C.O v A.O (2020-41165) [2025] ZAGPJHC 1044 (16 October 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1044 | Noteup | LawCite sino index ## C.O v A.O (2020-41165) [2025] ZAGPJHC 1044 (16 October 2025) C.O v A.O (2020-41165) [2025] ZAGPJHC 1044 (16 October 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1044.html sino date 16 October 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, JOHANNESBURG CASE NO: 2020-41165 (1)      REPORTABLE: NO (2)      OF INTEREST TO OTHER JUDGES:  NO (3)      REVISED: NO DATE 16 October 2025 SIGNATURE In the matter between: O[...]; C[... Plaintiff and O[...]: A[...] Defendant JUDGMENT Vosloo De Witt AJ: Order [1]         In this matter I make the following order: 1. The matter is postponed to the week of 22 June 2026, and will be enrolled for the specified number of days as set out in the Joint Practice Note and Pre-Trial Minute as set out below. 2. The Defendant is to set down her R 43(6) application on the family court roll for adjudication within 10 (ten) days after receipt of the Plaintiff’s sworn reply 3. Any other outstanding interlocutory matters and/or applications should be dealt with prior to the next hearing date as per paragraph 1 above. 4. The parties are ordered to notify the Court within 4 weeks prior to the trial date of the trial readiness of the matter 5. The parties are ordered to convene a final pre-trial conference  after the finalisation of the interlocutory matters and/or application and ensure that the pre-trial minute is uploaded timeously. 6. The parties are further ordered to file a joint practice note no less than 5 days before the trial date confirming that the matter is ready to proceed to trial. 7. The costs for the postponement of the trial are reserved for determination at the finalisation of the divorce trial. [2]         The reasons for the order follow below. Introduction [3]         This matter came before me as a trial matter set down for hearing on the 13 th of October 2025 for 4 days. [4]         The matter is a contentious divorce matter wherein the only issue not in dispute is the fact that the marriage has broken down irretrievably.  The plaintiff seeks a decree of divorce while the Defendant is seeking spousal maintenance as well as a redistribution in terms of section 7 (3) of the Divorce Act. [5]         On the morning of the hearing several preliminary issues were raised with the court which caused the court to enquire from the parties whether the matter was indeed trial ready. [6]         The matter stood down for the Defendant to take instruction. [7]         The matter reconvened after 14:00 and the parties proceeded to tell the court that an application for further legal costs will be brought at some stage during the proceedings on Wednesday, and that they will require an hour of the court’s time to deal with the interlocutory Rule 43 (6) application on Wednesday. [8]         The Defendant further informed the court that the Attorney’s for the Defendant and the witnesses  will discuss the issue of the outstanding documents sought from the two witnesses Ms Petro Dorker and Ms Karin Eckley between themselves and a resolution will be sought in this regard by Wednesday at 08:00. [9]         The court informed the parties that the court is not inclined to hear argument on an interlocutory application regarding a further legal costs contribution in the trial court, and if the matter is not ready to proceed to trial, as per the directives, it must be removed from the roll in order for the parties to ensure the trial readiness of the matter. [10]     I deal with the preliminary issues below. Background [11]     From the onset it would seem that there has been a delay in preparing the matter for court and to ensure the trial readiness of the matter, which delay has been caused jointly and severally by both parties. [12]     A pre-trial was held on the 22 nd of August 2024 and the pre-trial minute was prepared on the 24 th of August 2024 and signed by both parties legal representatives on the 12 th and 14 th of November 2024 respectively. No new pre-trial was held and no updated minute was filed prior to the hearing of the matter. [13]     In terms of the pre-trial minute which is uploaded the Plaintiff undertook to prepare a trial bundle further more to properly prefix and index the bundles as per the Consolidated Practice directive 1 of 2024. [14]     The trial bundle and index was only uploaded to Caselines on the 9 th of October 2025 with the Plaintiff’s practice note uploaded on the 6 th of October 2025. I requested the parties to prepare a hard copy trial bundle for the court on 09 October 2025, as the bundle is voluminous in nature and the Caselines bundle, unfortunately, presented very poorly with numerous folders  set out in a confusing manner. [15]     In terms of the pre-trial minute at point 15 a final pre-trial conference is to be held within 90 days of the date application for trial. [16]     The practice note by the Defendant was only uploaded on the morning of the trial being the 13 th of October 2025 at 07:44am. This is important to take note of as neither the practice note for the Plaintiff nor the practice note for the Defendant indicated any preliminary or interlocutory aspects for the court to deal with. [17]     I enquired from the parties as to the reason for the parties not filing a joint practice note. Counsel for the Plaintiff and Defendant indicated that a joint practice note is only required in terms of opposed civil motions. I do not agree with this interpretation of the directives. In terms of the Consolidated Practice Directives at paragraph 19.3 parties shall upload in correct section, a joint practice note in prescribed format. Rule 43 and 43(6) [18]     The court was informed less than 2 hours after the Defendants practice note had been uploaded to Caselines that the Defendant seeks a further contribution towards her legal costs, this despite the fact that the Defendant has approached the court on a contribution towards costs on the 8 th of October 2025. [19]     The Rule 43(6) application came before the Honourable Madam Justice Maier-Frawley in the  opposed family motion court on 8 October 2025. After hearing argument and considering the papers she ordered a contribution towards the Defendant’s costs in the amount of R 150 000.00, but that is as much as I know. [20]     Neither the Plaintiff nor Defendant were able to provide the court with the judgement or the order granted, and in fact could not definitely indicate what was included in the contribution towards costs. Ms Bezuidenhout for the Plaintiff could only confirm that the Plaintiff has already made the payment of R 150 000.00 rand as was ordered by the Court on 08 October 2025. [21]     During the first day of the trial, the Defendant  failed to file a substantive rule 43(6) application for a further contribution but indicated that such an application will be made from the bar. [22]     The Plaintiff objected to  an application for a contribution towards the Defendant’s legal costs to be made from the bar,  and stated that the Plaintiff intends to oppose such an application, and that a formal application should be made providing the Plaintiff with  an opportunity to respond thereto. [23]     The court indicated that it is not willing to entertain interlocutory application especially where the judgment and order of Judge Maier-Frawley was not before me. [24]     The matter stood down for the Defendant’s instructions, on the return to court at 14:00 the trial resumed with the Defendant being called first to commence with  her testimony. [25]     On the second day of trial at approximately 08:40 the Defendant uploaded to Caselines a Notice of Motion in terms of Rule 43(6), founding affidavit and annexures attached thereto to the like of 97 pages. [26]     This court is not in apposition to hear the interlocutory matter for the reasons set out above. I cannot ignore the previous order and not having had sight of such judgment and order places this court in a particularly difficult position. [27]     The Defendant’s counsel submitted to the court that the Defendant has the right to seek further contribution towards legal costs and that is indeed her right to do so. This court is by no means attempting to deprive  the Defendant from her right to do so. I am however  of the view that, where the Defendant approaches this court a mere 5 days after having received  a further contribution towards her legal  costs in another court, this court must at least be furnished with the judgment in the matter. [28]     On the 13 th of October 2025 the Defendant uploaded to Caselines a letter written to the Plaintiff’s attorney on the 10th stating: “ In the event that your client fails to make payment of any or a reasonable contribution towards her costs in respect of the conduct of the trial, our client shall, at the commencement of each day of the trial, make the requisite request to the Court for such a contribution.” [29]     Despite this correspondence the Defendant did not include this into the practice note which was uploaded nor was the court alerted to the fact that the Defendant intended to bring such an application until shortly before the trial was to start. [30]     Consequently I am not willing to hear the interlocutory matter which by the submissions in court was going to be vehemently opposed and questions regarding what was already included in the previous costs order would come in the question. Subpoenaed Witnesses [31]     Two witnesses were subpoenaed to appear at court as far as the submissions made by counsel the subpoenas were issued during September 2025. Both the witnesses were also served previously with a subpoena duces tecum. [32]     From the submissions made the sheriff only served the subpoena on one of the witnesses Ms Karin Eckley on 7 October 2025. It was submitted by counsel appearing on behalf of the two witnesses, that Ms Eckley was unavailable this week and that the service by the sheriff was not reasonable notice. [33]     No evidence was placed before me on the reason for the belated service on the 7 th , nor did counsel indicate any  return of service and I can therefor make no finding in this regard. [34]     It is clear that the Defendant seems to be unhappy with the disclosed documents and the purpose of the simple subpoena was to bring the witnesses before court. [35]     On the second day of trial, the court enquired as to the status of the witnesses and was informed that the Defendant will only be able to give an indication on Wednesday morning as to the status and the Defendant’s plan forward. [36]     I further enquired if that could possibly lead to a further interlocutory application and the Defendant’s counsel conceded that it could. [37]     The conduct of the parties and the fact that the matter is indeed not trial ready  places the court at a disadvantage,  as the Practice Notes filed on record does not make any mention of any further processes to be initiated or anticipated by either of the parties. [38]     Adv Hodge argued that the Defendant could not have foreseen the non-attendance of Ms Eckley at  court, however, the Court gave the parties sufficient time on Monday to consider their respective positions regarding the matter being ripe for trial. Costs [39]     The parties were given an opportunity to address the Court on the issue of costs. [40]     The award of the costs is a matter wholly within the discretion of the court. [41]     This court must consider judicially an award for or against the party that is entitled to the cost order based on factors such as the conduct during litigation, excessive, unnecessary or unreasonable demands, in some cases misconduct or unnecessary procedural step or non-compliance with the Consolidated Ditrectives. [42]     I must further consider the facts in the matter and fairness to both sides. [43]     Cost contributions under Rule 43 and 43(6) is a mechanism which the Applicant can use in order to level the proverbial “ playing field ”. It recognises legal representation should not be considered a mere luxury but in fact that it is necessary to ensure that the applicant is allowed fair participation in divorce proceedings. That being said, it is also not an application which the court simply hears from the bar without supporting evidence or affording the Respondent a reasonable opportunity to respond to. [44]     I am inclined to reserve the costs for further argument at the end of the trial. Conclusion [45]     For the reasons above I grant the order as set out above. A Vosloo –De Witt ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION JOHANNESBURG Electronically submitted Delivered: This judgement was prepared and authored by the Acting Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 16 October 2025 COUNSEL FOR THE PLAINTIFFS: ADV F BEZUIDENHOUT INSTRUCTED BY: MINNIE & DU PREEZ INC COUNSEL FOR THE RESPONDENT: ADV D HODGE INSTRUCTED BY: STEVE MERCHAK ATTORNEYS DATE OF ARGUMENT: 13 & 14 OCTOBER 2025 DATE OF JUDGMENT: 16 OCTOBER 2025 sino noindex make_database footer start