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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2022-25422
In the matter between:
J[…] J[… ] O[…] Applicant
and
T[… ] L[… ] O[…] Respondent
JUDGMENT
WENTZEL -THOMPSON J
Introduction
[1] This is an application in terms of Rule 43(6) of the Uniform Rules of Court for
the variation of an interim order granted on 14 May 2025 regulating, inter alia,
maintenance and the care and contact arrangements in respect of the parties’
minor children.
[2] The Applicant seeks, first, a reduction of the maintenance payable to the
Respondent and, secondly, a substantial alteration of the existing care and
contact regime so as to introduce a shared residence arrangement on an
alternating weekly basis.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
12/4/2026 ____________
DATE SIGNATURE
[3] The application is opposed. The Respondent contends that no case has been
made out for variation and that the application constitutes an impermissible
attempt to re-argue the merits of the original Rule 43 application and in essence
appeal the ruling made by Pretorius AJ.
The legal framework
[4] Rule 43 provides a mechanism for interim relief in matrimonial proceedings,
designed to afford a swift and inexpensive remedy pending the finalisation of
the divorce action.
1
[5] Rule 43(6) permits a court to vary its order in the event of: (a) a material
change in the circumstances of either party or the children; or (b) the
emergence of facts which were not disclosed at the time the original order was
made.
2
[6] It is well established that a variation is not intended to afford a litigant a second
opportunity to present a case that could and should have been advanced in the
initial application.
3
[7] The threshold for interference with an existing Rule 43 order is accordingly a
stringent one. A court will not lightly vary such an order absent clear, cogent
and reliable evidence demonstrating a material change in circumstances.
4
Relevant factual background
[8] The parties are married to one another and are presently engaged in pending
divorce proceedings. They have two minor children born of the marriage.
[9] On 14 May 2025, this Court granted an order in terms of Rule 43 directing, inter
alia, that the Applicant pay maintenance in the sum of R27 500 per month to
the Respondent. That order was made after consideration of the parties’
respective financial disclosures and the needs of the Respondent and the
children.
1 Taute v Taute 1974 (2) SA 675 (E) at 676H-677A.
2 Rule 43(6) of the Uniform Rules of Court.
3 Grauman v Grauman 1984 (3) SA 477 (W) at 480H-481B.
4 Colman v Colman 1967 (3) SA 291 (W) at 292G-H.
[10] The present application was launched on 8 September 2025, some four months
later.
Issues for determination
[11] The issues that arise for determination are: (a) whether the Applicant has
established a material change in circumstances warranting variation; (b)
whether the Applicant has made full and frank disclosure of his financial
position; (c) whether there exists a basis to revisit the maintenance
determination; (d) whether the proposed variation of care and contact
arrangements is justified; and (e) whether the application constitutes an abuse
of Rule 43(6).
Material change in circumstances
[12] The Applicant contends that his financial position has deteriorated and that the
Respondent has, in effect, ceased working or deliberately reduced her income.
[13] These contentions are squarely disputed. The Respondent avers that no
material change has occurred and that the Applicant merely seeks to revisit the
findings previously made by Pretorius AJ without basis.
[14] A careful reading of the Applicant’s founding affidavit reveals that the alleged
“change” is not rooted in new facts arising after the order, but rather in a
renewed critique of the Pretorius AJ’s assessment of the parties’ financial
positions.
[15] That is impermissible. Rule 43(6) does not provide a litigant with a mechanism
to appeal or reconsider an existing order under the guise of variation.
5
[16] In the absence of objectively verifiable new circumstances, the jurisdictional
threshold for variation is not met.
Financial disclosure
[17] The Applicant’s case is further undermined by material deficiencies in his
financial disclosure.
5 Maharaj v Maharaj 1977 (2) SA 11 (N) at 15B-D.
[18] The Respondent has identified multiple inconsistencies in the Applicant’s stated
income, including differing versions ranging from approximately R50 000 to
R100 000 per month.
[19] The Applicant has failed to provide primary documentary proof such as tax
returns, audited financial statements or comprehensive bank records
substantiating his alleged income.
[20] It is trite that a litigant seeking to vary a maintenance order bears a duty of full
and frank disclosure.
6
[21] In Ecker v Dean, the Court emphasised that a failure to make proper disclosure
in Rule 43 proceedings is a factor that may justify refusal of relief.7
[22] The Applicant’s failure to place reliable financial information before the Court is,
in itself, fatal to his claim.
Maintenance
[23] The Applicant contends that the maintenance order is excessive relative to his
means. However, absent proof of a material change in his financial
circumstances, there is no basis to interfere with the existing order.
[24] Moreover, the Respondent disputes that her income has increased or that she
is capable of earning at the levels alleged by the Applicant. The Applicant’s
case in this regard rests largely on speculation and inference rather than
substantiated fact.
[25] It is not the function of this Court, in Rule 43(6) proceedings, to engage in a
rehearing of the parties’ financial positions on the same evidentiary material.
Care and contact
6 Van Rippen v Van Rippen 1949 (4) SA 634 (C) at 639.
7 Ecker v Dean 1937 AD 254 at 263.
[26] The Applicant seeks to introduce a shared residence arrangement, relying in
part on the involvement of the Family Advocate and the children’s notes to the
court indicating this preference.
[27] The Respondent opposes this, contending that the existing arrangements are
functioning well and that the Applicant is not consistently available to exercise
extended care and often delegates the children’s care to third parties.
[28] It is trite that the best interests of the children are paramount.
8 The evidence
before the Court does not demonstrate that the current arrangement is not
serving those interests, nor that a shared residence regime would represent an
improvement. The children are teenagers and should it prove to be their
preference to move weekly between their parents, this can be assessed at the
trial between the parties after this has been fully investigated by the family
advocate; at an interim stage, it is best that they be settled in one home.
Divorce is unsettling enough for children, especially older children and they
ought not have to choose between their parents or be asked to write letters
expressing their preferences to the court at an interim stage of the proceedings
when an order as to their primary residence has already been decided by
Pretorius AJ.
[29] This is especially so as the Respondent has provided evidence suggesting
instability in the Applicant’s availability and inconsistency in exercising contact.
[30] In these circumstances, it would be inappropriate to disturb the status quo on
the basis of inconclusive and contested evidence.
Abuse of process
[31] The Respondent contends that the application constitutes an abuse of process
and is, in effect, an appeal in disguise. There is merit in this submission. The
Applicant’s affidavits are replete with criticisms of the reasoning and
conclusions of the Court that granted the original order. Such criticisms properly
belong in appellate proceedings, not in a variation application.
belong in appellate proceedings, not in a variation application.
8 Section 28(2) of the Constitution of the Republic of South Africa, 1996.
[32] [39] In Maharaj v Maharaj , the Court cautioned against the misuse of Rule 43
as a vehicle for re-litigation.9 To permit such an approach would undermine the
purpose of Rule 43 and lead to piecemeal litigation.
Costs
[33] Rule 43 proceedings are ordinarily not accompanied by punitive costs orders,
given their interlocutory and family -law nature. However, where a party acts
unreasonably or abuses the process of the Court, a costs order may be
justified.10However, w hile the present application is ill -conceived, I am not
persuaded that it warrants a punitive costs order.
Conclusion
[34] The Applicant has failed to establish a material change in circumstances. He
has further failed to make proper and reliable financial disclosure. The relief
sought amounts, in substance, to an attempt to re- argue the original Rule 43
application. No basis exists to interfere with the existing order.
Order
[35] In the result, the following order is made:
1. The application in terms of Rule 43(6) is dismissed.
2. The Applicant is directed to pay the costs of the application.
_________________________
WENTZEL-THOMPSON J
JUDGE OF THE HIGH COURT
JOHANNESBURG
9 Maharaj v Maharaj 1977 (2) SA 11 (N) at 15B-D.
10 Senior v Senior 1979 (4) SA 957 (W) at 962A-C.
For the applicant: V de Wit
Instructed by: K Jordaan and Associates
For the respondent: Greenstein Attorneys
For the Applicant:
For the Respondent:
A instructed by B
X instructed by Y