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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-063958
In the matter between:
B[...]: L[…] J[…] Applicant
and
B[...]: C[…] M[…] (born T[…]) Respondent
JUDGMENT
CRUTCHFIELD J
[1] This is a Rule 43 application. The applicant, L[…] J[…] B[...], claims interim
relief in respect of shared primary residence of the parties’ minor children and
relief ancillary thereto.
[2] The Respondent, C[…] M[…] B[...], opposes the application and claims primary
residence of the children, contact to the applicant, maintenance and a
contribution towards her past legal costs.
[3] The parties are in the process of acrimonious divorce proceedings. The
children are twin boys, aged 9 years.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
24 June 2026 _________________________
DATE SIGNATURE
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[4] The purpose of r ule 43 applications is to regulat e the interim period pending
finalisation of the parties’ divorce proceedings. It is not the function of rule 43
proceedings to replace the divorce trial at which the evidence of the parties
and expert and other witnesses will be led and tested under cross -
examination.
[5] It is increasingly evident that litigants are using r ule 43 proceedings to
circumvent and avoid the divorce trial proceedings. This is evidenced by the
numerous, extensive and prolix affidavits , the plethora of annexures and
multiple supplementary affidavits, all of which violate the provisions and
procedural constraints of rule 43. Courts dealing with these rule 43 applications
are faced with multiple lengthy affidavits and supplementary affidavits, multiple
annexures and prolix documents overall.
[6] Such procedural irregularities serve to subvert the true and lawful purpose of
rule 43 proceedings being to regulate the interim period in an expeditious,
cheap, quick and easy manner, and also to subvert the administration of
justice. Such misconduct on the part of litigants will not be tolerated.
[7] Whilst some flexibility can be afforded to these parties given that this
application deals primarily with the interim care and residence of children, it is
not such as to permit of the lengthy and prolix affidavits, plethora of annexures
and multiple supplementary affidavits that I am faced with.
[8] The applicant’s founding affidavit ran to approximately 27 pages in addition to
25 annexures. The respondent saw fit to deliver an answering affidavit of 89
pages and 16 annexures. Then starts the supplementary affidavits, two from
each party although the applicant styles his second as a replying affidavit . The
applicant’s supplementary affidavits runs to 23 pages and 26 annexures, the
respondent’s first supplementary affidavit runs to 52 pages and 13 annexures.
[9] The litigants and their legal representatives failed wholly to consider the
[9] The litigants and their legal representatives failed wholly to consider the
purpose of rule 43 applications and the rules regulating the procedure. I do not
intend to tolerate such blatant abuse of r ule 43 proce edings. The parties and
their legal representatives should take note that our courts’ tolerance of such
abuse in the face of mounting workloads, is wearing thin.
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[10] In the circumstances, I decline to admit or consider the annexures to the
various affidavits other than those that are permitted in respect of declarations
such as the parties’ respective remittance advices.
[11] In respect of the respondent’s rule 43(5) application, I intend to allow the
specific supplementary affidavit and the applicant’s reply thereto in that they
deal with the sale of the matrimonial home in which the parties are residing,
subsequent to the deposing of the parties founding and answering affidavits
and the respondent’s first supplementary affidavit.
[12] The fact that the parties sold the matrimonial home and thus that both will have
to vacate the home shortly is material to the issues before me. In the
circumstances, the respondent’s supplementary affidavit and the applicant’s
reply are admitted and the costs of the rule 43(5) application and the
respective affidavits will be costs in the cause of the divorce proceedings.
[13] As regards the remaining supplementary affidavits, they were delivered without
prior or any applications requesting leave to do so. This does not accord with
the procedure set out in rule 43 for additional affidavits. I n the circumstances, I
do not intend to consider any of these supplementary affidavits or to take
notice of the content thereof.
[14] Furthermore, I do not intend these rule 43 proceedings or this judgment to
take the place of a trial at which the parties and their respective witnesses give
oral evidence and are cross -examined on that evidence. For that reason, I
intend to keep this judgment short and to refrain from delivering a fully
reasoned judgment that may impact in some or other fashion upon the divorce
trial proceedings or the outcome thereof.
[15] The sale of the former matrimonial home (“the home”), will result in the
termination of the parties’ current living arrangements . Given t he parties’
inability or refusal to agree on arrangements in respect of the children, the
inability or refusal to agree on arrangements in respect of the children, the
parties require an order of this court to break the impasse.
[16] The parties approached the application as an opportunity to criticise each other
both as parents and as partners. The morass of conflicting averments does not
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assist in assessing the best interests of the children or the most appropriate
living arrangement pendente lite for them. As a result, it is not productive for
me to attempt to resolve the conflicting allegations and disputes between the
parties as to who is the better or the worse parent. In my view, neither party is
better or worse than the other. Both parties on occasion resorted to physical
punishment of the children, something that should never occur.
[17] The applicant’s counsel argued that the applicant was entitled constitutionally
to an order that the children spend equal time with him and the respondent and
that he should not be relegated to a ‘weekend father’. The applicant’s reliance
on his constitutional entitlement to equality is flawed as it is the children’s best
interests that is the focus of this application and not the applicant’s right to
equality. The test is well established and is embodied in the Constitution itself,
being the best interests of the children.
[18] The parties jointly appointed clinical psychologist Ms Claire O’Mahony
(“O’Mahony”), to undertake an investigation and make recommendations in
respect of the residence and contact arrangements that best meet the
children’s interests.
[19] O’Mahony’s report dated 5 October 2025 made various recommendations
including that the children reside with the parties on a shared residency basis
such that the children spend two days, two days, three days, on an alternating
basis with each parent.
[20] Whilst O’Mahony recommended shared residence, the specific regime of two
days, two days, t hree days, on an alternating basis with each parent , is not
appropriate even on a short term basis pending finalisation of the divorce
proceedings. Such a complex arrangement will be disruptive and destabilising
for the children and the parties. The respondent justifiably criticised O’
Mahony’s recommendation.
[21] Moreover, t he respondent rejected O’Mahony’s recommendation of a shared
[21] Moreover, t he respondent rejected O’Mahony’s recommendation of a shared
residency regime and claimed primary residence with contact to the applicant.
Whilst I agree that the particular format or the specifics of O’Mahony’s
recommended shared residence regime will be disruptive and destabilising for
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the children, I am mindful that the children are nine years old and that I am
concerned with an interim arrangement pending the finalisation of the trial
proceedings. I also intend to request the office of the family advocate to
undertake an investigation and make recommendations to the trial court in
respect of the best interests of the children.
[22] The respondent proposed an alternate arrangement in terms of which the
children reside on an alternating weekly basis with each party and overnight
with the other parent on a Wednesday night so as not to be away from either
parent for a full week. The applicant adopted the respondent’s proposal of
weekly contact in the alternative to O’Mahony’s recommendation.
[23] The fact that the parties managed to find some common ground in respect of
the respondent’s weekly residence proposal, suggests that the proposal, if
ordered, may result in a reduction of acrimony between the parties and some
stability for the children, which will facilitate their best interests.
[24] In the circumstances, I intend to make such an order that is simple, predictable
and easy to manage, both for the children and the parties . The respondent’s
proposal of a weekly arrangement in terms of which the children spend one
week with eac h parent on an alternating basis, with the changeover occurring
on a Sunday evening at 17h00 at the home of the parent whose week
commences with the handover. In addition, the children will spend the
Wednesday night of each week with the parent with whom they are not
residing in that week.
[25] I do not intend to regulate the minutia of the parties’ arrangements. It is for the
parties to do so on a mature and reasonable basis that focusses on the
interests of the children and not on their own personal agendas and wishes .
Accordingly, I do not intend to appoint a parenting coordinator. It is time that
these parties learnt to make their own parenting arrangements in respect of the
these parties learnt to make their own parenting arrangements in respect of the
children. The money that would otherwise be spent on a parenting coordinator
can better be spent by the parties on the children.
[26] In respect of the financial arrangements concerning the children, the applicant
earns a monthly income of approximately R137 057.75 per month including his
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annual bonus. The respondent earns approximately R42 804.21 per month,
approximately one-third of the applicant’s monthly salary. In the circumstances,
notwithstanding that each party will enjoy equal contact on a weekly basis with
the children, it is appropriate for the applicant to pay maintenance of
R10 000.00 per child per month to the respondent commencing from the date
that the shared residence arrangement commences.
[27] Furthermore, I intend to order that the applicant pays monthly in respect of the
children, the premiums in respect of the medical aid or hospital plan; the
excess medical costs; the agreed extramural activities ; the private educational
costs including school books, stationery, school uniforms, school tours and
extramural activities that are not paid for by the allowance from the
respondent’s father in respect of educational costs.
[28] The respondent will continue to pay the monthly instalments, insurance and
maintenance costs such as are not covered by the motor plan in respect of the
vehicle utilised by the respondent.
[29] Pending transfer of the home, the applicant will pay the following monthly
expenses in respect of the home : the mortgage bond, all insurance premiums
in respect of the home; the domestic worker and the gardener ’s salaries; the
utilities and security costs, DSTV, streaming services and fibre in respect of
the home.
[30] In respect of the respondent’s claim for a contribution of R1 million towards her
past legal costs, I do not intend to deal with such an application at this stage of
the proceedings. The respondent is entitled at this stage to a first contribution
towards her legal costs and an amount of R 100 000.00 payable in monthly
instalments of R20 000.00 each, suffices in this regard. The respondent is
entitled to approach this Court at a later stage for a contribution towards her
trial costs.
[31] Notwithstanding the report by O’Mahony, it is appropriate in the circumstances
[31] Notwithstanding the report by O’Mahony, it is appropriate in the circumstances
of this application, in the light of the allegations made by each party against the
other, that the family advocate be called upon to investigate the issues of care,
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residence and contact of the parties in respect of the children and to prepare a
report together with recommendations for the trial court.
[32] The costs of this application will be costs in the cause of the divorce
proceedings.
[33] Accordingly, I grant the following order pendente lite:
1. The parties remain co- holders of full parental responsibilities and
rights in respect of the minor children, C […] S[…] B[...] and S […]
K[…] B[...] (“the children), in terms of section 18(1) and (2) of the
Children’s Act, 38 of 2005.
2. The parties shall implement a shared residence arrangement in
respect of the children subject to the children’s educational, social,
extra-mural and religious activities on the basis that the children
reside with the applicant for one (1) week and thereafter with the
respondent for one (1) week, with the handover to occur on Sundays
at 17 h00 at the home of the parent whose week commences
therewith.
3. The children will spend a Wednesday night from after school/extra-
mural activities with the parent whose week it is not, until Thursday
morning when the overnighting parent will transport the children to
school.
4. The parties shall have the following contact with the children:
4.1. The applicant shall exercise contact on Father’s Day from
17h00 on the evening preceding Father’s Day until 1 7h00 on
Father’s Day in the event that the children are in the care of
the respondent;
4.2. The respondent shall have contact on Mother’s Day from
17h00 on the evening preceding Mother’s Day until 17h00 on
Mother’s Day in the event that the children are in the care of
the applicant;
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4.3. The applicant shall be entitled to contact on his birthday from
17h00 on the evening preceding his birthday until 17h00 on his
birthday in the event that the children ar e in the care of the
respondent;
4.4. The respondent shall be entitled to contact on her birthday
from 17h00 on the evening preceding her birthday until 17 h00
on her birthday in the event that the children are in the care of
the applicant;
4.5. Each party shall be entitled to contact for half of the available
time on the children’s birthday;
4.6. Each party shall be entitled to contact for half of each long
school holidays provided that:
4.6.1. Neither party shall spend Christmas with the children
in consecutive years;
4.6.2. Neither party shall spend Easter with the children in
consecutive years;
4.7. Each party shall be entitled to contact for alternate short
school holidays;
4.8. Each party shall be entitled to daily telephonic contact with the
children.
5. The applicant shall pay in respect of the children:
5.1. The medical aid / hospital plan premiums;
5.2. All reasonable medical, dental, ophthalmic , therapeutic and
pharmaceutical costs incurred that are not covered by the
medical aid / hospital plan;
5.3. All reasonable and agreed costs of the children’s extra- mural
activities that are not covered by the education allowance paid
by the respondent’s father;
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5.4. The private educational costs including school books,
stationery, school uniforms, tours, levies and extra- mural
activities and equipment that are not paid by the education
allowance paid by the respondent’s father in respect of the
children’s educational costs;
5.5. The costs of maintaining the children at his residence
including, inter alia, rental, utilities, food, cleaning materials,
transport costs, entertainment and clothing and shoes.
6. With effect from the month in which the shared residence regime
above-mentioned commences, the applicant is ordered to pay
maintenance in respect of the two children to the respondent in the
amount of R10 000.00 per child per month and monthly thereafter on
or before the first day of each succeeding month.
7. The applicant is ordered to pay:
7.1. The monthly insurance premiums and the instalments due to
Investec Bank in respect of the Mercedes Benz vehicle driven
by the respondent; and
7.2. The maintenance costs of the vehicle driven by the respondent
that are not covered by the motor plan in respect of the vehicle
8. Pending transfer of the former matrimonial home, the applicant will
pay the following expenses in respect of the home:
8.1. The costs of all insurance premiums at the home, the
mortgage bond payment, the domestic worker’s salary, the
gardener’s salary;
8.2. The utilities, security costs, DSTV, streaming services and
fibre in respect of the matrimonial home.
9. The applicant is to pay a contribution towards the respondent’s legal
costs of R 100 000.00 payable in five (5) equal instalments, the first
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instalment to be paid on 1 August 2026 and subsequent instalments
monthly thereafter on the first day of each succeeding month.
10. The Family Advocate is requested to investigate the issues of care,
residence and contact by the parties in respect of the children and to
furnish a report, including recommendations in respect thereof, to the
trial court.
11. The respondent’s supplementary affidavit and the applicant’s reply
are admitted and the costs of the rule 43(5) application and the
respective affidavits will be costs in the cause of the divorce
proceedings.
12. The costs of this application are costs in the trial proceedings with
costs of counsel on scale B.
I hand down the judgment.
___________________________
CRUTCHFIELD J
JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant: Adv A A De Wet SC instructed by Deanne
Kahn Attorneys.
For the Respondent: Adv M Abro instructed by Clarks
Attorneys.
Date of the hearing: 15 April 2026.
Date of the judgment: 24 June 2026.