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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Not Reportable
Case no: 2025-127498
In the matter between:
J[...] M[...] V[...] W[...] APPLICANT
and
R[...] M[...] V[...] W[...] RESPONDENT
Coram: COOKE AJ
Heard: 23 October 2025
Judgment: 7 November 2025
ORDER
[1] From the date of this order, and pending the determination of the divorce
action between the parties, the respondent shall maintain the applicant
and the parties’ major children as follows:
(a) by payment to the applicant of an amount of R25 000 per month,
each such payment to be made without deduction or set -off, on or before
two working days before the first day of every month, by way of
electronic funds transfer or debit order, to be received into such bank
account as the a pplicant may nominate from time to time (for the
avoidance of doubt the first such payment shall be made at the end of
November 2025);
(b) that the amount referred to in paragraph 1 (a) above shall increase
annually in accordance with the percentage increase in the Consumer
Price Index as published by Statistics South Africa during the preceding
year, the first such increase to be effective as of November 2026;
(c) by effecting payment of the monthly premium in respect of the
medical aid subscription and gap cover for the applicant and the
children;
(d) by effecting payment of the full cost of the children's tertiary
education fees; and
(e) by effecting payment of the costs of all medical e xpenses reasonably
incurred by the applicant and the children, in private health care, which
are not covered by the respondent’s medical aid scheme, including but
not limited to, medical, dental, surgical, pharmaceutical (including
levies) hospital, orthod ontic and ophthalmic (including spectacles and
contact lenses) treatment required by the applicant and the children, and
any sums payable to a physiotherapist/chiropractor, psychiatrist,
therapist (including psychotherapist, speech therapist or occupational
therapist), practitioner of holistic medicine, and other medical expenses
which are not covered by the aforesaid medical aid scheme. The
respondent shall reimburse the applicant for any such costs incurred by
her, or pay the relevant service provider, w ithin five days of receipt of
the relevant invoice or receipt.
[2] The applicant shall also continue to pay the further expenses related to
the applicant and the children which were listed in the schedule handed
up at the hearing of the rule 43 application, save for the R15 000 (R5 000
x 3) for groceries which is included in the monthly amount set out in
para 1(a) above.
[3] The costs of this application shall be costs in the trial.
JUDGMENT
[1] The applicant is a 53-year-old pre-school teacher . The respondent is a
director of an entity known as L[...] T[...] E[...] Development Enterprise.
He is 59 years old. The parties were married to each other on 16
December 1992 out of community of property by ant enuptial contract,
incorporating the accrual system. In the antenuptial contract the parties
both declared that the assets in their respective estates were nil. Two
sons were born of their marriage. Both are now majors.
[2] On about 29 Apr il 2024 the applicant instituted divorce proceedings
against the respondent. In her pa rticulars of claim she sought a decree of
divorce and orders for maintenance to be paid to the children 1 until they
become self-supporting. She also sought personal maintenance for herself
until her death or re -marriage as well as various other ancillary orders.
The respondent delivered a plea and claim in reconvention in which he
sought a decree of divorce and an order implementing the terms of the
antenuptial contract, together with an order relating to payment of
maintenance for the children until they reach the age of 25. The pleadings
in the divorce action have closed and the applicant’s attorney has tak en
steps to have the matter placed on the continuous rol l and applied for a
date for a pre-trial hearing. It appears that the parties attempted to engage
1 See Z v Z 2022 (5) SA 451 (SCA) which found that ss 6(1)(a) and 6(3) of the Divorce Act vest parents
with the requisite legal standing to claim maintenance for and on behalf of their dependent adult children
upon their divorce.
in mediation but, for reasons which are not relevant to this application,
the attempts failed.
[4] This is an application in terms of uniform rule 43 in which the applicant
seeks the following relief:
(a) cash maintenance for her and the children in the sum of R45 500;
(b) the maintenance be increased annually in accordance with the
consumer price index;
(c) the respondent continues to pay the premium of the children’s
medical aid subscription and gap cover;
(d) the respondent continues to cover the costs of the children’s tertiary
education fees;
(e) the respondent pays the medical expenses not covered by medical aid
for the applicant and the children;
(f) the respondent pays an initial contribution to the applicant’s legal
costs in the sum of R310 000; and
(g) the respondent be directed to pay the costs of the application.
[5] Both parties criticised the other for not havi ng made a full disclosure.
For his part, the respondent complained that the applicant had not
annexed documentation to support the assertions made in her affidavit.
In my view, for the reasons given by Davis AJ in AF v MF, the applicant
was not required to do so .2 Both sets of affidavits contained some errors
and omissions. But I do not think the se indiscretions were of such a
nature that either the claim or the defence should be dismissed on that
ground alone.
[6] The parties raised several further contentions in their affidavits, and in
full oral argument. Having regard to the nature of rule 43 proceedings , I
do not think it is appropriate to deal with all the contentions in this
judgment. Although I have carefully considere d all contentions, i n what
follows I focus on what I consider to be the primary issues.
[7] The applicant provided a schedule of expenses for her and the children ,
which showed that her total monthly expenses are about R 73 500. She
acknowledged that the respondent is currently paying certain of these
expenses in the amount of about R7 500 a month , and in addition he is
contributing an amount of R15 000 towards a credit card every month.
The applicant alleged that she receives post-tax income from the school
of R20 404 a month, as well as rental income from her sister of R11 000
a month (of which she pays tax of R3 327). Based on these figures the
applicant contended that she has a monthly shortfall of about R23 000.
Having regard to the amount of about R22 500 already being paid by the
respondent, she claims a total maintenance contribution from the
respondent of R45 500.
[8] I consider that the applicant’s assessment of her expenses is not
excessive. The respondent took issue with the reduced rental offered to
2 2019 (6) SA 422 (WCC) (AF) para 22.
the applicant’s sister. However, I agree with the applicant that it is
prudent to rent the cottage to a family member rather than taking a risk
with a stranger for the sake of an additional couple of thousand Rand per
month.
[9] As regards the respondent ’s income , his most recent payslip indicates
that he receives a nett monthly income of about R93 000 . Last year the
respondent was also paid a Christmas bonus of R57 000. With respect to
his expenses, the schedule annexed to his answering affidavit contained
several errors. A revised schedule was handed up at the hearing.
According to the revised schedule his current monthly expenses are
slightly less than R100 000. This schedule include s the expenses
incurred in relation to the applicant and their children. In my view there
are certain items in this schedule which could reasonably be reduced. For
instance, a retirement annuity payment of just over R15 000 appears to
be very high in the circumstances, especially as his employer also makes
a contribution towards his retirement annuity of about R5 700 a month .
The respondent also included an item of R5 000 for legal fees which
should not, in my view, form part of the schedule of expenses (the
applicant did not include any such item in her schedule).
[10] To my mind there is scope for the respondent to contribute a further
R10 000 per month to the applicant , over and above his existing
contributions. I also think that it is reasonable to require the re spondent
to pay any medical expenses reasonably incurred by the applicant and
the children, which are not covered by the medical aid. In so far as the
respondent is already paying R15 000 a month to the applicant, the
additional contribution will mean that this monthly payment will
increase to R25 000.
[11] Such a payment will not meet the whole of the applicant’s shortfall ,
but the applicant’s demands must be shaped by the respondent’s means.
One of the fundamental principles for an award of maintenance is an
ability to pay on the part of the spouse from whom maintenance is
claimed. This is a factual matter. A spouse has no right to receive
maintenance from the other spouse unless that spouse is in a financial
position to provide it.3 I have also taken into account the fact that at least
one of the children appears to earn sufficient money to contribute to the
applicant’s household costs.
[12] I note that the respondent’s counsel indicated at the hearing that his
client intended to carry on payi ng all the amounts listed in the revised
schedule. Some of these amounts , such as the costs of medical aid and
tertiary education, are covered by the relief specifically sought by the
applicant. I will, however, make an order that the respondent shall also
continue paying the balance of the items, not specifically addressed,
which are currently being paid by him. This does not include the item in
the schedule for groceries of R15 000 (3 x R5 000), which is covered by
the monthly amount of R25 000.
[13] I turn now to the issue of the contribution to costs. To justify such an
order the applicant must show that having regard to the circumstances of
the case, the financial position of the parties, and the particular issues
3 Reyneke v Reyneke 1990 (3) SA 927 (E) at 932J-933F.
involved in the pending litigation, a contribution is necessary to enable
her to present her case adequately before the court.4
[14] In my view, in this matter it is appropriate to have regard primarily to
the parties’ respective assets in assessing whether such a contribution
should be made by the respondent . At the hearing, counsel for the
applicant contended that regard should also be had to the income of the
respondent, and it was suggested that because the respondent earns a far
greater salary, he should be able to finance the applicant’s legal costs.
Having regard to the increased monthly maintenance that the respondent
will be required to make, there is unlikely to be much remaining in his
income for the respondent to contribute to the applicant’s legal costs.
The respondent will not be ‘cash flush’, as suggested by the applicant. In
fact, both parties’ income will probably be exhausted by their expenses.
It follows, to my mind, that they will both have to either loan money, or
draw on their capital , to pay for their ongoing legal costs. The
respondent’s greater salary is therefore of little moment in determining
whether he should be directed to contribute to the applicant’s costs.
[15] As regards the parties’ respective financial positions, the applicant has
assets valued at about R4.7 million. This is based on a valuation of the
immovable property which is now three years old. It is therefore likely
that the applicant’s asset position is in fact better than this. According to
the applicant her only liabilities are the balance on the mortgage bond
(about R2 90 000) and loans from family and friends (R70 000). The
applicant’s nett asset position is therefore at least some R4.3 million.
4 Van Rippen v Van Rippen 1949 (4) SA 634 (C) at 637.
[16] On the other hand, according to the applicant , the respo ndent has total
assets amounting to about R3.5 million and total liabilities amounting to
about R140 000. This was based on a n assessment in August 202 4.
Although the respondent was invited to provide an updated disclosure of
his assets and liabilities, he failed to do so. This is regrettable . The
applicant did, however, state in her affidavit that she did not expect that
the respondent’s financial position would have changed in any m aterial
way since the date of the previous assessmen t. The applicant’s counsel
also rejected a suggestion that the respondent be permitted to file a
further affidavit clarifying his current situation. In these circumstances ,
and having regard to the fact that the applicant bears the onus, 5 it seems
to me that I must decide the matter on the figures available to me. On
these figures the respondent has nett assets of about R3.4 million.
[17] Having regard to the respective nett positions, it appears that the
applicant is in a significantly stronger financial position, having nett
assets of at least R4.3 million, compared to the respondent’s nett assets
of about R3.4 million. Although in the divorce action the applicant seeks
an order that the respondent be directed to pay her an amount equal to
one half of the difference between the accrual of their respective estates,
it is instructive that the applicant concedes in these rule 43 proceedings
that ‘at this stage’ she does not have any such claim. Having regard to
the joint declaration of nil value in the antenuptial contract, it is implicit
in this concession that the applicant’s assets currently exceed those of
the respondent.
55 MY v JY (2024/013982) [2024] ZAGPJHC 684 (26 July 2024) para 48.
[18] The applicant owns the matrimonial home. She alleged that the
respondent took funds out of the bond on this home over the period 1
March 2022 to 31 May 2023. She did not suggest that she would not
likewise be entitled to access funds in the home loan. It appears from the
monthly statement annexed to the answering affidavit that the total loan
amount is R800 000, and the balance owed is just over R290 000 . It
seems to me that it is likely that the applicant will be able to access funds
from the home loan, at least up to this loan amount (the balance available
is thus about R500 000).
[19] This is not a case where the husband controls the family resources , and
the wife has no access to resources.6 Nor is there a marked imbalance in
the financial resources available to the parties to litigate. 7 Granted, the
respondent earns substantially more than the applicant. But the effect of
the maintenance order is that the parties’ nett income position will be
roughly the same. In these circumstances , I do not consider that a
contribution to costs is required to enable the applicant to present her
case adequately.
[20] Finally, regarding the costs of this application, it is usual to order that the
costs should be in the trial. 8 I do not think that there is any reason to
depart from the usual order.
6 SH v MH 2023 (6) SA 279 (GJ) para 76.
7 AF para 41.
8 Senior v Senior 1999 (4) SA 955 (W) at 967D–H
[21] The order granted follows the wording of the notice of motion, albeit
with certain adjustments which I consider to be logical and necessary.
Cooke AJ:
_____________________________
DJ COOKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For applicants: C Reilly
Instructed by: Norman, Wink & Stephens
For first respondent: G Potgieter
Instructed by: Rickma Coxon & Associates Inc.