REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-056214
(1) REPORTABLE: NO
(2) OF INTERESTTO OTHER JU GES· 0
(3) REVISED: NO
DATE SIGNATURE
In the matter between:
s. [ .... ] J. J [ .... ] Applicant
And
M. [ .... ) M. J [ .... ] Respondent
JUDGMENT
KHABA AJ:
Introduction :
1. The applicant has brought an application in terms of Rule 43 of the Uniform
Rules of Court in which she, inter alia; seeks interim maintenance pending the
divorce action for the minor children, as well as a contribution towards herself
for spousal maintenance , including a contribution towards her legal costs. The
applicant inter alia further seeks defined rights of contact with the minor
children born in the marriage between the parties.
2. The respondent has opposed the relief sought by the applicant. The
respondent disputes the applicant's entitlement to maintenance pendete life,
and her entitlement to a contribution towards legal costs. The respondent
instituted a counter application in terms of Rule 43(6) for increased contact
and residence of the two minor children.
Factual Background :
3. The parties were married to each other on 13 October 2012at Johannesburg ,
out of community of property with the inclusion of the accrual system, which
marriage still subsist.
4. The are two minor children born of the marriage a son L M J , born on 10
January 2018, he is currently 9 years of age, and a daughter HA J, born on
30 August 2022, who is currently 4 years of age ("the minor children'; .
5. As a consequence of the breakdown of the marriage between the parties, the
respondent vacated the matrimonial home on 31 December 2023. The
applicant vacated the matrimonial home on 14 September 2024 . The
respondent has since moved back into the matrimonial home. The parties
have been separated since 31 December 2023 and have not lived together
since.
6. I deal first with the respondent's counter application in terms of Rule 43(6) for
increased contact and shared residency of the two minor children .
7. The minor children reside primarily with the applicant. The respondent has
very limited and controlled contact with the minor children. The respondent
has contact with the minor children every Thursday from 16h30pm until
18h30pm as well as every Saturday from 09h00 until 17h00pm.
8. At the hearing of the application , it was common cause that the matter will be
referred to the office of the Family Advocate for an investigation. The
respondent's counsel submitted that the issues pertaining to contact between
the applicant and residency of the minor children may be resolved upon the
parties having received the recommendations from the office of the Family
Advocate.
9. It is common cause that the issue pertaining to the best interest of the minor
children with reference , to contact that the applicant has with the minor
children, and residency of the minor children should be referred to the office
of the Family Advocate for investigation and to generate a report that contains
findings and recommendations which report must be made available to the
parties.
10. The current status qou between the parties remains, pending the finalisation
of the family advocate's report, such a referral has been made in the Court
order below.
♦
..
11 . now deal with the applicant 's claim for maintenance. This claim must be
~
evaluated against the purpose of Rule 43. That purpose has been stated as
follows:
"Primarily Rule 43 was envisaged to provide temporary assistance for women,
who had given up their careers or potential careers for the sake of matrimony
with or without maternity, until such time as at trial and after hearing of
evidence maintenance claims... could be properly determined. It was not
created to give an interim meal- ticket two women who clearly at the trial would
not be able establish a right to maintenance . The grey area between the two
extremes causes problems ." 1
The Applicant's State of Financial Affairs
12. Amongst others, Rule 43 is aimed at assisting the parties in maintaining the
standard of living established over the course of their marriage. As far as the
financial position of the parties is concerned , this case presents unusual
circumstances in relation to the disclosure of material facts, and I shall I return
to this aspect in some detail later.
13. The applicant asserts that following the birth of their son, they both agreed
that it would be in the family's best interest for the applicant to cease formal
employment , despite having a secure position and a competitive salary at the
time. The decision was made on the respondent's assurance that he would
provide full financial support to sustain their household and lifestyle and
throughout the marriage he was the primary breadwinner , meeting all related
expenses .
' 14. The parties lived in a comfortable three-bedroom free standing home. The
minor son attended private schooling and classes, the partie's regularly dined
at restaurants . The respondent paid for the bond, levies, utilities, Wi-Fi, solar,
medical aid, school fees, and other family expenses .
15. The applicant contends that she vacated the family matrimonial home due to
ongoing coercive control and financial abuse from the respondent. The
applicant is now renting a two- bedroom , one bathroom unit from her
grandmother at an amount of R 12 000.00 (twelve-thousand rand) per month
on loan account basis as she can only afford R 8000.00 (eight thousand rand)
at the moment.
1
Nisson vs Nisson 1984 (2) SA 294 Cat 295 F- cited in B v S, unreporte d case decisi ons of the Gauteng
Local Divisio n High Court (1 6158/ 160 (2018) ZAGPJHC 534 (16 August 2018) para 9.
16. The applicant asserts that she was placed on the payroll of the respondent's
company in the position of administrator and receiving remuneration of R
13 000.00 (thirteen- thousand rand) per month. This arrangement was
initiated by the respondent.
17. The applicant has since secured employment as a contractor trainee at Life
Day Spa, where she earns on average R 10 000.00 (ten thousand rand) per
month.
18. The applicant contends that she is currently responsible for the daily care of
both minor children and expenses associated with them, as the respondent
has failed or refused to contribute despite request for additional financial
assistance.
19. The applicant has only received an amount R 1000.00 (one thousand rand)
cash contribution from the respondent without any warning and/or explanation
which makes it impossible for the applicant to maintain the financial demands ,
as she has to rely on her parents for constant financial support.
The Applicant 's Financial Position as set out in her Founding Affidavit:
20. The applicant seeks an order that the respondent be ordered to contribute
towards the maintenance in the amount of R 10 000.00 (ten thousand rand)
per child per month as an interim maintenance , pending the finalisation of the
divorce action.
21. The contends that the figures are reasonable reflection of minor children
needs, she is unable to meet these costs alone, as her income is limited and
she is the primary caregiver of the minor children. The respondent has
financial means to contribute meaningfully towards these costs. The
respondent owns 20% (twenty percent) shares in the company and its free
subsidiaries . According to the applicant the respondent earns an amount of
approximately R 200000.00 (two hundred-thousand Rand) per month with a
13th cheque and 14th cheque various benefits and perks.
22. The applicant seeks an order directing the respondent to pay interim spousal
maintenance in the amount of R 30 000.00 (thirty-thousand rand) per month.
The applicant contends that this amount is necessary to supplement he
current income and to enable her to maintain her as far as possible, the
standard of living she had during the marriage.
23. The applicant contends that she exited the formal job market at the
respondent's request to raise the minor children , she has limited work
experience and earning capacity. The job at Life Day Spa is contract based
and variable in income due to the flexibility needed around the minor children
schedules . There is no surety with her employment.
24. The applicant contends that their standard of living during the marriage was
well above average, and she is entitled to be maintained in a manner
consistent with that standard of living until the finalisation of the divorce . The
applicant asserted that for the duration of the marriage, the respondent was
the primary breadwinner , while she took primary responsibility of caring for the
children and managing the household , at the respondent 's request. The
applicant ceased full time employment after the birth of their first-born son and
remained financially dependent on the respondent for much in their marriage.
25. The applicant seeks a costs contribution of R 80 000.00 (eighty-thousand
rand) towards her legal costs as her parents are currently funding her legal
costs, as she is unable to litigate on the same level as the respondent. The
cost contribution will enable her to prosecute the divorce action meaningfully
and secure the rights of the minor children and herself.
26. Consequently , the applicant seeks the following relief:
[1] The respondent be ordered to pay maintenance for the minor children in
the total sum of R 20 000.00 (twenty thousand rand) per month pendente lite,
the first payment payable within Five (5) days of the granting of the court order
and thereafter on or before the 28th day of each following month.
[2] The respondent be ordered to pay spousal maintenance in the sum of R
30 000.00 (thirty thousand rand) per month, pendente lite, the first payment
payable within five (5) days of granting of the court order and thereafter on or
before the 28th day of each following month.
[3] The respondent be ordered to contribute to the applicant's costs in the sum
of R 80 000.00 (eighty thousand rand) payable within 60 (Sixty) days of the
granting of this court order, payable instalments of R 20 000.00 (twenty
thousand rand) per month on or before the 28th day of each month.
[4] The respondent be ordered to pay all school fees and related activities
pertaining to the minor children.
[5] The respondent be ordered to maintain the applicant on his medical aid.
[6] That an independent social worker , Mrs Alda Smit in the alternative the
Office of the Family Advocate be appointed to investigate and complete an
assessment as the minor children and their family environment and to
generate a report on his/her findings . The respondent is ordered to offer his
full co-operation to the social worker and do everything necessary, without
unreasonable delay, to ensure that the social worker is able to timeously
complete the report.
[7] The vehicle currently in the applicant's possession be transferred into the
applicant's name so that it may be sold and replaced with safer and more
reliable vehicle for the transport of the minor children. The respondent to
contribute an amount of R 250 000.00 (two hundred and fifty-thousand rand)
or a maintenance place to the value of the same in addition to the process of
the sale of the current vehicle to enable the purchase of a s uitable
the sale of the current vehicle to enable the purchase of a s uitable
replacement vehicle to the value of approximately R 350 000.00 (three
hundred and fifty thousand rand). The applicant has abandoned this prayer
correctly so in my view.
The Respondent 's Contentions in summary :
27. The respondent contends that the applicant has failed to take the Court into
her confidence and is misleading the Court. The applicant claims that the
respondent only contributes R 1 000.00 (one thousand rand) cash contribution
per month in her founding affidavit. The respondent in fact, contributes the
sum of R 14 100.00 (fourteen thousand , one hundred rand) per month from
his company , and in addition the respondent makes payment of the monthly
expenses related to the children in the amount of R 24 658 00. (twenty-four
thousand- six hundred and fifty-eight rand) in total the respondent pays an
amount of R 37 758. 00 (thirty-seven thousand , seven hundred and fifty-eight
rand), per month for the minor children and the applicant.
28. The applicant receives an amount of R 14 100.00 (fourteen thousand , one
hundred rand) as cash contribution directly from the respondent and earns a
salary of R 10 000.00 (ten thousand rand) per month. In addition, the
respondent makes payment of directly expenses in the amount of R 24 658.00
(twenty-four thousand-six hundred and fifty-eight rand) per month.
29. The applicant claims that the respondent owns 20% shares in the company
that he works for. The respondent further claims that the respondent earns R
200 000.00 (two hundred thousand rands) per month with the thirteen and
fourteenth cheque plus other employee benefits. In terms of the PDF, the
respondent earns a net income of approximately R 94 000.00 (ninety-four
thousand rand) per month.
30. The respondent denies that the minor children's maintenance costs over R 20
000.00 (twenty thousand rand) per month, in addition to other expenses that
he already incurs. The respondent contends that, this has been the case, and
the applicant is massively inflating the minor children's e xpenses. The
applicant has provided no proof in this regard, and no evidence is submitted
by the applicant to substantiate the children's monthly expenses.
31 . The applicant claims that she is now renting a two- bedroom, one bathroom
unit from her grandmother at an amount of R 12 000.00 (twelve thousand
rands) per month on loan account basis as she can only afford R 8000.00
(eight thousand rands) at the moment. The respondent pointed out that no
rental agreement was provided by the applicant as proof that she is renting
the unit or any proof that the applicant is making such payments on a monthly
basis.
32. The respondent contends that she he is paying for L M J school fees , the
applicant has not provided any evidence for the extra related costs that she is
paying for. The respondent asserts that the minor children are on his medical
aid plan and they have savings to cover any medical costs.
33. The contends that the applicant has not provided any proof of any
entertainment costs or petrol expenses but in all practicality same can be
agreed as incurred. These amounts can also be easily covered by the cash
amount of R 14 100.00 (fourteen thousand , one hundred rand) she obtains
from the respondent monthly and her monthly salary that she receives every
month, considering that she does not contribute to school fees and medical
expenses of the minor children . The respondent argues that the applicant has
failed to prove any expenses claimed , and that her income has not been
disclosed .
34. The respondent denies that the applicant has limited work experience. The
respondent contends that the applicant is able to earn an income and there is
no basis for her to obtain spousal maintenance . The applicant was only out of
work a period of 6 (six) years. She is only 36 years old and more than able to
support herself with her degree and skills. The respondent asserts that he has
maintained the applicant already for the past two years since he vacated the
matrimonial home, as well as the cash payment of R 14 000.00 (fourteen
thousand rand) that she receives monthly from the respondent to be used for
her and the minor children.
35. The respondent argued that the applicant was employed for period of time
during their marriage and she contributed to the household financially . The
applicant also paid for her own motor vehicle. It was after the birth of their
minor son when he was forced to take over the financial load as the applicant
wanted to be a stay home morn with their son.
36. The applicant argued that he was in fact not able to support their lifestyle on
his income, at the time alone, he supported his family by obtaining debt. The
respondent contends that he sees no logical reason why he would insist on
the applicant being a stay home morn if he could not have afforded it at the
time.
Non-Disclosure by the Applicant:
37. In an application in terms of Rule 43, the applicant is expected to make a full
disclosure in her founding affidavit of all material assets beneficially owned by
her.
38. The question for decision in this matter is therefore reduced to this: whether
the applicant was frank with this Court when she set out her financial position .
39. It is fundamental in our law that the courts generally impose a high duty of
disclosure upon an applicant who seeks an equitable relief. Likewise, in every
Rule 43 application the parties owe the court a duty; a duty that compels full,
honest, and clear disclosure. Full disclosure in Rule 43 proceedings applies
with particular force. Therefore , an absolute obligation rests upon the parties
in such an application to inter alia, disclose the true state of their financial
affairs. Hence, in every Rule 43 application , the essential question is: "did the
applicant make full disclosure of all material facts?". Failure to disclose such
material facts to the court, makes it difficult for the court to determine the
issues before it.
40. It follows then that a court will take a dim view if an applicant in Rule 43 is not
candid and open with the court. And, as such, it is clear from the authorities
candid and open with the court. And, as such, it is clear from the authorities
that a misstatement or a suppression of a fact in a Rule 43 application is a
ground for denial and worthy of a cost order. To show that this is not a new
problem, in O.C.S v G.R.S2 an unreported judgment of this Court, case
number 21228/17 by Thulare, J dated 15 September 2023, in paragraph 14,
the court made the following remarks:
"[14] The applicant purposefully failed to take the court into her confidence by failing
to make an honest disclosure of her monthly income, especially since 2018. She had
failed to provide same when the respondent asked for them when she first raised the
issue of interim maintenance in 2020. She failed to be honest and did not disclose
material and relevant information regarding her true financial position, including her
business revenue and the business valuation which was prepared on the basis of
information from the financial statements she provided to an independent accountant,
which information stood in direct contradiction to the allegations of her financial
position. There is no doubt that if the position of revenue was materially different as
at 2022, the applicant would have replied to the respondent 's answer. From the past
revenue, it being deliberately being withheld from the court, and the general conduct
of the applicant including not only dishonesty but attempting to dribble her need and
means past the respondent and the court, the conclusion I reach is that the applicant
earned sufficiently to cater for her financial needs and did not require interim
maintenance ."
41. In Du Preez v Du Preez 2009 (6) SA 283, at page 32 B-J-33A, the following is
stated:
"{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 found 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 to exaggerate their expenses and to understate
their financial affairs. It is not unusual to exaggerate their expenses and to understate
their income, only then later in subsequent affidavit or in argument, having being
caught out in the face 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
2 D.C.S v G.R.S [06 February 2024] WCHC 5578/2022 at 14.
3 Du Preez v Du Preez 2009 (6) SA 28, at page 32 B-J-33A.
is distasteful, unacceptable, and should be censured. Such conduct, 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 constitutes the
offence of perjury, and in certain circumstances may be the crime of defeating the
course of justice. Should such conduct occur in rule 43 proceedings at the instance
of the applicant then relief should be denied. Own underlining:
[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 to ensure a Just and
expeditious decision". The discretion is essentially an 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, there is a duty on applicants in rule 43 applications seeking equitable
redress to act with the utmost good faith (uberrimei fidei) 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 "
42. The applicant claims that the respondent only contributes R 1000.00 (one
thousand rand) cash contribution per month (founding affidavit: para 6.11,
Caselines 002-12). In his answering affidavit the respondent pointed out that
the applicant failed to mention that in fact, the respondent contributes the sum
of R 14 100.00 (fourteen thousand, one hundred rand) per month from his
company and in addition, he makes payment of the monthly expenses related
to the children in the amount of R 24 658.00 (twenty-four thousand, six
to the children in the amount of R 24 658.00 (twenty-four thousand, six
hundred and fifty-eight rand). In total, the respondent pays an amount of R
37 758.00 (thirty-seven thousand, seven hundred and fifty-eight thousand
rand) per month for the children and the applicant (respondent's answer: para
25, Caselines 005-23 to 005-24).
43. The applicant receives an amount of R 14 100.00 as cash contribution directly
from the respondent and earns a salary of R 10 000.00 per month. (founding
affidavit: para 6.8, Caselines 002-11 ). In addition, the respondent makes
payment of direct monthly expenses in the amount of R 24 658.00
(respondent's answer: para 25, Caselines: 005-23 to 005-24).
44. The applicant pleaded being indigent and expected to found lacking. In my
view a material omission of this kind falls short of what may be expected in
rule 43 proceedings. Because she failed to take the court fully into her
confidence she did not act with utmost good faith and should be denied relief
on that score.
Application of the Law to the Facts:
45. The applicant needs accommodation , but not that which may be beyond her
means. Just like every average South African on finances, she must cut her
cloth to the size of her dress. Where the parties have equal, although not
similar earnings, and they share care and contact equally, without more, in my
view it was not established that the applicant deserved to be paid anything by
the respondent for the period that the children are with her. The respondent is
solely responsible for financially maintaining the two minor children. I fail to
see the wisdom of redirecting that expense from the respondent to the
applicant. This kind of conduct , where on the eve of divorce or immediately
after service of divorce summons the role of a party in the maintenance of the
spouse or the children was sought to be erased or the effect thereof scraped
out, whilst the liabilities and expenses are inflated or amassed ostensibly to
make up a case for a rule 43 application, need not be encouraged.
46. The inclusion of minor children's expenses, including maintenance of
R10 000.00 (ten thousand rand) per month per child, when the respondent is
paying and has tendered to continue paying such expenses and he is solely
responsible for financially maintaining the two minor children suggests that the
items were included simply to inflate and increase the expenditure on the of
the minor children.
47. The expeditious nature of a rule 43 application, in my v iew, in itself was
47. The expeditious nature of a rule 43 application, in my v iew, in itself was
sufficient reason to not allow for a complex enquiry of the nature of an involved
maintenance order. In my view, complex enquiries should preferably be
pursued in the maintenance courts, which now have the power to make an
interim order as envisaged in section 10(6)(b) of the Maintenance Act, 1998
(Act No. 99 of 1998) (the "MA"). The power of a maintenance court to make
an interim order before the maintenance enquiry was heard is a new
development, which was introduced by _section 4 of the Maintenance
Amendment Act, 2015 (Act No. 9 of 2015) which came into operation on 9
September 2015. Section 10(6)(a) of the MA provided the legislative voice to
the urgency of maintenance enquiries. Where the issue is simply the
determination of a reasonably appropriate amount to be paid for the support
of the spouse or the children, the proper machinery is the maintenance
recovery regime of the MA. It provides for a proper investigation and an
enquiry. In that machinery, a maintenance investigator is available to run the
errands to help determine the difference in value between two bob and twenty
cents, whilst the maintenance officer and the parties have the time to use a
calculator to add, subtract, divide and multiply the figures where necessary, to
help the parties and the magistrate to determine reasonable amounts to be
admitted as expenses.
48. The requirement in Rule 43(5) for a just order, in my view, placed a duty not
only on the courts but also on applicants to base their applications and their
conduct according to what is morally right and fair. It requires a dispassionate
approach to the application, which is guided by truth and reason. In as much
as family law matters are in their very nature emotionally charged, it is
expected of an applicant to strive not to be influenced by strong emotions and
affected by personal bias. This will allow some measure of calm, so that they
can be rational and be able to think clearly and to make good decisions. A
Rule 43 application remains a process of balancing the scales for a just
Rule 43 application remains a process of balancing the scales for a just
divorce process and provides temporary assistance for the support of the
spouse and the children and to enable a party in an unfair position to present
its case adequately before the court.
49. The rule was enacted to ensure justice in that the parties are treated fairly vis
a-vis one another. I have to add that the rule was also not intended to result
in an order which will for all intents and purposes be a certificate of exemption
of legal practitioners to some risk, to wit, that their fees were covered in
advance. The totality of what is covered by the rule has its basis in the duty of
support that the spouses owe each other [Carry v Carry 1999 (3) SA 615 (C)
at 619H-I4]and parents owe to their children.
50. The applicant exaggerated her expenses and understated the support that the
respondent was providing to her and the children. This is dishonourable
conduct which has no place in judicial proceedings [Du Preez v Du Preez 2009
(6) SA 28 (TPD) at 32D-E5]. The parties in rule 43 proceedings have a duty to
act in utmost good faith and to disclose fully all material information regarding
their financial affairs, and failure to carry out this duty would justify refusal of
the relief sought6.
51 . In my view, the Rule was not envisaged for the parties to have similar means.
If that was the case experience taught that some divorce actions would run for
the lifetime of the parties therein engaged and for as long as the legal
practitioners' fees were covered in advance. The Rule was intended for the
parties to have equal means so that they can on an equal footing adequately
engage with the issues between them. Equality includes the paradox of
similarities and differences in one whole. It is necessary to indicate that
equality is sometimes a logically self-contradictory concept which has the
propensity to run contrary to other people's expectations. Equality may involve
contradictory yet interrelated elements. I understand equality, in the context of
a Rule 43 application, to accept the difference between available means
between the parties, for as long as that difference does not amount to an unfair
advantage for one party at the expense of the other and lead to unjust divorce
proceedings.
52. For these reasons, I find that the applicant has failed to establish that she is
entitled to interim maintenance under Rule 43.
4
entitled to interim maintenance under Rule 43.
4
Carry v Carry 1999 (3) SA 615 (C) at 619H -I.
5 Du Preez v Du Preez 2009 (6) SA 28 (TPD) at 32D-E.
6 Du Preez v Du Preez, above , at 32G-H.
Contribution to Costs:
53. I now turn to the applicant's claim for contribution for costs. Is applicant's
entitled to her contribution costs and if so, in what amount?
54. The claim for a contribution towards costs is one sui generis deriving originally
from Roman Dutch law. It is based on the duty of support owed by spouses
to each other.7 The spouse claiming a contribution towards costs is required
to show that he or she has inadequate means of his or her own to fund the
litigation.8
55. Whether or not an applicant is entitled to a contribution towards costs, and if
so at what amount, is a matter for the discretion of the court.9 The
paramount consideration is that the party claiming a contribution should be
enabled adequately to place his or her case before the court.10
56. This remains the essence of the claim even though a court may more liberally
assess the requirements of a spouse married in community of property as
opposed to one married out of community.11 The object is not to release the
whole half of the joint estate to the applicant, nor is it to require the respondent
to make over to the applicant's legal advisers the sum they would be entitled
to receive if the applicant were ultimately to be successful, as this may be to
the prejudice of the respondent spouse should the applicant not achieve that
success.12 This means that an applicant is not entitled to all their costs even
if the respondent can afford to pay them.13 Attorneys are expected to bear
some risk with r egard to their fees, 14 although attorney's fees may b e
included.15
7
Van Loggerenberg ~ourt Practice D1 -580
6 Greyling v Greyling 1959 (3) SA 967(W)
9 Van Rippen v Van Rippen 1949 (4) SA 634 at 639; Dodo v Dodo 1990 (2) SA 77 (W) at 98 C-D; Nicholson v
Nicholson 98 ( 1) SA 48 (W) at 50D
10 Van Rippen, above, at 638-9
11 Van Rippen, above, at 637-8
12 Van Rippen, above, at 638
13 Van Rippen , above, at 640-1; Dodo, above, at 98F; Nicholson, above , at 52B-C
14
Van Rippen, above, at 639
14
Van Rippen, above, at 639
15 Nicho lson, above, at 52B-C
57. The quantum of the contribution will depend on the financial position of the
parties, the issues involved in the pending litigation, the scale on which the
respondent spouse is litigating, and the disbursements essential to the
applicant's case. The court must factor into its discretion the constitutional
injunction to guarantee the right to equality before the law and the equal
protection of the law.16
58. The quantum of the contribution will depend on the financial position of the
parties, the issues involved in the pending litigation, the scale on which the
respondent spouse is litigating, and the disbursements essential to the
applicant 's case. The court must factor into its discretion the constitutional
injunction to guarantee the right to equality before the law and the equal
protection of the law.17
59. The applicant has further not placed any evidence before the Court with
regards to the steps that need to be taken by her to bring the matter to trial
readiness and trial, her estimated future litigation costs, amounts already
expended in the divorce action, what is required to properly prepare her case
and place it before the Court at the hearing of the action or the costs incurred
by the applicant in the divorce litigation.
60. The applicant contended that she requires a contribution towards her legal
costs in the amount of R80 000,00 (eighty-thousand rands). The applicant
attached an invoice from her attorneys of record evidencing that an amount of
R 154 383.53 (one hundred and fifty-four thousand , three hundred and eighty
five rand and fifty-three cents) is due and owing to her attorneys of record.
Upon considering the invoice submitted by the applicant's attorney of record
and attached to the papers it appears that such amount is due for professional
services rendered in respect of the Rule 43 application and not for trial.
61. The applicant has failed to make out a prima facie case for contribution
61. The applicant has failed to make out a prima facie case for contribution
towards her legal costs, and she is not entitled to the relief that she seeks. To
16 Carey v Carey 1999 (3) SA 615 (C) at 621 B-D
17 Carey v Carey 1999 (3) SA 615 (C) at 621 B-D
make out a prima facie case, the applicant ought to have shown firstly, a duty
of support, second, a need to be supported and third, adequate resources on
the part of the respondent to support him. The applicant has failed on three
counts.
62. The respondent has not placed evidence before the Court that the applicant
is able to afford the contribution to her legal costs sought. Consequently , the
Court finds that the respondent has failed to make out a case for a contribution
towards her costs in the divorce action as .claimed.
Costs:
63. The general Rule in matters of costs is that the successful party should be
given his costs, and the Rule should not be departed from except where there
are good grounds shown for doing so, such as misconduct on the successful
party or other exceptional circumstances. I cannot think of any reason as to
why I should deviate from this general Rule. The respondent should therefore
be ordered to pay the costs of the applicant including costs of Counsel in this
application.
64. Accordingly , the following orderis made:
1. The application is dismissed.
2. The current status qou between the parties remains. The issue
pertaining to the best interest of the minor children, in relation to the
contact and residency of the minor children is referred to the office
of the Family Advocate for an investigation and to generate a report
that contains findings and recommendations, which report shall be
made available to the parties.
3. The respondent is ordered to pay the costs of this application on
party and party scale including cost of Counsel on scale B.
KHABA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Delivered: This judgment was delivered in this matter on 13 January 2026 and digitally delivered
by circulation to the parties' representatives by email and by uploading the judgment to the
electronic file of this matter on Caselines . The date of the delivery of this judgment is deemed to
be 13 January 2026.
Appearance s:
For the Applicant:
Instructed by
Email:
For the Respondent:
Instructed by:
Email:
Date of Hearing:
Date of Judgment:
Adv. HP West
Stander Attorneys
admin@standerattorneys.co.za
Adv. T Eichner- Visser
Benatar Attorneys
kerryn@benatarinc.co.za
03 December 2025
13 January 2026