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, PRETORIA)
CASE NO: 2025-148384
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
2026-03-06 . ………………
DATE SIGNATURE
In the matter between:
S[...] C[...] (BORN R[...]) Applicant
(Identity number: 6[...])
and
J[...] C[...] C[...] Respondent
(Identity number: 5[...])
JUDGMENT
SCHOEMAN (AJ)
[1] This is an Application in terms of the provisions of Rule 43 of the
Uniform Rules of Court, wherein the Applicant prays for certain relief
pending finalisation of the Divorce Action between the parties. The
redress that the Applicant seeks, inter alia , takes on the f orm of a
monthly cash payment, furthermore ostensibly an Order aimed at
covering any and all of her medical costs (albeit partially by way of a
medical aid of some sorts) , as well then for an initial contribution
towards her legal costs.
[2] The parties were married to each other on 22 September 2007 , out of
community of property with the inclusion of the Accrual System, and
this marriage still exists.
[3] No children were born from the marriage rel ationship between the
parties. It needs mention that the Applicant is resident with her
daughter (which the Court accepts is born of a previous relationship, or
marriage), Z[...] J[...], since the parties’ separation in March 2025. Why
the Applicant’s cu rrent living arrangement s have become untenable
and/or unbearable, of late, if at all, is not explained. I shall return to the
issue regarding the Applicant’s future accommodation hereinunder.
[4] Suffice it therefore to state that 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 pensioners, and both parties have pension interests
kept in a Sanlam Private Pension Plan. The value of the Applicant’s
pension interest is not made clear in her Financial Disclosure Form
(FDF), and the Court cannot say, with any degree of certainty, what the
Applicant’s current pension fund interest is worth. What the Applicant
however does disclose, is that she earns what she refers to as a
“monthly pension benefit of R14 343-28”. The Applicant claims that this
amount is insufficient to sustain herself, or to establish a new residence
(my emphasis).
[6] In addition to the aforesaid, the Applicant also submits that she suffers
from various medical conditions and ailments, that are to be treated as
“chronic” conditions and which behoves chronic medication . The
Applicant alludes thereto that the parties are both members of a
hospital plan, for which the Respondent seemingly pays. It is unclear if
the parties were ever members of a comprehensive medical aid
scheme during the subsistence of the marriage, or if the parties have
always had to fund additional medical expenses , not covered by the
hospital plan, from their own pockets. What is however stated by the
Applicant is that the Respondent was a dependent on her medical aid
scheme until she was retrenche d in 2017. Both parties, having regard
to their respective affidavits, are of a relatively advanced age, and both
suffer from a number of medical conditions and associated illnesses,
with the expected co-morbidities associated therewith.
[7] In this regar d, the Applicant claims to have medical expenses in the
total sum of R2 650-00 per month, while the Respondent professes to
spend an amount of R4 042-00 (over an above the premiums
associated with the parties’ membership to the Hospital Plan) with
regards to medical expenses and associated shortfalls.
[8] The Applicant depicts, in her Founding Affidavit, a marital life of little
luxury. She in fact states that the parties enjoyed a “relatively stable
and modest” 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, y et the Applicant regrettably discloses very little of the
amenities, and luxuries or lifestyle , that the parties in fact enjoyed
during their time together . The Applicant does however allude thereto
that, since the inception of the parties’ marriage, she contributed an
amount of R4 000-00 to the parties’ shared expenses, and “as often as
she could” paid for her personal expenses, which includes clothing
accounts and chronic medication.
[9] 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 relation ship. What the Court at first
glance found curious, is that the Applicant does not at all disclose how
she managed to supplement her monthly shortfall of approximately
R14 000-00 per month, for the better part of a year, since the parties
have separated.
[10] At the outset, and in order to properly determine the merits of the
current Application, it was incumbent upon the Applicant to distinguish
her wants from her basic needs.1 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 a s 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
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
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.
[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 Applic ant seems to suggest that she and the Respondent are
to remain on equal footing, vis -à-vis their monthly income and
3 See: Botha supra at paragraphs 45 and 46
4 See: Louis vs Louis 1973(2) SA 597 (T) at 5981
expenses, and that as such, 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
view, the same holds true for a Court be ing 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 assets 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 principal 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 consideration, 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
chooses to live frugally, and has a monthly surplus or savings, 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 all of 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 reasons 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 therefore 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 the
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 that 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. The mere fact that the Applicant claims spousal maintenance,
pendente lite of her entire monthly expenditure, notwithstanding the fact
that she earns R14 343-28, underscores the notion that no appreciation
was had for the requirements of Rule 43(2). To add further proverbial
insult to injury, and while already claiming a cash contribution towards
her expenses ( including her medical expenses), the Applicant
additionally also prays for an Order that the Respondent continues to
pay for her “full medical benefits, including the payment of any and all
additional medical expenses not covered by the medical aid” . No
matter how clever the wording used in the Applicant’s prayers, it does
not escape the Court that the Applicant, for lack of a better expression
and as referred to by counsel during argument, engages in “double
dipping”.
[25] The question for determination i s 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
Applicant 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 d efine 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 p arties 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. By way of example, the Applicant
includes a monthly expense of R10 000-00 per month for lodging that is
to be taken up somewhere in the future. No further detail is given to
substantiate the amount claimed, or how it is derived at, and the Court
is left to speculate as to the reasonableness and necessity of this
expense.
[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 regard, it must first be considered whether the Applicant
has established a need for maintenance.
5 See: Reynolds N.O. vs Mecklenberg (Pty) Ltd 1996(1) SA 75 (W) at 78 I
[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 t he 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 maint enance requirements are, and
(iii) what the capacity of the Respondent is to meet such requirements.
Absent the Applicant passing the first hurdle namely to proof on a
preponderance of probabilities a need for maintenance, it is not
necessary for the Hono urable 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 parties are respectively 64, and 71, years old and
both are pensioners.
34.2 The Applicant, as alluded to, is resident with her
daughter, and since the parties have separated, the
Respondent seems to live somewhat of a nomadic lifestyle, by
travelling across South Africa and residing in a caravan . The
Respondent’s accommodation expense in this regard monthly,
is less than 50% of the accommodation costs that the Applicant
claims.
34.3 Much time is spent in the Applicant’s papers, and so too
in the Respondent’s answer thereto, with regards to alleged
historical events that contributed to the breakdown of the
parties’ marital relationship. In Rule 43 Applications, unless the
parties’ conduct impact on minor and/dependent children, these
allegations (even if true) are of no consequence, and as s uch I
shall not have regard thereto.
34.4 The Applicant furthermore submits that the Respondent ,
as a result of an alleged “fraudulent misrepresentation” sold the
parties’ lifetime occupation right in a property situated in a
retirement village, and that the entire proceeds emanating from
such sale were allocated to the Respondent himself. In my
considered view, this is something for the trial Court to
consider, as it forms part of the patrimonial dispute between the
parties. In so far as it may be suggested that the Respondent,
by virtue of the possession of these funds, have the means
necessary to meet the Applicant’s maintenance de mands, the
Applicant should first and foremost still convince the Court, on
a preponderance of probabilities, that she has proven a need to
be maintained.
34.5 With reference to what has been stated in paragraph [8]
of this judgment, read together with paragrap h 7.10 of the
Applicant’s Founding Affidavit, the Court is uncertain as to how
the Applicant’s circumstances have changed since the parties’
separation, which would result therein that the Applicant no
longer has an amount of R4 000-00 at her disposal – all the
more not where the parties no longer have “shared expenses”.
The Applicant seemingly has no accommodation expense at
this stage, as she is resident with her daughter, and it is difficult
to understand what now leads thereto that the Applicant claims
a contribution for maintenance, thereby expecting of the
Respondent to pay 100% of all of her expenses, which includes
clothing and shoes, and medical expenses (including
medication) which she took responsibility for in the past . The
sparsity of the info rmation placed before the Court by the
Applicant, sadly does not avail her.
34.6 The Applicant also claims to be in dire financial straits, yet
makes the positive averment in paragraph 8.6 of her affidavit
--
that “my monthly expenses are”, and then proceeds to list, inter
alia the luxury expense of R3 800-00 per month for holidays.
Calculated annually, this amounts to a budget of R45 600-00
for holidays alone. This extravagance does not accord with the
picture painted by the Applicant of a modest standard of living.
34.7 During argument before me, counsel for the Applicant
conceded that the Applicant cannot justify the amount of
R10 000-00 claimed as a lodging expense, and requested the
Court to merely accept the Applicant’s “say-so”. It was further
conceded that the expense listed in paragraph 8.6.3 with
regards to toiletries should be reduced to R500 -00, and
similarly that the amount claimed in paragraph 8.6.9.2 should
be divided by 12 , to make provision for a monthly expense .
Since the Applicant is registered on a hospital plan, which the
Respondent tenders to fund pendente lite, she has no hospital
expenses as claimed.
34.8 Ex facie the Applicant’s papers filed of record, and
considering the concessions made by counsel, the Applicant in
my mind (even without any further criticism to any of her other
expenses, save for the hospital costs and provision for
holidays), has a monthly maintenance need of R13 454-25.
34.9 Having regard therefore to the Applicant’s nett income as
compared to her monthly expenses above, it is a plain exercise
--
in arithmetic to see that the Applicant has a monthly excess
available to her in the amount of R 889-03. This in itself points
towards the fact that the Applicant does not have the need to
be maintained, and that she has suffic ient income from which
she is able to pay her reasonably, actual, and necessary
monthly maintenance needs.
34.10 The Court has had regard thereto that counsel for the
Applicant has advised the Court that he is of the view that the
Applicant should receive a cash contribution of R20 000-00
towards her maintenance pendente lite, and not the amount of
R28 941-75 as initially claimed. However, even with this
concession made, the Court is unable to find any justification
for any contribution to even the reduced amount claimed.
34.11 The Court is also deeply concerned about the
discrepancy in the Applicant version, when paragraph 8.4
(confirming that the Applicant has a monthly pension income of
R14 343-28) is compared to paragraph 10.1 where the
Applicant suddenly states that “…[I] have no source of income”.
(my underlining)
[35] If regard is had to the content of the paragraph 2.3 of the Applicant’s
FDF (undated as it may be) , 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
--
has two bank accounts, both with positive balances. Although the
balances are not high, this in my mind shows that the Applicant does
not have a monthly sho rtfall, and her accounts are not overdrawn ,
suggesting any modicum of financial distress.
[36] In addition to the aforesaid, and from a reading of paragraph 2.8 of her
FDF, the Applicant further has personal belongings which can be
liquidated to supplement her monthly shortfall, if any, alternatively
which can be liquidated to further fund her litigation , in the amount of
R194 000-00.
[37] The total current value of the Applicant’s interest in her personal assets
amount to R195 569-97. Added to that, the Applicant also holds a
pension interest with the Sanlam Private Pension Scheme. What is
crucial is that the Applicant fails to state what the value of this pension
interest is if paragraph 2.11 of her FDF is considered. Counsel for the
Applicant conceded that the amount ascribed to her pension interest in
paragraph 2.19 of the FDF is patently wrong, and rather indicates the
monthly benefit derived from the Applicant holding a pension interest in
the said Fund. In my view, apart from failing to establish a need to
maintenance, this glaring omission is fatal to the Applicant’s case for
maintenance.
[38] In summary, the Applicant’s nett asset value still amounts to some
R77 828-86. Add to that the value of her pension fund (whatever it may
be), and it is evident that at the time of the launching of the current
Application, the Applicant had assets and/or means at her disposal and
that the Applicant did not show, and could not show , a need to be
maintained.
[39] In the premise, the Court cannot help but agree with the submissions
made by counsel on behalf of the Respondent that the Applicant should
fail in her quest to receive maintenance, pendente lite.
[40] Absent proof by the Applicant of a need to be maintained, there is no
reason for this Honour able Court to scrutinise the Respondent’s
papers, and the Respondent’s ability to meet the financial needs that
the Applicant says she has.
[41] During the hearing, counsel for the Respondent however again
repeated the following tender, namely, that the Respondent undertakes
to retain the Applicant on his Hospital Plan, pendente lite, as far as a
contribution to the Applicant’s medical expenses is concerned . The
Court will grant an Order to this effect.
[42] Having regard to the content of the Applicant’s FDF, 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 need, is.
[43] The Court would have rather expected that the Applicant deals with the
aforementioned facts, and the content of her FDF, in her Founding
Affidavit, and present material information in this regard, 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 FDF in her Founding Affidavit, even if the FDF was
not yet d eposed to at that stage, results in an inability to establish
whether there indeed exists a true need on the part of the Applicant to
be maintained, and same also hits on her claim for a contribution to
costs.
[44] In the context of full disclosure and the duty of applicants in Rule 43
applications to act with the utm ost 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, des erving 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 fin ancial
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 th e 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, th e practice is distasteful,
unacceptable, and should be censored. 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 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 accordi ngly 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 wou ld assume that there is a duty on
applicants 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.”
[45] In the matter of CMA vs LA [2023] ZAGPJHC 364 (24 April 2023) at
paragraph [25], specifically at parag raph [25.1] the following was
stated:
“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 app lication. 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.”
[46] In the matter of MNY vs JY (2024/013982) [2024] ZAGPJHC 1823 (24
July 2024) Van Aswegen AJ stated:
“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.”
[47] 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, of establishing on a
preponderance of probabilities that she has a need. It is thus my view
that the Applicant herein has elected to se lectively disclose facts in her
Founding Affidavit in an attempt to establish her need but, by virtue of
her failure to make a full disclosure, which only came to light once the
FDF and the Opposing Affidavit 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 the precise extent of that need is. I am thus unable to
entertain the Applicant’s claim for maintenance, pendente lite.
[48] 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 recipro cal duty of support between
spouses.6
[49] The Applicant claims an amount of R178 636-00 as an initial
contribution towards her legal costs. In an attempt to substantiate this
claim, a pro forma statement of account is appended to the Founding
Affidavit as Annexure “FA4”. During argument before me, the items
listed in this Statement of Account have been scrutinized and debated
at length. I need not repeat the parties’ competing contentions is this
regard, save to state that the Court views the amounts charged in
terms thereof overly excessive and not in keeping with the tariffs
allowed for particularly junior counsel (as suggested in the said
account).
6 See: Cary vs Cary 1999(3) SA 615 (C); AF vs MF 2019(6) SA 422 (WCC) at 428 E – F
[50] However, a perusal of the Respond ent’s bank statement shows that he
has seemingly placed his current attorneys of record in funds on 13
November 2025, in the sum of R60 000-00. The origin of these monies
seems to come from the Respondent’s Sanlam Glacier Investment. It
was confirmed during argument before me that the proceeds of the sale
of the parties’ interest in the retirement village, w ere paid into the
Respondent’s Glacier Investment. These monies, having regard to the
disputes in the main action, are the subject of a pending claim by the
Applicant.
[51] There will most certainly not be an inequality of arms between the
Applicant and the Respondent, vis-à-vis the disputes in the main action,
if the Respondent is ordered to make a contribution towards the
Applicant’s initial legal ex penses, in the sum of R 30 000-00. This will
enable the Applicant to prepare for trial, on a footing similar to that of
the Respondent, taking into consideration the criticism levelled against
her attorney’s statement of account, and her own financial means.
[52] 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.
[53] In the normal course, and having regard to the fa cts and circumstances
of this matter, including the Applicant’s failure to properly set out her
financial position in her Founding Affidavit, coupled with the Applicant’s
failure to proof a need to be maintained, I would have been inclined to
have the cost s follow the result, thus ordering the Applicant to pay the
costs of this application. However, for the reasons which follow, I am
not so inclined.
[54] As an aside, had the Applicant established a need with the enquiry
having moved to the next level, t he Respondent would have seriously
fallen foul of the full and frank disclosure requirements in regard to his
financial affairs, especially given the sca nt information pertaining to the
Sanlam Glacier Investment, bank statements for the requisite period of
6 months and wither or not he is “feathering a second nest” , so to
speak. It also did not go unnoticed, from a perusal of the Respondent’s
bank statements which he indeed chose to disclose , that many a
transaction has been left curiously unexplained.
[55] In the premise, and while it may therefore be that the Applicant, for the
reasons alluded to above, was not materially 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 on
his part, against the backdrop of the foregoing, rings hollow.
[56] In the premise, I am of the view that each party should bear their own
costs in respect of this Application.
ORDERS:
In the circumstances, I make the following Order: -
1. The Respondent is to retain the Applicant on his Hospital Plan, and pay
the premiums associated therewith, pendente lite;
2. The Respondent shall make an initial contribution towa rds the
Applicant’s legal costs, in the amount of R30 000-00 (FIFTY
THOUSAND RAND), payable in monthly instalments of R5 000-00 (FIVE
THOUSAND RAND) per month, the first payment commencing on/before
1 April 2026;
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.
_______________________
AJ 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
representatives by email and by uploading it to the
electronic fi le of this matter on Court Online / CaseLines.
The date of this judgment is deemed to be 6 March 2026.
Date of hearing: 3 March 2026
Date of Judgment: 6 March 2026
Appearances:
For the Applicant: Advocate X. van Niekerk
Instructed by: Waldick Incorporated
For the Respondent: Advocate Z. Marx-Du Plessis
Instructed by: Shapiro & Ledwaba Incorporated