Background of the Rule 43 Application in H.E.D. v D.D
The case of H.E.D. v D.D (2022/14582) [2025] ZAGPJHC 465 (13 May 2025) revolves around an application brought under Rule 43 of the Uniform Rules of Court, which provides interim relief to parties in pending divorce proceedings. The matter came before Judge Kumalo in the South Gauteng Division of the High Court in Johannesburg. This particular application demonstrates the complexities that arise when resolving financial matters pending the finalisation of divorce, especially when circumstances change dramatically during the course of proceedings.
The applicant and respondent had been married in community of property since 3 October 2005. Their marriage produced one child, now 15 years old, who at the time of the application was residing with the respondent in Croatia pursuant to a court order dated 19 December 2022. The divorce proceedings were instituted on 13 April 2022, with the initial disputes primarily concerning the primary residence, parental responsibilities, rights and maintenance of the minor child. These issues were subsequently resolved by the December 2022 order, leaving the division of the joint estate and the applicant’s claim for lifelong maintenance as the primary matters to be determined at trial.
The joint estate of the parties consisted mainly of the matrimonial home, valued at R2 070 000 according to municipal records, and the respondent’s pension benefits, alleged to amount to approximately R4 929 233 (before tax considerations of approximately R1 606 223). The applicant had not been employed for the past 14 years, except for a brief period between 2019 and 2020 when she earned R10 000 per month working as a researcher for an NGO. She had devoted herself to being a full-time housewife after the birth of their daughter, enabling the respondent to focus on his career as the family’s breadwinner.
A significant change in circumstances occurred when the respondent, who had been employed as a project manager on a contract basis with Catholic Relief Services (CRS), experienced the termination of his employment in December 2023. Prior to this, while working in Croatia from December 2022, he had been contributing R30 000 per month towards the applicant’s maintenance, which she used for her living expenses and the home loan instalment on the matrimonial property. The applicant had been informed of the impending termination in August 2023 but appeared unwilling to accept this reality, going so far as to conduct internet searches to disprove the respondent’s claims of unemployment.
The case highlights the tensions that can arise in matrimonial proceedings when financial circumstances shift dramatically, and when parties adopt entrenched positions regarding division of assets and ongoing maintenance obligations. Judge Kumalo made particular note of the applicant’s apparent unwillingness to compromise, describing her as insisting on “having her pound of flesh,” while acknowledging that the respondent did not appear to be a person unwilling to maintain his spouse or child when he had the means to do so.
The Rule 43 application thus presented the court with the challenging task of balancing the legitimate needs of a long-term homemaker spouse against the reality of a breadwinner’s unemployment, all while ensuring that interim arrangements would be fair to both parties pending the finalisation of the divorce.
The Applicant’s Claims for Maintenance and Legal Costs
In the Rule 43 application before the South Gauteng High Court, the applicant sought several substantial interim orders against the respondent, reflecting the often contentious nature of financial matters in high-conflict divorce proceedings. At the heart of her application was a claim for retrospective maintenance of R42 525 per month effective from 1 March 2024, despite being aware that the respondent had lost his employment at the end of December 2023. This maintenance claim was accompanied by a request for the respondent to cover medical aid premiums for a medical aid scheme or hospital plan of which she was or would become a member.
Perhaps most striking was the applicant’s demand for a contribution of R513 844.87 towards her past and future legal costs of the pending divorce proceedings, including the first day of trial. This extraordinary sum was sought despite there being an existing costs order against her in favour of the respondent from previous proceedings. When questioned by Judge Kumalo about how the respondent could reasonably be expected to meet these financial obligations while unemployed, the applicant’s counsel remarkably suggested that the respondent could surrender his pension and pay maintenance from those proceeds—effectively asking the court to prematurely distribute an asset that formed part of the joint estate and was the subject of the main divorce action.
The applicant additionally requested that the respondent be directed to pay for a psychologist or social worker to administer bonding therapy between herself and the minor child. This was despite evidence that previous court-ordered therapy sessions had already been paid for by the respondent, and that the minor child, now 15 years old, had specifically requested that these sessions be discontinued. The court acknowledged that the child’s views deserved consideration, particularly given that a planned visit by the applicant to Croatia, fully funded by the respondent, had been cancelled at the applicant’s request due to the strained relationship with her child.
In addressing the legal costs contribution claim, Judge Kumalo referred to the principles established in South African matrimonial law. The claim for contribution towards costs in matrimonial proceedings has its origins in Roman-Dutch procedure and is well-established in South African practice. Its substantive basis lies in the reciprocal duty of support between spouses, which includes the costs of legal proceedings when necessary.
As noted in the Van Rippen v Van Rippen case cited by the court, the guiding principle for exercising judicial discretion in such matters is ensuring that, “having regard to the circumstances of the case, the financial position of the parties, and the particular issues involved the wife must be enabled to present her case adequately before the Court.”
The court’s assessment of such claims must balance two fundamental criteria: reasonable needs and financial means—the same test that applies to ordinary maintenance determinations. When evaluating reasonable litigation needs, courts must consider what the case involves, the scale of litigation undertaken or planned, and the respective financial means of the parties. In this instance, the court found that the applicant’s demands exceeded what could reasonably be justified under these principles, particularly given the respondent’s unemployment and continued responsibility for the minor child’s maintenance in Croatia.
The applicant had made certain renovations to the matrimonial home, including installing a kitchenette and undercover parking for two rooms, which she was now renting out for a cumulative monthly income of R8 074.20. She also remained in possession of all the parties’ movable assets, including two motor vehicles, one of which she had sold and used the proceeds for her personal benefit without sharing them with the respondent as would be expected given their marriage in community of property.
Judge Kumalo expressed a view that but for the applicant’s insistence on appointing a receiver in the main divorce action—a position the respondent opposed as unnecessarily costly given the relatively straightforward nature of their joint estate—the divorce proceedings might have already been settled. The court’s analysis of the applicant’s claims revealed a pattern of demands that appeared disconnected from the financial realities facing both parties, particularly in light of the respondent’s unemployment and his continued obligations towards their child.
The Court’s Assessment of the Respondent’s Financial Situation
Judge Kumalo’s ruling hinged significantly on a detailed assessment of the respondent’s financial circumstances, which had undergone substantial changes since the commencement of divorce proceedings. The court had to determine whether the respondent was genuinely unable to meet the applicant’s financial demands or if he was deliberately evading his responsibilities—a common allegation in contentious divorce matters that requires careful judicial scrutiny.
The evidence presented to the court established that the respondent had previously been employed by Catholic Relief Services (CRS) through a labour broker called Ambacia in Croatia, as CRS had no legal presence in that country. While employed there, he had earned approximately Euro 5494.66 monthly (allegedly equating to around R112 211.94, though the court noted this rand value would fluctuate with exchange rates). Throughout this period of employment, the respondent had consistently contributed R30 000 per month towards the applicant’s maintenance, demonstrating a history of financial support when he had the means to do so.
The termination of the respondent’s employment was documented through an electronically mailed letter provided to the court. Following his job loss, he had registered with the Croatian State Employment Agency and received unemployment benefits of Euro 800.80 monthly for three months, followed by half that amount for a subsequent six-month period. At the time of the hearing, these payments had ceased entirely, leaving him with no regular income. The court also took note that while the respondent had registered for Croatian State Health Coverage, their daughter did not qualify for this benefit, requiring him to cover her medical needs from his limited resources.
Judge Kumalo specifically addressed the applicant’s skepticism regarding the respondent’s unemployment. The applicant had conducted internet searches attempting to disprove his claims, alleging she had found evidence of his continued employment or marketable skills. The court rejected these allegations, finding that the person identified in the applicant’s internet searches was not the respondent, and that the “skills” she referenced appeared to relate merely to DIY home projects that would hardly qualify him for gainful employment.
The court found no reason to disbelieve the respondent’s testimony that he was actively seeking employment and exploring the possibility of establishing a business with relatives, though this venture had not yet materialised. Judge Kumalo posed a direct question to the applicant’s counsel about how the court could reasonably grant the orders sought when the respondent was demonstrably unemployed. The applicant’s suggestion that he surrender his pension to pay maintenance was deemed inappropriate by the court, as this would effectively pre-empt the division of the joint estate that was to be determined in the main divorce proceedings.
In evaluating the respondent’s character and intentions, the court made an important finding that he did not appear to be “a delinquent, who simply does not want to comply with his obligations.” This assessment was supported by evidence that the respondent had:
Continued to contribute to the maintenance of the applicant until he lost his employment.
Paid for all the therapy sessions between the applicant and their child.
Offered to fund the applicant’s trip to Croatia to visit their daughter.
Remained responsible for their daughter’s maintenance and care in Croatia.
The court contrasted this with the applicant’s apparent unwillingness to compromise, characterising her as insisting on “having her pound of flesh” despite the changed financial realities. This assessment reflected the court’s holistic view of the parties’ conduct and approach to their disputes, not merely a technical analysis of financial statements.
The resulting conclusion was unequivocal: “This court is satisfied that the Respondent is unemployed, and it would be futile to make any order for maintenance when he is not able to comply with the said order.” This finding formed the foundation for the court’s subsequent dismissal of the applicant’s claims for maintenance and medical aid contributions, recognising that court orders must be realistic and capable of being fulfilled rather than setting parties up for inevitable non-compliance and further litigation.
Key Considerations in Determining Spousal Support Pending Divorce
The H.E.D. case illuminates several critical principles that South African courts apply when adjudicating Rule 43 applications for interim maintenance. These principles balance the immediate financial needs of dependent spouses against practical realities and the overarching requirement of fairness to both parties. Although interim by nature, such determinations can significantly impact the parties’ financial stability throughout what may be protracted divorce proceedings.
Foremost among these considerations is the fundamental principle that maintenance orders must be realistic and enforceable. Judge Kumalo emphasised this by noting it would be “futile to make any order for maintenance when [the respondent] is not able to comply with the said order.” This pragmatic approach recognises that issuing unenforceable orders serves neither party’s interests and undermines the authority of the court. It also acknowledges that the purpose of Rule 43 is to provide practical interim relief, not to make final determinations on complex financial matters that properly belong in the main divorce action.
The case also highlights the significance of changed circumstances in maintenance determinations. When the application was heard, the respondent’s financial situation had changed drastically from when divorce proceedings commenced. Courts must assess the current reality rather than historical earning capacity, particularly when the change in circumstances is properly documented and not the result of deliberate evasion of responsibilities. This approach prevents the injustice that would arise from basing maintenance orders on an outdated financial picture.
Another crucial consideration is the totality of the parties’ circumstances beyond mere income figures. The court took into account that the applicant was residing in the matrimonial home, had possession of all movable assets, and was generating rental income from two rooms in the property. Meanwhile, the respondent was supporting their child in Croatia and had no source of income beyond temporary unemployment benefits that had since ceased. This holistic assessment reflects the established legal principle that maintenance determinations must consider all relevant factors, not merely formal employment status or historical income levels.
The reciprocal duty of support between spouses forms the legal foundation for maintenance claims in South African law, but this duty must be interpreted in light of actual ability to provide support. A spouse cannot be ordered to provide financial support that exceeds their means, regardless of the other spouse’s needs. This principle extends to contributions toward legal costs, which Judge Kumalo characterised as falling under the same twin criteria of “reasonable needs and financial means which feature in the test for ordinary maintenance.”
The court’s approach to the applicant’s legal costs claim demonstrates that considerations of necessity and reasonableness apply with equal force to litigation expenses. The scale of litigation chosen by the parties, the complexity of issues involved, and whether positions taken are reasonable all factor into determinations of cost contributions. In this case, the court implicitly questioned the necessity of the applicant’s insistence on appointing a receiver for what appeared to be a relatively straightforward estate division, suggesting that unnecessary complication of proceedings may undermine claims for substantial cost contributions.
South African courts also consider the conduct of the parties in Rule 43 applications, though this is not explicitly codified. Judge Kumalo’s characterisation of the applicant as unwilling to compromise and insisting on “her pound of flesh” contrasted with his finding that the respondent was not “unwilling to maintain his spouse or child” suggests that reasonableness in approach influences judicial sympathy. While not determinative, this assessment forms part of the court’s overall evaluation of what constitutes a fair interim arrangement.
The treatment of pension benefits in this case underscores the principle that assets forming part of the joint estate should generally not be liquidated to satisfy interim maintenance obligations. The court rejected the applicant’s suggestion that the respondent surrender his pension to fund maintenance payments, recognising this would prejudice proper division of the estate in the main divorce proceedings. This approach preserves the integrity of the joint estate pending final determination and prevents premature distribution that might disadvantage either party.
Lastly, the case demonstrates the impact of the matrimonial property regime on interim relief applications. In marriages in community of property, like that of the parties in this case, the joint estate continues to exist until divorce is finalised, and neither spouse can unilaterally dispose of joint assets. The court noted with apparent disapproval that the applicant had sold one of the vehicles and used the proceeds solely for her benefit, contrary to the principles governing the joint estate. This consideration reinforces that interim relief must operate within the framework of the applicable matrimonial property regime rather than circumventing it.
Judge Kumalo’s Final Order and Legal Implications
Judge Kumalo’s final order in the H.E.D. case reflects a careful balancing of competing interests and practical realities, setting forth an approach that could guide similar Rule 43 applications in South African courts. The judgment culminated in a four-part order that dismissed the applicant’s claims for maintenance, medical aid premium contributions, and legal costs while requiring the respondent to continue servicing the bond repayments on the matrimonial home occupied by the applicant. Costs of the application were reserved for determination in the main trial.
This ruling creates several important legal implications for Rule 43 applications in South African family law. By dismissing the maintenance claim while ensuring continued payment of the bond, the court effectively crafted a nuanced form of indirect maintenance that acknowledged both the respondent’s current financial limitations and the applicant’s need for secure accommodation. This approach demonstrates judicial flexibility in fashioning appropriate relief within the constraints of demonstrated financial capacity, rather than rigidly applying standardised maintenance formulas that might ignore practical realities.
The judgment reinforces the established principle in South African matrimonial law that interim relief under Rule 43 must be grounded in demonstrable financial capacity. Courts will not issue orders that set parties up for non-compliance due to genuine inability to pay, regardless of past income levels or the dependent spouse’s actual needs. This prioritisation of enforceability over idealised support calculations has significant implications for practitioners advising clients on Rule 43 strategy, suggesting that claims should be tailored to the responding spouse’s current documented financial situation rather than historical earning capacity.
The dismissal of the applicant’s substantial legal costs claim, despite the long-established principle that the duty of support includes necessary litigation expenses, signals that courts will scrutinise such claims with particular care. Following the Van Rippen principle, Judge Kumalo assessed what was necessary to enable the applicant to present her case adequately in light of the parties’ financial circumstances. The dismissal implies that inflated legal cost claims that appear disconnected from financial realities or that seem to extend beyond what is necessary for adequate representation will face judicial skepticism.
By requiring the respondent to continue servicing the bond payments on the matrimonial home, Judge Kumalo effectively preserved the major asset in the joint estate while providing the applicant with secure accommodation. This approach has important implications for property preservation pending divorce in community of property marriages. It demonstrates that courts will prioritise protecting significant assets within the joint estate even while declining other financial demands, ensuring that neither party’s conduct diminishes the overall value available for eventual distribution.
The court’s order regarding costs of the Rule 43 application—making them “costs in the main trial”—reflects judicial recognition that interim applications often involve complex factual disputes that cannot be fully resolved in expedited proceedings. This approach preserves the trial court’s discretion to make a comprehensive costs determination with the benefit of full evidence and final findings on credibility. It also discourages tactical use of Rule 43 proceedings by removing the immediate financial advantage of prevailing at the interim stage.
Though not explicitly stated in the final order, Judge Kumalo’s reasoning throughout the judgment has implications for how courts will approach allegations of voluntary unemployment or underemployment in Rule 43 proceedings. The court’s acceptance of properly documented employment termination, despite the applicant’s skepticism, suggests that concrete evidence of job loss will generally be accepted absent compelling evidence of deliberate income suppression. This approach protects respondents from speculative allegations while still allowing courts to look behind arrangements that appear contrived to avoid maintenance obligations.
The absence of any order regarding bonding therapy between the applicant and the minor child, despite this being among the relief sought, implicitly recognises the autonomy of the adolescent child whose views the court held “would indeed have to be taken into consideration.” This aspect of the judgment has implications for how courts will balance parental rights against the expressed preferences of mature minor children in interim access and therapy arrangements, suggesting increased judicial deference to adolescents’ preferences regarding therapeutic interventions.
Perhaps most significantly, Judge Kumalo’s judgment implies criticism of unnecessarily prolonged and complicated divorce proceedings, noting that “but for the Applicant’s insistence that a receiver be appointed in the main matrimonial action, the divorce proceedings would have been settled by now.” This observation carries forward-looking implications for the conduct of divorce litigation in South Africa, suggesting judicial disapproval of positions that increase costs and delay resolution without clear justification, particularly in estates of modest value where such measures appear disproportionate.
Questions and Answers
What is the purpose of Rule 43 in South African divorce proceedings? Rule 43 of the Uniform Rules of Court provides a mechanism for interim relief to spouses during pending divorce proceedings. It allows the court to make temporary arrangements regarding maintenance, contribution to legal costs, care and contact with children, and other urgent matters that cannot wait until the finalisation of the divorce. The purpose is to ensure that financially dependent spouses and children are not left without support during what may be lengthy divorce proceedings.
How does a court determine the appropriate amount for interim maintenance in a Rule 43 application? A court considers two primary criteria: the reasonable needs of the applicant and the financial means of the respondent. In H.E.D. v D.D., Judge Kumalo emphasised that maintenance orders must be realistic and enforceable, taking into account the current financial situation of both parties rather than historical earnings. The court looks at the totality of circumstances, including accommodation arrangements, other sources of income, and existing financial obligations. Importantly, a maintenance order cannot be made if the respondent genuinely lacks the means to comply with it.
On what legal basis can a spouse claim a contribution towards legal costs in divorce proceedings? The claim for contribution towards legal costs in matrimonial actions originates from Roman-Dutch procedure and is based on the reciprocal duty of support between spouses. As articulated in the Van Rippen case, this duty extends to ensuring that a spouse has adequate resources to present their case before the court. The quantum of such contributions lies within judicial discretion and is assessed according to the same criteria of reasonable needs and financial means that apply to ordinary maintenance determinations.
Can a court order a spouse to liquidate pension benefits to pay maintenance during pending divorce proceedings? No, as demonstrated in the H.E.D. case, courts are generally unwilling to order the liquidation of pension benefits to satisfy interim maintenance obligations when those benefits form part of the joint estate to be divided in the main divorce proceedings. Judge Kumalo rejected this suggestion from the applicant’s counsel, recognising that prematurely distributing such assets would prejudice the proper division of the estate and potentially disadvantage both parties through tax implications and penalties.
What weight does the court give to a spouse’s unemployment when deciding on a Rule 43 application? The court gives significant weight to properly documented unemployment, as demonstrated in the H.E.D. judgment. Judge Kumalo accepted the respondent’s evidence of job loss, supported by termination documentation and proof of unemployment benefits, despite the applicant’s skepticism. The court will not make maintenance orders that a genuinely unemployed spouse cannot satisfy. However, courts distinguish between legitimate unemployment and deliberate income suppression designed to avoid maintenance obligations.
To what extent are a spouse’s debts considered in Rule 43 applications? Debts and financial obligations are considered as part of the holistic assessment of a spouse’s ability to pay maintenance. In H.E.D., the court took into account that the respondent was responsible for the maintenance of the minor child in Croatia, including medical expenses not covered by state healthcare. However, debts incurred frivolously or deliberately to reduce apparent means would likely be scrutinised more critically by courts and might not reduce maintenance obligations.
How does the court approach the division of the joint estate in marriages in community of property during Rule 43 proceedings? Rule 43 proceedings do not typically address the division of the joint estate, which is reserved for the main divorce action. However, as seen in H.E.D., courts will make interim arrangements regarding major assets like the matrimonial home to preserve them pending final distribution. Judge Kumalo ordered the respondent to continue bond payments on the home occupied by the applicant, effectively preserving this asset while providing the applicant with accommodation. Courts generally discourage the unilateral disposal of joint assets during pending divorce, as noted in the judgment’s reference to the applicant selling a vehicle for her sole benefit.
What is the significance of costs orders in Rule 43 applications? Costs orders in Rule 43 applications can significantly impact the financial positions of the parties during divorce proceedings. In H.E.D., Judge Kumalo ordered that costs be “costs in the main trial,” effectively reserving the determination for the court that will hear the divorce case. This approach recognises that interim applications often involve disputed facts that cannot be fully resolved in expedited proceedings. It also discourages tactical use of Rule 43 by removing immediate financial advantages and allows the trial court to make a comprehensive costs determination with full evidence.
How do South African courts approach children’s preferences regarding therapy and contact in Rule 43 proceedings? As demonstrated in H.E.D., courts give increasing weight to the preferences of mature minor children, particularly adolescents. Judge Kumalo noted that the 15-year-old child’s views “would indeed have to be taken into consideration” regarding therapy sessions, which the child had requested to discontinue. This reflects the Children’s Act principles that a child’s age, maturity, and stage of development should inform decisions affecting them. Courts will balance parental wishes against adolescents’ expressed preferences, particularly in therapeutic contexts where cooperation is essential for success.
Can a court order retrospective maintenance in a Rule 43 application? Yes, courts have the discretion to order maintenance retrospectively, as implied by the applicant’s request in H.E.D. for maintenance “retrospectively with effect from 1 March 2024.” However, as demonstrated by the judgment, such claims will be assessed against the same criteria of reasonable needs and actual financial capacity that apply to current maintenance. Judge Kumalo’s refusal to grant retrospective maintenance in this case suggests courts will be reluctant to order back-payments when the respondent lacked the means to pay during the relevant period.
What evidence is required to prove inability to pay maintenance in Rule 43 proceedings? The H.E.D. case demonstrates that courts require concrete documentary evidence of financial circumstances, including proof of employment termination, unemployment benefits received, and current financial obligations. The respondent provided an electronically mailed termination letter, documentation of registration with the Croatian State Employment Agency, and evidence of unemployment benefits received and subsequently terminated. The court found this sufficient despite the applicant’s skepticism. Mere assertions of inability to pay without supporting documentation would likely be insufficient.
How does the court approach claims for medical expenses in Rule 43 applications? Medical expenses, including medical aid premiums, are considered part of maintenance and assessed according to the same criteria of need and ability to pay. In H.E.D., the applicant sought an order that the respondent pay medical aid premiums, but this was dismissed due to his unemployment and inability to pay. However, the court noted the respondent had continued to provide for the minor child’s medical needs in Croatia despite her not qualifying for state healthcare coverage, suggesting courts recognise the priority of children’s medical needs even in constrained financial circumstances.
What factors might lead a court to dismiss a claim for contribution to legal costs in Rule 43 proceedings? As demonstrated in H.E.D., courts may dismiss legal costs contribution claims when: the respondent genuinely lacks the financial means to contribute; the applicant appears to be adopting unreasonable positions that unnecessarily prolong litigation; the applicant already has access to resources that could fund reasonable legal representation; there are existing costs orders against the applicant; or the quantum sought appears disproportionate to the complexity of the case and the financial position of the parties. Judge Kumalo particularly noted the apparent unreasonableness of the applicant’s insistence on appointing a receiver for a relatively straightforward estate.
How do courts treat rental income earned by a spouse from the matrimonial property during pending divorce? In H.E.D., the court noted that the applicant had renovated two rooms in the matrimonial home and was receiving rental income of R8,074.20. While not explicitly stating how this affected the maintenance determination, the judgment implies that such income is relevant to assessing the applicant’s financial needs and resources. This suggests courts will consider rental income from matrimonial property as reducing the need for maintenance from the other spouse, particularly in cases where that spouse is experiencing financial hardship.
What principles guide the court’s assessment of a party’s conduct in Rule 43 proceedings? While not explicitly codified, the H.E.D. judgment demonstrates that courts do consider the parties’ conduct and approach to the dispute. Judge Kumalo characterised the applicant as unwilling to compromise and insisting on “her pound of flesh,” while finding the respondent was not “a delinquent, who simply does not want to comply with his obligations.” This assessment influenced the court’s view of what constituted fair interim arrangements. The judgment suggests courts will look unfavourably on unreasonable positions, inflated claims disconnected from financial realities, and conduct that unnecessarily complicates or prolongs proceedings.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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