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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA (MAIN SEAT)
Case No.: 461/2025
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 15 SEPTEMBER 2026
In the matter between:
R[…] O[…] APPLICANT
And
M[…] J[…] O[ …] RESPONDENT
________________________________________________________________
JUDGMENT
________________________________________________________________
FOURIE AJ:
INTRODUCTION:
[1] The Applicant before this court is the Plaintiff in the main action, being a
pending divorce action, and in this application seeks interim relief under
the auspices of Rule 43 of the Uniform Rules of Court from her
erstwhile husband, the Respondent.
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[2] Matrimonial litigation , including divorce actions, Rule 43 applications,
or ancillary maintenance, care, and contact applications, is inherently
emotional.
[3] Unfortunately, these litigious processes are also often acrimonious,
hostile and drawn out.
[4] The rationale for the aforesaid is almost certainly because it deals with
the resolution of heartbreak, the finalisation of a love relationship, and
the manner in which financial redistribut ion ought to occur between the
parties, all of which intertwine with one another.
[5] What transpire s is, more often than not, a ticking time bomb for
emotions to boil over.
[6] It accordingly often transpires that scorned lovers, in litigating for their
own maximum profit and benefit, seem to conveniently forget that their
erstwhile spouse was, for many years leading up to a divorce , involved
in the finances of a communal home, and the personal finances of each
individual. Once divorce proceedings are instituted and applications for
maintenance, either final or pendente lite , are brought, litigants then
attempt to hide their full estate and income values or to overstate their
expenses in the hope that the judge ultimately hearing the matter will
find them favourable . Litigants then attempt to feign surprise when
opponents lay their financials bare.
[7] Rule 4 3 applications are intended to be a quick and effective interim
remedy pending the finalisation of divorce proceedings. It ought to be a
factual enquiry dealing with 3 essential questions, namely:
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[7.1] What was the position that existed between the parties prior to
the breakdown of their marriage and the divorce proceedings
being instituted.
[7.2] What are the needs of the Applicant; and
[7.3] Is the Respondent in a financial position to cater for such needs.
[8] Unfortunately, courts rarely get to make a decision simply confined to
these three questions in Rule 43 applications , as Rule 43 applications
have seemingly evolved to be utilised by litigants and the ir legal
representatives as the first round of the proverbial litigious boxing match
between the parties, in which the parties seek to exchange litigious
blows, one towards the other, to gain some sort of traction in the ultimate
action that is to come. The practice has seemingly evolved to insert as
much emotional ammunition into a Rule 43 application as possible to
establish the ultimate high - and low -water marks parties can expect to
encounter when the matter ultimately proceeds to trial.
[9] These practices, as they are evolving, should be discouraged in the
strongest possible terms. Rule 43 applications should be short, concise
and to the point, containing necessary factual statements to such a degree
that reasonable litigants evaluating the papers would be capable of
resolving most of the issues amongst themselves, for the c ourt only to
intervene in the truly deserving aspects on which parties cannot agree.
[10] A full, frank, and honest disclosure of relevant material facts by both
parties in Rule 43 applications, substantiated where necessary, with
supporting evidence, rarely leads to acrimonious litigation. It is where
litigants attempt to claim interim maintenance for items or amounts that
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have never formed part of their living standards, where material assets
and income are hidden away, where emotions boil over.
[11] Courts use Rule 43 orders to provide interim justice between litigants,
ensuring their income and expenses are dealt with as closely as possible
to how they were handled before the divorce proceedings were instituted.
[12] Where the income -earning ability of the litigants remains constant, pre -
and post the commencement of the divorce proceedings, the c ourt will
surely order that the financial obligations of the respective parties to one
another would similarly remain the same, and it would only be to
expenses that were not in existence during the marriage of the respective
parties that a c ourt will be required to evaluate in what way such
expenses are to be dealt with.
[13] One such expense is the costs of litigation, obviously an expense that did
not exist before the litigious process was instituted, and even on this
point, the ultimate decision lies in equality, and both parties need to be
on equal footing to finalise the litigious process.
MATERIAL FACTS:
[14] At the time of the application, the parties had been married for
approximately 14 years, during which marriage no children were born.
[15] Irrespective of the submissions made by the respective parties, neither
the Applicant nor the Respondent can be regarded as indigent or
destitute. Both parties seemingly own several properties used to earn
monthly or short-term rentals, as the case may be.
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[16] In the current application, the Applicant seeks maintenance pendente lite
in the amount of R 8 500.00 (eight thousand five hundred rand), that the
Respondent is to pay 100% of all excess payments associated with any
medical procedure or medical expenses incurred by the Applicant not
paid by the Applicant’s medical aid, and a cost contribution for the
pending divorce action in the amount of R 50 000.00 (fifty thousand
rand).
[17] A significant portion of the founding and opposing papers were
designated to a joint business partnership between the Applicant and the
Respondent for the management of certain immovable property and
bookings in respect of same.
[18] It is unfortunate that, without justification and a clear , concise statement
as to why it has any relevance to the application at hand, this argument
found its way into the submissions to the c ourt. The divorce court will
deal with irrelevant issues such as these.
[19] The Applicant states her average monthly income to be approximately
R 31 500 (thirty -one thousand five hundred rand), and her average
monthly expenses to be approximately R 36 303.83 (thirty-six thousand
three hundred and three rand and eighty- three cents). The Applicant’s
shortfall on her calculation is accordingly R 4 775.45 (four thousand
seven hundred and seventy-five rand and forty-five cents.
[20] Perhaps the best way to indicate the perplexing manner in which parties
present their financials to c ourt is the Respondent, stating to be the
holder of an estate with a net value in excess of R 5 000 000.00 (five
million rand), indicating his monthly expenses to be on average R
53 721.00 (fifty-three thousand seven hundred and twenty- one rand) and
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his income to be on average R 11 000.00 (eleven thousand rand) per
month.
[21] On the Respondent’s version , it would accordingly mean that the
Respondent has a monthly shortfall of approximately R 42 000.00
(forty -two thousand rand).
[22] The Applicant complains that the Respondent has materially failed to
disclose certain income streams and financial assets that the court could
have taken into consideration.
[23] Basic arithmetic indicates that, if the Respondent was truly subjected to a
monthly shortfall of R 42 000.00 since the Applicant and the Respondent
parted ways in 2024, the Respondent would have been confronted with a
debt of close to a million rand by this stage. On the information, scarce
as it may be, that has been provided to the court, the court cannot accept
this proposition.
[24] Unfortunately for the Applicant, the court's lack of persuasion on the
Respondent's disclosure does not automatically mean success for the
Applicant. The Applicant, strangely so, elected to present argument
rather in the form of ultimate maintenance than interim maintenance.
Counsel for the Applicant , for instance, premised the whole of the
argument on the difference between the Applicant’s income and
expenses. The argument by the Applicant ought rather to have been
premised upon the marital standard and the subsequent void left by the
divorce proceedings. The clearest example of the aforesaid is the fact
that the Applicant, in vacating the matrimonial home , did not seek to
receive maintenance by being accommodated in a similar home
resembling the standard of living she was used to during the existence of
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the marriage relationship, but rather elected to seek maintenance for the
small garage-like unit she is currently residing in.
[25] The perplexing manner in which the Applicant ultimately argued binds
the Applicant to a maximum monthly contribution equal to the shortfall
after her expenses are subtracted from her income.
[26] The manner in which the Applicant and the Respondent ultimately
elected to present their case to c ourt was one of personal attack on the
bona fides of the other party and the material non- disclosure by the
respective parties rather than a true investigation and evaluation of the
interim change in circumstances. Had the litigants seriously considered
the change in circumstances after the institution of the divorce
proceedings, and its ultimate effect on the estates of the respective
parties, the evaluation this court was asked to make would have been
resolved long before the matter found its way on the court roll.
[27] The only true change that has occurred, and which is evident from the
papers presented to the court, is the fact that the Applicant and the
Respondent are no longer residing together, and in this regard a
duplication of certain expenses is occurring. The Respondent remains
resident in the erstwhile matrimonial home with his new partner, whilst
the Applicant occupies a small unit for which she pays approximately R
4 500.00 (four thousand five hundred rand) per month.
[28] The court did not have enough evidence to indicate how matrimonial
expenses were dealt with before the divorce proceedings were instituted,
to make any determination in that regard in favour of either party.
[29] The court accepts that the Applicant’s rental, ancillary expenses, and
certain grocery expenses are being incurred as a duplication in the
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respective estates. Other than the aforesaid , the evidence presented to
the court indicates that all other aspects, income and expenses, remain
the same.
[30] Upon the breakdown of the relationship between the parties, the
Applicant did not remain resident in the matrimonial home, forcing the
Respondent to vacate , rather, the Applicant was forced to vacate. The
evidence before the c ourt indicates at least to a great degree that the
Respondent previously provided housing for the Applicant, a position
that needs to remain constant pending the finalisation of the divorce
proceedings.
[31] Factoring in rental and groceries, the Applicant's monthly expenses in
respect of these two heads of expense average around R 4 800.00 (four
thousand eight hundred rand) per month. Coincidentally, this is also the
amount the Applicant complains as a shortfall in her monthly budget.
The court is, however, not persuaded that the Applicant would not have
contributed to the joint household's monthly groceries, and as such at
least an apportionment in respect of groceries needs to be applied.
[32] The Applicant’s claim for R 8 500.00 (eight thousand five hundred rand)
maintenance has simply not been substantiated nor proven. On the facts
presented to the c ourt, an amount of interim maintenance, to place the
parties in the position they were in prior to the divorce proceedings being
instituted, is determined as fair and reasonable at R 4 000.00 (four
thousand rand) per month.
[33] The Applicant has prayed for a cost contribution to act on equal footing
with the Respondent. The Applicant and the Respondent made several
allegations of non- disclosure and maliciousness towards one another,
specifically in dealing with communal properties and funds.
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[34] On the evidence presented to the court, the Applicant has simply failed
to adduce evidence justifying a contribution to costs being made in her
favour. The Applicant did not address reserve funds, the availability of
liquid assets, or the possibility of an offshore account in her papers to the
degree that the court can evaluate the disparity as prayed for to be
resolved by way of cost contribution.
[35] The manner in which both the Applicant and the Respondent are able to
deal with their finances, and the purchasing and renovation of ancillary
projects and homes stands opposite to the submissions as made by both
parties as far as it relates to the availability of funds at their disposal.
[36] It might very well be that facts exist that are deserving of the c ourt’s
intervention in respect of these h eads of contribution, but those facts
were not presented to the c ourt in such a manner that it is deserving of
the Court coming to the aid of the Applicant. Rule 43 applications are
still applications, and the parties must state and make out their case in
their papers.
APPLICABLE LEGAL PRINCIPLES:
[37] The financial aspects of a Rule 43 are directed at providing child
maintenance, spousal maintenance, or a contribution towards costs. The
relative financial obligations of each spouse have nothing to do with the
patrimonial consequences of a divorce but everything to do with the
application of S7(1) of the Divorce Act 70 of 1979 1 and, in respect of a
contribution towards costs, by ensuring a level playing field when it comes
to the litigation between them2.
1 W v H 2017 (1) SA 196 (WCC).
2 Cary v Cary 1999 (3) SA 615 (C) AT 621 D-E.
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[38] A court would be unable to determine whether there has been a proper
disclosure of available income, and the parties’ respective means to
provide for maintenance will be able to litigate on a relative par without
evaluating the available source of funds that historically have been used to
support the family prior to the party’s separation and whether that has
changed to any marked degree, bearing in mind that the household has
been split.3
[39] These various structures may also provide readily available or recurring
revenue streams that one or both parties habitually use to maintain the
family lifestyle. The mere fact that the revenue is not reflected in a regular
payslip or IRP5 return is of no consequence – at best these documents are
pieces of evidence. They , however, can never be conclusive in such
circumstances as they are unlikely to account for funds received in the
form of loan account repayments or of other benefits having an economic
value such as the de facto indefinite occupation or residential property in
the name of the Trust , the use of a company card or the provision of
groceries through a company credit card to name but a few examples.4
[40] All be it in a different setting than the current Rule 43 spectrum, further
and better discovery of financial records was ordered in the matter of
Makate v Vodacom5 on the grounds that failing to do so would inhibit the
settlement process by precluding a genuine settlement and would defeat
the broader considerations of the interests of justice.
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[41] Generally, Rule 43 applications should be expeditious, and the documents
filed on behalf of the parties should not be overburdensome or exorbitant.
3 TS v TS [2017] ZAGPJHC 244 AT paragraph 6.
4 TS v TS supra AT paragraph 8.
5 Makate v Vodacom (Pty) Ltd 2014 (1) SA 191 (GJ) AT paragraph 29.
6 RTS v TTS 207 JOL 3876 (GJ), Case 28917/2016 delivered on 7 August 2017.
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[42] The need for full and frank disclosure of a party’s financial position cannot
be overemphasised in Rule 43 applications.7
[43] In Du Preez v Du Preez8 the Court stated that:
“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 that same, there is a tendency for
parties in Rule 43 applications, acting expediently or strategically, to misstate the
true nature of their financial affairs. This is not unusual for parties to exaggerate
their expenses and to understate their income, only then later in subsequent
affidavits of in argument, having been caught out in the face of unassailable
contrary evidence, to seek the correct and relevant information. Counsel
habitually, acting no doubt on instruction, unabasitly seek to rectify the false
information as if the original misstatement was one of those things Courts are
expected to live within Rule 43 applications. To my mind the practice is
distasteful, unacceptable and should be censured. Such conduct, whatever the
motivation behind it is, is dishonourable and should find no place in judicial
proceedings. Parties should at all times remain aware that the intention making of
a false statement under oath in the cause of judicial proceedings constitutes the
offence of perjury and, in certain circumstances, may be a crime of defeating the
cause of justice.”
[44] More weight will be attached to the Affidavit of the Respondent to evince
willingness to implement his lawful obligations than to that of one who is
seeking to evade debt.9
CONCLUSION:
7 Abouchabki v Abouchabki 2020 JDR 1035 (GP) page 5 paragraph 13.
8 Du Preez v Du Preez 2009 (6) SA 28 (T) AT 32 paragraph 15.
9 Taute v Taute 1974 (2) SA 675 (E) AT 676 H.
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[45] The current application is a stark reminder of the unnecessary
information that finds itself in court papers in Rule 43 applications. The
bundles filed by the respective parties total nearly 450 pages, when the
relevant information the court considered could have been stated and
answered to in less than 20 pages. The information the court would have
appreciated to receive during evaluation of the papers and ultimate
argument by Counsel for the Applicant was omitted, and the issues
raised both by the Applicant and the Respondent were irrelevant for
purposes of the current Rule 43 application. The c ourt indicated, and
continues to hold, that this court will not entertain issues other than
maintenance pendente lite.
[46] This court is designed, at the current juncture, to deal with crisp, narrow,
and clearly defined issues that are easily identifiable on the honestly
discovered information of the respective parties. If parties cannot
identify those issues and confine their argument to them, a court will be
slow to embark on a full evaluation of all underlying issues between the
two litigants to assist a party seeking pendente lite maintenance.
[47] The only aspect in which the Applicant has indicated to the c ourt a
change in her factual position as from the time of matrimony to the date
of hearing relates to her relocation into a new residence and the monthly
rental occasioned thereto. On the information before the c ourt, the
explanation provided by the Respondent as to his ability to afford a
contribution to maintenance in this regard to the Applicant is similarly
wholly unsatisfactory. The Respondent presented his case vaguely and
without explanation on certain crucial elements at his own peril. On all
other aspects, the Applicant has failed to adduce evidence and argument
to substantiate the relief she is seeking.
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COSTS:
[48] Costs are a discretionary order in the hands of the court to ensure that a
litigant who has been successful in a litigious process is not out of
pocket for having to institute litigious processes to protect their interests.
[49] Neither the Applicant nor the Respondent was outright successful in the
current application and, having regard to the pending processes between
the parties, making any cost order that either party could use against the
other for some or other strategic advantage in future would not be justice
done.
[50] As such, each party ought to pay their own costs for the current
application.
ORDER:
[51] For the aforesaid reasons, the following order is made:
[51.1] The Respondent is ordered to pay maintenance to the
Applicant pendente lite in the amount of R 4 000.00 (four
thousand rand) per month as from 1 October 2026 until the
date of finalisation of the divorce.
[51.2] The Applicant’s claim for contribution to medical expenses
and legal costs is dismissed.
[51.3] Each party shall pay their own costs.
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_____________________________________
HF FOURIE
ACTING JUDGE OF THE HIGH COURT,
MPUMALANGA DIVISION
Counsel for the Applicant: ADV X WAHL
Instructed by: CRONJE DE WAAL SKHOSANA INC
Counsel for the Respondent: ADV K VAN HEERDEN
Instructed by: PIETER SWANEPOEL ATTORNEYS
Date of hearing: 4 September 2026
Date of judgment: 15 September 2026