SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, JOHANNESBURG)
Case Number: 27271/2016
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) Revised: NO
G[…] K[…] APPLICANT
(ID : 6[…])
AND
S[…] K[…] RESPONDENT
(ID : 6[…])
JUDGMENT
___________________________________________________________________
This Judgment was handed down electronically and by circulation to the parties’
legal representative by way of email and shall be uploaded on CaseLines. The date
of the hand down is deemed to be on the
MAKUME J:
1. In this matter, the Applicant seeks an order of variation in
terms of rule 43(6) of the Uniform Rules of Court to vary an
interim maintenance order granted against him by this Court
during November 2024.
2. The applicant is represented whilst the R espondent is now on
her own, her attorneys of record having withdrawn.
3. The Applicant seeks an order relieving him totally of the
obligation towards payment of spousal maintenance as well as
payment of a contribution to the legal cost s of the R espondent.
4. In the order granted by Miennaar AJ on 11 November 2024, the
Applicant was directed and ordered to pay to the R espondent
spousal maintenance of R20 000 per month with effect 1
December 2024 and also to pay an amount of R150 000 being
a contribution to legal costs, which amount was to be paid in
15 monthly instalments.
5. In paragraph 21 of his founding affidavit, the Applicant says
that he has not been able to make payment of the R20 000 as
well as the R150 000 as he says “I simply do not possess the
necessary funds to pay the Respondent R20 000 per month
and to contribute to her legal fees in the sum of R150 000” .
6. He alludes to the fact that his financial position has changed
drastically since the issuing of the order in November 2024
and that his business has taken a financial toll.
7. Over and above, the payment of spousal and contribution to
legal fees, the Applicant was also directed to allow the
Respondent to stay free of charge and remain in occupation of
the immovable property situated at 30 Agapanthus Road,
Brackenhurst and to provide her with a suitable roadworthy
motor vehicle within 30 days.
8. The Applicant fell into arrears, as a result on 7 August 2025,
the payment of maintenance was restructured and allowed the
Applicant to pay to the respondent seven equal payments of
R40 205.49 to defray arrear maintenance with effect 15 August
2025. He was further granted leave to pay R15 000 per month
instead of R20 000, pending the outcome of his rule 43(6)
application, which was pending.
9. During submissions in this application, it w ould seem that
Applicant has been able to comply with the terms of the
revised order dated 7 August 202 5, which order was only to
take care of the arrears that had built up since the order
granted in November 2024.
10. It is also worth noting that this would be the third or
fourth application involving the parties. The first such
application and order having been granted in November 2016,
where after the parties reconciled for a short period.
11. This matter is being litigated on grounds which have now
become difficult to tell who between the parties is telling the
truth and who is not. I say this judging by what appears from
their disclosed financial records. On the one hand, the
Applicant at paragraph 42 of his founding affidavit, says that
he and his wife, the Respondent, personally and jointly own
several companies and immovable properties. Despite this
revelation, he still maintains that he does not possess
necessary funds to maintain the R espondent. He says his
monthly salary from one of the companies is a sum of R46
327.71.
12. He has referred this Court to Annexure GK8, which is a copy
of his Standard Bank account. The is transaction ther ein are
in my view, difficult to understand. There are items of income,
which are not explained as well as payments and withdrawals,
which leaves one confused as to what those transactions are
for.
13. Annexure DK13 is a copy of the applicant's personal credit
card statement, which shows that he has a credit limit of R125
000. I find it difficult how on a salary of R46 000 he is able to
service that account. The statement does not indicate what he
uses this money for and it is not detailed.
14. Annexure GK19 is a Standard Bank statement in the name of
Two Sun Trade Investment (Pty)Ltd. This is the company that
owns the immovable property situated at 8 [… ] R[… ] C[… ]
Street, B [… ], Alberton. The statement is dated 4 September
2025 and covers the period 30 June 2025 up to 28 July 2025.
On 30 June 2025, an amount of R29 000 is paid into that
account from a Capitec account. that same amount is
withdrawn on 1 July 2025. There is no explanation about that
transaction.
15. The Applicant then attaches as GK20, his 3 months' payslip
from his employer Dynamic Supply Chain Management
Consultants. The 3- month payslip shows fluctuation in
income, for example, for June 2025, he earned a net income of
R46 327.71 and yet the following month he had a net salary of
R52 046.46.
16. I have also had a look at the expenditure items set out in
paragraph 48 of the founding affidavit and in my view, the
following items of expense should be gotten rid of at this
stage, namely lawyer's fees R4 000, credit card R10 500,
clothing R500, overdraft R7 500.
17. I also find it strange that at paragraph 49, the applicant says
that the figures stated in paragraph 48 are estimates, not
actual. It is in my view not sufficient to enable this Court to
put any reliance on the Applicant's version. In any case, the
Applicant does not allude to the fact that some of the
expenses that are deducted from his bank account, are
reimbursed to him by the company DSCM, in the s um of R73
896.08. It is the same company that was under business
rescue for a short period and came out of that.
18. The Applicant says further that due to his chronic kidney
disease he has been seeing medical practitioners in I ndia and
travels there occasionally for such treatment. The Applicant
does not prove that there are no kidney specialists in South
Africa, who treat such ailments. There is in my view no basis
to allow those expenses. The report by Professor Girish Modi,
attached as GK22 to the founding affidavit, does not propose
that Applicant needs to see specialist in India. All it says the
doctor requested Discovery Medical Aid to authorise a
treatment here in South Africa.
19. In Annexure GK23, there is a comparison of medical f ees for
India, UK, USA, Finland and UAE, there is no indication how
much it would cost the Applicant in South Africa as compared
to India.
20. It is also disturbing to know that the Applicant says he needs
to pay for an overseas trip lasting 3 months from 15 December
2025 to 20 March 2026. The question is where will he be
getting the income to fund such a trip.
21. Rule 43(6) provides as follows:
"The Court may on the same procedure vary its
decision in the event of a material change
occurring in the circumstances of either party or a
child or the contribution towards cost, providing
inadequate."
22. It is common cause that in this matter there are no minor
children involved who are beneficiaries of the order granted in
November 2024. Ms Kantilal is the only person affected by
this order. It must also be emphasised that this application is
not and should never be treated as an appeal against the
order and judgment by Miennaar AJ it is tried law that rule
43(6) interim maintenance orders are not appealable.
23. In her opposing affidavit, Ms Kantilal alludes to the fact that
the Applicant has not disclosed all his financial interest.
Amongst others that he recently received an amount of R4
million. She has set out what she considered to be her
reasonable expenses, judging by her income, which she gets
for training clients in yoga at her house in Alberton.
24. I am not convinced that the Applicant has succeeded to
demonstrate any material changes, justifying a setting aside of
the order by Miennaar AJ. Rule 43 was not designed to
resolve issues between divorced litigants neither was it
intended to last for extended periods. It remains interim until
all issues that have been ventilated. In this matter, it is the
parties themselves who have since 2016 been at loggerheads
and not brought a matter to finality. The marriage has broken
down and should be dissolved. There are no minor children
involved, as a result, no issues about children are withholding
finalisation. It is the hidden wealth of the parties, which is a
stumbling block and for that, both are to blame.
25. The parties and their legal representatives must seriously
consider case management , which may lead to mediation in
order to curtail further disputes , regarding the rule 43 order . In
the result I make the following order.
1. The application is dismissed.
2. The applicant is ordered to pay the respondent's cost of the
application.
__________________________
MAKUME J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: Advocate L Liebisch
Instructed by: Swanepoel Attorneys,
Johannesburg
For the Respondent: In Person