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 DIVISION, JOHANNESBURG
CASE NO: 2024-016242
(1) REPORTABLE:
(2) OF INTEREST TO OTHER JUDGES:
(3) REVISED:
12 September 2025
In the matter between:
B[…]: K[…] Y[…] Applicant
And
B[…]: B[…] L[…] Respondent
Heard: 24 March 2025
Delivered: This Judgement was handed down electronically by circulation to
the parties’ legal representatives by email and by uploading to C ourt-Online
and release to SAFLII. The date and time for hand down is deemed to be 10 :00
am on 12 September 2025.
ORDER
1. The Respondent shall continue to pay or resume paying, or continue to
procure the payment on his behalf, of the following costs and items for and in respect
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of the former common home (“Unit 5”) on due date, in full and without deduction (and
any arrears on any or all of the accounts which in any way prejudice the continued
provision of the services in question) :
1.1 The monthly mortgage bond instalment;
1.2 Maintenance and repairs necessary to maintain the buildings and the
property in the state in which it was when both parties resided there as their
common matrimonial home, which he shall determine at his sole discretion;
1.3 Insurance premiums in respect of the property, buildings and contents
as paid by him when both parties resided there as their common matrimonial
home;
1.4 Security as paid by him when both parties resided there as their
common matrimonial home;
1.5 Municipal rates;
1.6 The basic monthly service and connection charges as they appear on
the relevant accounts for electricity and water, but not the costs of usage of
electricity and water which are for the account of the Applicant since she has
the use thereof.;
1.7 Levies insofar as any are charged in respect of the property.
2. The Respondent shall continue to pay or resume paying, or continue to
procure the payment on his behalf of (and if necessary reinstate) medical aid for the
Applicant of the same value and benefit as enjoyed by her during the subsistence of
the marriage, and cellular telephone device rental and service usage for the
Applicant of the same average monthly value and benefit as enjoyed by her during
the subsistence of the marriage or up to a monthly maximum of R2 000.00
whichever is the lesser amount.
3. The Respondent shall either procure the return to the Applicant of the BMW
X3 motor vehicle referred to in paragraph 203 of his Answering Affidavit insofar as
he has the ability to do so, for her to have unrestricted use thereof, at no cost to her
except as provided for herein; or shall procure for the Applicant the unrestricted use
and enjoyment, at his sole cost, of a vehicle of no less value than a 2023 model
and enjoyment, at his sole cost, of a vehicle of no less value than a 2023 model
BMWx3, and shall, at his cost, procure that any such vehicle is comprehensively
insured for the Applicant to drive (with a replacement vehicle in terms of the policy if
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for any reasons the vehicle is unfit to drive), and shall be liable for the costs of
licensing of, and tyres, maintenance and repairs for, such vehicle.
The Applicant shall be liable for the costs of fuel and any traffic fines incurred by her
in using such vehicle and any excess on the insurance in respect of any loss of or
damage to the vehicle.
Such vehicle shall be delivered to the Applicant at the former common home within 5
days of the date of this Judgment.
4. The Respondent shall contribute the sum of R400 000.00 (four hundred
thousand) towards the Applicant’s legal costs, which contribution shall be paid in four
equal instalments, direct to her attorney’s Trust account the details of which are to be
furnished by her attorneys to his attorneys within 5 days of this Order, the first
instalment to be paid on or before 01 October 2025 and the subsequent instalments
on or before the 01st days of the next three successive months.
5. Paragraph 4.2 and the first line and first word of line 2 of paragraph 4.3, at
paragraph 59 of the Applicant’s Founding Affidavit, and all of the Applicant’s
annexures except for KB21, KB22 and KB36 are struck out of the record.
This striking out has the following effect on costs:
5.1 Any costs incurred by the Respondent in perusing, copying or
addressing these annexures in his Opposing Affidavit, and the Respondent’s
costs as Applicant in the Application to Strike Out are to be paid by the
Applicant’s attorneys on a party and party basis at Scale A.
5.2 The Applicant’s attorneys may not charge the Applicant any fees or
disbursements in respect of any of the struck out material and the process of
recovery of any of the costs referred to in 5.1 above.
6. With regard to the remaining costs of this application the Respondent shall
pay one third of the Applicant’s costs of this Application, to include one third of the
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costs of counsel, on Scale B, and each party shall thereafter be liable for their own
costs.
JUDGMENT
C Von Ludwig AJ
Introduction
[1] This is a Rule 43 application in which a wife seeks spousal maintenance
and a contribution to her legal costs. All relief is opposed by her husband.
[2] The Affidavits of each paint extremely different pictures, both peppered with
acrimony and accusation, and the parties are about as far apart as it is possible for
parties to be in a Rule 43 application.
[3] I reserved this Judgment to work through my comprehensive notes and again
through the papers. I had no idea that I would be struck by illness which put me out
of action for some two months, resulting in a delay in delivering this Judgement. I
can only apologize to the litigants for something completely out of my control.
[4] Fortunately for those notes, capturing the detailed submissions by counsel, I
remain fully appraised of all I need to give this Judgment as I now do.
Procedure
[5] On the procedural issues:
5.1 At the outset, I condoned late filing of the Opposing Affidavit.
5.2 Ms Franck later advised me that the Supplementary Affidavits were to
be admitted by agreement.
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5.3 I deal below with the Application to Strike Out some of the Applicant’s
Founding Affidavit and some annexures (contended to contain without
prejudice material).
Background Summary
[6] The parties were married on 25 November 2018, out of community of property
with accrual.
[7] Applicant issued Divorce Summons on 14 February 2024, in which she stated
that Defendant/Respondent had left the common home on 03 November 2023.
[8] The parties were together for just less than 5 years.
[9] Applicant remained in the jointly owned common home (“Unit 5”) and part of
the
relief she seeks herein is for payment of some of the costs of that home.
[10] The Respondent contends that she does not actually live there anymore, has
taken up occupation with her new “life partner” and returns to Unit 5 only
occasionally.
[11] The Applicant contends that she is unemployed. The Respondent’s version is
that she has many avenues of income generation, one being continued part -time
employment at Stan Smith Electrical, where he himself contends to be “employed”,
but where Applicant avers he is a part-owner or shareholder.
[12] Yet again this R43 Court must work with what is before it to make a just
interim
order until the Trial Court can assess the full evidence.
[13] Even on her own version Applicant contends “unemployment” only since
January 2022, although she does not say what her employment was before then.
This would mean that she was income- earning for most of her marriage (just over 3
6
years) and unemployed for only about a year and a half before instituting the Rule 43
application.
[14] She paints a picture of a high- end standard of living and a husband who
spoiled
her with expensive gifts and holidays. He contends that she paid for or
contributed to the payment for a number of these things herself, and that they
as a couple were the beneficiaries of his father’s generosity.
[15] Both versions are to be taken in the context of what has become an
acrimonious
divorce where it serves each party to emphasize certain aspects and to underplay
others.
The Law and the Cases
[16] Rule 43 is a concise Rule and speaks for itself. There is a plethora of cases
dealing with R43, but it is trite that every matter has its own individual facts and must
be adjudicated on those facts within the parameters of the legislation and relevant
case law. It serves no purpose in this Judgment to waste time summarizing the law.
Relief sought
[17] The Applicant seeks (1) a cash component of maintenance of R38 339.18 and
then sets out (2) a paragraph of costs for the former common home and then lists (3)
“monthly premiums” she requires him to continue to pay, some of which are for her
and some in respect of the former common home (not all are in fact “premiums”).
[18] She asks for the one bundle (2) to be paid “as these costs arise” and the other
list (3) to be paid by way of “monthly premiums”.
[19] In respect of (2) and (3), her claim is that he “continues to pay”.
[20] She also asks that “The Respondent shall…ensure that the Applicant’s motor
vehicle described as BMW X3 with vin number…..and licence number K […] (“the
BMW X3”) is not removed unless through purposes of a court order.”
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[21] She seeks a contribution to her legal costs of R996 498.50
[22] Finally she asks that the costs of the R43 application are paid by Respondent
on an attorney client scale.
Observations
[23] This is a most unpleasant application on which to adjudicate.
[24] Laypersons seldom understand the purpose and nature of a Rule 43
Application. It is up to the attorneys to guide them to a responsible and cost -effective
use of process. Regrettably this has not been done.
[25] I have found all the papers before me distasteful in
both adherence to process and in content. I will say no more, but hope that the costs
orders herein serve the intended purpose.
Analysis
[26] An Applicant stands of falls by the relief they seek. Attempting to keep the
claim
as wide as possible by including words such as “ inter alia” does not help them to get
more.
[27] Inaccurate wording of claims may result in a court being unable to grant relief
which an Applicant thinks they have sought. In this regard I refer specifically to the
claim for the vehicle, which is worded as I set out above. It is not the Applicant’s
vehicle and well she knows this. Whether she knew it at the time the application was
launched is not clear, but at the time it was argued she had deposed to her
Supplementary Affidavit in which she quoted G […] B[…] as saying “It is my vehicle”.
She further set out at (unnecessary) length the vehicle disputes, from which I
conclude that there is a separate case pending dealing with the vehicle. That might
make an order given in line with the wording of her application meaningless and/or
incapable of fulfilment.
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[28] Whether the manner in which the vehicle claim is worded permits me, in a
Rule
43 application for a contribution to interim maintenance, to grant such relief is
another point in issue. All of this will be evident when I deal with the vehicle, but my
point now is to illustrate that an Applicant can secure, at best, only what her
application asks for. If her relief is not accurately stated she is (or her attorneys are)
the author/s of her own disappointing order.
[29] For ease of reasoning I have divided the claim into costs pertaining to the
former
common home, expenses for the Applicant (the cash component, medical aid and
cell phone), and finally legal costs.
[30] As regards the former common home Applicant requires Respondent to
“continue to pay” the items she claims.
[31] In his “BB17” and paragraphs 76 and 77 of his Affidavit he says he pays these
anyway.
[32] Yet it becomes evident from the Applicant’s Supplementary Affidavit that,
despite Respondent having said this, there have been instances of non- payment
and/or actions which infer that there will be non-payment.
[33] Respondent contends that Applicant no longer resides there and seems to
contend that accordingly he is not required (insofar as she may have any claim) to
pay these portions of her claim. Applicant avers that she does still reside there.
[34] The property is jointly-owned and Respondent has sought a forfeiture in the
main action. Whether or not he proceeds, and/or succeeds, with the forfeiture claim,
it is in his interest to continue to pay for the property and its related expenses
whether or not the Applicant resides there. It was submitted that he is not obliged to
single handedly maintain a joint asset (and that a R43 application cannot be used to
secure protection of an asset, (with which submission courts before me have
disagreed)), but on his own version he has always done so, and it will be for the Trial
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Court to determine, if this is so, what the consequences thereof might be. Having
conceded that he does pay these costs, there can be no dispute now as to
affordability for him to continue to pay them.
[35] On the one hand there is no need for an order if he is going to protect his
own
interests and pay, and on the other hand there is no harm in an order for the very
same reasons. It is only the costs of the application which may be affected by the
making or refusing of such order, but my costs order is driven predominantly by other
considerations.
[36] My finding in this regard is that the Respondent shall continue to pay the listed
costs of the former common home in the manner that I set out in my order.
[37] Applicant’s alleged needs are to be found in her cash component claim, her
claim that Respondent continues to pay for her medical aid and her cell phone, and
her claim for a vehicle.
[38] As regards her cash component, it is comprised almost entirely of her
personal
lifestyle expenses which, on any interpretation, are high end. She contends that she
has no means from which to pay for any of these and the Respondent argues that
she has various sources of income and ways to cover the costs of what she
reasonably needs.
[39] On her own version she earns interest on her inheritance of some R144 000
per annum (R12 000 per month). Whilst she is not required to use her capital sum to
support herself there is no reason why she cannot use her income derived
therefrom.
[40] She concedes having earned some ad hoc income by way of some of her
qualifications in the past, but says she does not earn that now. She has a duty to
attempt to support herself and no reason is given as to why she does not and/or
cannot derive ongoing ad hoc income from her various sources. She cannot expect,
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in the totality of circumstances, to have a lifelong spousal maintenance claim, and
she does not contend for any upskilling or the like. As such it must be concluded that
she can, must , and on the probabilities does, use her qualifications to earn some
income.
[41] There is a fine distinction between “earning capacity” in the future, versus
current ability to earn which is not being used either at all or to full potential. The
qualifications of the Applicant, her past ad hoc earnings, and her diary , paint a
picture of an Applicant who has the current ability to generate an income and is on
the probabilities doing so.
[42] It is accepted that it is unrealistic to expect her to receive any income from
Stan
Smith Electrical given the acrimony between herself and Respondent and his father.
[43] Almost all of the claims making up Applicant’s cash component are excessive.
The Applicant has given no explanation as to what she includes under “household”
or “sundries” and as such no claims can be substantiated. Her claims for
entertainment and gifts are excessive in the extreme. Likewise the costs of clothing,
hair and beauty. When adjusted, as I have done, to realistic amounts, I find that she
has enough from her the interest earned on her inheritance (she is not obliged to
delve into the capital sum thereof) and from ad hoc income she can make from her
various qualifications and enterprises to support herself.
[44] It is not clear whether the Respondent has removed her from the medical aid
on which she was a dependent during the subsistence of their marriage or whether
he has terminated whatever contract or arrangement was in place with regard to a
cell phone for her. Both actions would be counter -productive and unjustified
pendente lite as my order reflects.
[45] A vehicle seems, on both versions, to have been something the Respondent
always provided to the Applicant, however he may have financed it, and whether or
always provided to the Applicant, however he may have financed it, and whether or
not it was intended to be “hers”. Undoubtedly she always had the unobstructed use
and enjoyment of luxury vehicles.
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[46] Fortunately it is not necessary for this court to analyze the manner in which
her
claim for a vehicle is worded (which may well have resulted in no order for a vehicle
being made), or to delve into the history of the removal of vehicles from the
Applicant, since the Respondent in his paragraph 103 makes a tender of a
“affordable safe alternate vehicle” to the BMW x3 referred to in that paragraph.
[47] Respondent’s later tender of a Nissan NP200 does not accord with the
wording
and paragraph-context of his offer (he speaks of “alternate” when referring to an X3),
as my Order conveys.
[48] With regard to her claim for a contribution to her legal costs, it is clear from
the
manner in which this application itself has been conducted, and from the processes
involving the vehicles, that further litigation is inevitable. It is also clear that the
Applicant (notwithstanding that she somehow managed all the vehicle litigation as
she (unnecessarily) describes in these papers) will not be able to litigate on a par
with Respondent. It is trite that she is entitled to a parity of arms. As such she must
succeed in in principle in her claim for a contribution.
[49] However her claim as set out in the Bill of Costs is inflated. She will need
funds
to at least interrogate the Respondent’s employment and asset situations, and to
defend his claim for forfeiture. The inequality in their balance sheets, earnings and
financial support structures indicates that she will require some help with legal fees.
The amount of work to be done on these aspects however is not in the quantum that
the Bill of Costs sets out and if there is a suggestion that she is to be charged those
fees I trust she will assess it carefully since the reduced sum as per my order should
suffice.
[50] The draft Bill of Costs ought not to include the costs of this application, since
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they will be dealt with herein and that too accounts for a significant deduction from
the sum claimed.
[51] Finally, I am required to deal with the striking out of portions of the Applicant’s
papers and annexures. Before even addressing the allegation that the portions to be
struck are “without prejudice” I feel constrained to address the manner in which both
parties, but most especially the Applicant, have ignored the nature and the spirit of a
R43 application.
[52] Both have given free rein to their submissions about each other’s conduct far
outside the bounds of what is needed to establish, or refute, a need for assistance
and an ability to meet or contribute to that need. Given that neither is a legal
professional of any nature, a significant portion of the blame must attach to their
attorneys. I trust that my Order as to costs reflects the displeasure of the Court in this
regard.
[53] With regard to the Application for Striking Out, I find that whilst the quoted
portions do appear to contain without prejudice material, all of the Applicant’s
annexures except for KB21, KB22 and KB36 are in fact unnecessary and serve to
make the Application unnecessarily prolix, and are inconsistent with the nature and
spirit of a Rule 43 application. As such I order that the quoted portions of the
Affidavit, and all the Annexures to the Founding Affidavit, shall be struck out.
[54] As pertains to the costs of this application, even though the Applicant has
been
successful in securing payment of the costs of the former common home, medical
aid and cell phone, provision of a motor vehicle and a part contribution to her legal
costs, her papers pay scant regard to the constraints of the Rule. The papers of both
are unnecessarily padded with distasteful and excessive, irrelevant detail and both
are excessively long, especially those of the Applicant. The conduct of the
Respondent and/or those acting for or through him has also been unfortunate to say
Respondent and/or those acting for or through him has also been unfortunate to say
the least. The cases of both parties have been presented in a manner less than ideal
for both of them, and the court wants this to be understood. Both must feel the
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consequences in their respective pockets, as must the attorneys involved. I trust that
my costs order reflects this.
[55] I thus make the following order pendente lite:
Order
1. The Respondent shall continue to pay or resume paying, or continue to
procure
the payment on his behalf, of the following costs and items for and in respect
of the former common home (“Unit 5”) on due date, in full and without
deduction (and any arrears on any or all of the accounts which in any way
prejudice the continued provision of the services in question) :
1.1 The monthly mortgage bond instalment;
1.2 Maintenance and repairs necessary to maintain the buildings and the
property in the state in which it was when both parties resided there as their
common matrimonial home, which he shall determine at his sole discretion;
1.3 Insurance premiums in respect of the property, buildings and contents
as paid by him when both parties resided there as their common matrimonial
home;
1.4 Security as paid by him when both parties resided there as their
common matrimonial home;
1.5 Municipal rates;
1.6 The basic monthly service and connection charges as they appear on
the
relevant accounts for electricity and water, but not the costs of usage of
electricity and water which are for the account of the Applicant since she has
the use thereof.;
1.7 Levies insofar as any are charged in respect if the property.
2. The Respondent shall continue to pay or resume paying, or continue to
procure the payment on his behalf (and if necessary reinstate) medical aid for
the Applicant of the same value and benefit as enjoyed by her during the
subsistence of the marriage, and cellular telephone device rental and service
usage for the Applicant of the same average monthly value and benefit as
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enjoyed by her during the subsistence of the marriage or up to a monthly
maximum of R2 000.00 whichever is the lesser amount.
3. The Respondent shall either procure the return to the Applicant of the
BMW X3 motor vehicle referred to in paragraph 203 of his Answering Affidavit
insofar as he has the ability to do so, for her to have unrestricted use thereof,
at no cost to her except as provided for herein; or shall procure for the
Applicant the unrestricted use and enjoyment, at his sole cost, of a vehicle of
no less value than a 2023 model BMWx3, and shall, at his cost, procure that
any such vehicle is comprehensively insured for the Applicant to drive (with a
replacement vehicle in terms of the policy if for any reasons the vehicle is unfit
to drive), and shall be liable for the costs of licensing of, and tyres,
maintenance and repairs for such vehicle.
The Applicant shall be liable for the costs of fuel and any traffic fines incurred
by her in using such vehicle and any excess on the insurance in respect of
any loss of or damage to the vehicle.
Such vehicle shall be delivered to the Applicant at the former common home
within 5 days of the date of this Judgment.
4. The Respondent shall contribute the sum of R400 000.00 (four
hundred thousand) towards the Applicant’s legal costs, which contribution
shall be paid in four equal instalments, direct to her attorney’s Trust account
the details of which are to be furnished by her attorneys to his attorneys
within 5 days of this Order, the first instalment to be paid on or before 01
October 2025 and the subsequent instalments on or before the 01st days of
the next three successive months.
5. Paragraph 4.2 and the first line and first word of line 2 of paragraph
4.3, at
paragraph 59 of the Applicant’s Founding Affidavit, and all of the Applicant’s
annexures except for KB21, KB22 and KB36 are struck out of the record.
This striking out has the following effect on costs :
This striking out has the following effect on costs :
5.1 Any costs incurred by the Respondent in perusing, copying or
addressing these annexures in his Opposing Affidavit, and the Respondent’s
costs as Applicant in the Application to Strike Out are to be paid by the
Applicant’s attorneys on a party and party basis at Scale A.
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5.2 The Applicant’s attorneys may not charge the Applicant any fees or
disbursements in respect of any of the struck out material and the process of
recovery of any of the costs referred to in 5.1 above.
6. With regard to the remaining costs of this application the Respondent
shall pay one third of the Applicant’s costs of this Application, to include one
third of the costs of counsel, on Scale B, and each party shall thereafter be
liable for their own costs.
C VON LUDWIG
ACTING JUDGE
GAUTENG DIVISION OF THE HIGH COURT, JOHANNESBURG
Appearances
For the Applicants: Adv L Franck
Instructed by J M de Villiers Attorneys
For the Respondent: Adv Adele de Wet SC
Instructed by Jagga and Associates Attorneys
Date of hearing: 24 March 2025
Date of judgment: 12 September 2025