H.K v C.K

The applicant (wife) and respondent (husband), married since 5 October 1996 in community of property, had three major children. Both worked in the legal field — the applicant as a police Captain and the respondent as a Relief Magistrate. The marriage was tumultuous, marked by allegations of abuse, extra-marital affairs, and a prior divorce in 2014 followed by remarriage in 2016. In 2018, the applicant relocated for a promotion to Baviaanskloof and later to Queenstown in the Eastern Cape. She vacated the common home on 29 March 2022 amid allegations of emotional, mental, and financial abuse. She incurred significant debts to furnish her new accommodation and meet living expenses. The respondent remained in the common home with their adult children and received rental income from a flat let. The parties were involved in acrimonious divorce proceedings, including two divorce actions and multiple Rule 43 applications, with prior judges urging settlement. The applicant sought pendente lite maintenance of R10,200.00 per month and a contribution towards legal costs of R250,000.00.

• Whether the applicant is entitled to pendente lite maintenance from the respondent pending finalisation of the divorce.
• Whether the applicant is entitled to a contribution towards legal costs from the respondent to enable her to litigate at equal strength.
• Whether the respondent's failure to settle and the parties' acrimonious conduct constituted an abuse of court process warranting censure.

The respondent was ordered to pay R5,500 per month to the applicant towards maintenance; R187,500 towards contribution to legal costs, payable in instalments of R7,000 per month into the applicant's attorneys' trust account; and costs of the application.

In a Rule 43 application for a contribution towards costs, the applicant must show a prima facie case in the main action and insufficient means of her own. Where the applicant earns substantially less than the respondent and has incurred debts necessitated by relocation arising from the marital breakdown, she is entitled to maintenance and a legal costs contribution to litigate at equal strength. The court may adjust contributions by considering that the respondent had ceased certain financial obligations (e.g., adult child's education costs) and that expenses can be shared among adult children residing with a parent.

The court observed that the respondent, as a judicial officer, should have been a 'sounding board' in the dispute and facilitated settlement rather than fuelling litigation. It noted the respondent reneged from settlement negotiations and that both parties were equally to blame. The court further indicated that if the parties continued to litigate, the applicant could approach the court for further costs contributions should the ordered amount be exhausted. It also noted that the respondent's claim of reduced work capacity due to thyroid cancer was unsupported by medical evidence.

This case illustrates the High Court's approach to Rule 43 applications in acrimonious divorce proceedings where both parties are legal professionals married in community of property. It reinforces the principle that a spouse earning substantially less is entitled to litigate at equal strength through a contribution towards costs, and that courts will scrutinise inflated expense claims. It also highlights the court's willingness to censure judicial officers who engage in unnecessarily litigious conduct and refuse settlement.