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
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 5469/2023
(1) REPORTABLE:NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
DATE: 11 /09/2025
SIGNATURE
In the matter between:
B[...] L[...] M[...] APPLICANT
and
V[...] M[...] RESPONDENT
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time for hand -down is deemed to be
11 September 2025 at 15:00.
JUDGMENT
Mangena AJ
[1] The parties are involved in divorce proceedings instituted by the respondent
on 22 November 2023. Pending the finalisation of the divorce proceedings, the court,
per Roelofse AJ , granted a Rule 43 order on 23 February 2024 regulating contact
and visitation rights regarding the minor child. The applicant was ordered to pay a
contribution towards the legal costs of the respondent in the amount of R50 000.00
and maintenance at a fixed amount of R10 000.00 per month.
[2] The applicant , who is the defendant in the divorce proceedings , seeks an
order to vary the Rule 43 order on the basis that there has been a material change in
her financial position brought by the natural disasters t hat befell her farming
enterprise situated in Kwa Zulu-Natal, where she trades in hydrangeas, delphiniums,
hellebores, as well as peonies. She says that a snowstorm hit the province around
September 2024, resulting in reduced income for her sole business. S he put her net
income at R17 416.66 per month after deducting all the operational expenses
associated with the running of the farm.
[3] In addition to the above, the minor child, who is autistic, has secured
admission at a boarding school , and the school fees are in the region of R199
000.00. She states that her parents had undertaken to cover this expense. She,
however, remains liable for ancillary expenses , which according to her calculation ,
amount to R197 233.42. The minor child is also receiving therapeutic treatment for
his condition. She is responsible for the payment of the fees charged by the therapist
not covered by the medical aid. It is submitted on her behalf that these
circumstances const itute a material change as envisaged in Rule 43(6) of the
Uniform Rules of Court . She therefore seeks an order in the following terms , as
contained in her notice of motion: There shall be no maintenance payable by the
applicant to the respondent pendente lite.
applicant to the respondent pendente lite.
[4] Over and above the changed circumstances indicated above, the applicant
alleges that the respondent is spending the money meant for his maintenance to
sustain a life of luxury on plane tickets, alcohol and payment of legal fees. For this
contention, she relies on the entries shown on the bank statement as well as
documentation received from the attorneys. The respondent has further secured
employment but failed to disclose the details of his salary. He is also not contributing
towards the welfare of the minor child , even though he is able to do so. These,
according to the applicant , clearly show that the respondent is not a candidate for
maintenance.
[5] The respondent opposes the relief sought and contends that the applicant has
not made a full and frank disclosure of her financial position to enable the court to
assess her affordability to pay maintenance towards him. He denies that he is
spending money on alcohol and the legal fees of his attorneys. The legal fees, he
says, are paid for by his sister. He prays that the application be dismissed with costs
on a punitive scale.
[6] Rule 43 applications are meant to provide interim relief to spouses and
children affected by the divorce proceedings pending their finalisation. They are
interim in nat ure because it is envisaged that parties would endeavour to finalise
their proceedings expeditiously. It is for that reason that orders issued under Rule 43
are not appealable. As a measure to curb the abuse of the interim payment pending
finalisation, Rule 43(6) affords a party affected by an interim order the opportunity to
apply for the variation of the order in the event of a material change occurring in the
circumstances of either party or a child.
[7] It is clear that the rule is not intended to afford an unhappy spouse the
opportunity to rescind the order granted by the court after considering the relevant
information at its disposal. The use of the word “material” suggests in the strongest
way that it is not every change that will qualify a litigant to find protection under
Rule 43(6). The change must be of such a nature that , viewed objectively, it will not
be in the interest of justice to leave the initial Rule 43 order undisturbed. The change
be in the interest of justice to leave the initial Rule 43 order undisturbed. The change
in circumstances must materially relate to the circumstances of the affected spouse
or the child.
[8] The applicant deposed to the affidavit regarding the changed circumstances
in October 2024. As part of her financial disclosures, she submitted statement s of
cash flows for the period ending 28 February 2024 and management accounts for
the period ending 31 December 2024. There was also an undated letter from Absa
confirming the rejection of her credit application. She also relies on a statement by
the accountant confirming that the business has incurred a loss of R1.9 million as a
result of the severe weather conditions which affected her enterprise. The letter
further states that the business will require outside funding to remain operational , as
there are no reserves.
[9] The applicant bears the onus to prove the occurrence of a material change in
her circumstances. It does not appear to be difficult to accept that her business was
affected by the snowstorm that hit Kwa Zulu-Natal in 2024. That much is clear from
the payout she received from her insurance policy. What is , however, not clear from
her papers is the extent to which the snowstorm affected her cash flow and financial
ability to continue with the enterprise. The reliance on the cash flow and
management accounts statements is, in my view , inadequate to support the claim
that she is unable to continue with the payment of R10 000.00 as ordered by the
court. I say so because the applicant has , on her own version , capitalised the
business to the tu ne of R4 110 309.00. She alleges that this money was a loan , but
has not disclosed how this money was secured, as well as the terms of repayment, if
any.
[10] The applicant has been able to honour her payment obligations to both the
school, her business and the respondent for the past 11 months since the storm, and
she is up to date with her payments. There is no evidence that the business is in
distress and that she has taken steps to reduce its operational expenses. There is no
information as to how she is managing to pay all these expenses. The only item she
wants off her list of payments is the maintenance of the respondent.
[11] The court has already made a determination that the respondent deserves
[11] The court has already made a determination that the respondent deserves
maintenance pending the divorce. There ha s not been any change in the
respondent’s need for maintenance. Whilst I accept that the applicant’s business was
affected by the storm, I do not accept the contention that the effect is of such a
serious nature that it makes it difficult for her to honour the court -mandated
obligation towards the respondent. In the circumstances, I am not persuaded that the
applicant has made out a case for the variation of the Rule 43 order made by
Roelofse AJ. The application stands to be dismissed.
[12] The parties hav e each prayed for costs. The applicant ’s counsel submitted
that in the event I am not with her, it will not be in the interest of justice that the
applicant, who is the primary caregiver of the minor child , be ordered to pay the
costs. With this , I agree. The application was neither frivolous nor malicious. I
therefore decline an invitation by Advocate Grobler to award costs in the
respondent’s favour.
[13] It is ordered as follows:
1. The application is dismissed.
2. There is no order as to costs.
______________________________
MANGENA AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Appearances
For the plaintiff: FINLATER ATTORNEYS INC
Counsel for plaintiff: ADV BERNETTE BERGENTHUIN
For the respondent: HVH ATTORNEYS INC
Counsel for respondent: ADV GROBLER
Date heard: 01 September 2025
Judgment delivered: 11 September 2025