- Limited financial means should not prevent a spouse from properly presenting their case in a divorce.
- Contributions towards legal costs should be assessed based on the circumstances and complexity of each case, not limited to just the first day of trial.
- A husband has been ordered to pay up to R523,800 towards his wife’s legal costs and expert fees while their divorce case continues.
Financial hardship should not leave a spouse at a disadvantage when trying to enforce their legal rights during divorce. That was the message from the High Court in Kimberley, which stressed that contributions towards litigation costs should allow a spouse in a weaker financial position to present their case fairly, including getting the legal representation and expert evidence they reasonably need.
On 30 October 2026, Judge A Stanton ordered a husband to contribute towards his wife’s legal costs, as well as fees for a forensic accountant and an industrial psychologist. The judge also rejected the idea that contributions for divorce litigation should only cover the costs of preparing for the first day of trial, saying the amount must be set based on the specific circumstances of each case.
Divorce dispute involves accrual and maintenance claims
The spouses married on 22 March 2013, out of community of property with the accrual system. The wife instituted divorce proceedings on 9 June 2026, and the husband had already delivered his plea and counterclaim by the time the Rule 43 application was heard.
The outstanding issues in the divorce include the calculation of the accrual claim and whether the wife is entitled to permanent spousal maintenance until her death or remarriage. Her maintenance claim includes provision for medical aid and medical expenses, the acquisition of an immovable property valued at R4-million and a motor vehicle valued at R850,000, to be replaced every five years.
The husband, in his counterclaim, offered to contribute R30,000 a month towards the children’s maintenance, including their medical and educational expenses and the rental of their residence. He made no provision for the wife’s own maintenance.
The parties had, however, reached an interim agreement before the Rule 43 application was argued. The husband agreed to pay R40,000 a month in maintenance for the wife and their two minor children, increasing the amount by R9,810 if the wife’s salary from the company was no longer paid.
He also agreed to retain the wife and children on his medical aid, ensure that she continued using the vehicle she currently drove, pay its reasonable maintenance and running costs, continue paying the monthly rental for their residence and cover 50% of the children’s education-related expenses.
The children’s primary residence and the husband’s contact arrangements with them were not in dispute. With the maintenance arrangements agreed, the only issue requiring the judge’s determination in the Rule 43 application was the husband’s contribution towards the wife’s legal costs.
Wife says she needs legal and expert assistance
The wife asked for R915,400, including VAT, to cover her expected attorney and counsel fees. She also wanted R230,000 for a forensic accountant and R35,190 for an industrial psychologist. Altogether, her estimated legal and expert expenses came to R1,180,590.
She argued that she needed sufficient financial support to litigate on an equal footing with her husband, including the ability to brief senior counsel. She also said a forensic accountant was necessary to investigate the husband’s financial affairs, establish the value of the parties’ estates and properly quantify her accrual claim.
The proposed investigation included examining the husband’s interest in his company, his loan account and any assets not reflected in the disclosed financial information. The industrial psychologist was expected to assess her earning capacity following eight years of employment in the husband’s business. This evidence was relevant to her maintenance claim and the question of her future employability.
The wife was relying on financial assistance from her elderly parents to fund the litigation. They had already contributed R189,913.84, including VAT, towards legal expenses incurred in earlier proceedings. She was not asking the husband to reimburse those costs.
Husband disputes the amount sought
The husband opposed the amount claimed, describing the projected legal fees of R915,400 as excessive. He argued that the wife’s attorney’s daily rate of R40,000 was unreasonable when he had instructed local attorneys and counsel at substantially lower rates.
He initially offered R25,000 towards her legal costs, which he said was sufficient to fund the first day of trial. He later tendered R150,000, payable in three monthly instalments.
He also argued that appointing a forensic accountant was premature because discovery had not been completed and that the wife should first establish the need for such evidence at trial. He questioned the projected 50 hours of forensic work and suggested that suitably qualified experts in Kimberley should be used to reduce costs.
The husband further disputed the need for an industrial psychologist, arguing that such evidence was relevant only to claims involving third parties.
In explaining his financial position, he said he earned a monthly salary of R15,832.97 from the company, which covered a further monthly shortfall of R23,222.87 between his income and expenses. He denied mixing his personal finances with those of the company.
Judge considers financial disclosure and resources
Judge Stanton considered the parties’ respective financial positions, the nature of the outstanding disputes and the resources available to the husband.
Although the husband disclosed a monthly salary of R15,832.97, he was able to contribute an additional R39,047 towards the maintenance of the wife and children. The evidence also showed that the wife had enjoyed unrestricted use of his credit card.
However, the judge found that the husband had not fully disclosed his personal expenses. This made it difficult to assess the true extent of his financial obligations and means, and the judge said an adverse inference could be drawn from the incomplete disclosure.
The husband was the sole director and shareholder of the company. He said the company owed him R4.2 million and that his movable assets were worth approximately R2 million.
The judge also considered expenditure incurred by the company between 12 June and 10 September 2026. This included R77,500 in legal expenses, R111,090 for cattle, R57,600 for game, R10,000 for sheep and R104,825.04 relating to a farm.
The judgment noted that these expenses demonstrated the company’s ability to incur substantial costs and were relevant when assessing the husband’s overall financial position and access to resources.
The dispute was also marked by considerable acrimony. The judge referred to an earlier urgent application in which the wife unsuccessfully sought to interdict the company from acquiring an immovable property valued at R8 million jointly with another person. The husband subsequently agreed that the property would be acquired in the company’s name rather than in the name of the contemplated trust.
Judge Stanton further considered the husband’s reliance on the Protection of Personal Information Act and the Companies Act to argue that the wife was not entitled to access the company’s financial information. The judge noted that he was its sole shareholder and director and exercised exclusive control over its affairs and finances.
Rule 43 must promote equality in divorce litigation
Rule 43 of the Uniform Rules of Court allows a spouse to seek interim relief while divorce proceedings are pending, including a contribution towards legal costs. The substantive basis for such a contribution is the reciprocal duty of support between spouses.
Judge Stanton said the discretion under Rule 43 must be exercised consistently with the constitutional rights to equality and equal protection of the law. The objective is to ensure that a spouse has a fair opportunity to present their case, taking account of the circumstances of the matter, the parties’ financial positions and the issues involved.
The judge explained that a lack of financial means to litigate may also affect a person’s dignity, particularly where they have to rely on family or friends for assistance to pursue a divorce. The duty of support applies reciprocally between spouses, irrespective of gender.
The judge rejected the argument that a contribution towards legal costs should be restricted to funding the first day of trial, saying there was no basis for adhering to such a purported practice. Instead, the contribution must be determined according to the facts and circumstances of each case.
In this matter, the complexity of the accrual claim and the need to establish the true value of the parties’ estates were important considerations. Judge Stanton found that the husband’s failure to make full and frank disclosure of his financial affairs was likely to necessitate a forensic investigation.
Without an accurate assessment of the parties’ estates, the wife’s ability to quantify her accrual claim and pursue her maintenance claim could be prejudiced. The judge also accepted that an industrial psychologist’s assessment was reasonable because the wife’s employability would be contested in the divorce proceedings.
The judge found that the wife had adequately substantiated legal and expert costs of R524,400, inclusive of VAT, and that the amount was reasonable in light of the issues and anticipated litigation. The decision to brief senior counsel was also not considered unreasonable.
However, the judge cautioned that a contribution towards legal costs was not permission to incur expenses unreasonably or in bad faith. The parties and their legal representatives were expected to keep costs reasonable and necessary and make every reasonable effort to explore settlement.
Husband ordered to contribute up to R523,800
Judge Stanton ordered the husband to pay an initial contribution of R259,210, inclusive of VAT, towards the wife’s legal costs. The amount must be paid into her attorneys’ trust account in eight equal monthly instalments of R32,401.25, with the first instalment due on 30 November 2026.
He was also ordered to pay the forensic accountant’s fees, upon presentation of an invoice, up to a maximum of R230,000, inclusive of VAT. The industrial psychologist’s fees are capped at R34,590, inclusive of VAT, also payable upon presentation of an invoice. The amounts in the order therefore provide for a maximum contribution of R523,800.
The judge preserved the wife’s right to seek a further contribution under Rule 43(6) should circumstances require additional financial assistance as the divorce proceedings progress. The costs of the Rule 43 application were reserved for determination in the divorce action.
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