Brief Summary

Maintenance — Rule 43 application — Applicant seeking maintenance pendente lite in divorce proceedings — Parties married out of community of property with accrual system and two minor children — Applicant, a full-time mother, claims spousal maintenance and child maintenance — Respondent, an attorney, disputes applicant's claims and reduces maintenance payments — Court considers interim maintenance principles, including marital standard of living and applicant's reasonable needs — Maintenance awarded to ensure financial support for applicant and children during divorce proceedings.

Comprehensive Summary

Summary of Judgment

Introduction

The matter concerned an application for interim relief brought in terms of Rule 43 of the Uniform Rules of Court in the context of pending divorce proceedings. The applicant in the Rule 43 proceedings was the defendant in the divorce action, and the respondent in the Rule 43 proceedings was the plaintiff in the divorce action.

The application was heard in the Western Cape Division of the High Court, Cape Town, before Pillay AJ, with judgment delivered electronically on 29 November 2023. The procedural setting was that a divorce action was pending, and the court was required to make temporary arrangements pending the final determination of that action.

The general subject-matter of the dispute was interim financial and parental relief pending divorce, including spousal maintenance pendente lite, maintenance for minor children, a contribution towards the applicant’s legal costs, and the incorporation (and finalisation of a remaining aspect) of agreed interim arrangements relating to the children, including the appointment and funding of a parenting co-ordinator and alcohol testing measures.

Material Facts

The parties were married on 1 December 2012, out of community of property with the accrual system. Two minor children were born of the marriage, aged approximately six and three at the time of the application. The parties were no longer living together. The children resided half the time with each parent, and issues concerning care, contact, alcohol testing, and the appointment of a parenting co-ordinator had largely been agreed.

The respondent was described as an attorney and businessman, including being the managing director of a firm of attorneys, a director of an identified corporate entity (redacted in the published judgment), and the owner of various franchises (redacted). The applicant had become financially dependent on the respondent after the parties decided (after the birth of their first child, about six years earlier) that she would be a full-time mother. The applicant held a BSc (Human Life Sciences) and an honours degree in Genetics, and previously worked as a specialist medical representative, but had last been employed in February 2017. The court noted evidence that the applicant was being treated for anxiety and depression.

On the papers, the parties’ prior standard of living during the marriage was accepted to have been comfortable, although there were disputes about the extent and frequency of luxuries. There was evidence that prior to the parties’ separation, the respondent paid the applicant amounts described as a “salary” (about R38,205.78 per month) and additional amounts associated with credit card spending, and that after the respondent left the common home on 6 April 2023, the applicant’s cash receipts reduced materially and her credit facilities were reduced. The respondent accepted he had reduced the monthly cash paid to the applicant (from R20,000 to R10,000 from August 2023) and attributed this reduction to the applicant’s conduct and what he described as overspending.

The applicant’s assets were described as negligible, with a motor vehicle listed at R120,000, and liabilities said to be approximately R1 million, including credit card debt, loans from her parents, unpaid legal fees, and costs orders. By contrast, the respondent was said to be an active director of multiple companies and to have assets in excess of R14 million with liabilities of about R10 million. Importantly for the Rule 43 enquiry, the respondent did not dispute that he could afford the maintenance claimed; his opposition focused instead on whether the applicant should be deprived of relief or receive reduced relief due to her conduct, and whether the claimed expenses were reasonable.

The respondent’s principal factual allegations underpinning his “unclean hands” stance were that the applicant had published content on social media that he characterised as defamatory and harmful to his reputation and business. Three incidents were relied upon, including a post juxtaposing a celebrity interview with an image of the respondent, an alleged statement to a third party expressing an intention to ruin him financially (which the applicant denied), and a public post sharing an embarrassing video of the respondent while attaching a message addressed to a corporate entity (redacted) implying he could not pay the children’s medical expenses. The respondent obtained an urgent interdict against defamation on social media on 7 July 2023, which the applicant did not oppose.

The applicant sought interim maintenance in the amounts of R37,500 per month for herself and R15,000 per child per month, and an initial contribution to costs of R1,309,390.00. She provided a schedule reflecting claimed monthly expenditure of approximately R67,326.32, comprising her personal needs and the children’s needs. The respondent contended that he already paid significant household and child-related expenses directly (including bond, municipal charges, utilities, security, certain staff salaries, medical aid, school fees, and activities), and that the applicant’s claimed cash amounts were unreasonable in light of those direct payments.

Legal Issues

The central legal questions were whether the applicant was entitled, pending the divorce action, to an award of maintenance pendente lite (for herself and the children) and a contribution towards legal costs, and if so, what the appropriate quantum should be on an interim basis.

A further legal issue was whether the respondent’s reliance on the doctrine of “unclean hands” (based on alleged defamatory social media conduct) could operate in Rule 43 proceedings to justify refusing maintenance altogether or materially reducing it, and whether such conduct should influence the court’s discretion in setting interim maintenance and contribution to costs.

In addition, while the parties had largely agreed the interim care and related measures for the children, the court had to determine the remaining issue concerning the apportionment of the parenting co-ordinator’s costs, and then incorporate the agreed care/contact regime into the order.

The dispute therefore concerned an application of established Rule 43 principles to largely common-cause background facts about dependency, lifestyle, and means, combined with contested assertions about the relevance of alleged misconduct (a value-laden contention framed as “unclean hands”) and contested assessments of the reasonableness of expenses (an evaluative enquiry constrained by the limited evidentiary scope typical of Rule 43 proceedings).

Court’s Reasoning

The court located the application within the established purpose and character of Rule 43, emphasising that orders made under the rule are interim and temporary, and cannot be determined with precision comparable to trial proceedings. Rule 43 was treated as a procedural mechanism designed to provide a speedy and inexpensive interim remedy pending divorce, including interim maintenance, costs contributions, and arrangements relating to children. The court stressed that Rule 43 proceedings exist to avoid substantial prejudice pending divorce and are not a forum for determining complex disputes requiring viva voce evidence.

In determining maintenance, the court applied the well-established approach that the applicant spouse is entitled to reasonable maintenance pendente lite measured against the parties’ marital standard of living, the applicant’s actual and reasonable requirements, and the respondent spouse’s capacity to pay, with maintenance generally funded from income though sometimes justifying inroads into capital. The court also highlighted that an ability to pay is a fundamental prerequisite, and noted that the respondent did not place his ability to pay in issue.

The court integrated constitutional context drawn from authority on maintenance disputes, highlighting the gendered realities often present in maintenance litigation and the importance of courts ensuring the legal framework operates effectively to protect vulnerable spouses and children. Although the matter was not an enforcement case, the court considered the principles from Bannatyne v Bannatyne and related constitutional considerations instructive, particularly regarding the protection of children’s rights and the systemic disadvantage women often face in maintenance contexts. The court expressly treated the best interests of the child principle (section 28(2) of the Constitution) as a guiding consideration.

On the respondent’s “unclean hands” defence, the court rejected the contention that the doctrine could operate, in this Rule 43 setting, as a basis to deny or reduce interim maintenance or costs. The court noted the absence of authority supporting the respondent’s proposition that offensive or defamatory conduct in the context alleged could deprive a spouse of Rule 43 maintenance. It further explained that the doctrine of unclean hands, properly understood, concerns dishonesty or mala fides in the obtaining or advancement of a claim and is connected to abuse of process; it is not a general principle that unethical behaviour disentitles a litigant to relief in unrelated respects. The court referred to authority emphasising that courts’ power to non-suit a litigant for abuse of process is exercised sparingly, given the constitutional right of access to courts.

Applying those principles, the court concluded that the respondent’s complaint did not fall within the true scope of the unclean hands doctrine, and that, in any event, the allegations did not justify the relief sought (whether a refusal of maintenance or a reduction premised on that doctrine). The court also reasoned that allowing such allegations to influence Rule 43 maintenance would undermine the reciprocal duty of support arising from marriage, would risk prejudicing the children’s maintenance in the mother’s household given the shared-care arrangement, and would effectively require the Rule 43 court to determine complex factual disputes and constitutional issues (including aspects potentially implicating freedom of expression) on truncated papers. The court considered that defamation-related disputes and their consequences were more appropriately ventilated in the separate proceedings already instituted (and in which an interdict had been granted).

On the respondent’s argument that the applicant’s expenses were exaggerated or unreasonable, the court accepted the general principle (as articulated in Du Preez v Du Preez) that misstatements and exaggerations in Rule 43 proceedings are unacceptable and may warrant censure, including denial of relief in appropriate cases. However, the court found that the respondent’s criticisms were largely bald assertions without a sufficient factual basis, apart from limited instances where he claimed he paid certain expenses directly. In circumstances where the parties’ historical spending patterns indicated a comfortable lifestyle, and given the limited evidentiary scope of Rule 43, the court held it could not conclude on the respondent’s papers that the applicant’s schedule was so overstated as to attract the Du Preez-type consequences.

Having weighed the parties’ prior standard of living, the applicant’s dependency and present inability to meet her expenses, the children’s needs in a shared-care arrangement, and the respondent’s undisputed ability to pay, the court fixed interim maintenance at amounts lower than the applicant’s claimed spousal maintenance but granted the full amount claimed per child.

In relation to a contribution to costs, the court treated the claim as grounded in the spouses’ reciprocal duty of support and guided by principles concerning the parties’ means, the nature and scale of the litigation, the issues in the divorce action, and the need to ensure the applicant can present her case adequately and achieve equality of arms. The court rejected the respondent’s attempt to revive the “unclean hands” theme in this context for the same reasons it was rejected in relation to maintenance. The court also declined to reduce or postpone costs relief on the basis that an exception was pending or that settlement might occur, particularly where the respondent’s own version was that no settlement efforts had been pursued. Considering the respondent’s financial position and the scale of the litigation (including evidence of substantial expenditure in interdict applications), the court found the contribution sought (about R1.3 million) to be reasonable on the papers.

Regarding the children, the court recorded that the parties had substantially agreed interim care/contact, alcohol testing, and the appointment of a parenting co-ordinator, and it was satisfied the agreed draft order aligned with the best interests of the children. The remaining question was the allocation of the parenting co-ordinator’s costs, which the court determined on the basis of the parties’ respective financial circumstances and the broader interim maintenance order.

Outcome and Relief

The court granted Rule 43 relief pending the final determination of the divorce action. It ordered the respondent to pay the applicant spousal maintenance pendente lite of R35,000 per month, and maintenance of R15,000 per child per month for each of the two minor children. The court further ordered that the respondent continue paying a range of household and child-related expenses directly, including maintenance of the former marital home (bond, municipal charges, DStv, internet and security), salaries of certain staff at the home, medical aid and uncovered reasonable medical expenses (including specified categories), school fees and education-related and extramural costs, and ongoing costs relating to the applicant’s vehicle and cellular subscription.

The court directed that the combined cash maintenance amount of R65,000 per month (spousal plus child maintenance) be paid effective from 1 October 2023, on the first day of every month, into a bank account nominated by the applicant, without deduction or set-off.

The court ordered the respondent to pay an initial contribution towards the applicant’s legal fees in the amount of R1.3 million, payable within 21 days of the order.

The court made an order regulating interim care and contact on an equal-sharing basis with specified schedules transitioning from an existing arrangement to a 2:2:3 structure, and it appointed a parenting co-ordinator with specified powers including mediation/recommendations and limited directive powers, as well as alcohol testing mechanisms. The respondent was ordered to pay 80% of the parenting co-ordinator’s costs and the applicant 20%, subject to certain powers given to the parenting co-ordinator to vary cost allocation in defined circumstances.

Finally, the respondent was ordered to pay the costs of the Rule 43 application.

Cases Cited

Taute v Taute 1974 (2) SA 675 (EC).

S v S 2019 (6) SA 1 (CC) ([2019] ZACC 22).

JG v CG 2012 (3) SA 103 (GSJ).

Buttner v Buttner 2006 (3) SA 23 (SCA) ([2006] 1 All SA 429).

Reynecke v Reynecke 1990 (3) SA 927 (E).

CT v MT and Others 2020 (3) SA 409 (WCC).

Bannatyne v Bannatyne (Commission for Gender Equality as Amicus Curiae) 2003 (2) SA 363 (CC) (2003 (2) BCLR 111; [2002] ZACC 31).

Volks NO v Robinson and Others (CCT12/04) [2005] ZACC 2; 2005 (5) BCLR 446 (CC) (21 February 2005).

Mostert v Nash 2018 (5) SA 409 (SCA) ([2018] ZASCA 62).

Maughan and Another v Zuma 2023 (5) SA 467 (KZP).

Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH (CCT 237/21) [2022] ZACC 42; 2023 (4) BCLR 461 (CC).

Cambridge Plan AG and Another v Moore and Others 1987 (4) SA 821 (D).

Tullen Industries Ltd v A de Sousa Costa (Pty) Ltd and Others 1976 (4) SA 218 (T).

Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others [2000] ZACC 8; 2000 (3) SA 936 (CC).

Bwanya v The Master of the High Court 2022 (3) SA 250 (CC).

Du Preez v Du Preez 2009 (6) SA 28 (T).

AF v MF 2019 (6) SA 422 (WCC).

Van Rippen v Van Rippen 1949 (4) SA 634 (C).

Nicholson v Nicholson 1998 (1) SA 48 (W).

Cary v Cary 1999 (3) SA 615 (C).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 28(2), 34, and 38).

Divorce Act 70 of 1979 (section 7(2)).

Children’s Act 38 of 2005 (section 31).

Rules of Court Cited

Uniform Rules of Court, Rule 43 (including Rule 43(5)).

Held

The court held that interim relief under Rule 43 must be determined as temporary and pragmatic arrangements pending divorce, guided primarily by the parties’ marital standard of living, the claimant spouse’s reasonable needs, and the other spouse’s ability to pay, together with constitutional context and the best interests of the children.

It held that the respondent’s reliance on a doctrine described as “unclean hands”, based on alleged defamatory social media conduct, did not provide a basis in Rule 43 proceedings to non-suit the applicant or reduce interim maintenance and costs relief. The court held further that the respondent had not established, on the papers, that the applicant’s claimed expenses were so misstated or exaggerated as to justify refusing relief on that basis.

The court held that the applicant was entitled to interim spousal maintenance, child maintenance, and a contribution to legal costs, and that the respondent should bear the majority of the parenting co-ordinator’s costs given the parties’ respective financial positions. The respondent was ordered to pay the costs of the application.

LEGAL PRINCIPLES

Rule 43 relief is interim and temporary, and is designed to provide speedy and inexpensive arrangements pending divorce; it is not intended to yield the precision associated with trial proceedings, and its procedures are not suited to determining complex disputes requiring viva voce evidence.

Interim spousal maintenance pendente lite is determined with reference to the parties’ marital standard of living, the applicant spouse’s actual and reasonable requirements, and the other spouse’s capacity to pay, with the ability to pay being a fundamental consideration.

Rules of court, including Rule 43, are procedural mechanisms for enforcing substantive rights; the power to make pendente lite orders concerning maintenance, costs contributions, and children derives from substantive law, including the reciprocal duty of support arising from marriage.

In assessing interim relief, constitutional context is relevant, including the systemic and gendered realities often present in maintenance disputes, and the requirement that the best interests of the child remain paramount in matters concerning children.

The doctrine associated with “unclean hands” and abuse of process is linked to dishonesty or mala fides and is exercised sparingly because denying a litigant access to court implicates the constitutionally entrenched right of access to courts; it does not operate as a general discretionary basis to deprive a spouse of Rule 43 maintenance on the basis of offensive conduct not amounting to dishonesty in the claim itself.

A contribution to legal costs in matrimonial litigation is informed by the duty of support and is determined by considering the parties’ means, the nature and scale of the litigation, the issues involved, and the objective of ensuring equality of arms, enabling the indigent spouse to present their case adequately.

J.K v E.S.K (15912/2023) [2023] ZAWCHC 317 (29 November 2023)