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
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 13239/2024
In the matter between:
F[…] V[…] Applicant
And
M[…] I[…] Respondent
___________________________________________________________________
REASONS FOR JUDGMENT
___________________________________________________________________
LEKHULENI J:
1. Introduction
[1] The applicant and the respondent were married by Islamic rites on 11
November 2019. The parties have two minor children, a girl born on 6 January 2021
and a boy born on 20 May 2023. The applicant has a son from a previous marriage
born on 14 July 2014. The minor children are currently in the care of the applicant.
The respondent has reasonable rights of access to both minor children. On 5 May
2024, the re spondent arrived with a local Imam at the parties’ common home and
issued a third Talaaq (divorce). According to Sharia law, the parties are officially
divorced.
[2] Despite the final Talaaq being issued, the applicant asserts that the provisions
of section 7(3) of the Divorce Act 70 of 1979 (‘the Divorce Act ’) apply to the ir
marriage. The applicant has thus issued summons in this court seeking an order for
the redistribution of assets, rehabilitative maintenance for herself, maintenance for
the parties’ minor children and for an order regulating the care and contact
arrangements in respect of the children. Pending the determination of her claim for
maintenance and the redistribution of assets in terms of section 7(3) of the Divorce
Act, the applicant filed an application under Rule 43 of the Uniform Rules. In this
application, she seeks an order directing the respondent to pay interim maintenance
in the sum of R38,100, provided she continues to reside in Knysna. This payment is
intended to support both her and their minor children. The applicant also prayed for
an order that th e minor children live with her, subject to the respondent’s right of
contact with them.
[3] In addition, the applicant prayed for an order that the respondent reinstate her
as a dependent on his medical aid or a scheme with analogous benefits on which
she will be the main member and shall pay the premiums in respect of her cover and
continue to retain the children on his current medical aid scheme as his dependents.
The applicant prayed for an order for the respondent to pay the mortgage bond
instalment for the residence where the applicant and their children live. Furthermore,
the applicant prayed for an order requiring the respondent to pay for additional
related expenses, including but not limited to rates, levies, wages for the domestic
worker and the g ardener, security, and any other reasonable and necessary costs
worker and the g ardener, security, and any other reasonable and necessary costs
associated with the maintenance and repairs of the property where the applicant
resides.
[4] The applicant also sought a contribution to her legal costs. The applicant
prayed that the respondent be directed to pay an initial contribution to her legal costs
in the sum of R100,000, with such payment to be made directly to the applicant's
attorney of record within 10 days of the court granting such an order. In addition, the
applicant sought an o rder granting her permission to engage a health care expert to
assess whether relocating with the children to Cape Town is in their best interests.
Furthermore, the applicant prayed for an order for the respondent to bear the costs
associated with the appointment of the childcare expert.
[5] After hearing arguments from the legal representatives of both the applicant
and the respondent, and after considering the matter, I granted an order in the
following terms:
1. Pending the final determination of the divorce action between the parties, the
parties’ minor children shall primarily reside with the applicant, subject to the
respondent’s right of contact with them, which, for as long as the applicant
resides in Knysna, shall take place as follows:
1.1. Every Wednesday from 16h00 to 19h00.
1.2. Fridays from 11h00 to 17h00 at the respondent’s residence.
1.3. Every alternate weekend commencing on a Saturday afternoon from 14h00
until 18h00.
2. The Respondent is ordered to enlist the applicant and the two m inor children on
his medical aid as his dependents. If the applicant and the children incur any
reasonable medical costs, excluding elective procedures, which are not paid for
or covered by the medical aid scheme, the respondent shall pay those necessary
costs on presentation of the invoice.
3. The respondent is ordered to pay the mortgage bond instalment in respect of the
home in which the applicant resides with the children as well as the following
expenses in respect of their accommodation:
3.1. Rates, water, and electricity.
3.2. Levies in respect of the property.
3.3. Wi-Fi and landline.
3.4. All insurance pertaining to the home and the contents, including the
applicant's motor vehicle insurance, wages of the domestic worker.
3.5. All reasonable and necessary maintenance and repai rs to the property when
called upon to do so.
3.6. Wages of the gardener.
3.7. Should the children attend school in 2025, the respondent is ordered to pay
3.7. Should the children attend school in 2025, the respondent is ordered to pay
the children's comprehensive educational costs, which include but are not
limited to their preschool fees, school fees, extramural tuition, stationery and
books if prescribed by the school, and fees of the school.
4. The respondent is ordered to pay maintenance pendente lite in respect of the
minor children in the sum of R4000 per month per child and R10 000 per month
for the applicant on or before the first day of the month following the granting of
this order and thereafter, on or before the first day of each succeeding month into
an account nominated by the applicant without deduction or set of.
5. The respondent is ordered to make an initial contribution towards the applicant's
legal costs in the sum of R60 000. Such payment shall be made directly to the
applicant's attorneys of record in monthly instalments of R10,000 per month as of
1 October 2024.
6. The family advocate is directed to investigate the care and contact of the minor
children and to file a report with recommendations.
7. The respondent is ordered to pay the costs of this application on Scale A.
[6] On 31 July 2025, the parties’ legal representatives a pproached this court in
chambers and requested it to clarify the above order, particularly in respect of the
payment of electricity, wages of the domestic worker and those of the gardener. For
the sake of simplicity and completeness, I have decided to give reasons for the
whole order. What follows are the reasons for that order. To provide clarity regarding
the order I have granted, I will present a summary of the cases put forth by both
parties, along with the principal submissions made by their legal representatives
during the hearing.
2. The applicant’s case
[7] The applicant averred that she married the respondent on 11 November 2019,
according to Islamic rites. They have two minor children from their marriage: a
daughter born on 6 January 2021, and a son born on 20 May 2023. Additionally, the
applicant has a son from her previous marriage, who was born on 14 July 2014. The
applicant has a son from her previous marriage, who was born on 14 July 2014. The
applicant did not claim any maintenance for her son born out of her previous
marriage, as the respondent has no obligation to support him. She issued summons
in this court under case number 13239/2024 wherein she claims a redistribution of
assets, maintenance for herself and for the children as well as the determination of
their rights and responsibilities in respect of their children.
[8] According to the applicant, the parties separated in March 2024 when the
respondent moved out of their common home. The respondent currently lives with
his parents in Knysna. The applicant lives in Knysna with th e minor children in their
shared home. The applicant indicated that she wished to move from the common
home in Knysna and return to Cape Town, where she has a support system and can
resume her e -commerce business of selling turbans to earn an income. The r elief
she sought was intended to regulate the financial arrangements between the
respondent and the applicant pendente lite and to authorise a care and contact
assessment considering her wish to relocate to Cape Town.
[9] According to the applicant, this application was necessary because, since the
respondent moved out of the common home in March 2024, he has gradually
withdrawn his financial support to her. In addition, the respondent removed the
applicant as a dependent from his medical a id, disconnected the Wi -Fi and stopped
their domestic worker from coming to the house by threatening her. The applicant
explained that the respondent expects the applicant to survive on R5500 a month,
comprising R2500 for the applicant and R3000 for the mi nor children. In a tender
made in a letter from the respondent’s attorneys, the respondent proposed that
instead of paying the applicant maintenance, the applicant should send him a list of
grocery items that she needed so that he could purchase the items and have them
delivered to the common home where the applicant resides.
[10] The applicant asserted that on most occasions, the respondent did not even
purchase the items on the list. Instead, he chose what he would buy and had it sent
to the applicant and the children. In the applicant’s view, this was not only patronising
but controlling in the extreme. The applicant asserted that the respondent always
paid for their domestic worker. However, since their separation, the respondent
paid for their domestic worker. However, since their separation, the respondent
threatened the domestic worker not to return to the house. As a result, the applicant
had no choice but to hire a new domestic worker, which costs her R4,500 per month.
This expense leaves the applicant with only about R1,000 to purchase essential day -
to-day items, as the respo ndent intentionally fails to buy all the items on the grocery
list. The applicant asserted that the respondent and her attorney seem to believe that
the applicant’s claims are not legally competent, given that the applicant and the
respondent were married and divorced according to Sharia law.
[11] When she met the applicant in Cape Town, the applicant was running an e -
commerce business selling turbans online and at markets. After their relationship
commenced, the respondent persuaded her to move to Knysna, where he had a
thriving and established dental practice. After the move, she tried to continue the
business but didn't generate much income because she didn't have the same client
base in the Garden Route as she did in Cape Town. From the outset, she was thus
financially reliant on the respondent. According to her, she made small contributions
to their shared expenses and paid her own personal expenses. The applicant
asserted that her earning capacity was eventually stifled by the respondent when he
forbade her from attending large pop -up markets outside Knysna, insisting that she
care for the children instead.
[12] As a result, for most of the marriage, the respondent supported her. The
applicant also stated that she receives rental income of R8550 from a property which
her father bought and registered in the applicant’s name. From the rental received,
the applicant pays rates of R1200 per month and a monthly levy of R1350. The
remaining balance is used for maintenance work on the property and for unforeseen
expenses, such as special levies for general upkeep and expenses for her eldest
son from her previous marriage. The applicant contended that the respondent is
generating enough income from his dental practice to adequately support her and
the minor c hildren. To this end, the respondent bought his father an X3 BMW. The
respondent bought several properties, five in number, which are unbonded. The total
value of his assets is around R8 475 000. The respondent received rental income in
some of these prope rties. The applicant prayed for the order in the notice of motion
and a contribution to costs in the sum of R100 000.
and a contribution to costs in the sum of R100 000.
3. The respondent’s case
[13] The respondent refuted the claims of the applicant. The respondent opposed
the applicant's proposal to relocate with their minor children to Cape Town. In the
respondent’s view, the applicant’s relocation to Cape Town is only to serve her
interests and not in the best interests of the children. The respondent contended that
removing the children from Knysna would mean they would be taken away from the
respondent’s parents, who have been actively involved in their lives. The respondent
asserted that he pays for all the household necessaries the applicant requested in
her application. In addition, he has reconnected the Wi -Fi at the applicant’s
premises. He will commit to paying the same amount if the applicant and the children
are staying at the common home in Knysna. Respondent stated that he pays the
house insurance in the sum of R825.6 and garden services in the sum of R290 per
day, with services provided twice per month.
[14] Concerning a domestic worker, the respondent stated that the applicant
engaged the services of a new domestic worker. The previous domestic worker
worked three to fo ur days a week for 200 per day. If the current domestic worker
works at the premises for three days a week, her total monthly salary will be R2400.
The respondent indicated that he is willing to pay this amount towards the domestic
worker. The respondent asserted that the applicant should pay any amount in excess
of the specified limit of the medical aid cover. The respondent mentioned that he has
contributed to the repairs of the applicant's vehicle by replacing the tyres in 2023 and
occasionally covering fuel expenses. The respondent also asserted that he
reinstated the applicant on his medical aid. According to the respondent, the
applicant has inflated some of her expenses, such as eating out, hairdresser,
beautician and entertainment at home.
[15] As far as grocery is concerned, the applicant averred that he had been doing
the shopping and paying for the groceries during the subsistence of the marriage
and thereafter, and had it delivered to the common home. When he still lived at the
shared residence, their grocery expenses were approximately R8000 per month. The
shared residence, their grocery expenses were approximately R8000 per month. The
grocery expenses since he left the premises are between R4000 and R5000, and
these are paid from his credit card. During the subsistence of the marriage, he
primarily did the monthly grocery sh opping, and the applicant provided the shopping
list. According to him, this was never patronising or controlling; the applicant found it
convenient to prepare the list while he attended to do the shopping. Throughout the
subsistence of the marriage, the applicant was satisfied with this arrangement.
[16] The respondent denied that he deliberately did not purchase items on the
grocery list. According to the respondent, items would occasionally not be in stock,
and he would buy them later. He denied the app licant’s requests for maintenance,
stating that he had continued to provide reasonable support for her and their minor
children since their separation. The respondent insisted that the applicant has never
been financially reliant on him and has always had substantial funds for herself.
[17] The respondent explained that he receives a net monthly salary from his
practice as a dentist of R30 285,55. He gets a commission from Dr Meyer Inc. His
net monthly wage fluctuates between R30 000 and R45 000. According to the
respondent, almost all the items the applicant sought as maintenance are already
being paid for, and he will continue to do so. In the respondent’s view, the amounts
listed in paragraph 3 above, should not be included in the interim maintenance
claimed by the applicant. According to him, it will be more practical for him to keep
paying them, as some of these amounts are paid by debit orders. The respondent
also stated that he was under a bona fide impression that he had no duty of support
to the app licant after their divorce in terms of Sharia law, hence he tendered
maintenance of R2500 to the applicant until May 2025. However, after consulting
with his attorneys of record, he was informed of his legal duty. He confirmed his
willingness to support the applicant in the interim pending the finalisation of the main
case in this court.
[18] The respondent stated that his parents are retired, and he supports them, as
according to Islam, they have a duty to look after their parents. The BMW X3 is a
company vehicle and was not purchased for his father, as alleged by the applicant.
He pays for his parents’ medical aid; however, his sisters reimburse him for the
amount spent. The respondent also explained the number of properties he owned
amount spent. The respondent also explained the number of properties he owned
and how he pur chased them. He explained that the property in Hillcrest, where he
now lives with his parents, was purchased with a loan from his sister in 2017, and
the respondent is still paying it off. Both Johannesburg properties were purchased
with loans from his mot her, which he is still paying. According to the respondent, the
rental income goes to his mother to pay off the loan. His practice purchased the
B[…] Street property in Louisiana as an investment, as it was a new development.
There are currently no tenants occupying this property.
[19] The respondent explained that he was willing to contribute to the applicant’s
legal costs in the sum of R20 000. According to the respondent, the applicant’s claim
for the contribution of R100,000 for future costs is excessive and unreasonable in the
circumstances where both parties are eager to settle their matrimonial action.
4. Principal submissions by the parties
[20] At the hearing of this matter, Ms Bartman, counsel for the applicant, submitted
that the applicant b rought the Rule 43 application because, firstly, the respondent
removed the applicant from the medical aid. The respondent disconnected the Wi -Fi
and stopped the domestic worker from going to the applicant’s house to assist her.
Counsel submitted that the respondent did not deny on the papers that he removed
the applicant from his medical aid scheme. Instead, he asserted that he has
reinstated her, reconnected the Wi-Fi, and confirmed that the domestic worker is now
regularly attending to the shared residence. Counsel submitted that the applicant
needed to bring this application. Ms Bartman stated that the applicant sought an
order requiring the respondent to pay her a cash amount of R40,534 for as long as
she resides in Knysna.
[21] This amount is inclusive of the cost of the domestic worker, the gardener and
the electricity. This was added to the maintenance claim that the applicant sought.
Counsel submitted that, if they are going to be living separately, and there is bad
blood between them, the respondent should pay those items. According to counsel,
the electricity is a prepaid meter that she must top up. The applica nt should not have
to phone the respondent every time she wants electricity, or when it is running out.
To this end, counsel submitted that they have topped up the original amount of R38
100 claimed in the application, bringing it to R40 534, which is the amount the
applicant sought.
[22] Ms Bartman submitted that the applicant has sufficient means to pay
applicant sought.
[22] Ms Bartman submitted that the applicant has sufficient means to pay
maintenance and contribution to costs sought by the applicant. Counsel further
pointed out that the bank statement submitted by the respondent indicates that the
respondent pays R6 000 for a rental for a friend. The respondent did not deny this.
Instead, he stated that as a Muslim, it is his obligation to do so. Counsel argued that
the respondent did not acknowledge his legal obligation to his wife. In fa ct, from the
outset, his attitude was that he had no duty to support the applicant.
[23] Ms Bartman asserted that from June 2023 to May 2024, a total of R1.5
million, representing income from the respondent’s dental practice, was deposited
into the respondent’s FNB investment account, averaging R132,000 per month. The
salary reported by the respondent is more than four times lower than his actual
earnings. Counsel submitted that the respondent receives significantly more than the
R35,000 to R40,000 that he has presented to the court. Ms Bartman has also
suggested that this discrepancy could be indicative of perjury, as it is inappropriate
for the respondent not to be honest, frank and candid with the court in matters of this
nature. Counsel implored the court to grant the prayers as prayed for in the notice of
motion.
[24] On the other hand, Mr Van der Schyf, counsel for the respondent, submitted
that if one has regard to the notice of motion initially filed by the applicant in this
matter, every single item which the applicant claimed in that notice of motion is being
paid by the respondent. Mr Van der Schyf submitted that everything has context, and
context is important. To this end, counsel argued that the parties in this matter were
married by Muslim rites. In terms of Sharia law, it was believed that the applicant is
not entitled to any maintenance after the divorce (Talaaq) and that the only dispute
would then be access or a right to claim a portion of the respondent’s estate.
However, the applicant would not receive any part of the respondent's estate
because, according to Sharia law, the parties are considered married out of
community of property.
community of property.
[25] Counsel further emphasised that the respondent is paying for all the expenses
listed by the applicant in the notice of motion. The respondent covered every
expense related to maintaining the common home where the applicant resides with
the minor children, including water, electricity, rates, and levies. Mr Van der Schyf
argued that the respondent ensured that the Wi-Fi was reconnected and is paying for
it. Additionally, t he respondent is paying for the children’s clothing as and when
necessary. The respondent buys groceries, pays for gardening and domestic
services, and contributes to transport costs.
[26] Mr Van der Schyf submitted that the applicant is not spending any money on
maintenance issues, as she is adequately covered. Counsel further submitted that
the entire house bill is being paid. When pressed by the court regarding the cash
contribution and the dignity the applicant should enjoy in buying her own groceries,
Counsel submitted that the respondent was prepared to offer R9000 in lieu of
groceries and R4500 as a cash contribution for the applicant and the children.
[27] As far as contribution to cost s is concerned, Mr Van der Schy submitted that
in terms of the Muslim marriage, whether the applicant is entitled to a portion of the
respondent’s estate is an issue that still must be determined. In counsel’s view, this
case is one of those matters tailor -made for Rule 33(4) application. According to M r
Van der Schyf, the issues should be separated, and merits should be determined
first. If the applicant has the right to claim, costs can be incurred to obtain an expert
to value the estate. However, if it is established that she does not have that right,
there is no need to incur hundreds of thousands of expert witnesses' reports. To this
end, counsel applied that the applicant’s application be dismissed with costs.
5. Discussion
[28] The applicant and the respondent were married according to Sharia law. In his
sworn reply, the respondent stated that he genuinely believed he had no obligation to
provide support to the applicant after their divorce. In one of the email
correspondences from the respondent’s legal representatives addressed to the
applicant’s attorneys, dated 18 May 2024, the respondent’s attorneys asserted that
their instructions are that, according to Islamic Law, once the third divorce (Talaaq)
has been pronounced, their client’s responsibility to maintain the applicant ceases. It
has been pronounced, their client’s responsibility to maintain the applicant ceases. It
was als o stated in that correspondence that it was crucial for both parties to
understand their rights and obligations following their divorce. In addition, the email
correspondence emphasised that any claim the applicant makes for maintenance for
herself after divorce will be subject to accountability and that the applicant must
consider this matter carefully.
[29] In considering a matter such as this, it is crucial to remind ourselves that the
Constitution guarantees the protection of fundamental rights of all people in South
Africa. The Constitution is the supreme law of the Republic and any law or conduct
that is inconsistent with it, either for procedural or substantive reasons, is invalid and
will not have the force of law. The obligations imposed by the Constitution must be
fulfilled. The preamble to the Constitution envisions a society based on democratic
values, social justice and fundamental human rights where the law equally protects
every citizen. Section 9(1) of the Constitution guarantees every one equal protection
and the benefit of the law. Section 10 of the Constitution guarantees everyone the
right to have their dignity respected and protected.
[30] In giving content to these rights, the Divorce Act was recently amended by the
Divorce Amendment Act 1 of 2024 (‘the Divorce Amendment Act’) in relation to the
recognition of Muslim marriages. The preamble to the Divorce Amendment Act states
that the purpose of the amendments, is to amend the Divorcer Act to insert a
definition for a Muslim marria ge, to provide for the protection and to safeguard the
interests of dependent and minor children of a Muslim marriage, to provide for the
redistribution of assets on the dissolution of a Muslim marriage, to provide for the
forfeiture of patrimonial benefit s of a Muslim marriage and to provide for matters
connected therewith. Section 6 of the Divorce Amendment Act provides as follows:
‘This Act applies to all subsisting Muslim marriages, including a
Muslim marriage -
(a) Which was terminated or dissolved in acc ordance with the
tenets of Islam and where legal proceedings for the
dissolution of the said Muslim marriage in terms of the Divorce
Act, 1979 (Act. No. 70 of 1979) have been instituted but not
Act, 1979 (Act. No. 70 of 1979) have been instituted but not
yet finalised, and
(b) which subsisted as of 15 December 2014.’
[31] Plainly, the marriage of the applicant and the respondent fall within the
definition of section 6 of the Divorce Amendment Act. Furthermore, the applicant
clearly regards herself as a spouse. The parties lived together as husband and wife
since 2019 w hen they married and only separated in 2023. There is a pending
matrimonial action between the parties in which the applicant seeks a distribution of
assets and spousal maintenance in terms of section 7(2) of the Divorce Act.
[32] In Zaphiriou v Zaphiriou, 1 Trollip J explained that Rule 43 was merely
designed to provide a streamlined and inexpensive procedure for procuring the same
interim relief in matrimonial actions as was previously available under the common
law in regard to maintenance a nd costs.2 Trollip J held that the word ‘spouse’ in sub -
rule (1) of Rule 43 must be interpreted as including not only a person admitted to be
a spouse but also one who alleges that he or she is a spouse, and that allegation is
denied. In other words, Rule 43 also applies where the validity of the marriage or its
subsistence is disputed.
[33] From the above, there is a reciprocal duty of support between the applicant
and the respondent. The scope of the duty of support is determined inter alia by the
social status of the parties, their means or income and the costs of living. It is
common cause that the applicant is unemployed. The applicant is dependent on the
respondent for her needs. To meet her needs, she has been selling turbans. The
respondent, on the other hand, is well -resourced, generating a sufficient income and
accumulating considerable wealth in the form of real estate properties. The bank
statements discovered in these proceedings show that the respondent earns
adequate income to support the applicant and her children comfortably. This financial
stability suggests a capacity to meet their needs with ease.
[34] The respondent does not state in his sworn reply that he cannot afford to pay
[34] The respondent does not state in his sworn reply that he cannot afford to pay
maintenance for the applicant and the children . He has, however, determined the
amount of R5500 as maintenance for the applicant and the two minor children. It is
not clear what informs this amount. The respondent does not want to provide
maintenance in the form of a cash component to the applicant, a llowing her to
1 1967 (1) SA 342 (W).
2 At 345E-G.
manage it and buy what she and the minor children need for groceries at home. The
respondent determined what groceries the applicant and the children would need.
The applicant stated that he recently provided the respondent with a list, and all that
the respondent delivered were nappies for their son and water. In my view, it is not
for the respondent to determine what the applicant and the children require.
[35] Their children are in the care of the applicant, and she takes responsibility for
cooking and attending to their day -to-day needs. The applicant carries the heavy
responsibility of tirelessly tending to the needs of their children, ensuring their well -
being and nurturing their growth. The applicant must have the freedom to shop and
choose what she wants for the children. The applicant’s counsel astutely pointed out
that the respondent's demand for the applicant to provide a list of items, with the
respondent selectively purchasing only those he deemed necessary, was not merely
patronising; it was an exertion of control that was strikingly oppressive. This situation
undermined the applicant’s autonomy. It violated the applicant’s dignity and worth as
a wife and mother of the respondent’s children. The applicant and the children
cannot be expected to have groceries that they dearly need at the whim of the
applicant. The applicant must take pride in providing for his family adequately from
his means.
[36] The respondent has been paying the applicant a cash contribution of R5500,
comprising the maintenance for the children and the applicant’s maintenance. In my
view, this amount is too little to cover the needs of the children. I accept that the
respondent pays the other expenses related to the common home. However, the
respondent must ta ke pride in paying adequate maintenance for his children, which
is his primary obligation. The respondent is generating enough income of over R1 32
000 per month in his dental practice. I find it unsettling that the respondent donates
000 per month in his dental practice. I find it unsettling that the respondent donates
R13,800 per month to charity while neglecting to provide adequate support for his
children. Additionally, he is paying R6,000 in rent for a friend, prioritising others over
his own children.
[38] In contrast, the respondent demonstrates commendable responsibility by
adequately supporting his parents. During September 2023, the respondent was
able to spend R37 224.55 on his parents’ airfare to the UAE, which included ex tra
baggage. Furthermore, his parents have their own credit cards linked to the
respondent’s account, on which they spent R26 882.93, excluding flight expenses
during their time in the UAE, without refunding the respondent for these purchases.
The respondent states that he paid for the flights because it was his privilege to do
so for his elderly parents to visit his siblings.
[39] The respondent is doing an admirable duty of caring for his parents, which
reflects his strong sense of duty and compassion. However, his primary responsibility
is to his children and his wife. Children have a fundamental right to nurturing and
proper parental care, as they are unable to care for themselves and rely on their
parents for support. Therefore, the responsibility of p roviding for his children's needs
must take priority over all other expenses. As enshrined in sections 28(1)(b) and (c)
of the Constitution, children have a right to family care or proper parental care. The
duty of support for minor children extends to acc ommodation, food, clothes, medical
and dental attention, and other necessities of life on a scale that is in line with the
social position, lifestyle, and financial resources of the parties.3
[40] As foreshadowed above, the applicant is not working and i s dependent on the
applicant. She is looking after the applicant’s children. The applicant is burdened with
looking after their children. The respondent must play his part in supporting the
applicant pending the finalisation of the lis between the parties. It was for this
reasons that the court granted the order mentioned in paragraph 5 above.
6. Clarification of the Rule 43 order
[41] As mentioned above, the court was requested to clarify its order in respect of
electricity, domestic worker and garden services. From the papers filed, these issues
were not disputed, save for the amount that must be paid. In her founding affidavit,
the applicant stated that the respondent paid all their living costs, including electricity,
the applicant stated that the respondent paid all their living costs, including electricity,
the medical aid premium for the applicant and the children, household insurance, Wi-
Fi, and the wages for the domestic worker. The respondent admitted these
assertions in his sworn reply. It was also argued that the respondent is paying for all
3 Du Toit v Du Toit 1991 (3) SA 856 (O) 860, 861.
these expenses. It was on that basis that the respondent was ordered to continue
paying for those expenses.
6.1 Electricity
[42] Incontestably, the cost of electricity is very high. To the extent that there may
be some misunderstandings, particularly regarding the amount and manner in which
the respondent must purchase electricity for the applicant, it is ordered that the
respondent must provide the applicant directly with an electricity token of no more
than R5000 per month. The respondent is ordered to provide the applicant with the
electricity token within five hours of the applicant’s request to provide the same.
6.2 Domestic worker
[43] Concerning the domestic worker, the respondent agreed to pay R2400 per
month. The domestic worker who currently assists the applicant works five days a
week and must be paid her salary. The respondent must ungrudgingly and with love
pay the sum of R4500 at the end of each month towards the domestic worker who
assists the applicant in looking after the parties’ children. This amount will increase
annually with CPI percentage.
[44] I must add that I find it very disheartening that the respondent is prepared to
make donations of almost R1400 monthly to various people and charities but finds it
difficult to pay R4500 for a domestic worker who looks after his children. The
respondent must learn to prioritise his priorities. The respondent possesses
adequate assets, and should he encounter difficulties in meeting his financial
obligations (which I think not), it is incumbent upon him to liquidate those assets to
comply with his maintenance responsibilities.
6.3 Gardener
[45] Similarly, the respondent must pay for the garden services (which mow the
law) and the gardener the total sum of not more than R1500 per month. This amount
will increase annually with the CPI percentage. The respondent is to pay the said
amount directly to the applicant, who will, in turn, pay it to the respective service
providers. The respondent must pay this amoun t on the first day of each month,
upon receiving proof of the payment made by the applicant to the respective service
providers.
7. Costs
[46] As far as costs are concerned, on 6 August 2024, Samela J granted an order
by agreement in respect of care and contact of the parties’ children. The matter was
subsequently postponed to 30 August 2024 to address the remaining relief. Cost
stood over for later determination. In my view, each party must pay its own costs in
respect of the costs incurred on 30 August 2024. On 30 August 2024, the matter was
crowded due to the unavailability of the presiding officer. The matter was postponed
to 13 September 2024. No order as to costs was granted in respect of those
proceedings.
[47] In my view, the postponement of the matter was not due to the fault of the
parties, and each party must pay its own costs for that sitting. On 13 September
2024, Justice Fortuin considered the applicant’s application in terms of Rule 43(5),
and granted the applicant leave to file a suppl ementary affidavit and postponed the
matter to 10 October 2024. The applicant was successful in that application and
must be paid her costs. To this end, the respondent is ordered to pay the costs of the
remand of 13 September 2024 and of that application.
[48] Furthermore, the Rule 43(5) application was necessary as it clearly showed
that the respondent did not fully and honestly disclose his income. The court was in a
better position to make an informed decision after perusing the supplementary
affidavit and annexures pursuant to the Rule 43(5) order . Each party is ordered to
pay its own costs in respect of the clarification application.
_____________________________
LEKHULENI J
JUDGE OF THE HIGH
COURT
APPEARANCES
For the Applicant: Adv Bartman
Instructed by: Cluver Markotter Inc
For the Respondent: Adv Van der Schyf
Instructed by: Mosdell, Pama, & Cox