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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 2025/059586
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: : NO
(3) REVISED.
DATE: 2025-11-14
SIGNATURE:
In the matter between:
S[...] A[...] D[...] B[...] (BORN K[...]) Applicant
(Identity number: 6[...])
and
S[...] D[...] B[...] Respondent
(Identity number: 7[...])
JUDGMENT
SCHOEMAN (AJ)
A. INTRODUCTION:
[1] This is an Application in terms of the provisions of Rule 43 of the Uniform
Rules of Court, wherein the Applicant prays for the following relief towards her
spousal maintenance, pending finalisation of the Divorce Action between the parties.
The redress that the Applicant seeks, inter alia, takes on the form of a monthly cash
payment, contributions towards the payment of the Applicant’s storage costs,
monthly rental, and relocation costs, a contribution towards the acquisition of a new
motor vehicle, as well as an initial contribution towards her legal costs.
[2] The parties were married to each other on 12 October 1996, out of community
of property with the inclusion of the Accrual System, and this marriage still exists.
[3] There were two children born from the mar riage relationship between the
parties, both of whom have already attained the age of majority . By a similar token,
both children are self-sufficient and independent, although the parties’ daughter, who
has recently been admitted as an attorney, still res ides with the Respondent. It
needs mention that the minor daughter pays monthly rental to the Respondent,
which rental the Respondent in turn deposits into a savings account for the parties’
daughter. The aim of this exercise, so say the Respondent, is t o teach the parties’
daughter “financial responsibility”. In my view, the Respondent cannot be faulted for
this.
[4] As such, the current Application simply concerns the question whether or not
the Applicant is entitled to spousal maintenance, pendente lite , and in addition to
this, whether the Applicant has made out a case for a contribution towards her legal
costs.
[5] Both parties are empl oyed as educators at M[...] College. The Applicant also
alludes thereto that she is Head of the English First Additional Language
Department, and that the Respondent, in turn, is the Vice-Principal at the
aforementioned school.
aforementioned school.
[6] It is common cause that the parties no longer reside in the erstwhile
matrimonial home. This property has in fact been sold, and the proceeds emanating
from this sale have already been divided between the parties. I shall return to this
issue herein under.
[7] The Applicant depicts, in her Founding Affidavit, a marital life of some luxury,
while the Respondent, to the contrary, refers to a comfortable and ordinary standard
of living. Throughout these proceedings, the Applicant seems to have advanced the
current Application on the basis that she is entitled to be kept on the same standard
of living as that which the parties enjoyed during the subsistence of their marital
relationship.
[8] The current Application also seems to be suggestive thereof that the Applicant
is of the view that the parties should live their lives on equal footing now that they
have separated, and that she is not to be expected to reduce her lifestyle in the
least, as a result of the breakdown of the parties’ marital relationship.
[9] At the outset, and in order to properly determine the merits (or the lack
thereof) of the current Application, it was incumbent upon the Applicant to distinguish
her wants from her basic needs.1
[10] The nature of the enquiry into maintenance tasks a Court into having to
embark on a wide -ranging enquiry as to the factors set out in Section 7(2) of the
Divorce Act, Act 70 of 1979. These are:
10.1 The existing or prospective means of each of the parties;
10.2 Their respective earning capabilities;
10.3 Their financial needs and obligations;
10.4 The age of each of the parties;
10.5 The duration of the marriage;
10.6 The standard of living of the parties prior to the divorce;
10.7 The conduct insofar as it may be relevant to the breakdown of the
marriage; and
10.8 Any other factor which, in the opinion of the Court, should be taken into
account.2
[11] While it is so that in Applications of an interim nature, such as the current Rule
43 Application, the Court cannot determine the issue of maintenance with the same
measure of accuracy as a Trial Court would, it is however still trite that the Court is
to make a Maintenance Order which it finds “just” as per the statements by Satchell J
in Botha supra at Paragraph 43.
1 See: Botha vs Botha 2009(3) SA 89 (W); and Grasso vs Grasso 1987(1) SA 48 (C)
2 See: Reid vs Reid 1992(1) SA 443 (E) at 664
[12] The enquiry is necessarily directed towards the interests of both spouses, and
the impact which the Order will have on each of them. Justice must therefore be
measured as between both spouses.
[13] In considering what is just, this in effect signifies that the Court exercises a
judicial discretion when coming to a conclusion what is correct and appropriate, and
what is fair and reasonable, in the circumstances of each individual case before it.
Of course, any just Order must be well -founded on fact, and reflect relevant and
proper legal principles.3
[14] Even though a wife may qualify for maintenance upon Divorce, it by no means
follows that the quantum thereof should be such as to enable her to live to the same
standards as she enjoyed during the subsistence of the marriage.4
[15] What is perhaps the most striking feature of the current Application is that the
Applicant seems to suggest that she and the Respondent are to remain on equal
footing, vis -à-vis their monthly income and expenses, and that as s uch, she is
entitled to receive what can only be described as “top-up maintenance” . As has
however been stated by Erasmus J in the case of Reid vs R eid supra, it is not the
function of the Maintenance Court to achieve parity between the parties. In my vi ew,
the same holds true for a Court being confronted with an Application in terms of Rule
43.
[16] I am aware that in Davis vs Davis 1939 WLD 108 at page 114, Ramsbottom
J pointed out that maintenance is an expenditure of a recurring nature which is
usually paid out of income , and that the circumstances may be such where the
income is inadequate or non -existent, that the value of the a ssets of the parties may
become relevant and material in deciding questions of maintenance (also referred to
by Jordaan J in the case of Jodaiken vs Jodaiken 1978(1) SA 784 (W) at 789 A –
D). However, the principle duty to maintain a person , depends upon the reasonable
D). However, the principle duty to maintain a person , depends upon the reasonable
requirements, or needs, of the person claiming it and only thereafter the ability of the
party from whom it is claimed to furnish it.
[17] Although the Respondent’s ability to pay maintenance, pendente lite , is
undoubtedly a relevant consi deration, the Court must also consider the remarks
made by Margo J in Louis supra, at 600 to 601, namely that the fact that a person
does not live up to the hilt of his income, or cho oses to live frugally, and has a
3 See: Botha supra at paragraphs 45 and 46
4 See: Louis vs Louis 1973(2) SA 597 (T) at 5981
monthly surplus, does not provide a ground for requiring him to hand over something
of what he saves, to the other spouse.
[18] As pointed out by the learned author, Van Zyl , in the Handbook of South
African Law of Maintenance (2000) at page 50, an improvement in one’s financial
position after divorce is to one’s benefit, since the bonds of marriage no longer
exists. The same holds true in Rule 43 applications, and as such, therefore, as was
stated by Steyn J in the case of Joffe vs Lubner 1972(4) SA 521 (C) at 524 F, the
fact that a maintenance debtor is able to pay a reasonable amount of maintenance,
does not justify extravagant claims.
[19] In as much as the Applicant may rely on a perceived entitlement to interim
maintenance, and a contribution towards her legal costs, based on the mere
averment and presumption that the Respondent earns more than the Applicant and
that he can thus afford same, such reliance is misplaced for the reas ons that I shall
more fully deal with herein under.
[20] The assessment of the Applicant’s Application, places the proverbial
magnifying glass squarely upon the requirements of Rule 43 in respect of the
Applicant’s Affidavit, and the contents thereof.
[21] Rule 43(2)(a) of the Uniform Rules requires that:
“An applicant applying for any relief referred to in sub -rule (1) shall deliver a
sworn statement in the nature of a declaration, setting out the relief claimed and the
grounds therefor, together with a notice to the respondent corresponding with Form
17 of the First Schedule”.
[22] The procedure embodied in Rule 43(2)(a) is hybrid in nature, being largely in
the form of an Application, but also resembling an Action, since the Affidavits have to
be in the nature of a declaration or a plea. The object of this is evident, as the Rule
is to confine the Affidavits to a reasonably succinct statement of the parties’
respective cases.
[23] The Applicant’s sworn statement must therefor e contain factual allegations
[23] The Applicant’s sworn statement must therefor e contain factual allegations
upon which the Court can assess, and evaluate, whether to grant the relief sought. It
is not sufficient to make bold statements, or generalised averments, which a party
believes may bolster his or her case before the Court. Furthermore, and from a
reading of the Founding Affidavit, there needs to be a correlation between the
amounts claimed, the Applicant’s financial means, and her monthly expenses. This
is underscored by the judgment of Eksteen vs Eksteen 1969(1) SA 23 (O) where it
was emphasised that Rule 43(2) embraces factual allegations, and not merely the
inference which an Applicant makes and alleges from facts which he or she has not
set out.
[24] Upon analysing the Applicant’s Founding A ffidavit, it is clear that t he vast
majority of her sworn statement is dedicated to setting the scene, and portraying a
picture of the Respondent being a wealthy man with a lifestyle t hat suits his
perceived vast means. Very little of the Founding Affidavit regrettably deals with the
Applicant’s own financial prosperity, and with the means available to her, from which
she is able to maintain herself. These means came to light when the Applicant’s
Financial Disclosure Form was perused and considered.
[25] The question for determin ation is accordingly, whether the Applicant has set
out sufficient facts and grounds in her sworn Affidavit, in order to make out a case for
interim maintenance and a contribution towards her legal costs in the amounts
claimed. The first hurdle that the A pplicant needs to pass, is to evidence a “need to
be maintained”. Absent such proof on a balance of probabilities, there is simply no
reason to revert, or refer, to the Respondent’s papers in great detail.
[26] It is trite that in motion proceedings the Affidavits serve not only to place
evidence before the Court, but also to define the issues between the parties. This is
not only for the benefit of the Court but also, and primarily so, for the parties, as the
parties must know the case that must be met, and in respect of which they must
adduce evidence in the Affidavits.
[27] An Applicant must accordingly raise the issues and facts upon which he or
she would seek to rely the Founding Affidavit. He or she must also do so by defining
the relevant issues, and by setting out the evidence upon which he or she relies to
discharge the onus of proof resting on him or her in respect thereof.
[28] The facts set out to the Founding Affidavit (and equally in the answering
[28] The facts set out to the Founding Affidavit (and equally in the answering
affidavit) must be set out simply, clearly , in chronological sequence and without
argumentative matter.5
[29] In considering the aforesaid principle s, I now turn to deal with the Applicant’s
Application.
[30] However, before considering what would be the Applicant’s reasonable
maintenance requirements, and whether the Applicant has made out a case in that
5 See: Reynolds N.O. vs Mecklenberg (Pty) Ltd 1996(1) SA 75 (W) at 78 I
regard, it must first be considered whether the Applicant has established a need for
maintenance.
[31] In dealing with her need for maintenance, the Applicant is required to make a
full and frank disclosure of all relevant facts to place the Court in a position to assess
whether there is truly a need on the part of the Applicant for maintenance.
[32] In the well -known, and often quoted , matter of Nilsson vs Nilsson 1984(2)
SA 294 (C) it was stated, inter alia, that an interim maintenance order is not intended
as a meal ticket for a spouse who quite clearly would not establish a right to
maintenance at trial.
[33] It is therefore only once the need for maintenance has been established, that
the next level of the enquiry is to be embarked upon to establish (i) what the marital
standard of living of the parties was, (ii) what the Applicant’s reasonable
maintenance requirements are, and (iii) what the capacity of the Respondent is to
meet such requirements. Absent the Applicant passing the first hurdle namely to
prove on a preponderance of probabilities a need for maintenance, it is not
necessary for the Court to establish what the marital standard of living of the parties
was, what the Applicant’s reasonable maintenance requirements are, and what the
capacity of the Respondent is to meet such requirements.
[34] Ex facie the papers filed of record by the Applicant, the following bears
mention: -
34.1 The Applicant a 61-year-old educator, as alluded to before.
34.2 The Applicant vacated the erstwhile matrimonial home on 24 June 2025. The
Court does not deem it necessary to delve into the reasons for the breakdown of the
marriage, or the reasons why the Applicant submitted that she could no longer reside
in the forme r matrimonial home. The fact of the matter is, and it is common cause
between the parties on the papers, that the matrimonial home was sold on 23 May
2025 for an amount of approximately R3.8 million , and that vacating the premises
2025 for an amount of approximately R3.8 million , and that vacating the premises
was to be a foregone conclusion. I pause to add that this property was owned by the
parties jointly, each party formerly holding an undivided half share therein.
34.3 The Applicant furthermore submits that the Respondent withdrew an amount
of R213 000.00 from the parties’ joint bond account, without her knowledge and
consent. I shall return to this issue briefly herein under.
34.4 The Applicant also avers in Paragraph 7.1 of her Founding Affidavit that she
earns a gross salary of approximately R60 000.00 per month, with a nett income
amounting to R42 000.00 per month.
34.5 The Applicant additionally states that she drives a 19-year-old Renault Cleo
motor vehicle, gifted onto her by the Respondent’s mother. This in fact seems to be
common cause.
34.6 In Paragraph 7.4 of her Founding Affidavit, the Applicant also confirms that
she holds a pension interest. This is of some importance, given the age of the
Applicant. I however interpose to state that it is not clear from the papers whether,
and if so when, the Applicant is expected, or of the intention, to retire.
34.7 Ex facie the Applicant’s papers filed of record, she then professes to have a
total monthly expenditure amounting to R37 365.00.
34.8 Having regard therefore to the Applicant’s nett income as compared to her
monthly expenses, it is a simple exercise in arithmetic to calculate that the Applicant
has a monthly excess available to her in the amount of R4 635.00. This in itself
points towards the fact that the Applicant does not have the need to be maintained,
and that she has sufficient income from which she is able to pay her monthly
maintenance needs, even if the Court does not criticise any of her monthly stated
expenses.
34.9 The Court has indeed had regard to what the Applican t says in Paragraph
7.10 of her Founding Affidavit, namely that the Applicant’s expenses, in her
estimation, will escalate to an amount of approximately R55 000.00 per month, once,
so say the Applicant, she has “had the opportunity to settle down” . According to the
Applicant, she will then have a monthly shortfall of approximately R13 000.00. This
is however not the current factual situation and the Court can only look at what the
Applicant’s actual reasonable, necessary and actual expenses are.
34.10 The who le premise of the Applicant’s Application is seemingly found in
34.10 The who le premise of the Applicant’s Application is seemingly found in
Paragraph 7.11 of the Founding Affidavit where the Applicant laments a bout the
standard of living which the Respondent made her accustomed to, and which, so say
the Applicant, she cannot attai n by her own means. The Applicant then makes the
allegation that she is “advised” that she is entitled to claim maintenance from the
Respondent to place her in a situation as close as reasonably possible to what the
position was that she was in, prior to the separation of the parties.
34.11 However, and when considering the Applicant’s Financial Disclosure Form
deposed to on 24 July 2025, said financial disclosure paints a picture that is the
complete ant hesis of th át which the Applicant states. I pause to add that the
Applicant’s Founding Affidavit was deposed to on 30 June 2025, and the content
thereof does not meaningfully deal with the disclosure of the Applicant’s financial
position, save for alluding to the Applicant’s income and expenses.
[37] If regard is had to the content of the Paragraph 2.3 of the Applicant’s Financial
Disclosure Form, where the Applicant provides details of all personal bank accounts,
and the balance in said accounts as at date of deposing to the Financial Disclosure
Form, it is evident that the Applicant inter alia has an Absa Bank Savings Account
with a positive balance of R2 033 199.36, as well as an Absa Tax Free Savings
Account with a positive balance of R80 020.06. The total value of the Applicant’s
interest in all b ank accounts , according to the Applicant herself, amounts to
R2 115 134.35.
[38] In addition to the aforesaid, and from a reading of Paragraph 2.8 of her
Financial Disclosure Form, the Applicant further has personal belongings which can
be liquidated to supplement her monthly shortfall, if any, alternatively which can be
liquidated to fund her litigation, in the total amount of R226 900.00.
[39] The aggregate current value of the Applicant’s interest in her personal assets
amount to R2 342 034.35. Added to that, the Applicant also holds a pension interest
with ISASA Pension Scheme and Provident Fund with a value of R1 614 184.63. As
stated hereinbefore, it is uncertain when the Applicant is of the intention to retire.
[40] In summary, the Applicant’s nett asset value amount to some R3 956 218.98.
[41] The Court appreciates, with reference to the balance contained in the
Applicant’s Savings Account that same includes her 50% of the nett proceeds
Applicant’s Savings Account that same includes her 50% of the nett proceeds
received from the sale of th e erstwhile matrimonial home. In this regard, the
Applicant received an amount of R1 712 628.26 on 14 July 2025. The Respondent,
in turn, received an amount of R1 362 628.26 on the same date.
[42] While it is so that the receipt of the proceeds emanating from the sale of the
parties’ property significantly bolstered the Applicant’s savings (which proceeds were
received subsequent to the Applicant having deposed to the Founding Affidavit) , this
does not take away from the fact that even if the Court were to subtract the proceeds
received from the sale of the house from the Applicant’s cash funds available to her
in her Savings Account , the Applicant still had a positive balance in her bank
account, at the time of the launching of this Application in the sum of R320 571.10.
Add to that, the amount in her Tax-Free Savings Account, as well as the value of her
personal belongings, it is evident that at the time of the launching of the current Rule
43 Application, the Applicant had significant assets , and/or means, at her disposal
and that the Applicant did not show, and could not show, a need to be maintained.
[43] In the premise, the Court cannot help but agree with the submissions made by
counsel on behalf of the Respondent that the Applicant proverbially “jumped the gun”
with the launching of this Application. By the time that the Founding Affidavit was
signed, the Offer to Purchase for the former shared residence had already been
signed and if one has regards to the continuous updates received fro m the
transferring attorney s (where the parties’ daughter is co -incidentally employed) , it
was evident that the registration of transfer would have taken place imminently ,
resulting therein that both parties would have received a considerable amount of
disposable proceeds . This is all the more so where it is common cause that the
purchase of the immovable property was a so -called “cash sale”, thereby meaning
that the registration process would be speedily concluded.
[44] Added to that, and with reference to the contribution that the Applicant seeks
towards the purchase of a new motor vehicle, it is common cause that the vehicle
that the Applicant currently drives was gifted onto her in 2020 (long before the
institution of divorce proceedings) already. It can therefore not be said that the
Respondent disrupted the status quo, in the light of the pending Divorce Action
between the parties, by insisting on the return of the Mercedes Benz motor vehicle
that the Applicant has once driven . This is not a situation where the Respondent
that the Applicant has once driven . This is not a situation where the Respondent
purposefully disrupted the status quo while litigation was already pending between
the parties.
[45] Furthermore, and this was something that was canvased with counsel for the
Applicant during argument, the Applicant req uests a contribution towards the
purchase of a new vehicle in the amount of R5 000.00 per month, and the Court was
informed of the fact that the Applicant intends to finance the purchase of a new
vehicle. This in variably means that the Applicant is of th e intention to apply for
Vehicle Asset Finance, thus cementing the fact that she is not over -indebted, and
that she full-well accepts (if not guarantees) that she will be able to qualify for credit.
--
This in itself puts paid the notion that the Applicant o n the papers as it currently
stands, has a monthly shortfall or a need for maintenance.
[46] Absent therefor e, the Applicant’s failure to pro ve a need to be maintained,
there is no reason for this Court to scrutinise the Respondent’s papers, and the
Respondent’s ability to meet the financial needs that the Applicant says she has.
[47] During argument before me , counsel for the Respondent however made the
following tender, namely that the Respondent undertakes to retain the Applicant on
his so-called “gap cover” as far as the parties’ medical aid is concerned. The Court
will grant an order to this effect.
[48] Over and above that, and as alluded to hereinbefore, the Respondent
withdrew an amount of R213 000.00 from the parties’ bond account. From a reading
of the papers, it is evident that the parties still need to account to each other with
regards to the join t expenses pertaining to the immovable property and the transfer
costs following the sale of the property , which were paid from the proceeds of this
withdrawal. It is not for this Court to debate the payments that the parties made , or
to mediate this issu e between them . However, and as counsel for the Respondent
alluded, the Respondent admits in his papers at Paragraph 14.12 of the Opposing
Affidavit, that he u tilised an amount of R62 863.84 to fund the transfer costs of the
new immovable property that he had purchased with his share of the proceeds of the
sale of the matrimonial home . During argument before me, the tender was made
that the Respondent shall reimburse the Applicant in the aforesaid amount. As such,
I am of the intention to also order the Respondent to reimburse the Applicant in the
amount of R62 863.84 within 7 (seven) days from date of this Order. It must
however be made clear that this amount shall not be in full and final settlement of the
issue regarding the withdrawal from the bond a ccount, and the parties are still at
issue regarding the withdrawal from the bond a ccount, and the parties are still at
liberty to render accounts and to debate same.
[49] During argument, counsel for the Applicant submitted that the Court should
grant an Order that the Respondent contributes an amount of R10 000.00 per month,
in cash, towards the maintenance of the Applicant. In addition to the aforesaid, the
Court was also asked to order the Respondent to contribute an amount of R5 000.00
towards the acquisition of a new vehicle as a so -called “top-up” to the monthly
premiums that the Applicant is to pay when she finances a new vehicle. Lastly , the
Court was also asked to order the Respondent to make a contribution of R15 000.00
per month for a period of 6 (six) months, towards the Applicant’s accommodation
--
expenses. As such, the Court was asked to order the Respondent to pay a total
monthly maintenance contribution towards the Applicant in the amount of
R30 000.00. The Court immediately pauses to add that it is not certain what the
Applicant has done with the proceeds emanating fr om the sale of the erstwhile
matrimonial home, and whether or not she acquired new assets, alternatively
whether or not that money is still held to her benefit in her Absa Bank Savings
Account. All indications point towards the latter.
[50] Having regard to the content of the Applicant’s Financial Disclosure Form, the
Applicant’s financial situation disclosed therein raises more questions than answers,
and leaves this Court in the dark as to what the Applicant’s actual financial position,
and thus her ne ed is. On the Applicant’s own version, she has a monthly excess
available to her, and she has a nett asset value just shy of R4 000 000.00.
[51] The Court would have rather expected that the Applicant deals with the
aforementioned facts, and the content of her Financial Disclosure Form, in her
Founding Affidavit, and that she presents material information in this regard in her
papers, as same has a direct bearing on the Applicant’s claim for maintenance, and
her related claim for a contribution to legal costs. The Applicant’s failure to allude to
the content of her Financial Disclosure Form in her Founding Affidavit, even if the
Financial Disclosure Form was not yet disposed to at that stage, results in an
inability to establish whether there indeed exis ts a true need on the part of the
Applicant to be maintained, and same also hits on her claim for a contribution to
costs. Notwithstanding the subsequent delivery of her Financial Disclosure Form,
the Applicant reasonable should have known what her exact financial position is.
[52] In the context of full disclosure and the duty of applicants in Rule 43
Applications to act with the utmost good faith, it is apposite to refer to the matter of
Applications to act with the utmost good faith, it is apposite to refer to the matter of
Du Preez vs Du Preez 2009(6) SA 28 (T) at paragraph 15, where the Court held,
inter alia, the following:
“[15] However, before concluding, there is another matter that gives me cause for
concern, deserving of mention and brief consideration. In my experience, and I
gather my colleagues on the Bench have felt the same, there is a tendency for
parties in Rule 43 applications, acting expediently or strategically, to misstate the
true nature of their financial affairs. It is not unusual for parties to exaggerate their
expenses and to understate their income, only then later in subsequent affidavits or
in argument, having been caught out in the fact of unassailable contrary evidence, to
seek to correct the relevant information. Counsel habitually, acting no doubt on
instruction, unabashedly seek to rectify the false information as if the original
misstatement was one of those things courts are expected to live with in Rule 43
applications. To my mind, the practice is distasteful, unacceptable, and should be
censored. Such conduc t, whatever the motivation behind it, is dishonourable and
should find no place in judicial proceedings. Parties should at all times remain aware
that the intentional making of a false statement under oath in the course of judicial
proceedings constitute the offence of perjury and, in certain circumstances, may be
the crime of defeating the course of justice. Should such occur in Rule 43
proceedings at the instance of the applicant, then relief should be denied.
[16] Moreover, the power of the court in Rule 43 proceedings in terms of Rule
43(5) is to ‘dismiss the application or make such order as it thinks fit in ensure a just
and expeditious decision.’ This discretion is essentially and equitable one and has
accordingly to be exercised judicially with regard to all relevant considerations. A
misstatement of one aspect of relevant information invariably will colour other
aspects with the possible (or likely) result that fairness will not be done.
Consequently, I would assume that there is a duty on ap plicants in Rule 43
applications seeking equitable redress to act with the utmost good faith and to
disclose fully all material information regarding their financial affairs. Any false
disclosure or material non -disclosure would mean that he or she is not before the
court with ‘clean hands’ and, on that ground alone, the court will be justified in
refusing relief.”
[53] In the matter of CMA vs LA [2023] ZAGPJHC 364 (24 April 2023) at
paragraph [25], specifically at paragraph [25.1], the following was stated:
“In Rule 43 proceedings, it is prudent that the Court should be satisfied that an
“In Rule 43 proceedings, it is prudent that the Court should be satisfied that an
Applicant acts in good faith. Thus, an Applicant simply cannot afford to omit facts in
the Founding Affidavit that are vital to the Application. Surely, if the Applicant was
willing not to reveal certain facts in her Founding Affidavit, she must certainly be
willing not to be frank about weighty facts that would reveal the true state of her
finances.”
[54] In the matter of MNY vs JY (2024/013982) [2024] ZAGPJHC 1823 (24 July
2024), Van Aswegen AJ stated that: -
“Without a frank and full disclosure of all material facts , a Court can simply not make
a determination as to the Applicant’s need and cannot quantify such a need.”
[55] In the premise, no Order can be made by this Court if the Applicant does not
get out of the starting blocks, as it were, by establishing on a preponderance of
probabilities that she has a need to be maintained . It is thus my view that the
Applicant herein has elected to selectively disclose facts in her Founding Affidavit in
an attempt to establish her need but, by virtue of her failure to make a full disclosure
of her financial “reserves” and her savings , which only came to light once the
Financial Disclosure Form saw the light of day, all the relevant facts have not been
placed before me. It is therefore not possible for me to properly assess whether a
need exists on behalf of the Applicant, and what th e precise extent of that need is.
All indications are, even if I were to accept the correctness of the Applicant’s
Financial Disclosure Form (and the Applicant’s expenses listed therein) without any
reservations, that the Applicant simply does not have a need for maintenance, and
as such, I am unable to entertain the Applicant’s claim for maintenance, pendente
lite.
[56] Turning then to the Applicant’s claim for a contribution towards her legal
costs, it is trite that a claim for a contribution to costs is a claim sui generis and it has
its basis in the reciprocal duty of support between spouses.6
[57] In the normal course, and having regard to the facts and circumstances of this
matter, including the Applicant’s failure to pro ve a need to be maintained, a nd by
extension of the same reasoning in declining to entertain the Applicant’s claim for
spousal maintenance, pendente lite, I am similarly unable to come to the Applicant’s
aid with regards to a claim for a contribution towards her legal costs.
[58] There will most certainly not be an inequality of arms between the Applicant
and the Respondent. As counsel for the Respondent aptly pointed , the receipt of the
proceeds emanating from the sale of the erstwhile immovable property, is to be
proceeds emanating from the sale of the erstwhile immovable property, is to be
regarded as the proverbial “great equaliser” as far as the parties’ financial footing is
concerned.
[59] Lastly, and considering the costs of the Application, it is trite that this Court
has a discretion when it comes to the issuing of cost orders, which discretion must
be exercised judicially.
[60] In the normal course, and having regard to the facts and circumstances of this
matter, including the Applicant’s failure to properly set out her financial position in her
6 See: Cary vs Cary 1999(3) SA 615 (C); AF vs MF 2019(6) SA 422 (WCC) at 428 E – F
Founding Affidavit, coupled with the Applicant’s failu re to pro ve a need to be
maintained, I would have been inclined to have the costs follow the result, thus
ordering the Applicant to pay the costs of this application . This is all the more so
where the rights of minor and/or dependent children do not featu re in this
Application. However, for the reasons which follow, I am not so inclined.
[61] Had the Applicant established a need for maintenance and with the enquiry
having moved to the next level, the Respondent would have seriously fallen foul of
the full and frank disclosure requirements in regard to his financial affairs, especially
given the s parse information pertaining to the Close Corporation of which the
Respondent is the sole member. It also did not go unnoticed, from a perusal of the
Respondent’s bank statements, that many a transaction has been left curiously
unexplained in the Respondent’s papers. It was only during argument, that certain of
the transactions (yet by no measure all of them) were clarified.
[62] In the premise, and while it m ay therefore be that the Applicant for the
reasons alluded to above, was not successful with her Application this time around,
this is no cause for the Respondent to celebrate, should he feel that way inclined, as
any perceived victory in his part, against the backdrop of the aforegoing, rings
hollow.
[63] In the premise, I am of the view that each party should bear their own costs in
respect of this Application.
ORDER:
In the circumstances, I make the following Order: -
1. The Respondent is to retain the Applicant on his “gap cover” of his Medical
Aid Scheme, pendente lite;
2. The Respondent shall reimburse the Applicant in the amount of R62 863.84
(Sixty-Two Thousand Eight Hu ndred and Sixty -Three Rand and Eighty -Four Cents)
within 7 (seven) days of date of this Order, which amount shall not be in full and final
settlement of the dispute between the parties relating to the Respondent’s
settlement of the dispute between the parties relating to the Respondent’s
withdrawal of funds from the parties’ previously shared bond account;
3. The remainder of the relief sought in this Application is dismissed;
4. Each party shall bear his/her own costs in respect of this Application.
_______________________
A.J. SCHOEMAN
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA GAUTENG
DIVISION, PRETORIA
Electronically submitted:This order was prepared and authored by the Acting Judge
whose name is reflected herein and his handed down electronically by circulation to
the parties/their legal repre sentatives by email and by uploading it to the electronic
file of this matter on Court Online / CaseLines. The date of this judgment is deemed
to be 14 November 2025.
Date of hearing: 5 November 2025
Date of Judgment: 14 November 2025
Appearances:
For the Applicant: Advocate C Jacobs
Instructed by: Hartzenberg Incorporated
For the Respondent: Advocate C Spangenberg
Instructed by: Annemie Fourie Attorneys