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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case No.: 2026-009742
In the matter between:
R[...] D[...] C[...] N[...] Applicant
and
C[...] M[...] N[...] Respondent
Coram: Montzinger AJ
Heard: 11 March 2026
Delivered: 11 May 2026
Summary: Rule 43 — applicant seeks interim maintenance for herself, and the two
minor children – maintenance for rental residence, personal maintenance for applicant
and children and contribution to past and future legal cots – respondent relies on
informal agreement not to pay for accommodation – respondent re fuse to make
contribution towards legal costs claiming that Namibian law does not recognise a
redistribution order similar to South African law – interim order granted with variations
in the amounts.
ORDER
1. The respondent shall, with effect from 25 M ay 2026, and thereafter on or
before the 25 th day of each subsequent month, pay to the applicant into such
bank account as the applicant may from time to time nominate in writing, the
following amounts:
1.1 R35,000.00 (thirty-five thousand rand) towards the rental of the
accommodation occupied by the applicant and the minor children;
1.2 R20,000.00 (twenty thousand rand) as personal maintenance for the
applicant; and
1.3 R17,500.00 (seventeen thousand five hundred rand) per child as child
maintenance, in respect of each of the minor children:
2. The respondent shall retain the applicant and the minor children as beneficiaries
on his current medical aid scheme, alternatively a scheme providing similar
benefits, and shall be responsible for all reasonable medical, dental, optical,
ophthalmic, surgical, hospital, therapeutic (including, inter alia, speech therapy,
occupational therapy, physiotherapy and psychotherapy), orthodontic and
pharmaceutical expenses incurred and not covered by the medical aid scheme,
by paying such expenses directly to the service provider.
3. The respondent shall be responsible for all the minor children’s educational
expenses, which he shall pay directly to the relevant service providers,
including the cost of their education at Reddam House Constantia or any
similar school, school fees, school uniforms, school books, stationery, and
equipment as listed in the school’s annual or termly requirement lists,
compulsory school tours, levies, school excursions, and extra lessons or
remedial tuition where the school provides written recommendations for them.
4. The respondent shall continue to pay the monthly salary of the applicant’s live -
in helper, Ms Kasongo Kunda.
5. The respondent shall pay to the applicant, as a contribution towards her past
legal costs in the divorce action, the amount of R 50,000.00, payable into the
trust account of the applicant’s legal practitioner within 30 days of the date of
this order.
6. The respondent shall pay to the applicant, as a contribution towards her future
legal costs in the divorce action, the amount of R 125,000.00, payable into the
trust account of the applicant’s legal practitioner within 30 days of the date of
this order.
7. The costs of this application shall stand over for determination by the court
hearing the divorce action.
JUDGMENT
Montzinger AJ
Introduction
[1] This is an application in terms of Uniform Rule 43.
[2] The applicant seeks interim maintenance for herself, and the two minor children
born of the parties’ marriage, payment of the rental of the house in which she and
the children currently stay, the continuation of payments, by the respondent, for
educational, medical and certain other expenses, and a contribution towards her
past and future legal costs in the pending divorce action. The respondent opposes
the application in part.
[3] The respondent has always paid for many of the items claimed and tenders to
continue doing so. The disputes are accordingly narrow, but the parties
approached the remaining disputes from very different positions.
Contextualising the matter
[4] The parties were married to each other on 24 August 2014 at Windhoek in the
Republic of Namibia. They married out of community of property, and the accrual
system was excluded by their antenuptial contract. Two daughters were born of
the marriage. During March 2016 the family moved to Johannesburg, South
Africa where they lived until their separation at the end of October 2023. The
applicant the minor children continued to reside in Johannesburg at the marital
home, but in December 2024 the applicant relocated with the children to Cape
Town while t he respondent by that has returned to Windhoek where he resides
with his current partner.
[5] The applicant was never gainfully employed during the marriage. The respondent
has, throughout, been the principal source of financial support. She alleges that
when they left Johannesburg, in 2024, the respondent agreed to continue to pay
for the children’s school fees and educational expenses, the medical aid for all of
them, and accommodation. They agreed on a cash maintenance component of
R15,000.00 per month for the applicant and R15,000.00 per month per child. The
respondent would also continue to pay the salary of the live-in helper1.
[6] The children are now 13 and 7 respectively and attend school in the Cape Town
southern suburbs. The applicant and the minor children live in a home that they
rent. The y initially rented another property from December 2024 until 31 May
2025 that was renewed until 30 November 2025. The monthly rental was
R28,800.00. The applicant and the children moved to a different house during the
end of 2025 and the rental amount for that home is R35,000.00 per month.
[7] The applicant issued summons for divorce in June 2025. To effect service on the
respondent in Windhoek, Namibia the applicant was obliged to obtain orders for
substituted service and edictal citation. In the divorce action the applicant claims,
among other relief, a redistribution of fifty percent of the respondent’s estate in
terms of section 7(3) of the Divorce Act 70 of 1979, on the strength of the
judgment of the Constitutional Court in EB (born S) v ER (born B) NO and
Others; KG v Minister of Home Affairs and Others 2024 (1) SA 297 (CC). The
respondent disputes that South African law governs the patrimonial consequences
of the marriage and contends that those consequences are regulated by Namibian
law and by the parties’ antenuptial contract. Consequently, a distribution order
will not be competent claim against his estate.
[8] There is also the Miroca SA Trust (the “Property Trust”) , of which both parties
are trustees and beneficiaries that is the registered owner of the parties’ former
common residential home in Johannesburg. An amount of R250 ,000.00 from the
1 who has been in the household since the oldest child was an infant
Property Trust was, by agreement, channelled into an account controlled by the
applicant in October 2025. From those funds the deposit and seven months’ rental
for the house the applicant and children currently occup y could be covered .
However, the Property Trust funds will be exhausted by approximately end of
July 2026.
[9] The respondent had, at the time he deposed to his answering affidavit, intimated
that the proceeds of the sale of the former common home would be R6,250,000.00
and would be made available to the applicant ex gratia in full and final settlement
of any claim she might have against him in the divorce . He further tendered an
additional R2,500, 000.00 to be paid sixty days after the final order of divorce,
alternatively by July 2026. After the answering affidavit was filed the sale of the
property fell through. In a supplementary affidavit the respondent confirmed that
the R6 ,250,000.00 is no longer available, but persisted with the tender to pay
R2,500,000.00 before July 2026.
[10] It is against that background that the present application must be considered.
The parties respective cases
[11] The applicant’s case is, in essence, that the cash component which the respondent
has been paying is no longer adequate to maintain her and the children at a
standard of living broadly commensurate with that to which they were accustomed
during the marriage. Her schedule of monthly household expenses totals
R108,115.00. She maintains that the respondent’s means are substantial and that
the disparity between his current lifestyle and her own justifies an upward
adjustment to the cash maintenance and a n order that the respondent should pay
the rental, which is at present being financed from funds that in truth belongs to
the Property Trust. As regards her claim for a contribution to legal costs, she
points that she has to litigate with the respondent in Namibia where all if not most
of his assets are located. The applicant justifies the contribution to legal costs
since the divorce heightens the possibility of a forensic enquiry into the true value
of the respondent’s estate, and also whether she is entitled to redistribution of the
respondent’s estate in terms of section 7(3) of the Divorce Act.
[12] The applicant therefore seeks payment of R35,000.00 per month towards rental of
accommodation for her and the minor children; R30,000.00 per month as interim
maintenance for her personally; R20,000.00 per month per child as child
maintenance; the continuation of the payments which the respondent has
historically paid; and a contribution of R350,000.00 towards her past and future
legal costs.
[13] The respondent’s case is that he has, throughout he and the applicant’s separation,
met almost all the expenses of the applicant and the children and that he tenders to
continue doing so. He tenders to continue to pay R15,000.00 per month as
personal maintenance for the applicant for two years and R16,500.00 per month
per child, being R15,000.00 cash plus an additional R1 ,500.00 to cover ancillary
costs associated with Ms Kunda . He will continue with the payment of the school
fees, medical aid and additional medical costs, the salary of Ms Kunda and the
cellphone account.
[14] In respect of the applicant’s legal costs he offers R50,000.00 as a contribution
towards legal costs payable in three monthly instalments. He refuses to pay any
amount towards rental because, on his version, the applicant has access to the
R250,000.00 in the Property Trust and the applicant’s own savings of
approximately R225,000.00 and she stands to receive a substantial amount from
him in due course. He further disputes the applicant’s entitlement to any
contribution towards her legal costs over and above the R50 ,000.00 that he is
tendering, and contends that her schedule of expenses is overstated.
A court’s approach in a Rule 43 application
[15] The legal principles which govern a court’s approach to Rule 43 applications are
clearly articulated in the authorities Taute v Taute 2, AF v MF 3 and JK v ESK 4. In
essence, in an application in terms of Rule 43 the Court is not called upon to
decide the parties’ rights finally, nor to conduct a trial on affidavit, but to make a
swift, robust and equitable interim arrangement pendente lite on the information,
even if limited, placed before it.
[16] The Court therefore assesses, in broad outline, the applicant’s actual and
reasonable needs (and those of any children), measured against the standard of
living established during the marriage, and then weighs those needs against the
respondent’s ability to meet them, having regard to the parties’ respective means,
earning capacities, resources and reasonable obligations.
[17] In respect of an interim claim for a contribution towards legal costs I have had
regard to what the court set out in Van Rippen v Van Rippen5 and ALG v LLG6 the
approach should be.
2 Taute v Taute 1974 (2) SA 675 (E)
3 AF v MF 2020 (1) All SA 79 (WCC),
4 JK v ESK 2024 (1) All SA 775 (WCC)
5 Van Rippen v Van Rippen 1949 (4) SA 634 (C)
6 A.L.G v L.L.G (9207/2020) [2020] ZAWCHC 83 (25 August 2020)
Contribution to rental
[18] The respondent’s contention that he should not be required to pay any rental in the
interim rests on three propositions. First, that he only agreed to pay rental for one
year and that obligation ended in November 2025 . He expected the applicant to
have obtained employment by then. Second, that the applicant has access to the
residue of the R250,000.00 paid out of the Property Trust in October 2025, which
is sufficient to defray the rental until approximately the end of July 2026. Third,
that she has her own savings of approximately R225 ,000.00 and that, in due
course, she will receive an amount of money from him in the divorce.
[19] Each of these propositions must be tested against the principles set out above.
Even, if I accept, as the respondent contends, that he and the applicant concluded
an agreement that he will only be liable for one year to provide accommodation,
that cannot overcome the duty of support which subsists pendente lite by
operation of law. The duty of support is not displaced by an expectation that one
spouse will become economically self-sufficient by a given date.
[20] The second and third propositions amount, in substance, to a contention that the
applicant should be required to consume capital, which is hers and the parties’
shared resource held by the Property Trust, to discharge what is actually the
respondent’s pendente lite duty of support. There are difficulties with that
proposition. The R250,000.00 in question came from the Property Trust, of which
both parties are trustees and beneficiaries. The respondent himself accepts that
this is, in substance, capital accumulated during the subsistence of the marriage .
However a court may ultimately decide to treat these funds in the divorce,
requiring the applicant to deplete it to discharge the respondent’s interim
maintenance obligation that he ought himself to meet is to permit the respondent
to displace his ongoing duty of support by relying on fund s whose disposition has
not yet been determined. Likewise, the applicant’s own savings of approximately
R225,000.00 modest in the context of the parties’ marital lifestyle, ought not to be
applied to maintenance which the respondent has the means to provide.
[21] The R6,250,000.00 which the respondent had said would be paid to the applicant
from the proceeds of the sale of the former common home is no longer imminent
because the sale has fallen through. Whatever may eventually be paid to the
applicant on account in the divorce will, on the respondent’s own version, be a
capital tender in full and final settlement, alternatively on account, of her divorce
claim. The capital tender is not a substitute for the ongoing duty of support
pendente lite.
[22] The amount sought for rental is the actual rental of the premises in which the
applicant and the children currently live. It is not a figure plucked from the air by
the applicant. It is the amount fixed by the lease that was concluded in November
2025 to replace the previous lease. The respondent has not seriously contended
that R35 ,000.00 per month is unreasonable for the kind of accommodation the
family requires in Constantia. Indeed, before the funding of the rental was shifted
to the Trust, the respondent had been concluding the leases for and paying the full
rental himself.
[23] I therefore find that the applicant has made out a case for an order requiring the
respondent to pay R35,000.00 per month towards the rental of accommodation for
herself and the minor children.
Personal maintenance for applicant
[24] The respondent does not contest his liability to pay personal maintenance for the
applicant pendente lite . He tenders R15 ,000.00 per month, being the amount
currently paid. The applicant claims R30,000.00 per month.
[25] The applicant has been unemployed throughout the marriage of more than eleven
years. There is no suggestion in the papers that she will be in a position, in the
near future, to generate any meaningful income. The respondent’s contention that
she ought already to have done so is a contention for consideration in the divorce
action; it does not affect the quantum of pendente lite maintenance which falls to
be assessed against the applicant’s present circumstances.
[26] The marital standard of living was, on the affidavits read as a whole, comfortable.
The parties resided in an upmarket secure estate; they travelled internationally; the
children attend an expensive private school; the household engaged a live -in
helper and other domestic assistance. Whether the lifestyle is properly described
as one of luxury, as the applicant contends, or as one of ample comfort, as the
respondent contends, the differences are immaterial. What matters is that on either
characterisation it is significantly above ordinary middle -class living or that the
applicant ought, pendente lite, to be maintained on a scale broadly commensurate
with that standard.
[27] The applicant’s schedule of household expenses totals R108 ,115.00 per month.
That figure is, however, a household figure, not a personal one. It includes food,
utilities and household running costs for herself, the children and Ms Kunda, and
certain items already paid directly by the respondent. As the respondent correctly
points out, several items appear in the schedule which the respondent already
discharges, such as the cellular telephone account and certain education -related
costs. On the other hand, the respondent’s analysis is, in places, expressed in bald
assertions and cannot, without more, displace the applicant’s averments.
[28] Allowing for the items already paid directly by the respondent and bearing in
mind that the rental is now to be the subject of a separate component of the order,
the schedule supports a level of household expenditure in the region of
R65,000.00 to R70,000.00 per month for the applicant, the children and the live-in
helper combined. Of that, the personal component attributable to the applicant
alone, taking into account the children’s own cash maintenance addressed below,
falls in my assessment to be fixed at R20,000.00 per month.
Maintenance for children
[29] The applicant claims R20,000.00 per child per month over and above the items the
respondent pays directly. The respondent tenders R16,500.00 per child per month,
while he currently pays R15,000.0 per child. The respondent’s tender includes
R1,500.00 said to be in respect of additional costs associated with Ms Kunda.
[30] The cash component of child maintenance must cover, in the main, the children’s
food, clothing, transport, toiletries and incidental expenses, together with the
household-share of consumables in the home in which they live. The respondent
has not seriously contended that the children should be maintained at a standard
lower than that which they enjoyed during the marriage. He has, indeed, recently
taken the children on holidays which involved jet -skiing, snorkelling, and dining
out, and has set up bank accounts into which he deposits at least R 1,000.00 per
month for each child. The disparity between the children’s experience in his home
in Windhoek and in their mother’s home in Cape Town has been the subject of
complaint in the founding affidavit. While I do not propose to engage with that
disparity beyond what is necessary, it suggests that the children’s reasonable
maintenance in the applicant’s home should be measured against the lifestyle to
which they were accustomed and to which they continue to be exposed when in
the respondent’s care.
[31] In the exercise of the discretion which I have, and bearing in mind that the school
fees, medical and educational expenses and Ms Kunda’s salary are paid directly
by the respondent, I consider that R17,500.00 per child per month, payable as part
of the cash maintenance, is a reasonable amount.
Maintenance towards past legal costs
[32] The applicant seeks a contribution of R350 ,000.00 in respect of both past and
future legal expenses. As regards past legal expenses, the applicant has not
annexed an itemised bill of costs in respect of the past attendances. Consequently,
I can do my best, but the absence of detail will cause a conservative approach to
determining an amount7.
[33] On the material before me certain past costs are reasonably evident. The
application for substituted service and edictal citation was an attendance
reasonably required to commence the divorce action when the respondent was
outside the court’s jurisdiction. The correspondence with the respondent’s
attorneys during 2025 was likewise an unavoidable attendance. The drafting and
issuing of the summons in the divorce action was a necessary step. The aborted
7 ALG v LLG; Manitsas v Manitsas (unreported case 8698/19, WCC, 10 July 2019)
urgent Rule 43 application of October 2025 stands on a different footing as the
work was done in circumstances that, on the applicant’s own version, were
rendered moot by the respondent’s consent to the use of the R250 ,000.00 from the
Property Trust to fund accommodation.
[34] Doing the best I can, on the limited material before me, an aggregate allowance of
approximately R50,000.00 in respect of past legal costs, excluding the costs of the
present rule 43 application8, appears to me to be reasonable.
Contribution towards future legal costs
[35] The applicant has identified, in fairly broad terms, the kinds of attendances that
will be required: further consultations with the legal team and experts; discovery
and procedures under Rule 35(3); pre -trial procedures under Rule 37; expert
valuations of the respondent’s assets and liabilities; the possible briefing of senior
counsel; and trial preparation. She tells the court that her advocate charges
R3,500.00 per hour and R35 ,000.00 per day, which she contrasts with what she
anticipates the respondent’s legal team will charge.
[36] The respondent contends that none of this is necessary. His position, in summary,
is that there is no redistribution claim that can succeed because the patrimonial
consequences of the marriage are governed by Namibian law and by the parties’
antenuptial contract, that there is no need for a forensic enquiry into his estate, and
that, in any event, the applicant has the resources to fund such litigation as may be
necessary out of the substantial capital tender that he has made.
8 Micklem v Micklem 1988 (3) SA 259 (C) at 263B
[37] Two preliminary observations are necessary. First, it is not for this court, at Rule
43 stage, to determine which legal system governs the patrimonial consequences
of the parties’ marriage, or whether the applicant’s claim under section 7(3) of the
Divorce Act is sustainable. Those are substantive questions for the trial court.
Second, it does not follow, however, that the prospect that those issues will be
raised at trial is irrelevant to the assessment of a contribution to costs. What
matters at this stage is the apparent scale and complexity of the litigation that lies
ahead, and the resources required to enable the applicant to meet the respondent’s
case at trial.
[38] Whether the applicant succeeds in establishing the substantive premises of her
case is not for this court to decide. What is clear is that, in order to put her case to
the court at trial, she will need to engage in discovery, secure expert evidence,
prepare for trial and, in all likelihood, retain counsel for trial. The principle of
equality of arms, which is the dominant consideration in the assessment of a
contribution to costs9 requires that she not be left in a position where her financial
inferiority precludes her from prosecuting her claim adequately.
[39] A contribution to costs is not, however, a warrant to litigate at any chosen scale 10.
The applicant’s claim of R350 ,000.00, including both past and future costs , is not
supported by an itemised estimate of the kind that would assist the court to
interrogate it line by line, and her articulation of the prospective work bears the
hallmarks of generality.
[40] Doing the best I can, and taking into account the conservat ive approach due to the
absence of detail, the apparent scale and complexity of the trial work, and the
9 AF v MF supra paras 41–42
10 ALG v LLG para 19
desirability of placing the parties on a footing of approximate equality at this stage
of the proceedings, an additional contribution of R1 25,000.00 in respect of future
costs, over and above the R50 ,000.00 in respect of past costs , is, in my view,
reasonable. The total contribution to costs will therefore be R 175,000.00. The
applicant’s entitlement to seek a further contribution as the matter progresses , is
preserved by Rule 43(6).
Conclusion
[41] The applicant has substantially succeeded on the substantive issues. The
respondent has not. There is, however, no reason in this matter to depart from the
approach which is conventionally adopted in this Division of leaving the costs of a
Rule 43 application to be determined by the court that hears the divorce action.
[42] Consequently, the following order is made:
1. The respondent shall, with effect from 25 M ay 2026, and thereafter on or
before the 25 th day of each subsequent month, pay to the applicant into
such bank account as the applicant may from time to time nominate in
writing, the following amounts:
1.1 R35,000.00 (thirty -five thousand rand) towards the rental of the
accommodation occupied by the applicant and the minor children;
1.2 R20,000.00 (twenty thousand rand) as personal maintenance for the
applicant; and
1.3 R17,500.00 (seventeen thousand five hundred rand) per child as
child maintenance, in respect of each of the minor children:
2. The respondent shall retain the applicant and the minor children as
beneficiaries on his current medical aid scheme, alternatively a scheme
providing similar benefits, and shall be responsible for all reasonable
medical, dental, optical, ophthalmic, surgical, hospital, therapeutic
(including, inter alia, speech therapy, occupational therapy, physiotherapy
and psychotherapy), orthodontic and pharmaceutical expenses incurred
and not covered by the medical aid scheme, by paying such expenses
directly to the service provider.
3. The respondent shall be responsible for all the minor children’s
educational expenses, which he shall pay directly to the relevant service
providers, including the cost of their education at Reddam House
Constantia or any similar school, school fees, school uniforms, school
books, stationery, and equipment as listed in the school’s annual or termly
requirement lists, compulsory school tours, levies, school excursions, and
extra lessons or remedial tuition where the school provides written
recommendations for them.
4. The respondent shall continue to pay the monthly salary of the applicant’s
live-in helper, Ms Kasongo Kunda.
5. The respondent shall pay to the applicant, as a contribution towards her
past legal costs in the divorce action, the amount of R50,000.00, payable
into the trust account of the applicant’s legal practitioner within 30 days of
the date of this order.
6. The respondent shall pay to the applicant, as a contribution towards her
future legal costs in the divorce action, the amount of R125,000.00,
payable into the trust account of the applicant’s legal practitioner within 30
days of the date of this order.
7. The costs of this application shall stand over for determination by the court
hearing the divorce action.
____________________________
A MONTZINGER
Acting Judge of the High Court
Appearances:
Attorneys for applicant: Advocate Muhammad Aduroaf
Per: Mr M Aduroaf
Attorneys for respondent: Ceri von Ludwig Attorneys
Per: C von Ludwig
Counsel for respondent: Adv L Buikman SC