral citation: G[…] v G[…] (2226/2025) [2025] ZAFSHC 230 (6 August 2025)
Coram: De la Rey AJ
Heard: 24 July 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date and time for hand- down is
deemed to be 15h00 on 6 August 2025.
Summary: Application in terms of rule 43 of the Uniform Rules of Court – neither party
demonstrating inability to litigate on the same footing.
ORDER
1 Both parties retain full parental rights and responsibilities in respect of the minor
children, as contemplated in s 18 of the Children’s Act 38 of 2005;
2 The primary residence of the minor children, as contemplated in s 18(1)(a) of the
Children’s Act 38 of 2005 is awarded to the applicant;
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3 The specific rights and responsibilities in respect of the respondent’s contact with the
minor children as contemplated in s 18(2)(b) of the Children’s Act 38 of 2005, is
awarded to the respondent at all reasonable times, which contact shall be exercised
in a reasonable manner, subject to the following:
3.1 contact every alternating weekend from 17h00 on Friday to 17h00 on Sunday;
3.2 three hours contact on the minor children’s birthdays as well as on Father’s Day;
3.3 public holidays shall be allocated to the parties on a rotational basis;
3.4 alternative short school holidays as well as one half of the long school holiday
shall be divided equally between the parties;
3.5 reasonable telephonic contact.
4 The respondent shall pay an amount of R2 500 per month, per child maintenance to
the applicant in respect of the parties’ minor children, the first payment to be made
on or the 7
th day of the first month following the month in which this order is granted
and thereafter before or on the 7th of each day of each succeeding month.
5 The respondent shall pay 50% of all school fees, school clothing, school books,
extra classes, sport clothing, sport tours, sport transport, and extramural activities of
the minor children.
6 The respondent shall retain the applicant and the minor children as
beneficiaries/dependents on his medical aid.
7 The respondent shall pay 50% of all reasonable medical, hospital-, dental,
optometrist and pharmaceutical costs of the minor children, not covered by the
respondent’s medical aid, with prior arrangement with the respondent in terms of any
pre-plan procedures and/or medication, excluding emergency situations.
8 The applicant shall be allowed to collect within seven (7) days from date of this order
the following items:
8.1 2 x television sets;
8.2 1 x double door fridge/freezer;
8.3 1 x bar fridge;
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8.4 1 x big microwave;
8.5 1 x Air fryer;
8.6 1 x living room set (Ceilo)
8.7 1 x lose carpet;
8.8 1 x double bed including night stand;
8.9 1 x mirror;
8.10 1 x lose carpet;
8.11 1 x bunker bed;
8.12 1 x toddler bed;
8.13 1 x dining room table (applicant to decide whether to take either the four or six
seater;
8.14 1 x steel garden set (gift from applicant’s father);
8.15 1 x washing machine;
8.16 1 x tumble dryer;
8.17 1 x dishwasher;
8.18 2 x kettle;
8.19 2 x toaster;
8.20 portraits received from applicant’s mother and half of photo portraits;
8.21 children’s clothing and necessities;
8.22 half the kitchen content;
8.23 half the linen;
8.24 half the towels;
8.25 half of the curtains;
8.26 half of the cutlery;
8.27 half of the cloths;
8.28 personal belongings of applicant.
9 The parties shall be equally liable for the cost associated with the removal of the items
listed in para 8.
10 There is no order as to a contribution to costs to either party.
11 The costs of this application shall be costs in the main action.
JUDGMENT
De la Rey AJ
Introduction
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[1] The applicant approached this court in terms of rule 43 of the Uniform Rules of
Court, seeking a variety of orders relating to s 18 of the Children’s Act 38 of 2005, interim
maintenance for their four minor children, the delivery of specified movable items and a
contribution to her legal costs, pending the finalisation of the divorce action.
[2] The respondent filed an opposing affidavit from which it appears that , although
there are slight differences relating to the wording of relief sought based on s 18 and the
items sought to be delivered, the main disputes relate to the amount of the interim
maintenance and the applicants right to a contribution to her legal costs.
[3] As would appear hereafter , this is not a case where the respondent fails to or is
unwilling to pay maintenance towards the minor children, but more of a case where he
alleges that he cannot afford the amounts claimed by applicant. Affordability is thus the
main consideration and not an unwillingness to pay. The applicant’s actual and
reasonable requirements and the capacity of the respondent to meet such requirements
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is thus the main considerations.
[4] The purpose of Uniform Rule 43 applications it 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
respondent's ability to meet them.
2
Background
[5] The applicant is the plaintiff in the main action. The parties were married out of
community of property with inclusion of the accrual system on 4 December 2010. As
stated, four children were born of the marriage ranging in ages three to nine years.
Summons were issued and served during March 2025. The respondent filed his plea and
counterclaim during April 2025, and applicant’s plea to the counterclaim was filed during
counterclaim during April 2025, and applicant’s plea to the counterclaim was filed during
May 2025. The applicant has already left the former common home together with the
minor children.
Analysis
1 Taute v Taute 1974 (2) SA 675 at 676.
2 MGM v MJM [2023] ZAGPJHC 405 para 9.
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[6] The applicant seeks interim maintenance of R3 500 per month, per child, plus a
contribution to costs of R10 000. The respondent, in terms of a tender delivered prior to
this application, offers R1 500 per month, per child plus an additional amount of R1 000
in respect of the minor children’s extramural activities , thus effectively R1 750 per child
per month. Without having filed a counterapplication, the applicant also seeks R22 500
as a contribution towards his costs.
[7] Unlike in most rule 43 applications, in this matter, the respondent is not the one in
control of the money in the sense that the applicant generally out-earns the respondent
substantially.
[8] The applicant , as a salaried pharmacist , earns a monthly nett income of
R50 116.49 per month whilst the respondent’s earnings average R36 048.91 per month
in commission as a financial broker. The applicant ’s income is confirmed by her latest
payslip while the respondent’s average monthly income is evidenced by a schedule on
his employer’s letterhead setting out his monthly nett earnings for the period March 2024
to March 2025. It is furthermore the respondent’s case that he has not received any
income since April 2025 due to policy lapses and confirmed same with payslips for May
and June 2025. The respondent’s income, as listed for the period March 2024 to March
2025, shows a huge fluctuation with the respondent only earning more than applicant
during December 2024 when his net earnings was R76 349.91.
[9] The applicant calculated her and the minor children’s monthly expenses in the
amount of R79 184.54, of which R55 071.86 relates to the children. The r espondent
calculated the applicant’s and the minor children’s expenses in the amount of
R59 898.52, of which R35 206.49 relates to the children. According to the respondent,
his monthly expenses amount to R39 358. Irrespective of what the actual reasonable
expenses of the children are, it is hard to imagine how the parties managed their lifestyle
expenses of the children are, it is hard to imagine how the parties managed their lifestyle
on a joint monthly income of approximately R86 165.00 without having had to incur
significant debt. This seems to be the case as the applicant had incurred substantial
credit card debt whilst the respondent fell in arrears with the bond payment on the bond
registered over the former common home.
[10] During argument, counsel for the applicant submitted that the respondent failed in
his duty to fully and frankly disclose all his financial information in that he failed to attach
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his bank statements to his opposing affidavit. Because of this, the court was requested to
draw a negative inference in that the stated income was not verifiable. It is trite that , in
rule 43 proceedings, the need for utmost good faith by both parties is paramount. 3 Whilst
the respondent’s failure to attach his bank statement leaves much to be desired, it is not
my impression, from considering the evidence in totality, that there has been a deliberate
misstatement or hiding of financial information. The applicant , in her founding affidavit ,
does not allude to any other possible income that respondent might have and
respondent in his opposing affidavit states that he has no savings or investments. Should
discovery, however, show that the respondent in any way misstated his income or failed
to reveal any additional income, he will have to he will have to live with the
consequences thereof.
[11] Although the court must consider the marital standard of living in arriving on an
appropriate amount, such awards must take cognisance of present realities .4 In reality,
the respondent would not even have been able to pay the maintenance that he tendered
the last three months. The respondent’s income, as listed for the period March 2024 to
March 2025, however shows that, on various occasions, he was able to earn more than
the average of R36 048.92.
[12] Without embarking on a detailed analysis , there does appear to be several
expenses for the children listed by applicant such as swimming lessons, karate, dance
classes and provision for children’s parties which together amounts to approximately
R4 486 per month or R53 832.00 per year , which , considering the parties financial
position, can be considered to be luxurious or unnecessary. This is not to say that the
children should be denied these privileges, but it should remain commensurate with the
parties’ ability to afford it.
[13] The order granted takes into consideration both the reasonableness of the
[13] The order granted takes into consideration both the reasonableness of the
children’s expenses, the applicant’s income and the respondents admitted ability to earn
more than the average as stated above.
Contribution to costs
3 M B v D B [2013] ZAKZDHC 33; [2013] 4 All SA 99 (KZD); 2013 (6) SA 86 (KZD) para 40.
4 C.M.S.C v N.C. [2021] ZAWCHC 227.
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[14] Irrespective of the procedural difficulty faced by the respondent in that no counter
application was filed, this court is of the opinion that neither party has demonstrated an
inability to litigate on the same footing and, as such, no order granting a contribution to
either party will be made.
Order
[15] Accordingly, I make the following order pendente lite:
1 Both parties retain full parental rights and responsibilities in respect of the minor
children, as contemplated in s 18 of the Children’s Act 38 of 2005;
2 The primary residence of the minor children, as contemplated in s 18(1) (a) of the
Children’s Act 38 of 2005 is awarded to the applicant;
3 The specific rights and responsibilities in respect of the respondent’s contact with the
minor children as contemplated in s 18(2) (b) of the Children’s Act 38 of 2005, is
awarded to the respondent at all reasonable times, which contact shall be exercised
in a reasonable manner, subject to the following:
3.1 contact every alternating weekend from 17h00 on Friday to 17h00 on Sunday;
3.2 three hours contact on the minor children’s birthdays as well as on Father’s Day;
3.3 public holidays shall be allocated to the parties on a rotational basis;
3.4 alternative short school holidays as well as one half of the long school holiday
shall be divided equally between the parties;
3.5 reasonable telephonic contact.
4 The respondent shall pay an amount of R2 500.00 per month, per child maintenance
to the applicant in respect of the parties’ minor children, the first payment to be made
on or the 7
th day of the first month following the month in which this order is granted
and thereafter before or on the 7th of each day of each succeeding month.
5 The respondent shall pay 50% of all school fees, school clothing, school books,
extra classes, sport clothing, sport tours, sport transport, and extramural activities of
the minor children.
8
6 The respondent shall retain the applicant and the minor children as
beneficiaries/dependents on his medical aid.
7 The respondent shall pay 50% of all reasonable medical, hospital -, dental,
optometrist and pharmaceutical costs of the minor children, not covered by the
respondent’s medical aid, with prior arrangement with the respondent in terms of any
pre-plan procedures and/or medication, excluding emergency situations.
8 The applicant shall be allowed to collect within seven (7) days from date of this order
the following items:
8.1 2 x television sets;
8.2 1 x double door fridge/freezer;
8.3 1 x bar fridge;
8.4 1 x big microwave;
8.5 1 x Air fryer;
8.6 1 x living room set (Ceilo)
8.7 1 x lose carpet;
8.8 1 x double bed including night stand;
8.9 1 x mirror;
8.10 1 x lose carpet;
8.11 1 x bunker bed;
8.12 1 x toddler bed;
8.13 1 x dining room table (applicant to decide whether to take either the four or six
seater;
8.14 1 x steel garden set (gift from applicant’s father);
8.15 1 x washing machine;
8.16 1 x tumble dryer;
8.17 1 x dishwasher;
8.18 2 x kettle;
8.19 2 x toaster;
8.20 portraits received from applicant’s mother and half of photo portraits;
8.21 children’s clothing and necessities;
8.22 half the kitchen content;
8.23 half the linen;
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8.24 half the towels;
8.25 half of the curtains;
8.26 half of the cutlery;
8.27 half of the cloths;
8.28 personal belongings of applicant.
9 The parties shall be equally liable for the cost associated with the removal of the
items listed in para 8.
10 There is no order as to a contribution to costs to either party.
11 The costs of this application shall be costs in the main action.
De la Rey AJ
Appearances
For the applicant: HJ van der Merwe
Instructed by: EG Cooper Majiedt Inc
Bloemfontein
For the respondent: J Els
Instructed by: Honey Attorneys
Bloemfontein