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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 2026-035198
In the matter between:
L[...] F[...] APPLICANT
and
A[...] J[...] F[...] RESPONDENT
Neutral citation : F[...] v F[...] (Case No 2026-035198) [2026]
ZAWCHC (28-07-2026)
Coram : MAPOMA AJ
Date of hearing : 17 June 2026
Date of judgment : 28 July 2026
Summary - Opposed Rule 43 application – claim for interim maintenance
pendite lite – contribution towards legal costs for divorce action – relevant
factors to consider – interests of minor child paramount consideration –
possible settlements – contribution towards legal costs declined where
mediation is appropriate mechanism.
ORDER
1. Pending the finalisation of the divorce action:
1.1. The applicant shall enjoy the exclusive use of the fully furnished
holiday home a t Betty’s Bay which is registered in the name of the
A[...] Trust (the Trust).
1.2. The respondents shall maintain the applicant and the part ies' minor
son in the following terms:
1.2.1. The respondent , alternatively the Trust, shall be liable for
monthly costs pertaining to rates and taxes , water, electricity,
Wi-Fi, DSTV and reasonable maintenance and upkeep of the
Betty’s Bay property;
1.2.2. The respondent shall pay to the applicant an amount of
R15 000 (Fifteen Thousand Rand) towards maintenance of the
applicant and the minor child;
1.2.3. The respondents shall be liable for the reasonable maintenance
of the Toyota Corolla motor vehicle used by the applicant ,
including costs for general maintenance and repairs , services,
replacement of tyres when necessary, insurance and licencing
thereof;
1.2.4. The respondent shall contribute by payment of R1 500.00
(One Thousand
1.2.5. The respondent sh all retain the minor child on his current
medical aid, and GAP cover and shall be liable for all medical
expenses not covered by the medical aid fund , including
payment of the minor child’s ADHD medication;
1.2.6. The respondents shall continue to pay all reasonable
educational expenses in respect of the minor child , including
his school fees , extramural co sts a nd cost s of his school
uniform, books, stationary and any electronic equipment
reasonably required by him for the purposes of his school
education;
1.2.7. the respondent shall pay the monthly costs of the minor child's
school transport.
2. Costs shall stand over for determination in the divorce action.
JUDGMENT
MAPOMA AJ:
[1] This is an opposed application in terms of Rule 43 of the Uniform Rules of
court. The applicant seeks relief for interim maintenance pending the
finalisation of the divorce action between her and the respondent , including
ancillary reliefs in respect of herself and the parties’ minor child, as well as the
respondent’s contribution towards her legal costs of the divorce action.
[2] More precisely, the applicant seeks from the respondent
(a) Monthly payment of R25 000 for the applicant’s rental of alternative
accommodation to the matrimonial home;
(b) Once off payment of R50 000 for rental deposit of the alternative
accommodation;
(c) Monthly payment of R15 630 for maintenance;
(d) Payment of an unquantified amount for the purchase of new furniture and
equipment for the alternative accommodation , and other ancillary reliefs
for household necessaries; and
(e) Payment of R385 000.00 as contribution to the applicants past and future
legal costs to prosecute the divorce action.
[3] In her own version, the applicant has no liabilities . She has personal assets
that are valued at R1 587 184.00. According to the applicant , the respondent’s
personal estate, against which she is entitled to accrual upon divorce, is worth
R12 798 986.21, from which she is entitled to 50% accrual.
[4] It is also common cause that the marriage relationship has irre trievably
broken, but the contestation is only in relation to the terms of divorce . The main
issues that are outstanding for the finalisation of the divorce at this stage are the
quantum of the applicant ’s accrual against the respondent’s personal estate and
the assets in the parties inter vivos Trust, and the quantum and duration of the
applicant’s maintenance and that of the minor child.
[5] On 28 April 2026, the parties sought to settle the divorce action and reached
some agreement , but regrettably, they could not finalise and sign the deed of
settlement. According to the respondent , on the day in question the parties have
settled the matter, but on the following day the applicant changed her mind and
reneged on the agreement. This version is disputed by the applicant.
[6] Whilst on the papers before Court, both parties seem desirous of mediation
of the disputes in the d ivorce action , they have not pursued that dispute
resolution mechanism. In his opposing papers and during the hearing of th is
matter, the respondent expressed his desire for mediation and requested the
Court to direct them to explore the mediation process.
[7] In my view, now that the issue as to w hether or not the divorce was settled
on 28 April 2026 is in dispute, that issue is not a matter for this Court to
determine in these proceedings. It is a matter that remains to be resolved in the
pending divorce proceedings.
[8] The brief relevant facts , which are not in dispute , are that t he parties got
married to each other on 13 December 2003 out of community of property with
accrual system. There are three children born of the marriage, the first and
second born of whom are now majors and university students but still dependant
on the parties particularly the respondent for their maintenance. The third child,
who is a 16-year-old minor, is a child who is autistic and requires specialised
care.
[9] During the subsistence of the marriage, the parties established an inter vivos
trust named A[...] Trust (“the Trust”) in which both are Trustees and
beneficiaries together with their children . Over the years the Trust accumulated
an estate comprising of six immovable properties that are registered in its name.
The total net -value of the estate properties is worth approximately RI8 012
791.00. It is also not in dispute that the applicant is entitled to the accrual in the
assets of the Trust.
[10] In August 2025, the applicant instituted divorce action against the
respondent. In the divorce action , both the applicant and the respondents are
also cited as second and third defendants in their respective official capacities as
the trustees of the Trust. In the divorce action, the applicant sues the trustees for
termination of the Trust and division of the assets for the applicant’s accrual
benefits to be realised from the Trust.
[11] The applicant is 48 years of age, employed as an occupational therapist .
She earns a monthly net salary of R26 000. The applicant receives a less than
adequate salary because, as per arrangement between the parties, she works half
a day in order to look after the minor child. The respondent is 50 years old. He
is employed as a structural engineer . He earns a monthly net salary of
R68 841.63.
[12] The parties agree that they cannot live together in the same matrimonial
home anymore. The respondent is not prepared to move out of the family home ,
which means that the applicant has to obtain alternative accommodation for
herself and the minor child . In this regard, the applicant seeks accommodation
to rent within the Somerset West area, because amongst other things , the minor
child attends school in that area . According to the applicant, rental of the
appropriate accommodation in Somerset West ranges between R21 000 and
R32 000 per month, hence she seeks payment of R25 000 for monthly rental.
[13] The applicant’s contention is that, given her earnings, she cannot afford the
rent of a suitable accommodation at Somerset West and requires the respondent
to pay for such cost s. The respondent acknowledges that the applicant has to
move out of the matrimonial home, however he pleads that he cannot afford to
pay the demanded rental cost s, same as payment for the purchase of a new
furniture, given his salary of R68 000. In this regard, the respondent submitted
his income and expenditure statement which the Court has perused. It appears in
the income and expenditure statement that after payment of the respondent’s
monthly liabilities, the respondent has a shortfall in the amount of R6000.
[14] The respondent proposed that instead of incurring the rental costs he
cannot afford, the applicant should take accommodation at the family’s
furnished holiday home at Betty’s Bay, which is situated at about 40 kilometres
from Somerset West. The applicant is not amenable to that proposal, as she
contends that it would necessitate that she travels that distance and negotiate the
mountain daily.
[15] Regarding contribution towards legal costs, t he applicant cont ends that
since the divorce proceedings are still pending , she requires an adequate
contribution from the respondent towards her legal cause at least up to the first
day of the trial . In this regard , she submitted an invoice from her attorneys of
record, depicting that she had incurred legal costs in the amount of R78,489.99
of which s he still owes R 14,979.98. In the notice of motion, the applicant
further seeks an order directing the respondent to pay an amount of
R385 000.00 as contribution towards the applicant’s legal costs.
[16] In light of the above facts, the issues for determination in these proceedings
are whether the applicant has made out a case for the interim maintenance
pending the finalisation of the divorce and the respondent ’s contribution
towards her legal costs, and if so, to what amount s; and whether the respondent
is financially capable of meeting the applicant’s demands in the relief sought.
[17] While every Rule 43 application has to be decided on its facts, the general
principles applicable to the Rule 43 applications have been cr ystalised by our
courts. In L.S v J. S,1 the court pro vided a useful summary of the general
principles applicable to Rule 43 applications . Primarily, what Rule 43 provides
for is an efficient mechanism that regulates the procedure to be followed in
applications of an interim nature in relation to the pending matrimonial matters.
Its purpose is to provide a quick and inexpensive relief.
[18] The original purpose of the rule is to assist the claimant, usually the
women, who f inds themselves in a weaker financial position than the other
spouse in divorce proceedings. The fundamental basis of the rule is to enforce
the duty of support that the spouses owe to each other and that the parents owe
to their children.2
[19] Its objective is to resolve ancillary disputes in an inexpensive and
expeditious manner to ensure just and expeditious decision pending the
finalisation of the matrimonial matter.
[20] As the Rule 43 relief is intended to be interim and temporary in nature, it
cannot be determined with that degree of precision and closer exactitude
afforded by detailed evidence. 3 Further, care must be taken to ensure that Court
does not award the interim relief that would incentivise the parties to derive
comfort in unduly prolonging the finalisation of the divorce.4
Alternative accommodation and maintenance
1 Unreported, GJ Case 23967/2012 dated 2 August 2024. See also D1 Rule 43-2 Service 28, 2025
2 Carry v Carry 1999 (3) SA 615 (C) at 619H-I
3 Taute v Taute 1974(2) SA 675 (E) at 676B-C
4 B.A.R v D.G.R 2023 JDR 1210 (WCC) at para 3
[21] The parties are ad idem that they cannot live together in the matrimonial
home as husband and wife . They are also in agreement that the applicant will
have to move out to an alternative accommodation. The question is whether to
rent or to take occupation in the family’s Trust furnished property at Bettys Bay.
Importantly, whatever the course the Court directs, the best interests of the
minor child are paramount, and both parties will have to take joint
responsibility.
[22] In my view, it cannot be disputed that the rental accommodation will come
at a considerable cost. On the facts, the respondent is the main income earner in
the marriage relationship between the parties. He is the main provider of
reasonable maintenance for the family, education of the children , which he does
from his salary of R68 000 . In his income and expenditure statement, t he
respondent has demonstrated that he cannot afford to pay the rental costs
required by the applicant out of his salary income.
[23] I am also mindful of the concerns advanced by the applicant regarding
taking occupation at Bettys Bay, in particular, the distance to and from Somerset
West, the school interest of the minor child , and general inconvenience .
However, given that the Rule 43 relief is an interim measure pending the
finalisation of div orce, I am of the view that the benefit of utilising for
accommodation what is already owned by the parties far outweighs the costs
incidental to the option of the new rental accommodation.
[24] To support the applicant’s travelling needs and the costs of ensuring that
the best interests of the minor child , particularly requiring special educational
needs are taken care of , the respondent will have to bear the costs of ensuring
that the applicant motor vehicle is well serviced and fit for purpose. The
respondent will have to ensure that the child is adequately transported to school,
and the applicant is fully supported in this regard.
[25] Upon consideration of the facts , I am satisfied that the respondent has a
duty to maintain his wife and minor child in the interim. In my view the
quantum claimed by the applicant for maintenance of both her and the minor
child is reasonable for their needs and is well founded well founded.
Contribution towards legal costs
[26] Rule 43(1) (b) applies whenever a spouse seeks relief from the court in
respect of contribution by the other spouse towards costs of a pending or about
to be instituted matrimonial action. A claim for contribution by a spouse
towards another’s costs in a matrimonial matter is sui generis. It is based on the
underlying principle that the spouses owe a duty of support to each other.5
[27] The high watermark of the applicant’s argument is that there is a marked
disparity in the financial resources of the parties and thus their ability to litigate
meaningfully with equal arms.
[28] Indeed, in AF v MF ,6 the court held that where there is marked imbalance
in financial resources available to the parties to litigate, there is a real danger
that the poorer spouse , usually the wife , will be enforced to settle for less than
what she is legally entitled to simply because she cannot afford to go to trial .
Where the husband who controls the purse strings and is well able to deploy
financial resources to the services of his cause, that would be inherently unfair.
[29] In this case, the applicant ’s basis of the contended disparity is the
respondent’s salary whose current liabilities outmatch the salary. She further
5 A.G v L.G (unreported) WCC Case No 9207/2020 dated 25 August 2020 at paragraph 16
6 2019 (6) SA 422 (WCC) at para 42
refers to the respondent’s bond free matrimonial home worth R5.7 million and
his pensions funds worth R 3.6 million as illustrative of the disparity. In my
view, these two assets are not liquid and thus not accessible to the respondent
excusive of the applicant. They are effectively co -owned by both parties
because the applicant has accrual claim against them.
[30] In her own versi on the applicant has R235 000 in cash , yet she has no
liabilities. Also, in the same way as the respondent, she has access to her loan
account in the Trust , which she can utilise to litigate. It would be manifestly
unjust to expect the respondent to fund the applicant’s legal fees from his loan
account when the applicant can do so from her own loan account.
[31] In Nilsson v Nilsson ,7 the court stated that rule 43 is not meant to provide
an interim meal ticket to a person who quite clearly at the trial will not be able
to establish a right to maintenance. In my view, with the same measure, the right
to maintenance is assessed based on factors that are relevant for the right to
contribution to legal costs. From the facts of this case, it seems to me that the
applicant will be entitled to a portion of accrual of the assets of the Trust. This
will enable the applicant to pay her legal costs.
[32] Thus, on the evidence before Court, the applicant has not shown where th e
financial resources of the respondent are that from which she would fund her
legal costs except by selling the assets of the parties’ estate , which the
respondent has no exclusive access to. In the circumstances, I am not persuaded
that the applicant’s claim against the respondent for contribution towards her
legal cost has been established. If anything, the applicant has a right to her loan
account from the Trust if her personal resources are depleted.
7 1984(2) SA 294 (C) at 295F; See also B.R v DR WCC (unreported
[33] Having considered this matter , my view is that it is not to any of the
parties’ interest to endlessly litigate on this matter. This is more so in
circumstances where the parties have gone to some length towards reaching
amicable settlement of this matter. My view is fortified by the fact that the
parties will have to dig deep from their assets and investments to fund litigation .
In the circumstances, I hold the view that mediation process is the appropriate
avenue to be utilised by the parties to reach settlement.
[34] Regarding the costs of this application , I have considered the respective
arguments on behalf of both parties for the award of costs of this application in
either party’s favour. I am not persuaded that a distinct cost award for this
application is justified in the circumstances. The general approach in matters of
this nature is to stand over the issue of costs for final determination of the
matrimonial action. I find no reason to deviate. I hold the view that costs of this
application should be costs attendant to the divorce action.
[35] I therefore make the following order that p ending the finalisation of the
divorce action:
(a) The applicant shall enjoy the exclusive use of the fully furnished holiday
home at Betty’s Bay which is registered in the name of the A[...] Trust
(the Trust).
(b) The respondents shall maintain the applicant and the parties' minor son in
the following terms:
(i) The respondent , alternatively the Trust, shall be liable for monthly
costs pertaining to rates and taxes , water, electricity, Wi-Fi, DSTV
and reasonable maintenance and upkeep of the Betty’s Bay property;
(ii) The respondent shall pay to the applicant an amount of R15 000
(Fifteen Thousand Rand) towards maintenance of the applicant and
the minor child;
(iii) The respondents shall be liable for the reasonable maintenance of the
Toyota Corolla motor vehicle used by the applicant , including costs
for general maintenance and repairs , services, replacement of tyres
when necessary, insurance and licencing thereof;
(iv) The respondent shall contribute by payment of R1 500.00 (One
Thousand Five Hundred Rand);
(v) The respondent shall retain the minor child on his current medical aid,
and GAP cover and shall be liable for all medical expenses not
covered by the medical aid fund , including payment of the minor
child’s ADHD medication;
(vi) The respondent shall continue to pay all reasonable educational
expenses in respect of the minor child , including his school fees ,
extramural co sts a nd cost s of his school uniform , books, stationary
and any electronic equipment reasonably required by him for the
purposes of his school education; and
(vii) The respondent shall pay the monthly costs of the minor child's
school transport.
[36] Costs shall stand over for determination in the divorce action.
_________________
ZL MAPOMA
ACTING JUDGE OF THE HIGH COURT
Representatives
Counsel for the Applicant : Adv Thelma-Ann Pratt
Instructed by : Hanlie Visser Incorporated, Somerset West
Counsel for the Respondent : Adv Alma De Wet
Instructed by : Morkel De Villiers Attorneys, Somerset West