Family Law
| Jurisdiction | South Africa |
| Pages | 667-699 |
| Date | 10 March 2021 |
| Author | Le Roux-Kemp, A. |
| Published date | 10 March 2021 |
| DOI | https://doi.org/10.47348/YSAL/v1/i1a12 |
| Citation | 2019/2020 YSAL 667 |
667
1. INTRODUCTION
For the year under review in Family Law, no relevant legislation was
promulgated and a wide and disparate range of matters came before t he
courts. Of these, the most pert inent are considered in this chapter. Notable
is the ongoing barrage of cases deal ing with the recogn ition of customary
marriages and speci fically the requir ement of handing over the bride. All
the cases in th is regard decided during the per iod under review are listed
in this chapter a nd the most important are also discuss ed.
2. LEGISLATION
No relevant legislation promulgated in the period under rev iew.
3. CASES
3.1 EQUALITY OF (FINANCIAL) ARMS IN DIVORCE LITIGATION
In AF v M F,1 Judge Davis for the High Cour t Western Cape Division, Cape
Town, described the claim for a contribution towards co sts in a matrimonial
action as fol lows:
27. The claim for a contribution towards cost s in a matrimonial actio n
originated in Rom an-Dutch procedure and is well-establ ished in our
practice. Rule 43 of the Uniform Ru les regulates the procedure to be
followed where a contribution to cost s is sought. The substantive
basis of the claim i s the reciprocal duty of support between spou ses,
which includes the cos t of legal proceedings.
* BA LLB (Stell) CML (Unisa) LLD (Stell) BMus (Unisa) Hons BMus (Unisa); Associate
Professor, University of Lincoln, United Kingdom. ORCID: https://orcid.org/0000-0001-7186-
7662.
Family LawFamily Law
Andra Le Roux-Kemp*
2019/2020 YSAL 667
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668
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28. The quantum of the cont ribution to costs which a spou se may be
ordered to pay lies withi n the discretion of the pre siding judge. In Van
Rippen v Rippen [1949 (4) SA 634] Ogilvie Thompson J, as he then was,
articulated t he guiding principle for the exerci se of that discretion in
the following freq uently cited dictum:
“... the Court shou ld, I think, have the domi nant object in view
that, having regard to t he circumstances of the c ase, the financial
position of the partie s, and the particul ar issues involved in the
pending litigation, t he wife must be enabled to pres ent her case
adequately before the Court.”
29. This formulation neatly encapsu lates the twin c riteria of reasonable
needs and fin ancial means wh ich feature in the te st for ordinary
maintenance. W hen assessing a spouse’s reasonable litigation nee ds,
a court will have regar d to what is involved in the c ase, the scale on
which the partie s are litigating, or intend to litigate, and the pa rties’
respective means.
30. The legal rules per taining to t he reciprocal duty of support
between spouses a re gender neutral, so that an i ndigent husband
may claim support from a n affluent wife. But the rea lity must be
acknowledged that, given tradit ional child-care roles and the wealt h
disparity bet ween men and women, it has usually been women who
have had to approach the courts for a cont ribution towards costs in
divorce litigat ion.
31. In answering the quest ion whether a court may order a contr ibution
to legal costs which have al ready been incurre d, it is helpful, as a
starting poi nt, to consider the position regard ing retrospect ive
orders for the payment of spousal m aintenance, for legal cost s in
a matrimonia l action are a species of suppor t and the same rules
should logically apply.
The applicant (the wife) and the respondent (the husband) were involved
in divorce proceedings when the applicant sought, inter a lia, an order for
her husband to pay a contribution of R750 000 towards her costs in t he
divorce action.2 Judge Davis for the High Court Western Cape Division,
Cape Town, noted that the applicant submitted that her legal costs for the
divorce proceeding totalled approximately R905 42 2, whilst her attorney
had, in an earlier letter, indicated the amou nt as R872 632. This discrepancy,
it was held, was attributable to the costs incurr ed for the present rule 43
application and should therefore not be taken into account when orderi ng
2 Para 1.
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a contribution to costs in term s of rule 43.3 The applicant’s husband, on the
other hand, had already contributed R75 00 0 towards the applicant’s legal
costs and he had himse lf spent approximately R1 235 556 on his own legal
costs.4 With reference to Cary v Car y5 and Du Plessis v Du Plessis,6 Judg e
Davis emphasised the import ance of equality of arms in divorce litigation.7
He explained that where ‘there is a marked imba lance in the fin ancial
resources available to the partie s to litigate, there is a real danger that the
poorer spouse – usually the w ife – will be forced to settle for less than th at
to which she is legally entitled simply because she ca nnot afford to go to
tr i a l ’. 8 It is for this reas on the duty of courts to come to the aid of spouses
who are without means to ensure t hat they are sufficiently equipped for
divorce proceedings and in order to ‘promote the constit utional rights to
equal protection and benef it of the law, and access to courts’.9 This is also
in line with the pri mary duty of support owed between spouses.10 A court
is therefore, in principle, entitled to take i nto account legal costs already
incurred, includi ng debts incu rred to fund legal costs, in the assessment of
an appropriate contribution to costs in term s of rule 43.11
As to how much a contribution towards legal costs entail s, Judge Davis
for the High Court Western Cape Division, Cape Town, held that it does
not necessarily mean on ly a part of the legal costs: ‘[A] court’s discretion
regarding the quant um of costs should not be fettered by fixed r ules, but
should be exercised in the l ight of the reasonable litigation needs of the
parties, having regard to thei r particular circu mstances, and their respec tive
ability to pay.’12 Judge Davis explained:
52. To be clear, I am not suggesting that a court shou ld award an
impecuniou s wife all her esti mated litigation costs in adva nce,
regardless of the stage of t he litigation. Obviously where future cost s
are under consideration, a cour t will take into account th at the matter
may settle, and wil l only award what is reasonably requ ired at that
particular st age of the litigation, knowing that fur ther contributions
to costs may be ordered if requ ired.
3 Para 18.
4 Paras 20–21.
6 Unreported, referred to as [2005] ZAFSHC 105, 16 September 2005; available online at
http://www1.saflii.org/za/cases/ZAFSHC/2005/105.html.
7 Paras 37–41.
8 Para 41.
9 Para 41.
10 Para 42.
11 Para 45.
12 Paras 47–51
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