SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025/153456
In the matter between: -
P[…] W[…] S[…] Applicant
and
M[…] T[…] S[…] Respondent
__________________________________________________________________
JUDGMENT
Van Aswegen AJ
INTRODUCTION:
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
__________ _________________________
DATE SIGNATURE
2
[1] This Rule 43 Application concerns two talented musicians who, after
confronting significant career setbacks, adapted to a changing music
industry and redirected their work to provide for themselves and their son.
The Applicant commenced working as an actress and television presenter
(freelancer artist), whilst the Respondent work ed as a musician disc jockey
(DJ). The transition placed the marriage under increasing strain, leading the
Applicant to institute divorce proceedings.
[2] The Applicant in this application seeks maintenance pendente lite for herself
and the minor child, together with a contribution to costs.
FACTUAL MATRIX:
[3] The parties were married out of community of property, subject to the accrual
system, on 10 January 2014 at Randburg.
[4] One minor child was born of the marriage, namely M[...] N[… ] S[… ] (“M[...]”),
a boy born on the 08 August 2013 with visual impairment disability.
[5] The Applicant issued a divorce summons on 2 September 2025. At her
insistence, the Respondent then vacated the matrimonial home situated at
[…] Z[…] Lane, H […] , Extension 5, Sandton, Gauteng Province , where he
had been living with the Applicant and the minor child.
[6] The Applicant sketches a picture of herself as being unemployed and in
financial distress, whil st describing the Respondent as a self -employed
musician, disc jockey (DJ), and businessman. She contends that t he
Respondent “is a successful singer, songwriter, music producer, a disc
jockey and a performer, who performs at major international venues with
internationally recognised disc jockeys .” The Respondent furthermore, she
pleaded, has savings-, investment accounts and a share portfolio. He also
derives profits or dividends from a company named Yin Holdings.
1
1 PW 9 at 018-28
3
[7] The Applicant further alleges that her unemployment resulted from the
Respondent’s unilateral dismissal of her from her position as manageress of
his two companies – S[…] Group and S[… ] Music (Pty) Ltd - of which he is
the sole director. In her capacity as manageress of the Respondent’s
companies she had earned at least R100 000.00 nett per month. According
to the Applicant, the dismissal followed the institution of divorce proceedings
against the Respondent.
[8] Before joining the Respondent’s companies, she stated that she had worked
as a television personality. She alleges that the Respondent told her to stop
working as such, which left her financially dependent on him.
[9] The Applicant states that she relied entirely on the Respondent to meet the
household expenses and the financial needs of both herself and the minor
child. She says she has no savings or other source of income to support
herself and the child, and that she has had to rely on credit cards and had to
borrow money to survive.
2 In addition, she took out a micro- loan which she
is struggling to repay.3
[10] The Applicant contends that her monthly expenses total R87 000.00,
comprising R64 850.00 for herself and R21 700.00 for her son.
[11] Since the commencement of the divorce proceedings the Respondent has
only been providing an amount of R5000.00 in respect of maintenance for
M[...].
4 This amount is according to the Applicant tantamount to letting them
starve to death.
[12] However, the Particulars of Claim show that the Applicant, as Plaintiff, claims
R5 000.00 for the maintenance of their son, M[...].5
2 Case Lines PW 2 at 018-7
3 PW 3 at 018-11
4 Para 8.5 at 017-16
5 Para 6.1.8 at 001-11
4
[13] In the Applicant’s F inancial Disclosure Form (FDF) signed and
commissioned on 12 November 2025 she describes her occupation as a
freelancer artist. 6 No mention was made of the fact that she was the
manageress of the Respondent’s two companies. The Applicant also
indicated that she did not earn a gross income for the last financial year. 7
This allegation is in direct contradiction to her allegation that prior to the
divorce she had earned at least R100 000.00 nett a month.
[14] In her FDF, November 2025, the Applicant also asserts that her total
monthly expenditure totals R44 876.26.8 Upon issuing the R ule 43
Application she now claims that her total monthly expenditure is
R87 000.00.9 As to the parties’ standard of living she remarked as follows:
“We didn't want for anything. He enjoyed buying me luxury bags, shoes,
expensive perfume. I drove the Porsche mostly over the last year. Always
had my nails and hair done and made sure all the kids had everything they
needed.”
[15] The Respondent’s FDF dated 27 November 2025 depicts the parties’
standard of living in the following words:
“Through the assistance of my close friend, Nathi, we were able to live a
comfortable life. He assisted us with school fees for the kids and sometimes
even bought luxury bags, shoes and perfumes for my wife. I also made sure
the household expenses were taken care of.”
[16] The Respondent gives a different account of the parties’ standard of living .
He depict s the household also as one providing a comfortable life.
However, one which was sustained through the generosity and extended
hand of his friend – Mr. Nkosinathi Maphumulo (‘Mr. Maphumulo”).
6 Case Lines 010-3
7 Case Lines 010-11
8 Case Lines 010-19
9 Paragraph 6 at 017-10
5
[17] The Respondent states that, when their son was about one year old, he was
diagnosed with bilateral retinoblastoma (eye cancer), which placed the
household finances under strain. He further pleads that his income declined
as the local music industry changed and the genre in which he performed
lost popularity. The Applicant, he adds, also struggled to find work in music,
acting, or presenting.
[18] At the time, the parties owned three vehicles, which they sold, but the
proceeds remained insufficient to fund their son’s medical treatment. The
Applicant disputes this and alleges that only two vehicles were sold, while a
Hyundai vehicle was retained. The bond repayments on the Bloubosrand
property, jointly owned by the Respondent and his former partner, became
unaffordable and fell into arrears. In short, the Respondent was unemployed
and over -indebted, M[...] urgently required treatment, and the Applicant’s
career prospects were similarly limited.
[19] After their son’s diagnosis became public, Mr. Maphumulo contacted the
Respondent and offered to assist with M[...]’s medical expenses. As their
contact increased, he became aware of the severe financial distress facing
the Respondent and his family. That distress is outlined below:
[19.1] The bond on the Bloubosrand property, jointly owned by the
Respondent and his former partner, Ms. Thabisa Yoyo, was in
arrears. Ms. Yoyo had issued summons to compel a sale and
terminate the joint ownership. As a result, the parties faced a
real risk of homelessness as they were residing in this property.
[19.2] The parties had owed school fees at their son’s school being
Lucca Special Needs School with the overdue fees quite
substantial;
[19.3] With neither party owning a motor vehicle, they relied on public
transport; (the Applicant disputes this)
6
[19.4] Neither party had a meaningful source of income. The
Respondent had been blacklisted for defaulting on the WesBank
vehicle finance agreement and for unpaid Planet Fitness
membership fees.
[20] Mr. Maphumulo then offered to help the parties improve their financial
position and stabilise their lives, careers, and their children’s education and
maintenance. His contributions included the following:
[20.1] He helped settle a deficit after the sale of the Bloubosrand
property in the amount of R25 451.82.
[20.2] He then assisted the Applicant to improve her credit profile by
depositing funds into her bank accounts over about three
consecutive months, creating the appearance of a steady income.
This enabled her to apply for a bond and acquire a house in
Hurlingham Manor in her name for the parties to reside in.
[20.3] He paid every bond instalment and lump -sum payment due to
Standard Bank on the matrimonial home. He deposited these
funds into the Respondent’s business or personal account, after
which they were transferred to the Applicant’s bank account. As a
result, the property, purchased on 13 May 2022 for R3 500 000.00
(Three Million Five Hundred Thousand Rand), was paid off in full
by August 2025. The Applicant, as the sole registered owner, has
possession and control of the bond statements.
[20.4] He also paid for all of Milo's prosthetic eyes, with the bill
amounting to an approximate figure of R100 000.00.
[20.5] He also invited the Respondent to accompany him on his world
tours, where he acted as an ad hoc agent coordinating and
managing the trips. This was not a formal offer of employment,
but an act of assistance from a friend in need.
7
[20.6] He paid the school fees for M[...] at Lucca Special Needs School
in Randburg, from then to the present date.
[20.7] Purchased a Volvo XC60 2014 vehicle for the Applicant and
[20.8] Purchased a 2016 Porsche Cayenne for the Respondent.
[21] These contributions were confirmed by Mr . Maphumulo in a confirmatory
affidavit.10 The Respondent states that the contributions did not arise from
any formal work or consultancy agreement between him and his friend, nor
were they a loan, but rather as “simply a manifestation of the abundant
compassion in his heart.”
[22] Travelling with Mr Maphumulo, a well -known and recognised DJ, gave the
Respondent an opportunity to improve his DJ skills and expand his career
beyond South Africa. This exposure led to his securing a residency at
Cipriani in Ibiza, where he served as the resident DJ for a fixed period. In
2025, this engagement earned him approximately R1 450 000.00, less 20%
agency commission, leaving a balance of about R1 160 000.00. The
appointment lasted two months, from 26 June 2025 to 31 July 2025.
Thereafter, the Respondent sought other opportunities until the Applicant
sent him a voice note on 22 August 2025 informing him of the divorce.
11
[23] The Respondent returned to South Africa upon word of the divorce on
30 August 2025 and received the summons on 8 September 2025.
[24] The Respondent states that he sent all his earnings to the Applicant so that
she could manage the household expenses. The funds were paid in foreign
currency into his South African bank accounts. Once he received email
confirmation of a transfer, he forwarded it to the Applicant, who would then
10 CA1 at 020-118
11 MTS2 to MTS4 at 020-89 to 020-91
8
clear, withdraw, and use the money. 12 He described it as “such a liberating
experience to be able to work and send money to my wife after so many
years of dependency on the benevolence of my friend Nathi.”
[25] Since the end of his residency at Cipriani, the Respondent states that he has
resumed travelling with his friend on world tours, filling in as a stop- gap DJ
when needed, while hoping to secure another residency. At present, he says
he is unemployed and survives through his friend’s kindness. He adds that
his friend is under no obligation to continue supporting his family.
[26] The Applicant contends that the Respondent’s two companies - incorporated
during 2007, had grossed a combined revenue of approximately
R2 000 000.00 between May 2025 and September 2025. She relied upon
entries made as sundry credits in excess of R300 000.00 per month.
13 An
inward payment was also effected on 8 January 2026 to one of the
Respondent’s companies in an amount of ($5 050.00) R82 870.50.14
[27] The Applicant alleges that the Respondent is employed by Black Coffee as
his tour manager and right -hand man, which the Respondent denies. He
states that he was offered $3 000.00 (R49 230.00), currently under
negotiation to $4 000.00 (R65 640.00), for a three-day run per week.
[28] The Respondent pleads that during the marriage the parties discussed all
matters openly, including their finances.
[29] The Respondent contends that the Applicant worked as a television
presenter on MultiChoice Mzansi Wethu’s programme Abandoned. He states
that, as is common in the entertainment industry, she worked under short -
term fixed-term contracts or on an ad hoc basis. In respect of Abandoned, he
states that she was engaged on successive three- month contracts. The last
contract known to him ran from April 2025 to May 2025, during which she
received the following payments:
12 PW 6 at 018-15
13 PW 6 at 018-15
14 PW 7 at 018-26
9
[29.1] R126 000 on 30 April 2025;
[29.2] R70 000 on 23 May 2025; and
[29.3] R66 000 on 30 May 2025
[30] In this matter there is a clear dispute in respect of the parties’ employment
status and their earning capacities.
[31] The Applicant alleges that she is unemployed, financially dependent on the
Respondent, and that the Respondent is gainfully employed and able to pay
the maintenance sought. She further alleges, in broad terms, that she
worked as a manager ess in the Respondent’s businesses and became
unemployed only after he terminated her employment following the institution
of the divorce. The Respondent denies these allegations.
ASSESSMENT OF EVIDENCE:
[32] In evaluating the evidence tendered I will firstly deal with the nature of Rule
43’s and the onus which an Applicant bears in such applications.
[33] Rule 43 Applications provide swift interim relief in matrimonial matters,
ensuring fairness pending the final determination of the divorce.
[34] In a successful application for interim maintenance the Applicant bears the
onus to establish, on a balance of probabilities:
15
[33.1] the financial needs of the Applicant and minor child;
[33.2] the Respondent's ability to meet those needs; and
[33.3] the reasonableness of the relief sought.
15 Taute v Taute 1974 (2) SA 675 (E); Rademeyer v Rademeyer 2002 (2) SA 223 (C)
10
[35] The Applicant in a Rule 43 Application must act with the utmost good faith, and
provide full and frank disclosure of the financial affairs and material facts. Failure
to be honest or hiding assets/income can lead to the dismissal of the application.16
[36] In Du Preez v Du Preez 17 the court held as follows pertaining to the duty on
an Applicant in R ule 43 and the effect of a misstatement of facts and non-
disclosure:
"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."
(own emphasis)
[37] Accordingly there has to be a full and frank disclosure of the Applicant’s and
the Respondent’s financial affairs in order for the court to:
[37.1] evaluate whether the Applicant has a genuine and pressing
need for the interim relief 18 and
[37.2] whether the Respondent has the ability to meet the needs.
16 H.X v G.X (017721/2023) [2025] ZAGPPHC 11 (3 January 2025);
M.Y v J.Y (2024/013982) [2024] ZAGPJHC 684 (26 July 2024)
17 (16043/2008) [2008] ZAGPHC 334 (24 October 2008)
18 Levin v Levin 1997 (4) SA 481 (W)
11
[38] The purpose of R ule 43 applications was described in Nilson v Nilson 1984
(2) 294 (C) as follows:
"Primarily Rule 43 was envisaged to provide temporary assistance for
women, who had given up careers or potential careers for the sake of
matrimony with or without maternity, until such time as at a trial and after
hearing evidence maintenance claims and, if children had been born,
custody claims could be properly determined. It was not created to give an
interim meal ticket to women who quite clearly at the trial would not be able
to establish a right to maintenance. The grey area between the two extremes
causes problems."
[39] A Court can only exercise its discretion with reference to the actual evidence
placed before it. The Applicant’s right to maintenance is dependent upon
her full disclosure of her own income and earning capacity.
[40] Without full and frank disclosure of the Applicant’s financial position, the
court cannot properly assess her needs. Any assessment based on selective
or inaccurate financial information lacks a sound foundation and may cause
real prejudice. Absent accurate facts, any finding on need would be
unsupported by the evidence.
[41] Rule 43 applications accordingly require careful scrutiny of the disclosure of
a party’s true financial needs. I turn to deal with the Applicant’s pleaded
case as set out in her affidavit and FDF.
[42] The Applicant claims that she became unemployed after being dismissed
from the Respondent’s companies because of the divorce proceedings. As
the divorce was instituted dur ing September 2025, this suggests that she
was still earning a monthly salary during that year. Yet, on her SARS ITA34
form, she declared that she had earned no income in 2025.19
19 Case Lines 010-3
12
[43] In her FDF the Applicant declared that she was a freelance artist.
Significantly, s he omitted to mention that she was a manageress of the
Respondent’s two companies. In the application before me she declares that
she is unemployed.
[44] The Applicant relies on an email she sent to Socialista Ibiza Cipriani
(Annexure PW1) to prove her employment with the Respondent’s company,
S[…] Music. 20 In my view, that email alone does not establish employment,
particularly in the absence of an employment contract, the commencement
date, the duration of the employment, or any salary slips or bank statements.
[45] The declaration of no income in 2025 is also inconsistent with the Applicant’s
alleged employment by the Respondent’s companies until the divorce. She
further failed to disclose that she earned approximately R262 000.00 as a
television presenter between April and June 2025. This contradicts her claim
that she had stopped working as a television personality before joining the
companies and was financially dependent on the Respondent.
[46] This court cannot assess the Applicant’s financial circumstances because
she failed to make full and honest disclosure of her income.
[47] T he Applicant’s litigation stratagem of disclosing selective evidence to the
court is highly relevant as the court views such conduct as non- ethical and
worthy of censor.
[48] Murphy J in Du Preez v Du Preez 21 remarks on the misstatement of facts or
the failure to disclose fully all material information regarding a party’s
financial affairs that such conduct by an Applicant is fatal and that such
conduct must lead to dismissal in Rule 43 Applications.
20 Case Lines 018-2
21 (16043/2008) [2008] ZAGPHC 334 (24 October 2008)
13
[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 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
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 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.
[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
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
14
court with “clean hands” and on that ground alone the court will be
justified in refusing relief.” (my underlining)
[49] T he Court disapproves and takes a dim view of the Applicant’s non-
disclosure of her real financial status in this Rule 43. The Applicant had an
obligation to act in the utmost good faith, yet decided to portray a skew ed
picture of her financial reality.
[50] The Applicant had an onus to prove both her and the minor child’s
entitlement to maintenance. Her income is an essential and important factor
to be taken into account when assessing whether there is a real need.
[51] The Applicant’s FDF, made under oath, does not accurately reflect the
parties’ true financial position. In it, she states that she co- owns the marital
home with the Respondent and is entitled to half its value, namely
R1 627 500.00, based on a market value of R3 275 000.00. However, the
bond cancellation letter makes clear that the loan was solely in the
Applicant’s name and that she is the registered owner.22
[52] The Applicant’s FDF, under oath, does accordingly not reflect the true
position in respect of the ownership of the marital home. This reflects
negatively on the Applicant’s bona fides in her application.
[53] In TS v TS 2018 (3) SA 572 (GJ) (7 August 2017) the court held that the
purpose of an FDF deposed to under oath is to enable each party to more
properly assess their respective positions, to present argument based on a
more informed position, to have an available remedy for misrepresentation
or material non- disclosure and to enable the court to make an order based
on an informed decision. Whilst in E v E and related matters [2019] 3 All SA
519 (GJ) the Full Court said that the benefit of financial disclosure is that
parties will not have to file lengthy affidavits, that it will force the parties to be
transparent with each other and with the court from an early stage, thereby
transparent with each other and with the court from an early stage, thereby
making early settlement possible and placing the court in a better position “to
22 PW at 018-1
15
decide the matter in a manner that does justice to the parties and takes care
of the best interests of the minor children.”
[54] On the first page of the FDF the party completing it is notified that:
“[48.1] You have a duty to the court to give a full, frank and clear
disclosure of all your financial and other relevant circumstances;
[48.2] A failure to give full and accurate disclosure may result in an
adverse court order if you are found to have been deliberately
untruthful, criminal proceedings or perjury and/or fraud;
[48.3] The information given in this form must be confirmed under oath
or affirmation. Proceedings for contempt of court may be brought
against a person who makes or causes to be made, a false
statement in a document verified under oath or affirmation;
[48.4] You must attach documents to the form where they are
specifically sought …
[48.5] Essential documents that must accompany this statement are
detailed in the form.”
[55] In B v B [2014] ZASCA 137 (25 September 2014) the Supreme Court of
Appeal stated the following about those who fail to fully disclose their
financial status:
'The attitude of many divorced parties, particularly in relation to money
claims where they control the money, can be characterised as “catch me if
you can”. These parties set themselves up as immovable objects in the
hopes that they will wear down the other party. They use every means to do
so. They fail to discover properly, fail to provide any particulars of assets
within their peculiar knowledge and generally delay and obfuscate in the
hope that they will not be “caught” and have to disgorge what is in law due to
the other party.' (my emphasis)
16
[56] It is apparent that the Applicant in her FDF and her affidavit did not make full,
frank and candid disclosure of her income and financial position. The result
is that this court cannot evaluate her financial needs . A reality created on
selective facts leads to a distortion of the truth. Any order granted on a skew
reality results in the mal -administration of justice leading to prejudice to one
of the parties. A court can not turn a blind eye on the misstatement of facts
and must penalise a party that engages in this type of litigation.
[57] As alluded to here in before the Applicant’s and minor child’s expenses
during November 2025 amounted to R44 876.26.23 During January 2026,
two months later, it escalated to R87 000.00 as set out in her founding
affidavit.24 The difference being R42 123.74. The Applicant failed to explain
the significant increase in her expenses in her affidavit.
[58] The Respondent’s counsel furthermore pointed out that the Applicant’s
expenses are inflated. I was referred to:
[58.1] her monthly transport expense of R20 000.00, without any
detailed explanation for the expense.
[58.2] the Applicant’s bank statements reflecting:
[58.2.1] expensive Bolt e-hailing trips;
[58.2.2] take aways sometimes thrice daily;
[58.2.3] money which was spent on gambling.
[59] These expenses appear to be excessive as there is no detailed disclosure in
the Applicant's papers as to the necessity thereof.
23 Case Lines 010-19
24 Case Lines 017-12
17
[60] In Taute v Taute 25 it was held that a claim supported by reasonable and
moderate details carries more weight than one which include extravagant or
extortionate demands.
[61] The Applicant's maintenance claim lacks particularity and her expenses
remain largely unexplained and unsubstantiated.
[62] The Supreme Court of Appeal in EH v SH26 held that:
"a person claiming maintenance must establish a need to be supported by
the other spouse and that if no such need is established, it would not
be
"just" for a maintenance order to be issued. Therefore, proving a need for
maintenance is vital for obtaining maintenance"
[63] The Applicant accordingly had to particularise her income and monthly
expenses in order to establish her and M[...]’s needs.
[64] The Applicant’s failure to make full disclosure of her true income undermines
her maintenance claim. In particular, she did not disclose:
[64.1] her income earned from Abandoned during 2025. An amount of
R262 000.00 earned had not been disclosed.
[64.2] that the matrimonial home, with a municipal value of
R3 275 000.00, is registered solely in her name and is fully paid
for.
[65] In Kroon v Kroon 27 it was held that “ means” refer to a person's financial
resources and includes not only i) capital assets but also ii) income from
employment and other sources as well as iii) property such as a matrimonial
home that can be used to generate income.
25 1974 (2) SA 675 (E) at par 22
26 EH v SH 2012 (4) SA 164 (SCA)
27 1986 (4) SA 616 (E)
18
[66] There was therefore a non-disclosure of the Applicant’s means which directly
effects, impacts and filters through to any calculation of her and the minor’s
needs.
[67] The Applicant for interim maintenance b ore the onus to establish, on a
balance of probabilities:
[67.1] the financial needs of the Applicant and minor child;28
[68] The court cannot properly assess the Applicant’s and the minor child’s needs
in the face of clear misstatements about her income and assets (in the
absence of full and frank disclosure regarding their needs and the
reasonableness of the expenses claimed). If those needs are not
established, the court need not consider the Respondent’s ability to meet
them, because the Applicant has failed to discharge the onus.
[69] The Applicant had failed to establish that she and M[...] are entitled to
maintenance as she has sketched a distorted reality of her means and their
needs.
[70] The Respondent has been paying maintenance towards his son, M[...], in an
amount of R5 000.00. This amount accords with the maintenance sought in
the Applicant’s Particulars of Claim to the D ivorce action. He tenders to
continue to pay this amount.
[71] This application highlights the importance of full and honest disclosure in
Rule 43 proceedings. Since Rule 43 is a fast -track, affidavit- based
procedure, the court must rely entirely on the accuracy and candour of the
parties’ financial disclosures, including bank statements, payslips, assets,
and liabilities.
28 Taute v Taute 1974 (2) SA 675 (E); Rademeyer v Rademeyer 2002 (2) SA 223 (C)
19
[72] This Court expected the Applicant to disclose all relevant facts material to
her maintenance claim and her related claim for a contribution to legal costs.
Her failure to do so, tied this Court’s hands as it is unable to determine her
and M[...]’s needs. Their needs are essential factors in establishing and
calculating the maintenance contribution and a contribution to costs.
[73] In C.M.A. v L.A (2022/20502) [2023] ZAGPJHC 364 (24 April 2023)
Liebenberg AJ reaffirmed that an A pplicant in Rule 43 proceedings must act
in the utmost good faith and make full and frank disclosure of his or her
finances. The sanction for non- disclosure may extend to dismissal of the
application.
[74] In C.A v H.A 29 the following was s tated pertaining to good faith and
disclosure:
“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 application. 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.”
[75] Similarly, in M.N.Y v J.Y30 the court held:
“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.”
[76] In my view, the Applicant has selectively disclosed facts in an attempt to
establish need, but her failure to make full disclosure means that all relevant
facts are not before this Court. I am therefore unable to properly assess
whether the Applicant has established a need for maintenance, or the extent
29 (5578/2022) [2024] ZAWCHC 25 (06 February 2024)
30 (2024/013982) [2024] ZAGPJHC 1823 (24 July 2024)
20
of that need. In the circumstances, I cannot grant an order for maintenance
pendente lite.
CONTRIBUTION TOWARDS COSTS
[77] It is trite that a claim for a contribution to costs is a claim sui generis and has
its basis in the reciprocal duty of support between spouses.31
[78] I n Van Rippen v Van Rippen32 it was held that:
"The claim for a contribution towards costs in a matrimonial suit is sui
generis. Its basis is the duty of support the spouses owe each other. An
applicant for a contribution towards costs must show that: (i) if she is the
plaintiff in the main action, that she has a prima facie case; if she is the
defendant, that she is defending in good faith; and (ii) that she has
insufficient means of her own".
[79] For the same reasons that I decline to entertain the Applicant’s claim for
maintenance pendente lite - namely, her failure to establish need through full
and frank disclosure of her financial affairs - I am likewise unable to entertain
her claim for a contribution towards legal costs.
COSTS
[80] In respect of costs I am of the view that costs must follow the event.
[81] The Applicant elected to launch an application reliant on distorted facts.
There was a clear absence of full and proper disclosure.
[82] The Court disapproves and takes a dim view of the Applicant’s non-
disclosure of her real financial status in this application. The Applicant had
an obligation to act in the utmost good faith, yet decided to portray a skew
31 Cary v Cary 1999 (3) SA 615 (C)
32 1949 (4) SA 634 (C)
21
picture of her financial reality. The Applicant’s lack of disclosure is conduct
which should not be condoned in litigation.
[83] I accordingly make the following order:
Order
1. The Rule 43 Application is dismissed;
2. The Applicant is to pay the costs of this application on a party and
party scale, including that of legal counsel on scale B.
___________________________
S VAN ASWEGEN
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Delivery date: 9 June 2026
For the Applicant: Adv R Maisela
082 665 5382
raymondmaisela@rsabar.com
Instructed by Mbazima Dickson Inc.
Attorney
For the Respondent: Adv E Nhutsve
073 000 6400
eddmond@advocatesa.co.za
Instructed by Moyana Barry Incorporate
22
22