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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
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: 33544/2017
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
In the matter between:
T[…] K[…] L[…] APPLICANT
AND
G[…] A[…] L[…] RESPONDENT
JUDGMENT
OOSTHUIZEN-SENEKAL CSP AJ:
Introduction
[1] This is an application brought in terms of Rule 43 of the Uniform Rules of
Court in which the Applicant seeks relief pendente lite, namely:
1. An order directing the Respondent to pay maintenance for herself and
the minor child, D[...], aged 14;
2. A contribution towards her legal costs; and
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3. An order confirming that the primary residence of the minor child vests
with her.
[2] The Respondent opposes the application insofar as it relates to the claim for
spousal maintenance, the contribution towards legal costs, and the costs of these
proceedings. The relief sought in respect of the minor child’s maintenance and
educational needs is largely not disputed, save for quantum.
[3] The issues that fall for determination are therefore:
1. Whether the Applicant has established a bona fide need for spousal
maintenance and whether the Respondent is in a position to pay same, and if
so, the quantum;
2. Whether the Applicant is entitled to a contribution towards her legal
costs; and
3. The issue of costs of the present proceedings.
FACTUAL BACKGROUND
[4] The parties were married on 18 November 2007 out of community of property
with accrual. From this union, one minor child, D[...] , was born. The Applicant and
the minor child vacated the matrimonial home in May 2017. Divorce summons were
issued in September 2017 and pleadings have since closed. The matter has,
however, not yet been finalised despite mediation efforts.
[5] The Respondent has, since the separation, continued to contribute financially
towards the Applicant and D[...]’s needs. He pays an amount of R10 000 monthly,
contending that this is only in respect of the child; covers groceries, clothing for D[...],
school fees and associated educational costs, medical aid for D[...] , and motor
vehicle instalments and insurance for the Applicant.
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[6] The Applicant is presently unemployed and asserts that she is unable to
sustain herself and D[...] on the Respondent’s current contributions. She contends
that her reasonable monthly expenses amount to R32 175 for herself and R21 824
for the minor child, over and above items directly covered by the Respondent. The
Applicant further claims a contribution of R475 000 towards legal costs.
[7] The Respondent disputes the extent of these expenses and contends that the
Applicant has not made full disclosure of her income and financial position. He points
to inconsistencies in her bank statements, alleged cash rental payments, and her
prior and current work as a personal trainer.
THE APPLICANT’S CASE
[8] The Applicant relies on the common cause fact that during the marriage and
subsequent separation, the Respondent bore the primary financial responsibility for
her and D[...]’s needs. She argues that such obligation continues and that the current
contribution is inadequate.
[9] She further contends that the Respondent’s financial means permit him to cut
down on certain “luxury” expenses and that his opposition to her claim demonstrates
an attempt to coerce her into abandoning her Rule 43 application.
[10] In respect of legal costs, she relies on the constitutional principles of equality
before the law and the need for “equality of arms” in matrimonial litigation. This
principle was emphasised in AF v MF 2019 (6) SA 422 (WCC), where the Court held
that:
“The purpose of a contribution towards costs is to ensure that neither spouse
is hampered in presenting his or her case due to lack of financial means. The
principle of equality of arms must be upheld in order to achieve fairness in
matrimonial disputes.”
THE RESPONDENT’S CASE
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[11] The Respondent accepts responsibility for maintaining D[...] and does not
seriously oppose orders relating to her schooling, medical aid, or associated costs.
He opposes the claim for spousal maintenance on the basis that:
1. The Applicant has survived for seven years on his existing
contributions without seeking interim relief;
2. She has been and remains capable of earning an income as a
personal trainer;
3. Her financial disclosures are incomplete and inconsistent; and
4. At age 60, he is nearing the end of his working life, has no retirement
savings, and already incurs expenses exceeding his income.
[12] In respect of the contribution to legal costs, he argues that the divorce has
already consumed sums greater than the parties’ combined estates, that the issues
in dispute are narrow, and that any further financial burden would prejudice D[...]’s
best interests.
LEGAL PRINCIPLES
[13] It is trite that both parents are obliged to support their minor child according to
their respective means. With regard to spousal maintenance pendente lite, the
applicant must establish a bona fide need. In Nilsson v Nilsson 1984 (2) SA 294 (C),
the Court cautioned that:
“The purpose of interim maintenance is not to maintain the applicant in the
standard of living enjoyed during the marriage, but to provide relief which is
fair and just until the trial.”
[My Emphasis]
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[14] Similarly, in EH v SH 2012 (4) SA 164 (SCA), the Supreme Court of Appeal
held that a spouse seeking interim maintenance must make full disclosure of her
financial position and demonstrate genuine need.
[15] As to a contribution towards legal costs, the remedy is sui generis , arising
from the duty of support. In NV v CV [2019] ZAWCHC 36, the Court reiterated that:
“The guiding principle is to place the financially weaker spouse in a position to
present her case adequately, bearing in mind the complexity of the matter and
the relative financial positions of the parties.”
[My Emphasis]
DISCUSSION
Spousal Maintenance
[16] The Applicant claims R32 175 per month for her own expenses. However, her
failure to make full and frank disclosure of her financial position undermines her
credibility. Evidence of prior and current personal training work indicates that she
retains earning capacity. The eight -year delay in seeking interim relief further
weakens her case.
[17] While the Court accepts that she suffers from medical conditions, these
factors must be balanced against the Respondent’s limited financial means. He
already contributes significantly and is close to retirement.
[18] The Applicant has shown that the Respondent historically assumed
responsibility for her financial support . The Respondent’s financial disclosure
demonstrates that he already expends approximately 43% of his net income on the
Applicant and D[...]. He is nearing retirement age and is servicing debt. The
Respondent also scaled down his expenses by moving in with his parents.
[19] However, given the Applicant’s chronic medical conditions, her role as the
primary caregiver of the minor child, and the Respondent’s historic assumption of
responsibility for her needs, the Court is satisfied that a limited measure of spousal
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maintenance is justified. Such maintenance is not intended to create a long- term
dependency but rather to assist the Applicant in re -establishing financial
independence.
[20] It must be emphasised that the Applicant is under a duty to take this Court
into her confidence and to make every effort to secure gainful employment. In
today’s economic climate in South Africa, it is a reality that many mothers work while
their minor children attend after-care facilities. The Applicant is expected, as a matter
of urgency, to seek and obtain employment to contribute to her own and D[...]’s
upkeep.
[21] In the circumstances, the Respondent shall pay the Applicant the sum of R5
000 (five thousand rand) per month as spousal maintenance, for a period of six
months only , whereafter such obligation shall lapse. This period is intended to
provide the Applicant with the opportunity and means to re- establish herself
financially.
Maintenance for the Minor Child
[22] The Applicant claims R21 824 per month for D[...]’s expenses. The
Respondent’s commitment to D[...]’s maintenance is not in dispute, but it is in D[...]’s
best interests that the Applicant, as primary caregiver, receives a portion of
contributions directly in cash rather than at the Respondent’s discretion.
[23] The Court must consider the practical day-to-day expenses of a 14- year-old
child:
1. Food and groceries : While Respondent contributes to groceries, a
teenager’s nutritional needs are substantial, and it is reasonable to allocate at
least R4 /5 000 monthly towards daily meals, snacks, and household food
consumed at the Applicant’s home.
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2. Clothing and footwear : Adolescents experience rapid growth and
require frequent replacement of clothing, including school uniforms and casual
wear. A fair monthly allocation is in the region of R1 500.
3. Transport and mobility : Even though the Respondent contributes to
vehicle instalments and insurance, additional transport -related costs such as
petrol, maintenance, and incidental travel expenses for D[...]’s activities are
ongoing. A reasonable monthly allowance would be R2 000.
4. Extramural activities and social needs : Teenagers participate in sports,
cultural activities, and social outings which form part of their holistic
development. These costs, although variable, should fairly be estimated at
R3/2 000 per month.
[24] On this breakdown, D[...]’s reasonable direct monthly expenses under the
Applicant’s care are no less than R10 500–R12 500.
[25] In terms of the principle set out in F v F 1987 (1) SA 525 (A), the Court must
ensure that a child’s standard of living is maintained in accordance with both parents’
means. While the Respondent’s financial capacity is not unlimited, D[...]’s best
interests are paramount.
[26] Accordingly, a monthly cash contribution of R12 500 (twelve thousand five
hundred rand) payable directly to the Applicant is both fair and justified. It falls short
of the Applicant’s claim of R21 824 but ensures that D[...]’s day -to-day needs are
adequately met without imposing a disproportionate burden on the Respondent, who
is already responsible for school fees, medical aid, and other major expenses.
Contribution Towards Legal Costs
[27] The Applicant claims a contribution of R475 000 towards her legal costs. She
argues that without such relief she is unable to litigate on an equal footing with the
Respondent, who has superior financial resources. The Respondent, on the other
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hand, contends that the claim is excessive, disproportionate, and beyond his means,
especially in circumstances where he is already indebted and approaching
retirement age.
[28] The purpose of a contribution towards costs in matrimonial litigation is not to
level the playing field entirely, nor to guarantee equality of financial resources.
Instead, it is to ensure that the financially weaker spouse is not prevented from
adequately presenting her case at trial. In AF v MF 2019 (6) SA 422 (WCC), the
Court explained:
“The objective is to avoid a situation where one party is financially hampered
in litigation, while the other is able to litigate without restriction. It is not a
mechanism to create parity in resources, but rather to secure fairness and
meaningful participation.”
[29] Similarly, in Van Rippen v Van Rippen 1949 (4) SA 634 (C), the Court noted
that the contribution must be reasonable and necessary for the preparation and
presentation of the applicant’s case, taking into account the issues in dispute and the
financial capacity of the parties.
[30] The factors guiding the Court in determining such a contribution include:
1. The financial position of the parties : The Applicant is unemployed and
claims to have no independent means, whereas the Respondent continues to
generate an income but has substantial financial commitments and limited
savings.
2. The complexity of the litigation: W hile this divorce has been protracted,
the remaining issues in dispute are relatively narrow namely, maintenance
and patrimonial consequences. The case does not involve extensive
commercial structures or complicated estates.
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3. The scale of legal fees already incurred: The Respondent correctly
points out that the litigation has already consumed amounts disproportionate
to the parties’ means.
4. The need for fairness : The Applicant cannot be expected to abandon
her case or be out -litigated due to lack of funds. At the same time, an order
must not cripple the Respondent financially.
[31] Measured against these principles, the Applicant’s claim of R475 000 is
excessive and unjustified. Such an amount would place an intolerable burden on the
Respondent and is disproportionate to the scale of the remaining litigation.
[32] However, a reduced but meaningful contribution is appropriate. An award of
R60 000 will enable the Applicant to cover counsel’s preparation, attend
consultations, and secure necessary expert input, if required. This figure ensures
that she can participate effectively in the divorce proceedings while respecting the
Respondent’s financial constraints.
[33] The Court is mindful of the dictum in Chapel v Chapel 1979 (1) SA 1 (A),
where it was stated that:
“The Court must strive to achieve fairness, which requires a careful balancing
of the needs of the applicant spouse and the ability of the respondent spouse
to pay.”
[34] Accordingly, a contribution of R60 000 strikes the appropriate balance
between fairness, reasonableness, and proportionality.
Costs of the Application
[35] Both parties have achieved partial success. It is equitable that the costs of this
application be costs in the cause of the divorce action.
ORDER
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[36] In the result, the following order is made:
1. The Respondent is ordered to pay the monthly reasonable instalments
of the Kia Picanto motor vehicle driven by the A pplicant and the monthly
insurance premiums relating thereto as and when they fall due;
2. That the R espondent be ordered as follows with regards to the
maintenance of the minor child born of the marriage, namely D[...] P[...] L[...]a
daughter born on 14 February 2011 (“the minor child”): -
2.1 Retain the minor child on a medical aid plan and make payments of the
monthly premiums and all reasonable excess expenses not covered;
2.2 Payment of the minor child's current cell phone contract;
2.3 Pay cash maintenance for the minor child in the amount of R12 500,00
(twelve thousand five hundred rand) per month by the first day of every
month, following the date of this order, which shall escalate annually at a rate
equal to the Consumer Price Index on every anniversary of the date of the
order;
2.4 Make payment of the minor child's school fees at King David Linksfield
as and when they are due, as well as her educational expenses, including but
not limited to school uniforms, books, stationery, tours and outings, extra
murals, sports, sports equipment, and sports clothing.
3. That the R espondent be ordered to pay an initial contribution towards
the applicant's legal costs in an amount of R 60 000,00 (sixty thousand rand)
payable within 60 (sixty) days of this order.
4. The primary residence of the minor child shall remain with the
Applicant;
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5. The Applicant’s claim for spousal maintenance pendente lite in the
amount of R5 000 (five thousand) per month for a period of six (6) months
form date of this order.
6. The costs of this application shall be costs in the cause.
CSP OOSTHUIZEN-SENEKAL
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
DATE OF HEARING: 20 August 2025
DATE OF JUDGMENT: 22 August 2025
APPEARANCES:
Counsel for the Applicant: R Adams
Cell: 061 087 2573
radams@advocatesa.co.za
Attorney for the Applicant: Fairbridges Wertheim Becker
Phone:011 268 0250
darryl.r@fwblaw.co.za
Counsel for the Respondent: T Lipshitz
Cell: 083 383 5511
Rivonia Group of Advocates Talipshitz@gmail.com
Attorney for the Respondent: Joselowitz & Andrews Attorneys
dahlia@ja-attorneys.co.za
Cell: 083 477 2233