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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 41492/2018
DATE: 12 December 2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
Date: 12 December 2025
In the matter between:
M[…] S[…] R[…] Applicant
and
M[…] A[…] R[…] Respondent
Coram: M Van Nieuwenhuizen, AJ
Heard on: 3 December 2025
Delivered: 12 December 2025
JUDGMENT
M Van Nieuwenhuizen, AJ:
[1] This is an opposed Rule 43(6) application for the variation of a Rule 43
order granted by this Court on the 31 st of October 2019 1 (“the Rule 43
1 Annexure “MS1”, Rule 43 Court Order, CaseLines, R001-16 to R001-19
2
Order”).
COMMON CAUSE
[2] The following are common cause between the parties:
[2.1] The parties were married to each on the 12 th of April 2014 in
community of property, which marriage still subsists;
[2.2] Of the marriage between the parties one minor child was born,
M[...] who was born on the 7th of July 2011;
[2.3] Primary residence of M[...] is to remain with the respondent,
subject to the applicant’s reasonable rights of contact to M[...];
[2.4] A minor child, P[...] was born from a previous relationship of
the respondent;
[2.5] An order of the Children’s Court exists in respect of P[...] ’s
biological father with regards to his parental responsibilities
and rights in relation to P[...].
ISSUES IN DISPUTE AND RELIEF SOUGHT
[3] The applicant seeks a variation of the Rule 43 Order in the following
respects:
Relief Rule 43 Order Applicant
1. Cash contribution
towards
maintenance
R30 000,00 per month
for the applicant and
both minor children.
R3 000,00 per
month in respect
of M[...] only
3
2. Educational and
related expenses
for the minor
children
Applicant to pay all
educational and related
expenses in respect of
both minor children and
pay a cash contribution
of R2 000,00 per month
for the minor children’s
lunches
Applicant to pay
all educational
and related
expenses
(including
transport and
lunches) in
respect of M[...]
only
3. Clothing for the
minor children
Applicant to purchase
all clothing
None
4. Medical aid Applicant to retain the
applicant and both
minor children as
dependents on his
medical aid scheme
Applicant to
retain M[...] only
as a dependent
on his medical
aid scheme
APPLICANT’S CONTENTIONS
[4] The applicant seeks a variation of the Order on the following basis:
Material change in circumstances
[4.1] The applicant alleges that there has been a material change in
his circumstances as a result of the following:
4.1.1 That at the time of the granting of the Rule 43 Order
he was earning a total net income of R94 175,00
per month;
4.1.2 That s ince the granting of the Rule 43 Order, the
applicant’s financial circumstances have changed in
the following manner:
4.1.2.1 As at 1 January 2025 the applicant has
4
lost an average of R75 000,00 due to
the termination of the applicant’s status
as a contractor for the Department of
Health;
4.1.2.2 The applicant’s contract with the Arwyp
Medical Centre, in terms of which he
earned an estimate of R80 000,00 per
month, was terminated during 2020;
4.1.2.3 As a result of the aforegoing, the
applicant alleges he now only earns an
income from his relatively small private
practice as a medical practitioner,
earning an average of R25 000,00 per
month.
[4.2] The applicant alleges that he is now, as a result of the drastic
change in his income, unable to pay off debts of an already
highly indebted joint estate. In particular, the applicant alleges
that:
4.2.1 As of 29 October 2024, the applicant remains liable
for an outstanding balance of R367 092,11 in
respect of the parties’ Porsche 911 Carrera S PDK,
which was repossessed during 2024;
4.2.2 Is now unable to maintain regular payments towards
the bond of the parties’ immovable property located
at Serengeti Golf Estate, owing a total arrear
amount of R386 183,93 as of 11 March 2025, as
well as arrear rates and taxes owing on the
aforesaid immovable property;
5
4.2.3 Is unable to maintain payments towards his debt
owed to SARS in an amount of R1 939 496,78 as of
the 2024-year assessment;
4.2.4 Has an amount of R100 000,00 owing in respect of
his First National Bank credit card and an
overdrawn overdraft in an amount of R65 000,00.
[4.3] The applicant states that the respondent’s answering affidavit
is replete with allegations that the applicant has always been in
debt, and that his current situation does not constitute a
change in circumstances, and he is simply in contempt of the
Order.
[4.4] The applicant states that what the respondent fails to
understand is that the applicant’s position as a contractor for
the Department of Health was a temporary post.
The position regarding P[...] and the Children’s Court Order
[4.5] It is common cause that an order was obtained in the
Children’s Court (“Children’s Court Order”) in respect of P[...] ’s
biological father, Mr Thabo Martin Mofok oane ( “Mr
Mofokoane”).
[4.6] The aforesaid Children’s Court Order , dated the 22
nd of July
2020, incorporates a comprehensive parenting plan setting out
the respondent and Mr Mofokoane’s parental responsibilities
and rights in respect of P[...].
[4.7] The applicant alleges that he has no parental responsibilities in
respect of P[...] and this is confirmed by the Children’s Court
Order, an order which was allegedly made with the
6
respondent’s consent and input.
[4.8] The applicant states that the respondent does not volunteer
any further information to this Court with regards to Mr
Mofokoane, only stating that he has become unreachable
since 11 December 2020. The applicant states that no
attempts have been made by the respondent to locate Mr
Mofokoane, despite the existence of the Children’s Court
Order. The applicant states that Mr Mofokoane’s alleged
absence, and the respondent’s inability to locate him, does not
create or impose any responsibility or obligation on the
applicant to maintain P[...].
[4.9] The applicant argues that based on the aforegoing it is
submitted that the Children’s Court Order ought to be enforced
accordingly, and the present Rule 43 Order ought to be
amended as to give effect thereto.
RESPONDENT’S CONTENTIONS
[5] The respondent argues that the applicant has not proven a material
change in circumstances and relies on the following:
The applicant’s version is contradictory and incomplete
[5.1] The applicant alleges a drastic reduction of income yet:
5.1.1 he fails to attach updated bank statements to
support this;
5.1.2 he provides selective disclosure of certain debts;
7
5.1.3 he does not provide a recent financial statement, tax
pay balance, or business ledger.
[5.2] The respondent argues that the applicant’s disclosure is
fragmented and selective (omissions regarding business
accounts and recent bank statements). Recent authorities
stress the centrality of complete financial disclosure in Rule
43(6) matters.
[5.3] The respondent argues that the lack of disclosure is fatal.
2
[5.4] The recent decision in B.W.H v S.A.H 3 emphasises that the
bare assertion of reduced income, without proper
corroboration, does not meet the legal threshold.
Timing and motive
[5.5] The respondent argues that the application is made after a
contempt process and enforcement steps were instituted by
the respondent. The timing strongly suggests the variation
application is tactical – to avoid the consequences of non-
compliance. The respondent argues that c ourts have been
suspicious of applications timed to delay enforcement rather
than to vindicate real changes in needs or means.
The alleged reduction of income is self-created
[5.6] The respondent states that the applicant relies heavily on the
termination of his “additional income streams” as the basis for
2 Colman v Colman 1967 (1) SA 291 (C) – A party seeking relief must make comprehensive
disclosure
3 B.W.H v S.A.H (22802/2021) [2023] ZAGPJHC 1348 (21 November 2023)
8
the variation. The respondent submits that:
5.6.1 these income streams were irregular, temporary and
never intended to form the primary basis of support;
5.6.2 the applicant voluntarily reduced his professional
workload;
5.6.3 the applicant maintains a high standard of living
inconsistent with alleged financial collapse.
[5.7] The respondent contends that the Rule 43 order was based on
the applicant’s overall earning capacity – which remains
substantial. He is a qualified medical doctor and surgeon with
an active medical practice.
[5.8] The respondent alleges that any financial difficulties is either
temporary or self-engineered as a result of failure to manage
finances responsibly.
No causal link between alleged change and inability to comply
[5.9] The respondent argues that the applicant must establish that
the alleged change directly prevents compliance and that the
applicant has not done so. The respondent states that even if
the applicant’s income has fluctuated, the applicant continues
to operate a medical practice capable of generating significant
revenue.
[5.10] The respondent submits that the applicant is in fact prioritising
other financial obligations over maintenance, contrary to the
principle that maintenance towards minor children is a first -
9
charge obligation.
Incomplete/selective disclosure
[5.11] The respondent ar gues that the applicant has not supplied full
bank statements for Thalitha Cumi Holdings and certain
Capitec accounts for the contested period, despite the
respondent’s requests and the respondent’s reliance on her
disclosed statements of these accounts to contradict the
applicant’s account.
[5.12] The respondent argues that the applicant places emphasis on
SARS debt, bond arrears and vehicle repossession. The
respondent argues that these debs:
5.12.1 arose due to the applicant’s own mismanagement
and failure to honour obligations;
5.12.2 cannot be used to excuse maintenance;
5.12.3 appear inflated and are not fully supported by
discovery.
[5.13] The respondent argues that a parent cannot prioritise creditors
over a minor child’s maintenance needs.
[5.14] The respondent argues that when the applicant chooses to
withhold relevant material the Court should treat the application
with extreme caution.
[5.15] The respondent argues that the applicant raised the SARS
debt dating back to 2020, a period during which he was
10
supposedly earning sufficient income. Despite this, he failed to
fulfil his payment responsibilities, instead prioritising a lavish
lifestyle. He asserts that his employment was terminated and
that he currently earns only R25 000,00 per month. However,
the respondent argues that his bank statements tell a markedly
different story. These records show consistent monthly income
exceeding R200 000,00 per month.
[5.16] Moreover, the respondent contends that the applicant’s
spending habits indicate substantial discretionary income
contradictory to his claimed financial hardship. For instance, in
April 2023 alone, the applicant spent over R13 000,00 dining
out. Despite these expenses, he alleges an inability to service
his SARS debt, contributing only R3 000,00. Furthermore, he
made payments to Curro Private School only twice in 2023,
even though his income exceeded R200 000,00 per month in
individual months during the same period, whilst
simultaneously neglecting to provide maintenance for his
children, who were expelled from two schools due to non-
payment. The applicant claims that the respondent changed
their schools without his knowledge. The respondent however
alleges that this occurred during periods when he was not
paying school fees, leading to the children’s expulsion.
Additional financial priorities divert funds from his obligations
[5.17] The respondent argues that the applic ant has previously
claimed a lack of finances in circumstances where he
prioritised other expenses as set out above. In April 2023, he
spent R7 000,00 at a liquor store, notwithstanding claims of
insufficient funds. Additionally, he routinely purchases clothing
every month, despite not maintaining his children financially;
11
[5.18] The respondent furthermore argues that although the applicant
ceased maintenance payments following a Court order, he
claims to have b een employed at Sebokeng Hospital
immediately thereafter, earning R80 000,00 in addition to
holding employment at Arwyp and Tembisa Hospitals. The
respondent alleges that this employment history starkly
contradicts his assertion of a R25 000,00 income.
[5.19] The respondent furthermore argues that it is worth noting that
the applicant’s surgery includes tenants such as dentists,
optometrists, and podiatrists. The applicant argues that the
respondent has failed to disclose to the Court the rental
income derived from these lease agreements. The respondent
argues that given the income level suggested by the
applicant’s expenditure and bank statements, and the recent
renovations at the surgery, it is evident that the applicant’s
financial claims lack transparency.
[5.20] The respondent furthermore argues that it is reasonable to
conclude that an individual earning a monthly income of
R25 000,00 cannot reasonably owe SARS the amount of
money that the applicant is owing.
Parental responsibilities and rights of P[...]
[5.21] The respondent argues that even where P[...]’s biological
father has a legal duty, the applicant cannot simply walk away
from the existing Court order previously imposed in the Rule 43
order. The respondent has urged the Court to reject this
approach based on inter alia the following:
5.21.1 The respondent informed the applicant of the
existence of P[...] when they met in 2010, who was
12
less than a year old at the time;
5.21.2 The respondent was employed as a flight attendant
at Interair South Africa wherein she was solely
responsible for the care and upbringing of P[...];
5.21.3 The applicant requested the respondent to stop
working in order to assume the responsibility as a
housewife;
5.21.4 The applicant has maintained her and the minor
child since the relationship began – he even
changed P[...]’s surname from the respondent’s
maiden name to the applicant’s surname and the
applicant is also reflected as P[...]’s father on his
birth certificate ;
5.21.5 P[...] resides with her half-sibling;
5.21.6 The applicant’s withdrawal would cause emotional
and financial prejudice.
[6] The respondent states that on several occasions the applicant has
asserted that he was terminated from his position at the Department of
Health, only to be reinstated and referred to Annexure “RAN6” attached
to the answering affidavit. The respondent alleges that each time an
application is brought the applicant claims that his employment contract
has been terminated only to subsequently be reinstated. The
respondent states that the first occasion on which she has learnt that the
applicant was appointed to a position at the Arwyp Hospital subsequent
to the granting of the Rule 43 order was during these proceedings. The
applicant has failed to inform either the respondent or the respondent’s
attorney of such employment.
13
[7] The respondent asserts that the applicant voluntarily had the Porsche
motor vehicle repossessed, which the respondent utilised for herself and
the minor children. The respondent alleges that the applicant acted with
malice towards herself and the minor children by intentionally having the
Porsche 911 motor vehicle repossessed. The respondent states that
the applicant’s malice is particularly evident in light of the fact that the
applicant continues to pay monthly instalments in the range of
R12 000,00 to R20 000,00 for the Jeep Grand Cherokee, a vehicle from
which he personally benefits while she is left to struggle with the minor
children and have no mode of transport.
DELIBERATION
The best interests of the minor children
[8] The respondent argued that even if P[...]’s biological father exists, the
applicant’s historical conduct created legitimate and reasonable reliance.
[9] The applicant took it upon himself to locate the minor child’s father after
the respondent instituted the divorce proceedings and after a Rule 43
Court order was granted, and encouraged him to institute the
proceedings against the respondent.
[10] The parental plan took into consideration the fact that the respondent is
going through divorce proceedings and only upon a change of financial
circumstances the order will be revised. The following furthermore
appears from the parenting plan “Father to contribute as far as possible.
Maintenance to be revised once financial situation change for parents”
and “To be finalised once mother’s divorce is finalised”.
4
[11] The respondent alleges that P[...]’s father has since disappeared after
4 CaseLines, R001-259
14
the application because he was “forced to institute the application” . It
was not seriously contested by the applicant that P[...]’s father had
disappeared.
[12] The applicant states that the respondent during the rule 43 proceedings
asked that he pay maintenance in respect of the respondent and both
the minor child in the amount of R40 500,00 per month. He states that
he offered to make payment of the amount of R14 760,00 for the
maintenance in respect of both the minor children. He did not include
the respondent as it was his view that the respondent was capable of
being independent and self-supporting.
5
[13] He furthermore states in addition to the above, the respondent asked the
Court that he pays medical aid premiums for herself and both the minor
children and all excess medical costs for herself and the minor children.
The applicant states that he tendered to pay medical aid premiums for
the respondent and the minor children in the amount of R4 700,00 per
month.
6
[14] It is apparent that the applicant during the Rule 43 proceedings tendered
an amount in respect of the minor child P[...] and further tendered to pay
medical aid for P[...] in a certain amount. He sought parental rights and
responsibilities of P[...] including contact to Paballo.
[15] Although the parenting plan between P[...]’s biological father and the
respondent was already made an order of Court during the course of
2020, to the applicant’s knowledge, the applicant only pursued the
application for maintenance and ancillary expenses in respect of P[...] to
be discharged on the 19
th of March 2025 after contempt of Court
proceedings had been launched against him.
5 Paras 6.1 and 6.2, Founding affidavit, CaseLines, R001-9
6 Para 6.3 and 6.4, CaseLines, R001-9
15
[16] In the Western Cape matter of N.M v B.M and Others 7 Thulare J inter
alia held the following:
“[5] The applicant sought the finding that the respondent stood in
the place of the parent and voluntarily assumed that role in
respect of the children that the applicant brought into the
marriage and that was the basis for the court to find that the
respondent was liable for the maintenance of her children. In
essence the proposition was also that the respondent had no
right to unilaterally withdraw from that role or put otherwise, the
respondent had no right to terminate a relationship in which he
had placed himself as a parent. This was a complex social
policy issue and not easy to determine. In contemporary South
Africa, is it still offensive to hold one person liable for the
maintenance of another person’s child? The further question
that arises from the facts of this matter was whether the
applicant’s children should be allowed to “double dip” or put
otherwise, to receive a double portion, to wit, from their natural
father and from the respondent. In our law, in matters involving
children, the politics of the birth of the child yields to what is in
their best interests. It is not in the best interests of children that
a stepparent be permitted to abruptly abandon those children
the moment they fall out of love with their parent. Whether the
respondent took a properly informed and deliberate intention to
assume the liability to maintain the applicant’s children
permanently, is a question that is best left for the trial court.
This includes the question whether the respondent intended
that the applicant’s children should continue to benefit from a
double portion from which they benefitted during the happy
times in the marriage.”
8
7 (11384/2024) [2024] ZAWCHC 254 (11 September 2024)
8 N.M v B.M and Others at para 5
16
[17] On the facts before him Judge Thulare ordered the first respondent to
pay maintenance and ancillary expenses in respect of the applicant’s
children from a previous relationship pendente lite.
[18] Having regard to the facts and circumstances of this matter , I am not
inclined to pendente lite terminate the maintenance liability that the Rule
43 Court order imposed upon the applicant in respect of P[...] as same
would not be in the minor child’s best interests.
9 I am not s uggesting
that all endeavours should not be made by the respondent to locate
P[...]’s biological father and to pursue a maintenance claim against him.
Whether the applicant should be liable for the maintenance and ancillary
expenses of P[...] permanently is a matter best left for the trial Court.
Material change in circumstances
[19] In an application in terms of Rule 43(6) for a reduction in the interim
maintenance payable based on a decline in the financial situation of the
applicant, a “ full and frank disclosure in regard to all the numerous and
varied elements which make up the broad overview of the applicant’s
financial situation” should be made.
10 The applicant bears the onus of
establishing on a balance of probabilities that a material change has
occurred. To succeed in that endeavour, an applicant must
demonstrate, not only that a change or even a significant change in
circumstances has occurred but must place sufficient facts before the
Court to enable it to determine the materiality of that change in the
context of the applicant’s broader financial circumstances.
11
[20] In casu the applicant has not made a “full and frank disclosure in regard
9 Section 28(2) of the Constitution of the Republic of South Africa
10 C.I.J v C.L.E (Unreported, GJ Case No. 34367/19 dated 26 April 2023) at para 22 and the
cases there referred to
11 C.I.J v C.L.E supra at para 22 and the cases there referred to
17
to all the numerous and varied elements which make up the broad
overview of the applicant’s financial situation” . The applicant’s financial
disclosure form is incomplete. The applicant has failed to disclose the
bank statements of his business Thalitha Cumi Holdings of 2025 – the
business the respondent states he established without the respondent’s
knowledge. The respondent argues that the applicant has redirected
most medical aid and patient payments via Thalitha Cumi Holdings,
apparently to make it appear that no funds were deposited into the
business account.
[21] The respondent has submitted proof of the bank statements of Thalitha
Cumi Holdings for the financial year 2023 to 2024 and evidence as to
how the applicant is expending the funds.
12 The applicant also
furthermore failed to make full disclosure of his Capitec Bank
statements. The applicant has failed to disclose the income derived from
his tenants such as dentists, optometrists and podiatrists. The applicant
has failed to make a frank, candid and transparent disclosure of his
financial position.
[22] For these reasons, the application to vary the Rule 43 order of 31
October 2019 is dismissed. Costs follow the event.
ORDER
[23] Accordingly, I make the following order:
1. The application is dismissed with costs on Scale A.
12 Annexure “RAN5” to the applicant’s answering affidavit, CaseLines, R001-120 to R001-195
18
______________________________________
M VAN NIEUWENHUIZEN
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
Delivered: This judgment was prepared and authored by the Judges whose names
are 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 for hand-down is
deemed to be on 12 December 2025.
HEARD ON: 3 December 2025
DATE OF JUDGMENT: 12 December 2025
FOR APPLICANT: Marx du Plessis
INSTRUCTED BY:
Shapiro & Ledwaba Incorporated
E-mail: antoni@shapiro-ledwabaattorneys.co.za
Ref: D A Ledwaba/R263/vm
FOR RESPONDENT: N L Serabele
INSTRUCTED BY:
Serabele NL Attorneys
E-mail: info@serabeleattorneys.co.za
Ref: Rammutla/456/Div/NL