1. REPOR TA BLE: ¥ES/N O
t.
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case number: 050868/2025
Y[ .... ) S( .... J APPLICANT
and
W[ .... ] S[ .... J S[ .... ] RESPONDENT
JUDGMENT
MARX DU PLESSIS, AJ
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Introduction
1. This is an application brought in terms of Rule 43, which came before me in
the Family Court on 12 August 2025.
2. The applicant claims, inter alia, spousal maintenance, maintenance in respect
of the parties' two minor children, and a contribution towards costs. The
application was launched simultaneously with the institution of the divorce
action on or about 11 April 2025.
3. On 17 July 2025, the applicant applied for the allocation of a hearing date,
approximately two weeks after the respondent delivered his sworn statement
and some three months after the application had been launched.
Brief background
4. The parties were married to one another on 17 September 2011 out of
community of property, subject to the accrual system. Two children were born
of the marriage, aged 12 and 5.
5. The applicant vacated the parties' erstwhile matrimonial home during or about
February 2025. The reasons for her doing so are in dispute but are irrelevant
for the purposes of this application.
6. Upon vacating the matrimonial home, the applicant took the minor children
with her, and they have been in her care since. The applicant moved into her
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parents' home, where she still resides. The primary care and residence of the
minor children are not in dispute in this Rule 43 application, nor are the
respondent's rights of contact.
7. During April 2025, the applicant caused a summons for divorce to be issued
and, at the same time, launched the present Rule 43 application. The applicant
claims a cash contribution towards her and the children's maintenance in the
total sum of R43,000.00 per month, as well as a contribution towards her legal
costs in the sum of R80,000.00.
8. The sum of R43,000.00 comprises a contribution of R20,000.00 per month
towards the applicant's maintenance, R8,000.00 per child per month, and
R?,000.00 per month as full payment the applicant's and the children's rental.
9. In addition, the applicant seeks an order directing the respondent to pay all of
the children's educational expenses, the applicant's and the children's medical
aid premiums together with all medical expenses not covered by the medical
aid, as well as an amount of RJ0,000.00 as a contribution towards her
relocation costs.
10. On the applicant's own version, as set out in paragraphs 6.14 and 6.15 of her
sworn statement, her and the children's monthly shortfall amounts to
R5,075.33. This shortfall is calculated inclusive of the R7 ,000.00 rental
payment, which the applicant also seeks payment of separately, thereby
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duplicating this expense and, in effect, seeking an order in terms of which the
respondent pays for it twice: firstly, as part of the cash component to
supplement the applicant's alleged shortfall, and secondly, as a stand-alone
expense payable directly to the service provider.
11. On the applicant's version, it is manifest that the contributions she claims by
far exceed the extent of her alleged shortfall and are, in fact, exorbitant in the
extreme.
12. The applicant launched the application not knowing what, if anything, would
be in dispute in the divorce action and, more importantly, not knowing anything
about the respondent's financial position. In paragraph 6.1 of her sworn
statement, the applicant expressly confirms under oath that she possesses
little knowledge of the respondent's financial position.
13. Notwithstanding the respondent's full disclosure of his financial position, his
payment of monthly cash contributions to the applicant and the children (albeit
in fluctuating amounts), his continued payment of the children's school and
aftercare fees, and his reasonable tender for a contribution towards the
children's maintenance as set out in his sworn statement, the applicant
nonetheless persisted in setting the matter down for hearing and sought an
order in accordance with her Rule 43 notice.
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14. As previously stated, the applicant applied for a hearing date three months
after launching the application, and only after the respondent had delivered
his sworn statement, to which his Financial Disclosure Form was attached. This
chronology undermines the applicant's assertion of urgency and dire financial
circumstances.
Applicable legal principles
15. In adjudicating Rule 43 applications, the Court must consider the applicant's
reasonable needs and the respondent's ability to meet them.1 To this end, and
to ensure that justice is done between parties, the exchange of Financial
Disclosure Forms has been made compulsory in all divorce actions and Rule
43 applications where maintenance is in dispute, whether it be child or spousal
maintenance.
16. The Financial Disclosure Form is a comprehensive document dealing with a
party's financial affairs, completed under oath, accompanied by relevant
supporting documentation.
17. The completion and exchange of Financial Disclosure Forms is one of many
tools in divorce litigation, not only serving an administrative function. The
purpose of exchanging Financial Disclosure Forms is not only to ensure a fair
hearing, but also to secure the inexpensive and expeditious finalisation of
1 Buttner v Buttner 2006 (3) SA 23 (SCA) at par 36.
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litigation. Disclosure by Financial Disclosure Form can assist litigants to
achieve correct results sooner and more cost effectively than they would
without.
18. A full and frank financial disclosure of a party's finances is essential so as not
only to ensure a just resolution of the financial disputes between the parties,
but as stated, to facilitate the expeditious and cost-effective conclusion of the
disputes between the parties.
19. It is trite that a claim supported by reasonable and moderate details carries
more weight than one which includes extravagant or extortionate demands.
Similarly, more weight will be attached to the affidavit of a respondent who
evinces a willingness to implement his lawful obligations than one who is
obviously, albeit on paper, seeking to evade them.2
20. Had the applicant waited for delivery of the respondent's Financial Disclosure
Form before launching this application, as one would reasonably expect from
a party lacking particulars of the other's finances, she would have been able
to assess the reasonableness of her claims and to seek a contribution towards
her and the children's maintenance needs that was neither exorbitant,
extortionate, nor extravagant, and thus is in line with purpose of Rule 43.
2 Taute v Taute 1974(2) 675 {EC) at 676H
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21. The applicant waited more than two months before applying for a hearing date
and persisted in pursuing the application and the relief sought, despite being
in possession of the respondent's Financial Disclosure Form, which clearly
demonstrates that his income is not as she had assumed and was, in fact,
substantially lower.
22. In my view, the applicant's conduct amounts to an abuse of the Rule 43
process.
Respondent's tender during argument
23. During argument, the respondent made a further tender for the contribution of
maintenance towards the minor children. Based on the evidence before me,
this tender, as with the tender contained in the sworn statement, is more than
reasonable.
24. Notwithstanding my misgivings regarding the application, the Court remains
mindful of its duty to protect and promote the best interests of the minor
children.
25. As the respondent's tender sufficiently caters for the children's
accommodation, nutritional, and educational needs, it is appropriate to make
it an order of court.
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26. Whilst the Court recognises the urgent and interlocutory nature of Rule 43
applications, such proceedings cannot be instituted, pursued, and adjudicated
in a vacuum. Orders granted in terms of Rule 43 frequently bear upon the
conduct, prosecution, and potential settlement of the divorce action, and the
significance of ensuring that such orders are correct and appropriate cannot
be overstated.
27. The application launched by the applicant was incomplete and speculative in
material respects, thereby giving rise to an undesirable and avoidable
application.
28. Instituting the application without any knowledge of the respondent's financial
position, in circumstances where the applicant was aware that the respondent
would be compelled to deliver a Financial Disclosure Form soon after service
of his plea, and thereafter persisting with the application notwithstanding full
disclosure of the respondent's finances, was ill-considered and contrary to
both the intention and the purpose underlying Rule 43.
29. The applicant's conduct in launching and prosecuting the application in the
circumstances outlined above warrants censure and, in the Court's view,
justifies an adverse costs order.
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Order
In the result, it is ordered that, pendente lite:
1. The respondent shall contribute towards the maintenance of the two minor
children in the amount of R3,000.00 per month per child, the first instalment
shall be paid on 1 September 2025, and thereafter on the first day of every
succeeding month.
2. The respondent shall continue making payment of the minor children's school
and aftercare fees, directly to the relevant service providers.
3. The applicant shall retain the minor children as dependants on her medical aid
and shall continue making payment of the monthly contributions in respect
thereof. The parties shall be equally liable for the payment of all medical
expenses of the two minor children not covered by the medical aid.
4. Full parental responsibilities and rights in respect of the minor children, as
contemplated in s 18(2) of the Children's Act 38 of 2005, are awarded to the
applicant and the respondent, subject thereto that the applicant is awarded the
right to provide primary care and the primary place of residence to the minor
children.
5. Specific parental responsibilities and rights as contemplated ins 18(2)(b) of the
Children's Act 38 of 2005, and in particular, the right to ma intain contact with
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the minor children, are awarded to the respondent. Such contact shall include,
but shall not be limited to, the following:
5.1 Removal of the children every alternate weekend from Friday at 15h00 to
Sunday at 15h00.
5.2 Removal of the children every alternate short school holiday, on the basis
that the minor children shall spend alternate Easter weekends with the
applicant. For purposes hereof, "short school holidays" refer to the school
holidays occurring during March/April and September/October each year.
5.3 Removal of the children for half 50% of every long school holiday, subject
thereto that Christmas and New Year shall rotate between the parties. For
purposes hereof, "long school holidays" refer to the school holidays
occurring during June/July and December/January each year.
5.4 Reasonable telephonic contact at all reasonable times.
5.5 Removal of the children on Father's Day weekend from 15h00 on the Friday
until 15h00 on the Sunday, unless this coincides with a normal contact
weekend, in which event the applicant shall be entitled to the same contact
on Mother's Day weekend.
5.6 Removal on the respondent's birthday from 09h00 until 17h00, should the
respondent's birthday fall over a weekend which does not coincide with a
normal contact weekend, in which event the applicant shall be entitled to
the same contact on her birthday.
5.7 Removal for 50% of the available time on the birthdays of the minor children,
insofar as this is practically possible.
6. The applicant is to pay the costs of the application on scale A.
Date of hearing:
Date of order:
APPEARANCES
12 August 2025
14 August 2025
On behalf of the applicant: Adv S van Dyk
Adv R Morgan On behalf of the respondent:
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