This case concerns a Rule 43 application in the Northern Cape Division in which the only issue left for decision was the quantum of a husband’s contribution towards his wife’s legal costs in a pending accrual and spousal maintenance divorce. The court declined to follow what the respondent described as the prevailing practice in that Division of confining a contribution to a nominal amount for the first day of trial, and instead ordered a first contribution of R259,210.00 together with the fees of a forensic accountant and an industrial psychologist up to capped amounts.
The facts and the relief sought
The parties were married on 22 March 2013 out of community of property with the inclusion of the accrual system under the Matrimonial Property Act 88 of 1984. Two minor children were born of the marriage. The applicant instituted divorce proceedings on 9 June 2026, claiming permanent spousal maintenance until her death or remarriage, extensive maintenance for the children and an order directing compliance with the antenuptial contract. In his counterclaim the respondent tendered R30,000.00 per month for the children, including their medical aid, education and the rental and rates on the home they occupy, but made no provision whatsoever for the applicant herself. By the time the Rule 43 application was argued, the respondent had delivered his plea and counterclaim and the applicant had pleaded to the counterclaim, so that the pleadings were on the verge of closing.
The issues left for trial were the quantum of the applicant’s accrual claim and whether she was entitled to lifelong maintenance including medical cover, an immovable property valued at R4,000,000.00 and a motor vehicle valued at R850,000.00 to be replaced every five years. Against that backdrop the applicant launched her Rule 43 application. She sought cash maintenance of R47,948.00 per month for herself and the children, a further R9,180.00 should the respondent terminate the salary she received from his company Azuflash (Pty) Ltd, direct payment of medical aid, rental, education and sundry household costs, and a contribution towards costs made up of R230,000.00 for the deposit and fees of her forensic accountant Hannes Swiegers Inc, R35,190.00 for her industrial psychologist Mr Bernard Swart and R915,400.00 for attorney and counsel fees up to but excluding the first day of trial. She annexed an itemised bill of costs reflecting attorney fees at R40,000.00 per day and counsel at R28,000.00 per day across every anticipated stage from replication to discovery, Rule 35 and Rule 36 notices, the Rule 37 pre-trial conference and three days of trial preparation, with experts estimated at R265,190.00 inclusive of VAT and a grand total of R1,180,590.00.
The applicant had until then been reliant on her elderly parents to fund the litigation. She did not seek recovery of costs already incurred, including R189,913.84 spent on an earlier urgent application. The respondent admitted that he was the sole director and shareholder of Azuflash, alleged that he earned a salary of only R15,832.97 per month and that the company funded his monthly shortfall of R23,222.87, yet denied comingling personal and company funds. Before argument the parties settled every issue except the contribution to costs, agreeing to maintenance of R40,000.00 per month (to increase by R9,810.00 if the Azuflash salary ceased), medical aid, use of the company vehicle, rental, half of the children’s educational costs, primary residence with the applicant and a defined contact regime for the respondent under section 18 of the Children’s Act 38 of 2005. Paragraph 4 of the agreed order recorded that the quantum of the contribution to the applicant’s legal costs and the costs of the application would be determined by the court.
The competing positions on quantum
The respondent did not object to any particular item in the applicant’s estimate. His attack was on the total, which he described as “shocking, astonishing and absurd”. He contended that it was unreasonable to expect the court to endorse an attorney charging R40,000.00 per day when he had retained local attorneys and counsel at substantially lower rates, and he tendered R25,000.00, which he submitted was adequate and “in accordance with the prevailing practice in this Division” for funding the first day of the divorce trial (paragraph 19). He argued that a forensic accountant was premature and that its necessity had to be established at trial, that he should not be made to fund an investigation founded on allegations he regarded as unjustified, and that an industrial psychologist was inappropriate because such evidence is relevant only to third-party claims. Relying on the Protection of Personal Information Act 4 of 2013 and the Companies Act 71 of 2008, he maintained that the applicant was not entitled to the financial information of Azuflash, a separate juristic person, and that she impermissibly conflated his means with those of the company.
Mr S Grobler SC, for the applicant, argued for the full contribution.
He characterised the respondent’s opposition as no more than a notional defence that took issue with nothing in particular, but conceded that approximately R300,000.00 could be deducted from the R915,400.00 in respect of the three-day trial provision and certain items that would not arise in the divorce. He pressed the point that the respondent refused to disclose the extent of an estate alleged to be worth approximately R30 million while showing a willingness to litigate every issue, and in the heads of argument the applicant identified R524,400.00 inclusive of VAT as the irreducible minimum required at this stage, comprising the experts’ fees and the legal costs of discovery and pre-trial litigation. He proposed that the respondent’s liability for the experts be limited to payment upon presentation of their invoices.
Mrs Sieberhagen, for the respondent, raised the tender to R150,000.00 payable in three monthly instalments. She relied on the agreement reached between the parties as evidence of the respondent’s willingness to settle, submitted that the matter was not so extraordinary as to warrant senior counsel or experts, and sought to distinguish H v H 2023 (6) SA 279 (GJ), where the full R830,000.00 claimed had been awarded, on the basis that the respondent in that case had acquired assets of some R17.5 million within a single year. She argued that the forensic accountant’s fees were premature before discovery had been completed, that the projected fifty hours of investigation were conjectural, and that the applicant should engage suitably qualified experts in Kimberley rather than Cape Town to contain costs.
The legal framework: equality of arms and the reciprocal duty of support
Stanton J began with the settled proposition that Rule 43 regulates only the procedure for claiming a contribution to costs, while the substantive basis of the claim is the reciprocal duty of support between spouses, which includes the cost of legal proceedings, citing AF v MF 2019 (6) SA 422 (WCC) at paragraph 27. The court traced the principle back to Van Rippen v Rippen, where Ogilvie Thompson J held that the court must have “the dominant object in view that, having regard to the circumstances of the case, the financial position of the parties, and the particular issues involved in the pending litigation, the wife must be enabled to present her case adequately before the Court.”
The constitutional dimension was drawn from Cary v Cary 1999 (3) SA 615 (C), where Donen AJ held that the discretion under Rule 43 must be exercised consistently with the rights to equality and equal protection of the law and that “equality of arms” is necessary for a fair divorce trial. The judgment quoted the passage in which Donen AJ regarded himself as “constitutionally bound to err on the side of the ‘paramount consideration that she should be enabled adequately to place her case before the Court'”, observing that an applicant “will not enjoy equal protection unless she is equally empowered with ‘the sinews of war'” and that the dignity of a wife who must approach her husband for the means to divorce him is also implicated. Stanton J added that a lack of means may impair a spouse’s dignity particularly where that spouse must seek assistance from family or friends, that the duty of support is reciprocal and that the principle applies irrespective of gender.
On quantum the court restated the established principles from AF v MF at paragraphs 29 and 30 and Cary at 621D: the court considers the circumstances of the case, the parties’ respective financial positions, the nature and complexity of the dispute and the scale on which the parties litigate or propose to litigate; the duty is gender-neutral even though women have historically been the more frequent claimants; and an applicant is entitled to a contribution sufficient to secure equality of arms. The court expressly agreed with Davis AJ in AF v MF that the obligation “does not necessarily postulate an obligation only to pay for part of those costs” and that the extent of the contribution “should logically depend on how much, if anything, the wife herself is able to contribute”. That generosity was tempered by the caution, drawn from R.D.C.N v C.M.N (2026/009742) [2026] ZAWCHC 214 (11 May 2026) at paragraph 39, that a contribution to costs “is not, however, a warrant to litigate at any chosen scale.” The court also noted the unreported authorities placed before it by Mr Grobler, namely AF v MF, H v H and YM v TJM [2023] ZAGPPHC 582, in which the full contribution sought was awarded including costs already incurred and the costs of senior counsel, and KF v MF [2023] ZAWCHC 253, CB v MRB [2024] ZAGPPHC 805, DS v GS [2024] ZAMPMHC 54 and MCDCR v APWR [2025] ZAGPJHC 307, in which provision was made for the fees of industrial psychologists and forensic accountants.
The findings on the respondent’s means and the order made
Applying those principles, the court found that the respondent’s disclosed salary of R15,832.97 sat uneasily with his ability to pay an additional R39,047.00 per month towards the family, that the applicant had enjoyed unrestricted use of his credit card and that he had failed to disclose his own personal expenses, so that “an adverse inference may be drawn regarding the completeness of his financial disclosure” (paragraph 36.1). The litigation was marked by acrimony, evidenced by the earlier urgent application to interdict Azuflash from acquiring an R8,000,000.00 property jointly with a Ms A Faber, which failed, after which the respondent nonetheless agreed that the property be bought in the name of Azuflash rather than the contemplated trust. His reliance on the Protection of Personal Information Act and the Companies Act to shield the company’s finances was weighed against the fact that he was the sole shareholder and director exercising exclusive control. On his own version Azuflash owed him R4,200,000.00 and his movables were worth about R2,000,000.00, while between 12 June and 10 September 2026 the company had spent R77,500.00 on legal fees, R111,090.00 on cattle, R57,600.00 on game, R10,000.00 on sheep and R104,825.04 on the farm Blaaubosput. The court concluded that there was no basis for finding that the respondent could not afford the contribution claimed.
The decisive passage for practitioners in the Division is paragraph 39: “I agree that there is no room for adherence to a purported practice that a contribution towards costs should be confined to the costs of the first day of trial. The determination of such a contribution must be informed by the particular facts and circumstances of each case.” Having regard to the complexity of the accrual calculation, the court held it to be in the interests of justice to place the applicant in a position to litigate “on a footing as near to equal as possible to that of the respondent” (paragraph 40). Although Mrs Sieberhagen did not hold silk, she was found to be an experienced practitioner with recognised matrimonial expertise, and the applicant’s decision to brief senior counsel was therefore not unreasonable. The court was satisfied that the applicant had substantiated her costs and expert fees in the amount of R524,400.00 inclusive of VAT, and recorded that her right to seek a further contribution under Rule 43(6) remained preserved.
On the experts the court held that the respondent’s failure to make full and frank disclosure was likely to necessitate a forensic investigation to ascertain the true extent of the estates, and that absent such an exercise the applicant’s ability to quantify both her accrual claim and her maintenance claim would be materially prejudiced. The industrial psychologist was likewise reasonable because the applicant’s employability, after eight years in the respondent’s company, would be a contested issue relevant to maintenance and section 7(2) of the Divorce Act 70 of 1979. The court cautioned at paragraph 46 that the award was not a licence to incur costs unreasonably or in bad faith and that both sides were expected to explore settlement and avoid escalation. The order directed the respondent to pay a first contribution of R259,210.00 inclusive of VAT into the trust account of the applicant’s attorneys in eight monthly instalments of R32,401.25 commencing on 30 November 2026, to pay the forensic accountant’s fees on invoice up to R230,000.00 inclusive of VAT and the industrial psychologist’s fees on invoice up to R34,590.00 inclusive of VAT. Despite the applicant’s substantial success, the costs of the Rule 43 application were reserved for the trial court in accordance with the conventional approach in the Division.
Questions and Answers
What is the legal basis for a contribution towards costs under Rule 43?
Rule 43 is procedural only. The substantive right rests on the reciprocal duty of support between spouses, which the court, following AF v MF, held includes the cost of legal proceedings. A spouse without sufficient means may look to the other spouse, where the latter has the means, for payment of reasonable litigation costs.
What was the only issue the court had to decide?
All other relief, including maintenance pendente lite, care and contact, medical aid, the vehicle and rental, was settled by agreement before argument. The parties recorded in their agreed order that the court would determine the quantum of the respondent’s contribution to the applicant’s legal costs and the costs of the application.
What is the “dominant object” test from Van Rippen v Rippen?
The court must have as its dominant object that, having regard to the circumstances of the case, the financial position of the parties and the particular issues in the pending litigation, the claimant spouse is enabled to present her case adequately before the court.
How does the Constitution shape the Rule 43 discretion?
Following Cary v Cary, the discretion must be exercised consistently with the rights to equality and equal protection of the law. Equality of arms is necessary for a fair divorce trial, and the dignity of a spouse who must ask the other for the means to litigate is also engaged.
What factors govern the quantum of a contribution?
The court restated from AF v MF and Cary that it must consider the circumstances of the case, the parties’ respective financial positions, the nature and complexity of the dispute and the scale on which the parties are litigating or propose to litigate, with the object of securing equality of arms.
Is a contribution limited to only a part of the applicant’s costs?
No. The court agreed with David AJ in AF v MF that the obligation does not necessarily postulate an obligation to pay only part of the costs, and that the extent of the contribution logically depends on how much, if anything, the applicant is herself able to contribute.
Does the duty of support in this context depend on gender?
No. The court held that the reciprocal duty of support applies irrespective of gender, while acknowledging that the traditional allocation of childcare and the wealth disparity between men and women have meant that women have more frequently sought contributions.
What did the court say about the Northern Cape practice of a R25,000 contribution for the first day of trial?
The court held at paragraph 39 that there is no room for adherence to a purported practice that a contribution towards costs should be confined to the costs of the first day of trial, and that the contribution must be informed by the particular facts and circumstances of each case.
Can a Rule 43 contribution include the fees of a forensic accountant?
Yes. The court ordered payment of the forensic accountant’s fees on invoice up to R230,000.00 inclusive of VAT, reasoning that the respondent’s failure to make full and frank disclosure was likely to necessitate a forensic investigation to determine the true value of the estates for both the accrual and maintenance claims.
Can it include the fees of an industrial psychologist?
Yes. The court rejected the argument that such evidence is relevant only to third-party claims and held that the applicant’s earning capacity and employability would be contested issues in the divorce, so that the industrial psychologist’s fees of up to R34,590.00 inclusive of VAT were reasonable.
Was it reasonable for the applicant to brief senior counsel?
Yes. Although the respondent’s counsel did not hold silk, she was an experienced matrimonial practitioner, and in those circumstances the court did not consider the applicant’s decision to brief senior counsel to be unreasonable.
How did the respondent’s incomplete disclosure affect the outcome?
The respondent disclosed a salary of R15,832.97 yet paid R39,047.00 per month in direct expenses, gave the applicant unrestricted use of his credit card and failed to disclose his own personal expenses. The court held that an adverse inference may be drawn regarding the completeness of his financial disclosure.
Could the respondent rely on POPIA and the Companies Act to withhold Azuflash’s financial information?
The court weighed that contention against the fact that the respondent was the sole shareholder and director of Azuflash exercising exclusive control over its affairs and finances, and treated the company’s loan account of R4,200,000.00 and its recent expenditure as relevant to his means.
Does a contribution entitle the applicant to litigate on any scale she chooses?
No. The court cited R.D.C.N v C.M.N for the proposition that a contribution to costs is not a warrant to litigate at any chosen scale, and warned at paragraph 46 that the award does not entitle the applicant or her representatives to incur costs unreasonably or in bad faith.
Can the applicant return for a further contribution, and who bears the costs of the Rule 43 application?
The applicant’s right to seek a further contribution as the litigation progresses is preserved by Rule 43(6). Despite her substantial success, the costs of the Rule 43 application were reserved for determination by the trial court, in keeping with the conventional approach in the Northern Cape Division.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator, Rule 43 Disclosure and Accrual Calculator.
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