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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2024-084226
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED:
DATE: 29 August 2025
SIGNATURE OF JUDGE
In the matter between:
V[...] H[...]: I[...] APPLICANT
and
B[...]: J[...] G[...] R[...] RESPONDENT
This Judgment was prepared and authored by the judge whose name is reflected
and is handed down electronically by circulation to the parties / their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines system and by release to SAFLII. The date for hand down is deemed to
be 29 August 2025.
JUDGMENT
BADENHORST, AJ
INTRODUCTION:
[1] This is an opposed Rule 43 application and the following pendente lite relief
is sought in terms of the Notice:
[1.1] Making payment to the applicant of a sum of R38,050.00 per month,
alternatively of such monthly amount as this Honourable Court
should determine reasonable having regard to the proprietary
consequences of the marriage and the parties' respective income,
means and needs, each such payment to be made to the applicant
without deduction or set-off on or before the first day of each month,
by debit order into such account as she may from time to time
determine in writing.
[1.2] Making payment and by bearing all the medical expenses incurred
in private healthcare in excess of the cover provided by any medical
aid scheme or hospital plan of which the applicant is a member,
such costs to include all medical, dental, pharmaceutical (including
levies), surgical, hospital, orthodontic and ophthalmic (including
spectacles and/or contact lenses), physiotherapeutic,
psychotherapeutic, occupational therapeutic, homeopathic,
chiropractic and similar medical expenses which are not covered by
the medical aid s cheme. The respondent shall reimburse the
applicant for all expenses so incurred in respect of which she has
made payment, or shall make payment directly to the service
providers, as the case may be, within 5 (five) days of the applicant
providing the respondent with proof of payment and/or the relevant
invoice.
[1.3] The amount payable in terms of prayer 1.1 above shall be
increased annually on the anniversary date of the divorce order by
the percentage change in the Headline Consumer Price Index
("CPIX") for the Republic of South Africa in respect of the middle
income group or in line with the Headline Inflation Rate, which
applicable (or a new replacement inflationary index should the
CPIX be discontinued) as notified by from time to time by the
Director of Statics ("DS") or his equivalent, for the preceding 12
months.
[1.4] That the respondent be ordered to make an initial contribution
towards the applicant's legal costs in a sum of R174 250.89 in equal
monthly instalments of R15 000.00 per month on or before the first
day of every month.
[1.5] That the respondent be ordered to make a once off contribution
towards the applicant's costs in respect of household furniture and
necessities in the amount of R50 000.00.
[1.6] That the respondent be ordered to pay the costs hereof.
[1.7] That further / alternative relief be afforded the applicant.
FACTS:
[2] The parties were married on 17 July 2021 out of community of property
excluding the accrual system.
[3] This was a second marriage for both parties and both parties were in their
fifties when they got married.
[4] The applicant vacated the erstwhile matrimonial home on 27 October 2022
and moved to Pretoria.
[5] The applicant (plaintiff in the divorce action) issued summons during July
2024 for a decree of divorce and claims only spousal maintenance.
[6] The respondent claims in his Plea for a decree of divorce and for the
dismissal or the remainder of the applicant’s claim.
[7] The Rule 43 application was instituted on or about 23 December 2024, two
years and two months after the applicant vacated the common home.
[8] The Rule 43 application was enrolled on the family court roll of 28 July 2025,
being 2 years and 9 months after the applicant left the common home.
[9] The applicant claims considerably more relief in her Rule 43 application than
in the in the divorce action.
[10] The parties were both unemployed when they got married and they were
unemployed during the period they were married.
[11] The parties were married for 1 year and 3 months during which time the
applicant, on her own version , were away from home on several occasions.
On one of these occasions the applicant was away from home for more than
a month.
[12] The applicant avers they lived a comfortable life whilst the respondent avers
that their respective children contributed to their individual expenses.
[13] The respondent avers that he has not contributed to the applicant’s
expenses whilst they were married nor since she moved out of the common
home.
[14] The applicant avers that when she was admitted to the Helderberg
Psychiatric Clinic for 28 days during August 2022 the respondent did not pay
for her medical expenses as she was not on his medical aid. The applicant
confirms that her children paid for these medical expenses.
[15] The respondent avers that the applicant has never claimed any form of
financial assistance from him. The applicant avers that she has contacted
the respondent’s brother during January 2023 to ask for financial assistance.
APPLICANT’S SUBMISSIONS:
[16] The applicant seeks condonation for filing of a supplementary affidavit in
terms of the provisions of Rule 43(5). Rule 43 does not allow for automatic
answer or reply to the answering affidavit of the respondent, but this Court
has a discretion to allow the filing of a further affidavit in terms of Rule 43(5).
[17] I afforded the applicant the opportunity to place further evidence before the
court as it was in the interest of justice to afford the applicant the opportunity
to deal with certain averments made by a respondent in his answering
affidavit. There is furthermore no prejudice towards the respondent allowing
same.
[18] The applicant is an unemployed 57-year-old woman and she has been
residing with her elderly mother in a two-bedroom accommodation in
Bronberg Retirement Estate, Olympus. The applicant describes her place of
residence as an old age home, but it is a retirement estate.
[19] The applicant had a Bernina Sewing Machine Agency from August 2026 to
August 2020 until Covid and she closed her business.
[20] It is common cause the applicant and respondent only resided together for
15 months after their marriage.
[21] The parties give different reasons for the breakdown of the marriage.
[22] The applicant avers she has two Capitec savings account s, being account
numbers 1[...] and 1[...]2.
[23] The applicant further avers that she earns a sum of R1,146.27 per month
from a living annuity from Sanlam (from her former spouse) and she is reliant
upon her mother who, when necessary, gives her R2,000.00 in a month.
[24] The applicant claims R1 2,000.00 per month in the Rule 43 for
accommodation and she avers her fair, reasonable and necessary monthly
needs and expenses are as follows:
[24.1] Rental R 12,000.00
[24.2] Food, groceries and cleaning materials R 4,000.00
[24.3] Toiletries R 500.00
[24.4] Electricity R 1,500.00
[24.5] Householders' insurance R 500.00
[24.6] Wi-Fi R 500.00
[24.7] Cellular telephone R 500.00
[24.8] Domestic worker part-time R 1,500.00
[24.9] Clothing and shoes R 700.00
[24.10] Hair care R 500.00
[24.11] Cosmetics and make-up R 500.00
[24.12] Vehicle maintenance, services, tyres, brake pads, etc. (in R
800.00 respect of her mother's vehicle)
[24.13] Fuel R 1,500.00
[24.14] Licenses R 100.00
[24.15] Parking, inclusive of parking attendants R 100.00
[24.16] Other and unforeseen expenses R 200.00
[24.17] Other educational expenditure R5 000.00 f or fees relating to
enrolment for a course at H yperionDev as she is studying
software engineering
[24.18] The respondent to pay for a Comprehensive Medical Aid with
Discovery
[24.19] Doctor / Dentist / etc. excess R 1,000.00
[24.20] Medication excess R 200.00
[24.21] Life insurance R 500.00
[24.22] Provision for retirement annuity R 5,000.00
[24.23] House maintenance R 250.00
[24.24] M-Net / DSTV R 700.00
[25] The applicant claims spousal maintenance in the amount is R38,050.00 per
month from the respondent.
[26] The applicant further claims a R50 000.00 once-off amount to purchase
household furniture and content to furnish the property that she intends to
rent and reside in. There is no rental agreement in place, the applicant
merely avers she wishes to move.
[27] The applicant avers that the respondent earns enough to pay all her
expenses listed.
[28] The applicant attaches two letters from psychiatrist s confirming her previous
treatments. The letters are dated 9 February 2023 and 15 October 2024
respectively.
[29] The applicant submit s that she has made out a proper case for her claim
towards spousal maintenance and that respondent can afford to pay same.
RESPONDENT’S SUBMISSIONS:
[30] The respondent avers that he is not financially in a position to contribute to
any of the applicant’s personal expenses as claimed, nor is he under any
obligation to do so.
[31] The respondent avers that he can barely pay his own personal expenses with
the commission he earns from his current employment.
[32] The respondent avers that both parties were unemployed during the time that
they were married and t he lifestyle the parties led was meagre and both
parties struggled to pay just the most basic of expenses.
[33] The respondent states that the parties agreed that they would only be
responsible for payment of their own personal expenses for the duration of the
marriage.
[34] The respondent states that the parties lived together as husband and wife
from 17 July 2021 until 27 October 2022 which is a pe riod of approximately
fifteen months.
[35] The respondent states that the applicant is fifty -six years of age whilst he is
sixty-two. The parties married when the applicant was fifty -two (52) years of
age, and the respondent was fifty-eight (58) years of age.
[36] The respondent confirms that the applicant has not claimed interim
maintenance from him since 27 October 2022 (when she vacated ther e
common home) until the institution of this application on 23 December 2024
and after more than two years the applicant de cided to pursue a financial
contribution.
[37] The respondent states that he was not able to make any meaningful financial
contribution towards the applicant during their marriage as he extensively
struggled with finances.
[38] The respondent avers that since their marriage the a pplicant has been
financially dependent on her family and she entered into the marriage with the
understanding that she would continue to be so dependent on her family for
her income until she is able to secure employment . The respondent states
that the applicant has made no effort to obtain employment.
[39] The respondent avers that this application is an opportunistic attempt to force
him to pay for the applicant's personal expenses which he has never done
before and the lifestyle the applicant now seeks is a lifestyle neither the
Applicant have ever enjoyed during their marriage.
[40] The respondent states that he obtained employment as a s alesman in
Somerset Wes in the Western Cape on March 2023 more than four months
after the applicant left the common home.
[41] The respondent’s net income was on average R 33 623.00 for the six -month
period of payslips attached to the Respondent's FDF. However, this amount
includes a significant once off commission payment received in June 2024.
The net income for the last financial year was R 365 623.58 which is an
income of R30 468.58 per month. The respondent’s estimated net income for
the next twelve months is R372 000.00 which calculates to R31 000.00 per
month.
[42] The respondent’s expenses are approximately R45 495.88 per month.
[43] The respondent avers that the applicant is unemployment by choice and not
due to circumstances.
[44] The respondent referred to Botha v Botha 1 where it was held that the
purpose of interim maintenance is to supplement expenses which the
applicant cannot meet however, in terms of Rule 43, such maintenance must
be reasonable in the circumstances , depending upon the marital standard of
living of the parti es, the applicant's actual and reasonable requirements and
the capacity of the respondent to meet the requirements.
[45] The respondent avers that the applicant fails to prove to th e Court that any of
her listed expenses are current. Instead, the Applicant only indicates what
kind of lifestyle she wishes to lead in the future.
[46] The respondent avers the applicant has not made out a case for maintenance
for herself. Kroon v Kroon 2 held that, "The position in our law is that no
maintenance will be awarded to a woman who can support herself." It was
further held that, " What does the plaintiff want and what does she need?
1 2009 (3) SA 89 (WLD) at 106 C
2 1986 (4) SA 616 (E)
Wants and needs are two different things. People usually want more than they
need."
[47] The respond ent argues that the applicant does not make out a case for
contribution towards her legal costs because both parties are on equal
financial footing with regards to litigation , in fact the applicant is litigation on a
higher scale as the respondent.
[48] The respondent referred to Du Preez v Du Preez3 where the Court held that a
“misstatement of one aspect of relevant information invariably will colour other
aspects with the possible (or likely) result that fai rness 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
(uberrimae fides) and to disclose fully all material information regarding their
financial affairs. Any false dis closure or material non -disclosure would mean
that he or she is not before the Court with "clean hands" and on that ground
alone it will be justified in refusing relief.”
EVALUATION:
[49] It is common cause that Rule 43 proceedings are interim in nature pending
resolution of the main divorce action. Each case must be based upon its own
particular facts.4
[50] The Court is referred to Erasmus, Superior Court Practice (2nd Edition) Vol. 2
at D1-580 during argument in that it states: " ... Maintenance pendente lite is
intended to be interim and temporary and cannot be determined with the
same degree of precision as would be po ssible in a trial where detailed
evidence is adduced. The applicant is entitled to reasonable maintenance
pendente lite dependent upon the marital standard of living of the parties, the
applicant's actual and reasonable requirements and the capacity of the
3 2009 (6) SA 28 TPD
4 Taute v Taute 1974 (2) SA 675 (E)
respondent to meet such requirements which are normally met from income
although in some circumstances inroads on capital may be justified.”
[51] Our Courts have always emphasised the need for utmost good faith by both
parties in Rule 43 proceedings and the need to disclose fully and all material
information regarding their financial affairs.5
[52] The applicant must show a need and then the court should also consider the
financial capacity of the respondent.
[53] The Court affirmed the position that the lifestyle requirement must be a
balanced and realistic assessment, based on the evidence concerning the
prevailing factual situation.6
Ludorf, J held: "To decide the issues I am compelled to draw inferences
and to look to the probabilities as they emerge from the papers. Obviously,
my findings are in no way binding on the trial Court and indeed after hearing
the evidence it may emerge that some or all of the inferences I have drawn
are wrong. On this basis I now tum to the issues as they emerge from the
papers.”7
[54] A rule 43 application is interim assistance to an applicant and not a meal
ticket.
[55] The applicant vacated the common home in October 2022. 2023. She issued
the Rule 43 application in December 2024 and the matter was only enrolled
for 18 July 2025, almost three years after the applicant left the common home.
[56] There is no evidence before me to suggest that the respondent maintained
the applicant during their 15 months marriage. On the applicant’s own version
her family paid for her medical expenses during the time she was admitted to
5 Du Preez v Du Preez 2009 (6) SA 28 (T) at para 16
6 M.M v T.M (2023/012335) [2024] ZAGPJHC 835 (20 August 2024) para 18
7 Levin v Levin and Another 1962(3) SA 330 (W) at p331D
the Helderberg Clinic as sh e was not registered as a dependant on the
respondent’s medical aid.
[57] On the respondent’s own version she did not receive any financial assistance
from the respondent since she left the common home and that th e Parties
were both unemployed during their marriage.
[58] The respondent obtained employment in Somerset Wes, in the Western
Cape, more than four months after the applicant left the common home in
Hermanus.
[59] On the applicant’s own version, she only contacted the respondent’s brother
during 2023 to seek financial assistance. The respondent’s version that he
has never made any financial contribution towards the applicant should be
accepted.
[60] I asked Counsel for the applicant how did the applicant survive financially for
more than two years before she lodged the Rule 43 application in December
2024. This aspect was not addressed in the applicant’s affidavit at all and no
explanation is given by the applicant in this regard.
[61] The applicant avers that she earns an amount of R1 146.27 per month from
an annuity from her late husband a nd when necessary , she would ask her
mother for R2 000.00. The inference this Court makes is that th ese amounts
cannot be the only money the applicant receives during a month to be able to
survive financially.
[62] In the Rule 43 application the applicant prays for an amount of pendente lite
maintenance which far exceeds the respondent’s salary and her list of
expenses are clearly not her current or actual expenses.
[63] The Applicant has not provided this Court with any reason as to why the
status quo of almost three years, c annot continue until finalisation of the
divorce action.
[64] There is a total lack of information without any explanation on how she
managed to financially survi ve for more than two years prior lodging the
application.
[65] The applicant does not explain her expenses nor the reasonableness thereof.
[66] The applicant seeks this court to have reference to her annexed FDF and to
try and assess her monthly expenses without expressly dealing with each and
every of the listed expenses and the reasonableness thereof.
[67] The expenses the applicant lists are clearly not current expenses and it is a
‘wish list’ so to speak.
[68] The only reason the applicant gives for her need to obtain an alternative place
to live is because the retirement village is not good for her mental health. No
evidence is provided to this effect. She has been living in the two -bedroom
apartment for almost three years. To claim this expense in a Rule 43
application is not reasonable in the circumstances.
[69] The applicant claims expenses regarding her mother’s motor vehicle ’s
maintenance, licensing etc. two years after vacating the common home . The
applicant does not give any information who paid these expenses prior to
lodging the application.
[70] The applicant adds to her expenses an amount of R5 000.00 per month for
which the respondent should pay towards a pension fund for the applicant. It
is common cause that the respondent has never paid any amount towar ds a
pension fund for the applicant. A rule 43 application is a remedy to provide
urgent interim relief to applicants with expenses he or she cannot pay, and the
respondent is able to meet those requirements. The claim for a pension
contribution is not part of the relief sought in the action.
[71] Furthermore, the applicant claims an amount of R5 000.00 per month for an
online software engineering course she is enrolled for, through HyperionDev.
No proof of enrolment is provided, no proof of who paid for the enrolment is
provided, nothing is said regarding when the applicant enrolled for this course,
the duration of the course and when the qualification will be obtained. The
applicant is also quiet about how this training will increase her earning
capacity when she finishes her studies.
[72] The applicant claims that the respondent should pay for her co mprehensive
medical aid with Discovery, doctor/dentist excess and medication excess. On
the applicant’s own version these expenses were not paid by the respondent
during their marriage but by her children. There is no explanation as to who
has been paying for the applicant’s medical aid en excess payments.
[73] The applicant claims life insurance of R500 .00 per month without explaining
the reasonableness of this expense in a Rule 43 application given the fact that
this expense wa s not an expense ever paid by the respondent during the
marriage.
[74] There is a duty o n an applicant who seeks redress to a ct in the utmost good
faith and to provide fully all material financial information and explain the
reasonableness thereof.
[75] The applicant also omits to say exactly which expenses her mother has been
paying and the amounts thereof.
[76] In matter C.M.A v L.A 8 it was stated that : “the Court should consider the
reasonable of the amount claimed versus the capacity of the respondent to
meet the requirements and interim maint enance orders is not intended as an
interim meal ticket for a spouse who, quite clearly, will not establish a right o f
maintenance at trial. And a court must be circum spect in arming an applicant
with an interim maintenance order which she is unlikely to achieve at trial, for
8 2023 ZAGPJHC 364 (24 April 2023) at par [25]
human nature predicts that she will then seek to delay the finalis ation of the
action.”
[77] The Applicant's entire application is filled with irrelevant information predating
the part ies’ relationship and does not adhere to the prescripts of Rule 43
which requires a sworn statement which is in the nature of a declaration,
which sets out the relief claimed and the grounds on which the claim is based.
But rather the Applicant approaches th e Court with unreasonable, excessive
and inflated claim s after being self-supporting for more than two years prior
lodging the application. The inference that can be made is that the applicant
can support herself until the divorce is finalised.
[78] In Taute v Taute 9 it was held that ”the quantum of maintenance payable
must in the final result depend upon a reasonable interpretation of the
summarised facts conta ined in the founding and answering affidavits as
indeed is contemplated and intended by Rule 43.”
[79] No facts are provided to base the reasonableness of the claim for pendente
lite spousal maintenance.
[80] The applicant’s calculation of interim maintenance and the reasonableness of
her monthly expenses are not canvassed in her founding affidavit at all. The
applicant omitted to fully and in detail explain how she managed to cope for
more than two years after she vacated the common home and before lodging
the Rule 43 application.
[81] After having perused and considered both parties’ papers filed of record, and
after having heard both parties’ legal representatives and considering the
merits of the matter I am of the view that the applicant does not make out a
case for pendente lite spousal maintenance or any other amounts claimed in
her separate prayers contained in the Notice.
9 1974 (2) SA 674
CONTRIBUTION TOWARDS LEGAL OSTS:
[82] The applican t claims an amount of R 174 250.89 towards a contribution to
legal costs.
[83] The respondent avers that the applicant has not made out a case that justifies
a contribution towards legal costs in circumstances whereby there are very
few issues in dispute, namely the spousal maintenance claim.
[84] The respondent also avers that the applicant could have obtained free legal
services through Legal Aid which would have negated the incurrence of the
alleged legal costs. The respondent further held that the a pplicant elected to
appoint a senior counsel in circumstances whereby the only issue in dispute is
the applicant's maintenance claim.
[85] The respondent also alleges that the a pplicant opposed mediation in terms of
the Rule 41A notice thereby forcing litigation and negating the possibility of
settlement.
[86] In Van Zyl v Van Zyl it was held that to succeed in an application for
contribution towards costs, the applicant must set out sufficient facts which if
established by her at the trial on the hearing of the evidence, would justify the
Court in granting an order as claimed.10
[87] in Muhlmann v Muhlmann 11it was stated that the amount to be awarded by
way of a contribution is that the applicant 'should be placed in a position
adequately to present her case'. What is 'adequate' will depend on the nature
of the litigation, the scale on which the husband is litigating and the scale on
which she intends to litigate, with due regard being had to the husband's
financial position. According to the decision in Micklem v Micklem 12, she is
10 1947 (1) SA 251 (T)
11 1984(1) SA 413 (W)
12 1988 (3) SA 259 (c) at 262H-263A
entitled to be put in a position of being able 'adequately to place her case
before Court'."
[88] The above cited case law confirm that the applicant is obliged to state the
nature of the litigation for this Court to assess not only the prospects of
success but also to determine whether litigation is strictly necessary. On this
score, the applicant did not adequately address the event s revolving around
the appointment of an industrial psychologist . T he applicant has failed to
discharge her obligation to describe the nature of the litigation.
[89] Rule 43(1] and (6) provides a mechanism whereby a party can claim a
contribution to legal costs at the commencement or prior to the divorce
proceedings and two or more such applications can be made before the first
date of trial. Should the matter not set tle and proceed to trial, the applicant
has the remedy in terms of this Rule to approach the Court for a contribution
towards her legal costs.
[90] It is on this basis that I am inclined to refuse applicant's request for
contribution towards legal costs.
COSTS DE BONIS PROPRISS:
[91] The res pondent seeks a cost order de bonis propriss against Shapiro &
Ledwaba Incorporated and Mr Shapiro personally. T he applicant's attorney
of record has delivered an affidavit resisting the order sought.
[92] Mr A Shap iro confirms that he is representing th e applicant in the di vorce
proceedings between the applicant and the respondent.
[93] The Court found that the further evidence should be allowed as the
respondent made severe allegations against Shapiro & Ledwaba Incorporated
in his answering affidavit.
[94] In paragraph 33 of the answering affidavit the respondent avers that the
applicant’s attorneys of record are proceeding with irresponsible litigations
and any cost order granted in favour of the respond ent will be academic, as
the applicant might not be able to satisfy a cost order made against her.
[95] The respondent avers that a de bonis propriss cost order should be granted
against the applicant’s attorneys of record for the following reasons –
[95.1] For advising the applicant to oppose mediation and possible
settlement;
[95.2] To proceed with a vexatious rule 43 application given the short
duration of the marriage, the duration of the parties separation
and the applicant’s lack of interim maintenance from 27 October
2022 to 23 December 2024;
[95.3] The applicant failed to file her FDF and a cost order was granted
against her the applicant;
[95.4] Proceeding with further affidavits without consent of the Court to
do so, which does not take the matter further save to increase
legal fees.
[96] The respondent therefore seeks costs de bonis propriss against Mr A Shapiro
personally and against the firm.
[97] Mr Shapiro confirms that he deposes to the affidavit with the knowledge and
consent of the applicant as it has become necessary as a consequence of the
respondent's frivolous claim that a de bonis propriis costs order be made.
[98] The applicant confirms in her affidavit that her attorney of record did not
advise her to refuse mediation nor to explore legal aid. She avers that that
proceedings have been launched on her express instructions, and it is denied
that her attorney negated the option of settlement or mediation.
[99] The applicant avers that that her attorney of record did not proceed to push
her to litigate and ‘rack up an account’ that would bankrupt her. The applicant
avers that she needs a contribution towards costs from the respondent as he
is forcing her to litigate against her.
[100] Counsel representing Mr Shapiro a rgued that this application for an order for
costs de bonis propriis is vexatious, malicious and a clear attempt on the part
of the respondent and that the r espondent be ordered to pay the costs of the
application on a punitive scale.
[101] The applicant’s attorneys of record appointed Martin Hayward Attorneys to
represent them in the de bonis propriss cost claim.
[102] The Court was referred to correspondence dated 17 Feb ruary 2025 from
Martin Hayward Attorneys to the respondent’s attorneys of record asking the
respondent’s attorneys of record to reconsider the claim that Shapiro &
Ledwaba Incorporated pay costs de bonis propriss . The respondent’s
attorneys were also informed that should they proceed w ith the claim, counsel
will be instructed to appear at the hearing of the matter on behalf of Shapiro &
Ledwaba Incorporated and a punitive cost order will be sought.
[103] In reply correspondence dated 17 February 2025 the respondent’s attorneys
stated that they are still awaiting the supplementary affidavit from the
applicant and they will revert after the content of the affidavit has been
considered.
[104] Martin Hayward Attorneys again enquired from the respondent’s attorneys
whether the respondent is still pursuing the order for costs de bonis propriis
against Shapiro & Ledwaba Incorporated.
[105] The respondent’s attorneys of record replied on 17 July 2025 informing Martin
Hayward Attorneys that the entire basis of the Applicant's claim, together with
the amounts claimed and the supporting allegations are questionable .
Mention was also made to the fact that the applicant allegedly has no money
and will not be able to pay any costs order and it seems that the Applicant is
litigating without caring for the financial implications for the respondent.
[106] A good reason must be present for a de bonis propriss cost order to be
granted.
[107] Vermaak’s Executor v Vermaak Heirs 13 Innes CJ held that: “the whole
question was very carefully considered by this court in Potgieter’s Ca se 1908
TS 982 and a general rule was formulated to the effect that in order to justify a
personal order for costs against a litigant occupying a fiducia ry capacity his
conduct in connection with the litigation in question must have been mala fide,
negligent or unreasonable.”
[108] The applicant avers that she has incurred legal costs in prosecuting claims
against the respondent, which she is entitled to prosecute considering that
she has a reasonable prospect of succeeding with and the r espondent is
unreasonably continuing to seek to evade and avoid his responsibilities.
[109] A cost order de bonis propriss is only reserved for the most serious of matters,
where a Court want to show its displeasure at the conduct of an attorney in
any particular context. Examples are dishonesty, obstruction of the interest of
justice, g rossly negligent conduct, misleading the Court and gross
incompetence and a lack of care.
[110] It was held in Multi-links Telecommunications Ltd v Africa Prepaid
Services Nigeria Ltd 14 that Legal practitioners must present t heir cases
fearlessly and vigorously, but always within the context of a set ethical rules
that pertain to them. Th e co urts and the profession demand absolute
personal integrity and scrupulous honesty of each practitioner.
13 1909 TS 879
14 2014 (3) SA 265 (GP at para [35]
[111] It was also stated in Multi-links Telecommunica tions Ltd: “It is true that
legal representatives sometimes make errors of law, omit to comply fully with
the rule of court or err in other ways related to the conduct of the proceedings.
This is an everyday occurrence. This doe s not, however, per se ordinarily
result in the court showing its displeasure by ord ering the particular l egal
practitioner to pay the costs from his own pocket. Such an or der is reserved
for condu ct which substantially and materially deviates from the standard
expected of the legal practitioners, such that their clients, the actual parties to
the litigation, cannot be expecte d to bear the costs, or because the court feel
compelled to mark its profound displeasure at th e conduct of an attorney in a
particular context. Examples are dishonesty, obstruction of the interest of
justice, irresponsible and grossly negligent conduct, litigatin g in a reckless
manner, misleading the court, gross incompetence and a lack of care.’
[112] The basis of the respondent’s submissions are that the applicant ’s attorney of
record is proceeding with litigation and lodging a rule 43 application knowing
very well that the applicant cannot pay any cost order.
[113] The respondent is of the view that the applicant could have approached Legal
Aid for free legal services, and she is incurring legal costs knowing that she is
unable to pay . The respondent also avers that the applicant’s attorneys
knowing very well that s he cannot afford the litigation, advised her against
mediation and brief senior counsel to represent her in the Rule 43 application.
[114] The applicant makes it clear in her affidavit that her attorneys of record act on
her instructions , they have set out the risks but she belief she has a
reasonably good case and she has a right to litigate her matter.
[115] If the applicant is not able to pay her attorney ’s fees or the fees of senior
counsel, it is surely of no concern to the respondent.
counsel, it is surely of no concern to the respondent.
[116] The applicant’s attorneys of record did not act unreasonably if they appointed
counsel in order to represent their client’s interest.
[117] An attorney should fearlessly and vigorously and within the context of a set
ethical rules that pertains to them, deal with their clients’ matters even if there
is a risk, which the clients excepted, that a cost order may be granted against
them.
[118] Surely an attorney doing pro -bono work should still fearlessly deal with their
clients’ matters without having to fear a de bonis propriss cost order against
them should their clients not have funds to pay a possible cost order awarded
against them.
[119] By considering and a pplying the guidelines in Multi-links
Telecommunications Ltd to the matter at hand, I am not convinced that the
applicant’s attorneys of record conducted themselves in a manner which
substantially and materially deviates from the standard expected of the legal
practitioners. They applicant’s attorneys fearlessly dealt with the matter, and I
do not see irresponsible and grossly negligent conduct, litigating in a reckless
manner, misleading the court, gross incompetence nor a lack of care.
[120] The respondent was cautioned in communication prior to the hearing of the
Rule 43 that Counsel will be briefed to represent Shapiro & Ledwaba
Incorporated in defending the cost order sought and the respondent was
further cautioned that a punitive cost order will be sought against him should
he persist with the claim.
[121] In my view the respondent has not made out a case for the relief sought.
ORDER:
[1] In the circumstances I make the following order:
[1.1] The Rule 43 application is dismissed with costs.
[1.2] The costs de bonis propris s sought by the respondent against
Shapiro & Ledwaba Incorporated and Mr Shapiro personally , is
dismissed with costs on an attorney and client scale.
BADENHORST AJ
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearing for the Applicant: Adv Z Marx Du Plessis
Cell: 082 499 2730
Instructed by: Shapiro & Ledwaba Inc
Tel: 012 328 5848
Email: aubrey@shapiro-ledwba.co.za
Appearing for the Respondent: Mr E Meintjies
Cell: 076 026 7621
Email:
Instructed by: BPG ATTORNEYS INC
Cell: 076 026 7621
Email:eugene@bpglaw.co.za
Appearing for de bonis propriss claim:
Adv M Fabricius
Cell: 082 702 9841
Instructed by: Martin Hayward Inc
Cell: 082 897 8341
Email: martin@haywardinc.co.za
Matter heard on: 31 July 2025
Judgment handed down: 29 August 2025