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[2025] ZAECQBHC 35
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M.A v A.A (3913/2024) [2025] ZAECQBHC 35 (4 September 2025)
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
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO: 3913/2024
In
the matter between
M.
A
Appellant
and
A.
A
Respondent
JUDGMENT
Nobatana AJ:
[1]
The applicant has applied for the following relief in terms of rule
43 of the uniform
rules of this court:
1.1
That the respondent shall contribute towards the maintenance of the
applicant and the applicant
and the respondent’s “
the
parties
” minor children:
1.1.1 an
amount of R23 000 per month to the applicant, and for the
maintenance in respect of the applicant and
the parties’
children, without set off deduction, with the first payment to be
made to the applicant on the last day of the
month in which the order
of this court is granted and thereafter on the last day of each
consecutive month;
1.1.2 the
schooling and college expenses of the parties children, including but
not limited to college fees, any medical
care and lessons
requirements, all extra-mural and extra-curricular school and
sporting activities, school uniforms and equipment
and attire,
sporting and/or extra-mural and extracurricular activities including
the costs of all flight tickets, gym and private
athletic coaching
expenses as well as costs relating to tours and competitions;
1.1.3 retain
the applicant and the parties’ children as dependent members on
his current medical aid scheme, at
his expense.
1.1.4 pay the
applicant and the children’s reasonable and necessary medical
expenses and necessary medical expenses
that are not covered by the
medical aid, including but not limited to medical, dental,
orthopedic, pharmaceutical, pathological,
surgical, specialist,
radiological, therapeutic, physiotherapeutic, chiropractic and
anesthetic expenses.
1.1.5 pay the
cell phone contract of the parties’ adult child, directly to
the service provider.
1.1.6 provide
the parties minor child with a working laptop on the last day of the
month in which the order of this
court is granted, to be used by her
pendente lite
.
1.1.7 deliver
and allow the applicant continued use
pendente lite
of the
Corsa bakkie which she formerly used or provide the applicant with a
similar vehicle and pay the licensing fees, short term
insurance
premiums, annual maintenance and service, reasonable repairs
(including replacement, as required of shocks, brakes and
brake pads)
and the replacement of tyres (as well costs incurred in respect of
wheel balancing and alignment) as an when required;
1.1.8 deliver
to the applicant and allow her and the parties’ children the
continued use,
pendent light
, of one working television set.
2
That the parties’ minor child,
pendente lite
, remains in
the applicants’ primary care, subject to the respondent’s
right of reasonable access to her:
3
That the respondent shall contribute an amount of R190 000 towards
the applicant’s
legal costs, with such payment to be made:
3.1
in monthly installment of R20 000 each, with the first such
payment to be made on the
first day of the month, on which the order
of this court is granted in this matter and thereafter on the last
day of each subsequent
month; and into the trust account of the
applicant’s attorney of record,
3.2
the costs of this application be costs in the cause and that such
cost includes the costs
of counsel at scale B;
[3]
The parties were initially married to each other in terms of Islamic
Law on the 20
th
of April 2002. On the 19
th
of
July 2014, they entered into a marriage out of community of property
in terms of the Marriage Act, 1961 (Act No. 25 of 1961),
with the
exclusion of the accrual system.
[4]
There are two children born of the marriage, who are girls, namely
H.A, who is presently
a major, she is however not self-supporting and
is a fourth-year student at the M[...] S[...] Arabic Girls College,
and B.A, who
is a minor female who is currently in Grade 9 at W[...]
Secondary School.
[5]
On the 9
th
of April 2024, the applicant instituted an
action for divorce against the respondent. The said divorce
proceedings are pending
before this court. In the divorce proceedings
the applicant seeks the following relief against the respondent:
5.1
a decree of divorce
5.2
that the parties retain full parental responsibilities and rights in
respect of the minor
child, as provided for in the Children’s
Act, 2005 (Act 38 of 2005);
5.3
That the minor child primary resides with the applicant, subject the
respondent’s
rights of reasonable access to her.
5.3.1 That
the respondent be ordered to contribute as follows toward the
maintenance of the minor child; by,
5.3.2 payment
of an amount of R2 500 per month, to the applicant.
5.3.3 retain
the minor child as a dependent member on his medical aid scheme, at
his expense.
5.3.4 pay all
the minor child’s expenses that are not covered by the medical
aid; and
5.3.5 pay the
costs of her tertiary education and all costs associated with it.
5.4
That the respondent be ordered to pay these costs until the minor
child becomes self-supporting.
5.5
That the respondent pays the cost of the minor child’s tertiary
education, and all
costs associated with it, should the minor child
display the necessary aptitude to receive such education.
5.6
That the respondent be ordered to pay to the applicant spousal
maintenance to the applicant
until her death or remarriage-which ever
occur as follows:
5.5.1 an
amount of R20 000,00 per month to the applicant,
5.5.2 retain
the applicant as a dependent member on his medical aid scheme, at his
expense, and
5.5.3 pay all
medical expenses that are not covered by the medical aid,
5.7
The respondent be ordered to pay the applicant a resettlement
allowance of R1 300 000,
to the applicant for costs of
housing and a motor vehicle, alternatively, that the respondent be
ordered to transfer half of the
net value of his estate to the
applicant, in terms of redistribution order.
[6]
The action for divorce is defended by the respondent, in his defense
the respondent
does not put into issue the fact of the irretrievable
breakdown of the marriage but pleads different reasons therefor.
[7]
The respondent denies that the applicant is entitled to spousal
maintenance, resettlement
allowance and a redistribution order.
[8]
The respondent also claims primary care of the minor child, without
an obligation
of the applicant paying him for her maintenance, in the
alternative, the respondent pleads that should the applicant be
ordered
to retain primary care of the minor child, the respondent has
tendered to pay the following as maintenance of the minor child:
8.1
An amount of R2 500 per month, until the minor child becomes
self-supporting.
8.2
Payment of the costs of retaining her his medical aid, including
payment her medical expenses
not covered by the medical aid; and
8.3
Payment of the reasonable costs of her school education, as well as
tertiary education.
[9]
The respondent has further tendered to make similar payments towards
the major child,
except for the fact that, for the monetary part of
the maintenance, he has tendered pay for the major child is R3 500
per
month.
[10]
The pleadings in the divorce action have closed, no trial date has as
yet been allocated, and
because, the primary care of the minor child
has been put in issue, the family advocate has been requested to
conduct an investigation,
and prepare a report to advise on what is
in the best interests of the minor child, in the circumstances.
[11]
The report of the family advocate has not yet been finalised. It is
common cause that the delays
in the finalization of the family
advocates report is caused by a backlog in the family advocates
office, as the family advocate
has already consulted with the
applicant and the respondent, as early as the 14
th
of
February 2025.
[12]
In support of the present claim for herself and the parties’
children, the applicant in
her Financial Disclosure Form has stated
that since 2024 she has been employed as a kitchen help at Mr. Chows
Take always. She
works for 6 days a week and earns a basic salary of
R1 100 per week, as well as overtime, which is usually R220 per
week.
The applicant further states that she also receives an
additional R100 per week, as contribution to her fuel expenses. UIF
is deducted
from her salary. On average the applicant earns an amount
of R1 406.80 per week (in a four-week month).
[13]
The applicant states that she does not have an additional source of
income other than what she
earns from her employment. The applicant
further states that she has been unemployed for a period of 19 years
before being employed,
as aforesaid in 2024.
[14]
The applicant alleges that the reason for her to stop working was a
result of an agreement that
was reached between the applicant and the
respondent, in order to look after the family
[15]
The applicant’s lists the following as her and children’s
monetary expenses:
15.1 She
states that she currently has the following bank accounts:
15.1.1 A Standard Bank
account with account number 1[...] (MYMOACC). This is an
account which was opened in approximately
2022 in applicants name and
into which the respondent had deposited funds from time to time –
usually around R1 000
per month. Some of the parties
household expenses and some of the Respondent’s expenses were
paid from this account,
for example repairs to his motor vehicles and
repairs to his residences. The respondent stopped making
payments into this
account at the end of 2023 and the current
available balance on this account is R363.38.
15.1.2 A Standard Bank
account, with account number 1[...]. (ACCESSACC). After
the death of the respondent’s father
in 2012, the Respondent
inherited approximately R32 000 from the estate. The
respondent told the applicant that he would
give her these funds as a
gift towards her
Hajj
expenses. The applicant thus
opened this bank account at Standard Bank, and the inheritance was
placed into this account.
The applicant states that she further
supplemented these funds with whatever was left over from the R1 000
or so that the
Respondent would pay into her above-mentioned Standard
Bank account (15.1.1. above), as well as any funds gifted to her.
These funds were used to pay applicants
Hajj
expenses in
2020. There is currently a negative balance of (-R13.67) on
this account.
15.1.3 A Standard Bank
account, with account number 1[...]. (TAXFREECALL). This
is a tax-free call account. The
respondent advised the
applicant that when he retires his pension would not be enough to
look after applicant. He thus asked
that the applicant open an
account into which the respondent deposited monthly payments to
provide for applicant on respondent’s
retirement. The
applicant states that from March 2024 the respondent ceased to put
funds into this account. At that
time there was a balance of
approximately R32 000 in this account. The applicant has
been transferring these funds to
the account mentioned at paragraph
15.1.1 and using these funds to support herself and the parties’
daughters. There
is currently an available balance of R2 509.92
in it, according to the applicant.
15.1.4 A Standard Bank
account, with account number 1[...]. This is an account which
the applicant opened a few months after
she obtained employment in
2024 and into which the applicants employer deposits her salary.
There is currently an available
balance of approximately R 2 205.41
in this account.
[16]
Other than the nominal amounts, the above-mentioned balances on the
bank accounts and a few personal
belongings, such as clothing, the
applicant states that, she does have any assets. She also does
not have liabilities.
[17]
The applicant states that she has made a list of the reasonable
monthly expenses of the parties’
children which amount to a
total of R29 195.00 in her Financial Disclosure Form. The
combined expenses amount to R28 195.00
per month, excluding
their medical aid contributions, the children’s educational
expenses and HA’s cell phone contract,
which are paid by the
Respondent directly to the service providers.
[18]
The applicant states that, considering the fact that she earns an
average net salary of R5 627.20
per month, the children and the
applicant, thus have a combined shortfall of R22 570.80 per
month.
[19]
The applicant further states that, she does not currently incur the
expense of R10 000 for
lodging, the expense of R1 200 for a
domestic, or the expense of R695 for WIFI, as indicated on applicants
list of expenses
in her Financial Disclosure Form, rather,
these are reasonably anticipated expenses, as explained further
below, according
to the applicant.
[20]
The applicant states that, on the 26
th of
January 2024 the
Respondent married a second wife in terms of Islamic Law. Up
until then, the Respondent had been residing
with the applicant and
their daughters at [...] P[...] Street, Parkside, which was the
parties’ matrimonial home. Shortly
after their marriage,
the respondent and his new wife, according to applicant, moved into a
flat downstairs on the same property.
[21]
The applicant states that she was not prepared to accept the second
marriage, and as a result
she vacated the former common home and
instituted the divorce action referred to above.
[22]
Both children chose to come and reside with the applicant at the
applicant’s parents’
house at 3[...] J[...] Street, Salt
Lake.
[23]
During the course of the marriage, according to the applicant, the
parties’ children each
had their own room at the former common
home, and the children shared a bathroom, whilst the Respondent and
the applicant shared
a room upstairs with an on-suite bathroom.
There was also a spare room which the respondent utilized as his gym.
[24]
According to the applicant, applicants’ parents are both
retired and are of meager means.
Their residence is small and
has two bedrooms, both of which her parents use. The
applicant’s father is not in good
health, and, due to his
health condition, he sleeps in one room by himself, and the
applicant’s mother in the other.
The applicant and the
parties’ children use the servants’ quarters at the back
of the property. This consists
of one room with no ablution
facilities. The children and the applicant cannot, according to
the applicant reside like this
indefinitely. The applicant
intends to secure their own accommodation, as soon as possible, but
she is not in a financial
position to do so, without assistance from
the respondent.
[25]
The applicant states that the Respondent was formerly obtaining
rental for one of his other immovable
properties, situated at [...]2
P[...] Street, Parkside, which not far from the former common home.
The respondent earned
rental income of R10 000 per month in her
financial disclosure form. The applicant is of the view this is
indicative
of a rental amount for a similar type of residence that
they were residing in when still living together, and the applicant
has
accordingly included this amount, as a reasonable rental expense
in her list of expenses, in her financial disclosure form.
[26]
Wi-Fi was installed at the former common home. At the
applicant’s parents’
residence, there is no Wi-Fi.
The applicant furthermore states that she does not have the necessary
funds to have this installed.
Both children need access to
Wi-Fi for their studies and entertainment. Axxess internet
according to the applicant is currently
advertising an uncapped LTE
data Package at R695 per month. The applicant submits it would
be preferable to use a mobile
router as opposed to the installation
of a fiber line until such time as they take up permanent residence.
[27]
The applicant further states that she currently has no television,
whilst the Respondent has
approximately seven.
[28]
During the course the marriage, according to the applicant, it was
part of applicant’s
duties to take the applicants’
children to school and see to it that they got to the various places
they needed to be.
For this purpose, she used a Corsa bakkie
that belongs to the Respondent. In addition to the Corsa, the
Respondent also owns
and drives a 7-seater VW Caddy. The applicant no
longer has access to the Corsa bakkie, but she still must take the
children to
school and various places that they need to be. The
applicant’s parents’ residence where they now reside is
further
away from both children’s places of education.
For this the applicant now has to make use of her father’s
motor
vehicle, which is the only one they have. The applicant
has to pay the petrol expenses for this vehicle and contribute to
the
running expenses. The vehicle is old and unreliable. In
the event that it should be damaged, neither the applicant
parents
nor she would be able to replace same.
[29]
BA, according to the applicant, needs a laptop so that she can do
homework and do assignments.
According to the applicant, the
price of laptops ranges from R7 000 to R10 000 for a basic
laptop.
[30]
The applicant states that she currently has to make do without a
domestic servant. She
works 6 days a week and requires some
form of assistance with household work at least once a week.
The applicant states that
she had a domestic assistant during their
marriage.
[31]
The applicant further states since she vacated the common home, the
Respondent has made the following
payments:
31.1.1 He has made no
contribution towards applicant’s maintenance, except for paying
applicants medical aid contribution.
31.2.2 In respect of HA:
31.2.1 August 2024 –
R5 000
31.2.2 September 2024 –
R5 000
31.2.3 November 2024 –
R5 000
31.2.4 The Respondent
pays her medical aid contribution.
31.2.5 The Respondent
pays her cell phone contract.
31.3 In
respect of BA:
31.3.1
August 2024 – R2 000
31.3.2
The respondent pays her medical aid contribution.
31.4
Educational Fees:
31.4.1 The respondent has
settled the parties’ children’s school and college fees
for 2024.
31.4.2 The college fees
for 2025 for HA will be R1 700 per month. As far as the
applicant knows, the Respondent has made
no payment in respect of the
college fees for this year.
31.4.3 The school fees
for 2025 for BA will be R2 700 for the year. To the best
of my knowledge, the Respondent has made
no payment in respect of the
school fees for this year.
[32]
With respect to the respondent’s income, the applicant states
as follows, the respondent is a
senior lecturer at NM and holds a PhD
(Chemistry). He initially worked as a lecturer at V from
February 1997 until December
2003. He was then transferred to
NM in January 2004 and is still employed there. He has
approximately 30 publications
accredited to his name. Due to
his employment at NM, the parties’ children would be entitled
to study there for a significantly
reduced tuition fee.
[33]
The applicant states that she is not in possession of any financial
records of the Respondent.
During the course of the marriage,
the respondent, according to the applicant, was extremely secretive
regarding his personal finances
and the applicant never had access to
any of his accounts. The applicant, however, knows that the
respondent holds various
bank accounts,
inter alia
a current
account and a credit card account. In addition to this, he has
a retirement annuity and holds unit trust with
inter alia
Old
Mutual.
[34]
The applicant has the following information regarding respondent’s
financial position:
34.1 In
an application for a fiber line to be installed at the former
matrimonial home, dated 13 March 2021.
The Respondent records
therein that his income is R45 000 per month. The
applicant states that, considering the fact
that this document is
almost four years old, and the respondent has obtained yearly
increases since then, the applicant submits
that the salary he now
earns must be well in excess of this amount.
34.2 A
Standard Bank form, listing the Respondent’s insurance and
investment portfolio as at 29 September
2004.
34.3 A
NM Retirement Fund benefit statement as at 31 December 2013.
34.4 An
IT3(s) Income Tax Certificate in respect of an investment, dated 1
March 2021.
34.5
The applicant states that she has also received papers from Neethling
Tax and Accounting Solutions. This
firm was appointed by the
Respondent, the applicant has had no dealings with them, other than
signing documents which the Respondent
said she must sign. It
is reflected in the papers that the Respondent pays a salary to the
applicant. The applicant
states that she does not know what the
alleged salary was for, as she was never employed by the respondent.
[35]
In addition to the above, the respondent, according to the applicant,
receives bonuses or commissions
for the articles that he has
published and is planning to publish. The applicant, however,
has no information as to the amounts
paid to him in this regard.
[36]
Further in addition to the above, the respondent during the marriage
rented out fixed properties
of which he is the registered owner.
As far as the applicant knows there is no bond on [...] P[...]
Street, Parkside (the
former matrimonial home). There is only a
small bond at [...]2 P[...] Street, Parkside.
[37]
The applicant has knowledge of the following cash income derived from
these rentals:
37.1
[...]2 P[...] Street, Parkside. This residence consists of a
main residence and two flats. The
main residence is rented out
for R5 500 per month and one of the flats for R2 500 per
month. Payment of the rent
is done in cash. The
respondent and his new wife now reside in the other flat at these
premises, which also used to be rented
out in the past.
37.2
The former matrimonial home, this residence consists of a main
residence and one flat. The main residence
was the parties’
former matrimonial home. The flat at this residence is rented
out for a cash amount of R3 500
per month.
37.3 It
has come to applicant’s knowledge that, after she vacated the
former matrimonial home, the respondent
started to run a bed and
breakfast establishment from main residence, called B[...] V[...].
The applicant does not have knowledge
as to the income earned from
this venture.
[38]
At the end of 2024 the applicant received information that the South
African Hajj and Umrah Council
(SAHUC) was giving refunds for
expenses for persons who went on
hajj.
The Respondent’s
and the applicant’s expenses for
hajj
were in the region
of R120 000 each. The applicant made application for a
refund of her expenses but was told that the
refund had already been
paid to the respondent and the applicant was thus not entitled to a
refund. She was not advised as
to what amount was in fact
refunded to the respondent. The respondent has, however, not
made any payment to the applicant
in respect of these funds.
[39]
Other than what the applicant has stated above, she states that she
does not know what else the
Respondent’s estate consists of and
what his income and expenses are.
[40]
The applicant, in respect her claim of claim for contribution to
legal costs from the respondent,
states that she is entitled to claim
for contribution for costs, as she is unable to fund her litigation,
in support of this claim,
the applicant states, that the Respondent
is defending the divorce action, and the following main issues remain
in dispute:
40.1
BA’s primary care.
40.2
The amount payable in respect of the parties children’s
maintenance.
40.3
Applicant’s entitlement to spousal maintenance, and the
duration and
quantum
thereof.
40.4
Applicant’s claim for a settlement allowance, alternatively a
redistribution order.
40.5
The costs of the divorce action.
[41]
She is advised that she has good prospects of succeeding with her
claims in the divorce action
on the following grounds:
41.1
Insofar as far as BA’s primary care is concerned, the applicant
has been her primary caregiver her
whole life, she is currently in
applicant primary care, and she is her main emotional attachment
figure. She also wants to
remain in applicant’s primary
care, and she is of sufficient age and stage of development that
significant weight should
be attached to her wishes in this regard.
41.2
Insofar as their children’s maintenance are concerned, the
amount tendered by the respondent is inadequate.
On the
contrary according to the applicant the amounts claimed by her are
reasonable and the Respondent can afford to pay them.
41.3
Insofar as her claim for spousal maintenance is concerned, the
duration of the marriage (being 22 years),
the reasons for the
breakdown of the marriage (being the fact that the Respondent has
taken a new wife), applicant’s age
(being 51) and her lack of
qualifications all favor the granting of a lifelong spousal
maintenance claim. In the last-mentioned
regard, applicant’s
highest qualification is, according to her, a matric certificate.
41.4
Insofar as her claim for a resettlement allowance, alternatively, for
a redistribution order, is concerned,
she has dedicated her life to
raising the parties’ children and, in so doing, enabled
Respondent to advance his career and
to grow his estate.
[42]
Applicant states that her legal costs to date amount to approximately
R45 995.83.
[43]
The respondent has according to the applicant access to funds to pay
his attorney and she has
been advised that she has a right to
litigate against the respondent on equal footing.
[44]
The applicant states that she does not have the funds to give her
attorney of record the necessary
cover for the pending litigation.
She has no assets to liquidate in order to fund the litigation.
She will not be able
to proceed with the pending divorce proceedings
without obtaining a contribution towards her legal costs.
[45]
She will need to provide her attorneys of record with funds to cover
the various expenses that
will have to be incurred during litigation,
including,
inter alia,
the following:
45.1
Counsel must be briefed to prepare or settle further pleadings,
attend pre-trial conferences, consult with
the applicant and her
witnesses and prepare for trial and attend trial.
45.2
Applicants attorney will have to make various attendances in order to
prepare the matter for trial and attend
at trial.
45.3
She must appoint an auditor to investigate and compile a report on
the value of the Respondent’s estate,
and she must obtain
formal valuations of his assets.
45.4
She must appoint an industrial psychologist to provide a report with
the necessary expert testimony pertaining
to my inability to secure
gainful employment in support of her claim for lifelong spousal
maintenance. The estimated costs
of R30 000.00 excl VAT,
which does not include pre-trial consultations, and court attendance
which will entail additional
costs.
45.5
Various witnesses must be subpoenaed
duces tecum
for documents
in their possession.
45.6
Copies of discovered documents must be made in order to prepare a
trial bundle.
[46]
As pointed out above applicant is claiming contribution of
R190 000-00 towards her legal
costs to be made to her
instructing attorney in monthly installments of R20 000-00.
[47]
The respondent, as stated above has opposed this application, in this
regard he has filed an
answering affidavit.
[48]
The respondent in his answering affidavit states as follows in
relation to the allegations set
out in the applicants founding
affidavit and Financial Disclosure Form. He admits the Standard
Bank account referred to in
paragraph 15.1.1. above. He
disputes that he paid an amount of approximately R1 000, 00 in
this account, he states that
he paid an amount of R4 500, 00 per
month into this account. He also disputes the balance.
[49]
He admits account no 1[...] (standard Bank) referred to in 15.1.2
above, and that he paid an
amount of inheritance that he received as
a result of the death of his father to be used by the applicant for
the Hajj expenses,
and that the amount was utilized by the applicant
for that purpose. The respondent also makes a bare denial of the
current balance
in the account, which as stated above, amounts to
-R13.67. He also admits the Standard Bank account 1[...] (tax
free call)
which is referred to in paragraph 15.1.3 above. The
respondent admits that this account was used by the parties as a
saving
account for emergencies, and that he used to deposit an amount
of R36 000 annually. The respondent states that he does
not have knowledge about the account in which the applicant’s
salary is paid, referred to in paragraph 15.1.4 above.
[50]
The respondent states that the amount R22 570, 80 claimed by the
applicant as a shortfall
per month, being applicant’s
estimation of what the respondent is able to pay monthly as
maintenance expenses for the applicant
and the daughters, is
unreasonable for the following reasons:
50.1
The respondent states that in making an estimation for the costs of
accommodation the applicant is using
[...]2 P[...] Street as a
benchmark. The respondent states in this regard that the rental for
that house is not R10 000 as
claimed by the applicant, the
actual rental income is R6 200, 00, and accordingly the amount
of R10 000, 00 claimed by
the applicant as costs of
accommodation should be reduced to R6 200, 00.
50.2
The respondent also states that the monthly bill for groceries for
the respondent, the applicant and the
two daughters when they were
staying together amounted to R 6000, 00 per month. This
according to the respondent included
personal hair cosmetics and
toiletries.
50.3 In
respect of electricity he confirms that the amount of R600 per month,
claimed by the respondent, was reasonable.
[51]
The respondent states that the amount of R695 which is claimed by the
applicant for Wi-Fi which
is derived from an offer advertised by
Axess for uncapped internet data package, is excessive the respondent
contends that in the
Telkom plan that he presently has he pays R107
per month.
[52]
He admitted that they previously had a domestic assistant. He
states that he currently
does not utilize a domestic worker, and he
submits that for this reason that this is an unreasonable expense,
given the standard
of living that the parties enjoyed during the
course of the marriage.
[53]
In respect of the clothing and shoes the respondent states that he
tenders to make payments in
respect of the children’s clothing
and shoes and ensure that they have the necessary items.
[54]
In respect of fuel he states that the applicant does not have far to
drive, she can do with only
10km per day and accordingly tenders
R1000,00 per month, he also tenders to occasionally pay pocket money
for the children as he
used to do during the subsistence of the
marriage.
[55]
The respondent concludes that in his calculation both children’s
monthly expenses come
to R14 300, 00 per month with each child
share being R3 400 per month and he tenders to pay R3 400,
00 per month
per child. The respondent thus tendered no payment
of maintenance for the applicant. The respondent has
accordingly
tendered to pay any amount of R11 560, 00 of the
shortfall, which excludes any maintenance for the applicant.
[56]
The respondent has also offered the minor child access to his old
laptop computer.
[57]
The respondent further states that from the issue of summons he has
been paying the following
in respect of the daughters:
For the major daughter:
57.1
Her medical contribution on a monthly basis,
57.2
Her cellular phone contract on a monthly basis,
57.3 An
additional R5000 which has been paid to her account from the 3
rd
of June 2024 to December 2024 from when the applicant was residing
with the respondent till, she moved out in August 2024. He then
reduced the amount to R35000 which he has been paying since January
2025,
57.4
All her medical and dental contributions on a monthly basis,
57.5
All of her education expenses and her school fees for 2025 have been
paid,
57.6
Additional R2500 which he has been paying since January 2025,
[58]
The respondent denies that he has been secretive with his finances
during the marriage and states
that ‘this was just an issue
that was never discussed between the applicant and (sic) (him)’.
[59]
The respondent states his income is stated as follows:
Net
salary from N[...] M[...] University
R
34 357, 00
Rental
income from [...]2 P[...] Street
R
8 500, 00
Rental
from Airbnb per month – approximately
R
8 600, 00
Total
income
R51 457,
00
[60]
The Respondent states his expenses to amount to R48 526, 54 these are
set out in a document entitled
“
assets, expenses and
liabilities
,” annexed to respondents answering affidavit
marked “D”. The respondent denies
having an investment
and insurance portfolio with Standard Bank and
confirms that he has a retirement fund which is currently worth R
372 938,
83, he also has a tax-free savings account with a
current balance of R 50 912.32.
[61]
In respect of the applicant’s claim for contribution for
legal costs the respondent
does not dispute the balance of the issues
that are in dispute in the divorce action; the respondent disputes
that the applicant
has prospect of success in the divorce action and
the consequential relief claimed by her, in this regard he states
that the applicant
has mental health issues, and that the prospect of
success regarding the primary care of the minor child cannot be
assessed until
the family advocate report is available,
in
respect
of the maintenance of the minor children he states that he has
tendered the amount as claimed by the respondent, in relation
to
applicants employability, he states that the applicant has the
capacity to earn more than what she is currently earning, as
a data
typist, a position that he held before leaving her employment.
[62]
The respondent further submits that he has to date paid his attorney
R10 000, 00 in legal
fees, the respondent states that the number
of attendances charged by the applicant’s attorney which form
part of applicants
estimate for her legal fees, relate to the present
rule 43 application in terms of which the applicant seeks a costs
order, and
that these costs must be excluded, according to the
respondents calculations the applicants costs for the rule 43
application amount
to R20 700, 00 inclusive of vat. The
applicant denies that it is necessary for auditor to be appointed to
compile a report
on the respondent’s estate, as he has a simple
estate.
[63]
The respondent states in this regard that he does not have a
business; everything is on his personal
name and that the value of
his estate can be calculated utilizing the document that will be made
available to the applicant during
the discovery. The respondent
denies that there is a need for the appointment of an industrial
psychologist, as the applicant,
according to him, can obtain
alternative employment. The respondent accordingly denies that he can
afford the amount claimed by
the applicant and states that if the
court granted the order in respect of contribution towards cost of
the applicant, this would
depreciate his savings resulting in him not
being able to pay his attorney and the applicant being in a better
position than him.
[64]
On the 12
th
of March 2025 a pretrial conference was held
by the parties in an attempt to narrow the issues between them in
this application,
and in terms of the minutes that was prepared and
signed by the parties arising from such a conference, the following
issues were
resolved:
64.1 It
was recorded that there is no dispute with regard to the interim care
and contact of the minor child and
that this aspect does not form
part of the rule 43 application,
64.2 In
respect of the maintenance of the children the respondent has
tendered to pay R 3 400 per month per
child
pendente lite
to the applicant the first such payment to be made on the last day of
the month of being so ordered and thereafter on the last
day of each
consecutive month,
64.3 To
pay the schooling and college expenses of the parties children ,
including but not limited to schooling
and college fees, and remedial
care and lessons requirements, extra mural and extracurricular
schooling and sporting activities,
school uniforms and equipment
and attire , sporting activities , school uniforms and equipment and
attire, sporting and /
extra mural and extracurricular activities
including costs of all flight tickets, gym and private athletic
expenses as well
all costs relating to tours and
competitions;
64.4 To
retain the parties’ children as dependent members on his
current medical aid scheme at his expense.
64.5 To
pay the children’s reasonable and necessary medical expenses
that are not covered by medical aid,
including but not limited to
medical and dental, orthodontic, pharmaceutical, pathological,
surgical, specialist, radiological,
therapeutic, physiotherapeutic,
chiropractic, ophthalmic and anesthetic expenses.
64.6 To
pay all cell phone contracts of the parties’ adult child
directly to the service provider and by
providing the minor child
with a cell phone contract and paying for that directly to the
service provider.
64.7 To
provide the parties minor child with a working laptop within 48 hours
of the order being granted, to be
used by her
pendente lite
64.8 To
deliver to the applicant and allow her and the parties’
children the continued use of a working
television set;
64.9 In
respect of the applicant:
64.9.1 The applicant
persists in her prayers in respect of maintenance
pendente lite
in respect of herself, cover in respect of her medical costs,
delivery of the Corsa bakkie and continued use thereof,
pendente
lite
;
64.9.2 The respondent is
not prepared to pay any contribution in respect of the maintenance of
the applicant
pendente lite
cover her medical costs
pendente
lite
or deliver the Corsa bakkie to the applicant for her
continued use
pendente lite
;
64.9.3 The applicant
persists that she is entitled to a contribution for costs from the
respondent,
64.10 The
respondent is not prepared to pay any contribution to the applicant’s
costs,
64.11 The parties
agreed to refer the dispute for mediation by Ms. L Van Rooyen.
Applicant undertook to make the necessary
arrangements in this
regard.
[65]
The mediation was partially successful, as a result, when the matter
was argued before this court,
only the following issues remained
outstanding between the parties to be decided by this court:
65.1
The applicant’s maintenance
pendente lite
in her
personal capacity and the applicant’s medical
costs;
65.2
The contribution towards the applicant’s legal costs; the
amount in respect of the
pendente lite
contribution in respect
of the children is alleged to be insufficient and thus the amount of
pendente lite
maintenance of the children is to be determined
65.3
Delivery to the applicant and allowing her the continued use
pendente
lite
of the Corsa bakkie which she formerly used and by paying
the vehicle licensing fees
[66]
Uniform Rule 43 properly used is a speedy and temporary relief
designed to assist disadvantaged,
often destitute, litigants, and
quite properly in terms of the paramountcy principle enshrined in s
28(1)7 of The Constitution
of the Republic of South Africa 1996, to
protect children.
[67]
In
Taute
v Taute
[1]
the court stated that there is no general principle upon which an
application under Uniform Rule 43 can or must be based. Each
case
must depend on its own particular facts. Taute also reiterated that a
claimant for maintenance
pendente
lite
was not entitled, as of right, and without more, to maintenance
sufficient to keep him or her in the same lifestyle as that enjoyed
during the marriage. Hart AJ stated thus:
‘
The
applicant spouse (who is normally the wife) is entitled to reasonable
maintenance
pendente
lite
dependent upon the marital standard of living of the parties, her
actual and reasonable requirements and the capacity of her husband
to
meet such requirements which are normally met from income although in
some circumstances inroads on capital may be justified
[2]
.’
[68]
In this matter the applicant has, in my view, detailed what her
maintenance requirement are and
has stated that the respondent who
has been the family's sole provider for over 19 years. The
respondent is employed as Senior
Lecturer at NM with a total monthly
his own version of the amount of R51 452, 00 which included
rental for the properties
owned by the respondent registered in the
respondent’s name. This income has historically been
sufficient to support
the applicant and their family.
[69]
In my view, the respondent has not presented sufficient evidence to
effectively counter the Rule
43 Application. The respondent has not
made full disclosure of his income, and he merely stated that the
claim for a shortfall
by the applicant is unreasonable
[3]
.
[70]
The respondent in this regard has for instance:
70.1
misstated his additional income from his properties, in that in
paragraph 16.1 of his answering affidavit,
he stated that the rental
income for the main house for No. [...]2 P[...] Street is R6000 in
response to the allegation by the
applicant that the total rental
income received by the respondent in respect of No [...]2 P[...]
Street was R10 000, 00.
However, in paragraph 32.1 of the
same answering affidavit, he says the income he received for the same
property is 8500,00.
70.2
his list of expenses its contained in the document entitled “assets,
expenses and liabilities”
deals with maintenance to his
properties, as respondents’ expenses.
70.3
the respondent has not stated how he intended to maintain the
applicant (if she did not institute the divorce
action), and the
second wife, if his present income is not sufficient to maintain the
applicant and the party’s two children.
70.4
The respondent does not dispute that during the course of the
marriage he was secretive with his finances.
70.5 He
is refusing to tender any payments for the maintenance of the
applicant who he used to maintain during
the marriage, from the same
income; he provides no reason for this.
70.6
The respondent did not advise the applicant of the refund from SAHUL
amounting to R120 000-00, he appropriated
the refund for
himself.
70.7
The respondent states that he has a simple estate, on the contrary he
appointed a firm – Neethling
Tax and accounting Inc Solutions
to deal with his tax affairs, this conduct is inconsistent an
administration of the tax affairs
of a simple estate.
[71]
In the circumstances, I am of the view that the
respondent has not made out a case that seriously suggest
that the
expenses claimed by the applicant are unreasonable and that he is no
position to pay for the relief claimed by the applicant,
for the
reasons stated above. I am of the view, for the reasons stated above
that the respondent can pay the amounts claimed by
the applicant for
herself and the children including the claim for contribution
costs. It is settled law that a spouse
is entitled to a
reasonable maintenance
pendente
lite
,
depending on the living standards of the parties, her actual and
reasonable requirements are normally met out of the income of
the
respondent
[4]
in some cases in
roads on capital may be justified. As such, the applicant’s
Rule 43 application should be granted.
The use of the Corsa
bakkie is for the benefit of the minor children. It is not in
dispute that the respondent has another
vehicle, and that this
vehicle was used by the applicant for the benefit for the parties
children, when the parties were living
together.
[72]
There is a significant disparity in the income of the applicant and
the respondent, and that
the respondent has through the years paid
for most expenses of the parties and the children. He has always paid
for his family’s
living expenses and they are entitled to live
with a similar standard of living to which they were used to.
[73]
In relation to the applicants claim for contribution for costs I am
similarly of the view that
the applicant has made out a case that she
is unable to fund the litigation
[5]
she has prospects of success, and she has demonstrated her inability
to pay the costs, she is entitled to litigate on the same
footing
with the respondent, for reasons stated above.
[6]
The importance of equality of arms in divorce litigation should not
be underestimated, where there is a disparity of income
between the
parties where there is a risk that the poorer party might be forced
to settle for less. This is so even in marriages
out of
community of property and profit and loss as the situation in this
case.
[7]
The defence of the
respondent that he cannot pay the amount claimed by the applicant and
that if he is so ordered, as this will
deplete his savings is without
merit it. In relation to the allegation that some of the items
in the applicant’s estimation
for his contribution to costs are
related to the present Rule 43 application, this issue can suitably
be dealt with at taxation.
[74]
I therefore make the following order:
1.1
That the respondent shall contribute towards the maintenance of the
applicant and the applicant
and the respondent’s “
the
parties
” children:
1.1.1 an
amount of R23 000 per month to the applicant, and for the
maintenance in respect of the applicant and
the parties’
children, without set off deduction, with the first payment to be
made to the applicant on the last day of the
month in which the order
of this court is granted and thereafter on the last day of each
consecutive month;
1.1.2 the
schooling and college expenses of the parties children, including but
not limited to collage fees, any medical
care and lessons
requirements, all extra-mural and extra-curricular school and
sporting activities, school uniforms and equipment
and attire,
sporting and/or extra-mural and extracurricular activities including
the costs of all flight tickets, gym and private
athletic coaching
expenses as well as costs relating to tours and competitions;
1.1.3 retain
the applicant and the parties’ children as dependent members on
his current medical aid scheme, at
his expense.
1.1.4 pay the
applicant and the children’s reasonable and necessary medical
expenses and necessary medical expenses
that are not covered by the
medical aid, including but not limited to medical, dental,
orthopedic, pharmaceutical, pathological,
surgical, specialist,
radiological, therapeutic, physiotherapeutic, chiropractic and
anesthetic expenses.
1.1.5 pay the
cell phone contract of the parties’ adult child, directly to
the service provider;
1.1.6 provide
the parties minor child with a working laptop on the last day of the
month in which the order of this
court is granted, to be used by her
pendente lite
;
1.1.7 deliver
and allow the applicant continued use
pendente lite
of the
Corsa bakkie which she formerly used or provide the applicant with a
similar vehicle and pay the licensing fees, short term
insurance
premiums, annual maintenance and service, reasonable repairs
(including replacement, as required of shocks, brakes and
brake pads)
and the replacement of tyres (as well costs incurred in respect of
wheel balancing and alignment) as an when required;
1.1.8 deliver
to the applicant and allow her and the parties’ children the
continued use,
pendent lite
, of one working television set;
2.
That the parties’ minor child,
pendente lite
, remain in
the applicants’ primary care, subject to the respondent’s
right of reasonable access to her:
3.
That the respondent shall contribute an amount of R190 000 towards
the applicant’s
legal costs, with such payment to be made:
3.1
in monthly installment of R20 000 each, with the first such
payment to be made on the
first day of the month, on which the order
of this court is granted in this matter and thereafter on the last
day of each subsequent
month; and into the trust account of the
applicant’s attorney of record;
[75] The costs of this
application will be cost in the cause.
M
W NOBATANA
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the Applicant
:
Advocate
L Ellis
Instructed
by
:
Vic
Skelton Attorneys
18
Gipson Road
Mount
Croix
Counsel
for the Respondent :
Advocate
Ramsey
Instructed
by
: Swarts
Attorneys
80
Stanford Road,
Korsten,
Gqeberha
Date
heard
: Tuesday
17 June 2025
Date
delivered
:
Thursday 04 September 2025
[1]
1974 (2) SA 675 (E)
[2]
Ibid at 676 H
[3]
See
in this regard S […] and M […] m […] case no:
D353/24 K2NLD, Durban at paragraph 38. Judge this
citationis not
right and I cannot pick up the case
[4]
See in this regard
CC
v N C (16742/2021)
[2021] ZAWCHC 227
(9 November 2024) at para 34).
[5]
De
Villiers v De Villiers
1965 (2) SA 884
[C]; van Niekerk v van
Niekerk 1947(2) SA 8 (T); Smallberger v Smallberger (supra).
[6]
See in this regard Smallberger v Smallberger
1948 (2) SA 309
(0).
[7]
this case has not been cited before/supra. Full ciatation needed
here