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document in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2020-41165
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 16 October 2025
SIGNATURE
In the matter between:
O[...]; C[...] Plaintiff
and
O[...]: A[...]
Defendant
________________________________________________________________
JUDGMENT
Vosloo De Witt AJ:
Order
[1] In this matter I make the following order:
1. The m atter is postponed to the week of 22 June 2026 , and will be
enrolled for the specified number of days as set out in the Joint Practice
Note and Pre-Trial Minute as set out below.
2. The Defendant is to set down her R 43(6) application on the family court
roll for adjudication within 10 (ten) days after receipt of the Plaintiff’s
sworn reply
3. Any other outstanding interlocutory matters and/or applications should be
dealt with prior to the next hearing date as per paragraph 1 above.
4. The parties are ordered to notify the Court within 4 weeks prior to the trial
date of the trial readiness of the matter
5. The parties are ordered to convene a final pre -trial conference after the
finalisation of the interlocutory matters and/or application and ensure that
the pre-trial minute is uploaded timeously.
6. The parties are further ordered to file a joint practice note no less than 5
days before the trial date confirming that the matter is ready to proceed to
trial.
7. The costs for the postponement of the trial are reserved for determination
at the finalisation of the divorce trial.
[2] The reasons for the order follow below.
Introduction
[3] This matter came before me as a trial matter set down for hearing on the
13th of October 2025 for 4 days.
[4] The matter is a contentious divorce matter wherein the only issue not in
dispute is the fact that the marriage has broken down irretrievably. The plaintiff
seeks a decree of divorce while the Defendant is seeking spousal maintenance
as well as a redistribution in terms of section 7 (3) of the Divorce Act.
[5] On the morning of the hearing several preliminary issues were raised with
the court which caused the court to enquire from the parties whether the matter
was indeed trial ready.
[6] The matter stood down for the Defendant to take instruction.
[7] The matter reconvened after 14:00 and the parties proceeded to tell the
court that an application for further legal costs will be brought at some stage
during the proceedings on Wednesday, and that they will require an hour of the
court’s time to deal with the interlocutory Rule 43 (6) application on Wednesday.
[8] The Defendant further informed the court that the Attorney ’s for the
Defendant and the witnesses will discuss the issue of the outstanding
documents sought from the two witnesses Ms Petro Dorker and Ms Karin Eckley
between themselves and a resolution will be sought in this regard by
Wednesday at 08:00.
[9] The court informed the parties that the court is not inclined to hear
argument on an interlocutory application regarding a further legal costs
contribution in the trial court, and if the matter is not ready to proceed to trial, as
per the directive s, it must be removed from the roll in order for the parties to
ensure the trial readiness of the matter.
[10] I deal with the preliminary issues below.
Background
[11] From the onset it would seem that there has been a delay in preparing the
matter for court and to ensure the trial readiness of the matter, which delay has
been caused jointly and severally by both parties.
[12] A pre -trial was held on the 22 nd of August 202 4 and the pre -trial minute
was prepared on the 24 th of August 2024 and signed by both parties legal
representatives on the 12 th and 14 th of November 2024 respectively. No new
pre-trial was held and no updated minute was filed prior to the hearing of the
matter.
[13] In terms of the pre -trial minute which is uploaded the Plaintiff undertook to
prepare a trial bundle further more to properly prefix and index the bundles as
per the Consolidated Practice directive 1 of 2024.
[14] The trial bundle and index was only uploaded to Caselines on the 9 th of
October 2025 with the Plaintiff’s practice note uploaded on the 6 th of October
2025. I requested the parties to prepare a hard copy trial bundle for the court on
09 October 2025, as the bundle is voluminous in nature and the Caselines
bundle, unfortunately, presented very poorly with numerous folders set out in a
confusing manner.
[15] In terms of the pre -trial minute at point 15 a final pre-trial conference is to
be held within 90 days of the date application for trial.
[16] The practice note by the Defendant was only uploaded on the morning of
the trial being the 13 th of October 2025 at 07:44am . This is important to take
note of as neither the practice note for the Plaintiff nor the practice note for the
Defendant indicated any preliminary or interlocutory aspects for the court to deal
with.
[17] I enquired from the parties as to the reason for the parties not filing a joint
practice note . C ounsel for the Plaintiff and Defendant indicated that a joint
practice note is only required in terms of opposed civil motions. I do not agree
with this interpretation of the directives. In terms of the Consolidated Practice
Directives at paragraph 19.3 parties shall upload in correct section, a joint
practice note in prescribed format.
Rule 43 and 43(6)
[18] The court was informed less than 2 hours after the Defendants practice
note ha d been uploaded to Caselines that the Defendant seeks a further
contribution towards her legal costs, this despite the fact that the Defendant has
approached the court on a contribution towards costs on the 8 th of October
2025.
[19] The Rule 43(6) application came before the Honourable Madam Justice
Maier-Frawley in the opposed family motion court on 8 October 2025 . After
hearing argument and considering the papers she ordered a contribution
towards the Defendant’s costs in the amount of R 150 000.00, but that is as
much as I know.
[20] Neither the Plaintiff nor Defendant were able to provide the court with the
judgement or the order granted , and in fact could not definitely indicate what
was included in the contribution towards costs. Ms Bezuidenhout for the Plaintiff
could only confirm that the Plaintiff has already made the payment of R
150 000.00 rand as was ordered by the Court on 08 October 2025.
[21] During the first day of the trial, t he Defendant failed to file a substantive
rule 43(6) application for a further contribution but indicated that such an
application will be made from the bar.
[22] The Plaintiff objected to an application for a contribution towards the
Defendant’s legal costs to be made from the bar, and stated that the Plaintiff
intends to oppose such an application , and that a formal application should be
made providing the Plaintiff with an opportunity to respond thereto.
[23] The court indicated that it is not willing to entertain interlocutory application
especially where the judgment and order of Judge Maier-Frawley was not before
me.
[24] The matter stood down for the Defendant’s instructions, on the return to
court at 14:00 the trial resumed with the Defendant being called first to
commence with her testimony.
[25] On the second day of trial at approximately 08:40 the Defendant uploaded
to Caselines a Notice of Motion in terms of Rule 43(6) , founding affidavit and
annexures attached thereto to the like of 97 pages.
[26] This court is not in apposition to hear the interlocutory matter for the
reasons set out above. I cannot ignore the previous order and not having had
sight of such judgment and order places this court in a particularly difficult
position.
[27] The Defendant’s counsel submitted to the court that the Defendant has the
right to seek further contribution towards legal costs and that is indeed her right
to do so. This court is by no means attempting to deprive the Defendant from
her right to do so . I am however of the view that , where the Defendant
approaches this court a mere 5 days after having received a further contribution
towards her legal costs in another court, this court must at least be furnished
with the judgment in the matter.
[28] On the 13th of October 2025 t he Defendant uploaded to Caselines a letter
written to the Plaintiff’s attorney on the 10th stating: “In the event that your client
fails to make payment of any or a reasonable contribution towards her costs in
respect of the conduct of the trial, our client shall, at the commenc ement of each
day of the trial, make the requisite request to the Court for such a contribution.”
[29] Despite this correspondence the Defendant did not include this into the
practice note which was uploaded nor was the court alerted to the fact that the
Defendant intended to bring such an application until shortly before the trial was
to start.
[30] Consequently I am not willing to hear the interlocutory matter which by the
submissions in court was going to be vehemently opposed and questions
regarding what was already included in the previous costs order would come in
the question.
Subpoenaed Witnesses
[31] Two witnesses were subpoenaed to appear at court as far as the
submissions mad e by counsel the subpoenas were issued during September
2025. Both the witnesses were also served previously with a subpoena duces
tecum.
[32] From the submissions made the sheriff only served the subpoena on one
of the witnesses Ms Karin Eckley on 7 October 2025. It was submitted by
counsel appearing on behalf of the two witnesses, that Ms Eckley was
unavailable this week and that the service by the sheriff was not reasonable
notice.
[33] No evidence was placed before me on the reason for the belated service
on the 7 th, nor did counsel indicate any return of service and I can therefor
make no finding in this regard.
[34] It is clear that the Defendant seems to be unhappy with the disclosed
documents and the purpose of the simple subpoena was to bring the witnesses
before court.
[35] On the second day of trial, t he court enquired as to the status of the
witnesses and was informed that the Defendant will only be able to give an
indication on Wednesday morning as to the status and the Defendant ’s plan
forward.
[36] I further enquired if that could possibly lead to a further interlocutory
application and the Defendant’s counsel conceded that it could.
[37] The conduct of the parties and the fact that the matter is indeed not trial
ready places the court at a disadvantage, as the Practice Notes filed on record
does not make any mention of any further processes to be initiated or
anticipated by either of the parties.
[38] Adv Hodge argued that the Defendant could not have foreseen the non -
attendance of Ms Eckley at court, however, the Court gave the parties sufficient
time on Monday to consider their respective positions regarding the matter being
ripe for trial.
Costs
[39] The parties were given an opportunity to address the Court on the issue of
costs.
[40] The award of the costs is a matter wholly within the discretion of the court.
[41] This court must consider judicially an award for or against the party that is
entitled to the cost order based on factors such as the conduct during litigation,
excessive, unnecessary or unreasonable demands, in some cases misconduct
or unnecessary procedural step or non -compliance with the Consolidated
Ditrectives.
[42] I must further consider the facts in the matter and fairness to both sides.
[43] Cost contributions under Rule 43 and 43(6) is a mechanism which the
Applicant can use in order to level the proverbial “playing field ”. It recognises
legal representation should not be considered a mere luxury but in fact that it is
necessary to ensure that the applicant is allowed fair participation in divorce
proceedings. That being said, it is also not an application which the court simply
hears from the bar without supporting evidence or affording the Respondent a
reasonable opportunity to respond to.
[44] I am inclined to reserve the costs for further argument at the end of the
trial.
Conclusion
[45] For the reasons above I grant the order as set out above.
A Vosloo –De Witt
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
Electronically submitted
Delivered: This judgement was prepared and authored by the Acting 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. The date of the judgment is deemed to be 16 October 2025
COUNSEL FOR THE PLAINTIFFS: ADV F BEZUIDENHOUT
INSTRUCTED BY: MINNIE & DU PREEZ INC
COUNSEL FOR THE RESPONDENT: ADV D HODGE
INSTRUCTED BY: STEVE MERCHAK ATTORNEYS
DATE OF ARGUMENT: 13 & 14 OCTOBER 2025
DATE OF JUDGMENT: 16 OCTOBER 2025