Summary of Judgment

1. Introduction

The matter was an interim maintenance application brought in the High Court under Rule 43 (maintenance pendente lite and a contribution towards costs) in the context of pending matrimonial litigation. The applicant sought interim financial relief relating to the parties’ minor child and litigation costs, pending the finalisation of the divorce proceedings.

The parties were spouses (identified as M (applicant) and M (respondent)) married in community of property. The dispute arose after the relationship deteriorated and the respondent left the common home, leaving the applicant to care for the minor child at the common home.

Procedurally, the applicant approached the Gauteng Local Division, Johannesburg, in case number 14221/2017, seeking an order compelling the respondent to pay R6 000 per month as maintenance for the minor child pendente lite and to make a R30 000 contribution towards the applicant’s legal costs. The respondent opposed the quantum sought, tendered a lower amount for maintenance, and disputed the costs contribution claimed.

The general subject-matter of the dispute concerned the appropriate amount of interim maintenance for a minor child and the extent of a spouse’s obligation to contribute to the other spouse’s legal costs pending divorce proceedings, assessed against the parties’ respective means and reasonable needs.

2. Material Facts

It was common cause that the parties were married on 29 October 2012 in community of property and that the marriage still subsisted at the time of the application. It was further not disputed that there was one minor child born of the marriage, S M, born in January 2013, who resided with the applicant at the parties’ common home.

It was also not in dispute that both parents bore a duty to maintain the minor child. The respondent had left the common home following marital difficulties, with the practical consequence that the applicant continued to care for the child in the common household.

The applicant alleged that she was employed as a recruitment consultant earning R9 200 per month, and that her monthly expenses were R10 423, leaving a shortfall of R1 423. On her version, these expenses included the child’s needs. She contended that the respondent earned approximately R30 000 per month, that his monthly expenses were about R8 100, and that he therefore had sufficient surplus to pay the claimed R6 000 monthly maintenance and R30 000 contribution to costs. The applicant further disputed certain expenses reflected by the respondent, including an amount said to be spent on petrol, contending that the respondent used a company vehicle and that fuel was provided by the employer.

The respondent disputed aspects of the applicant’s presentation. He contended that the applicant had not approached the court with “clean hands” because she allegedly failed to disclose that she earned bonuses in addition to her stated salary. He also contended that his income had been overstated and his expenses understated by the applicant, and added that he was paying the bond on the common home without assistance from the applicant. In relation to maintenance, he tendered R1 500 per month for the minor child.

On the respondent’s expenses, the court specifically identified as contentious the respondent’s listed monthly expenses of petrol (R3 500), food (R1 500), accounts (R2 000), and father (R1 500). The applicant’s argument, accepted by the court, was that the petrol figure was questionable given the company vehicle and fuel provision, and that the respondent’s obligation to maintain the minor child took priority over voluntary maintenance of his father (at least in the interim maintenance assessment).

3. Legal Issues

The central legal questions were what reasonable amounts should be ordered, on an interim basis, for:

the minor child’s maintenance pendente lite in terms of Rule 43, having regard to the parties’ standard of living during the marriage and the respondent’s ability to pay; and

a contribution towards the applicant’s legal costs, and if so, in what amount, on the information placed before the court.

The dispute primarily required an application of law to fact and a value judgment. The court had to assess, on the affidavits and financial disclosures, the parties’ respective means and expenses, determine which expenses were reasonable for purposes of interim relief, and then exercise a discretion to fix amounts that were justified pending the final determination of the divorce.

4. Court’s Reasoning

The court applied the established approach to Rule 43 relief, describing it as trite that interim maintenance must be determined with reference to reasonableness, the parties’ standard of living during the marriage, and the respondent’s ability to pay. The court emphasised that maintenance pendente lite is not intended to place the claimant in a better position than during the marriage, but rather to maintain (within reason) a comparable standard pending the litigation’s outcome.

In determining the respondent’s income, the court did not accept a fixed monthly figure at face value because the respondent’s salary advice showed that his salary varied from month to month. The court therefore adopted an average income approach, using the bank statement figures to determine an approximate “actual” salary, which the court assessed at R25 000 per month.

The court then evaluated the respondent’s stated monthly expenses and expressed disagreement with several items. It regarded the petrol expense as implausible in relation to food expenditure, particularly in light of the contention that the respondent drove a company vehicle with fuel provided. The court also criticised the “accounts” entry of R2 000 as insufficiently explained, viewing it as an apparent attempt to obscure available cash through an unspecified category. Further, the court accepted that the respondent’s primary obligation, for present purposes, was to maintain the minor child, and it accepted the applicant’s contention that the respondent could not treat support of his father as taking precedence over the child’s maintenance needs in the interim assessment.

On this evaluation, the court concluded that the respondent had the ability to pay interim maintenance. It rejected the respondent’s tender of R1 500 as insufficient to meet the child’s needs, particularly against the applicant’s evidence that she was left with no surplus after meeting expenses that included the child. Exercising its discretion, the court determined that R4 000 per month would assist the applicant in meeting the monthly expenses associated with caring for the minor child.

On the claim for a contribution towards legal costs, the court noted the undesirability of protracted divorce litigation and the expense of High Court proceedings. However, it found that nothing had been placed before it to justify the specific amount of R30 000 sought by the applicant. Despite that, the court took account of the disparity between the parties’ salaries and held that an initial contribution was warranted. It fixed that contribution at R10 000, describing it as justified and reasonable in the circumstances.

Finally, on costs, the court made an interlocutory costs order appropriate to Rule 43 proceedings by directing that costs be costs in the cause (i.e., to be determined in the course of the main proceedings).

5. Outcome and Relief

The court granted interim relief in part. It ordered the respondent to pay maintenance of R4 000 per month to the applicant for the benefit of the minor child, commencing 1 March 2018 and thereafter on the first day of each succeeding month, payable directly into the applicant’s account.

The court further ordered the respondent to pay a contribution towards the applicant’s legal costs in the amount of R10 000 within ten days of the order, payable into the trust account of the applicant’s attorneys.

The court directed that costs be costs in the course.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 43.

Held

The court held that interim maintenance under Rule 43 must be determined on the basis of reasonableness, the parties’ standard of living during the marriage, and the respondent’s ability to pay, and that the respondent’s claimed expenses could be scrutinised and rejected where implausible or insufficiently substantiated.

On the facts, the court held that the respondent had sufficient means to pay interim maintenance materially higher than his tender, and fixed maintenance for the minor child at R4 000 per month. The court further held that, although the applicant had not justified the specific amount claimed for a costs contribution, the salary disparity justified an initial contribution, which it set at R10 000. Costs were ordered to be costs in the cause.

LEGAL PRINCIPLES

Rule 43 interim maintenance is assessed according to reasonableness, having regard to the parties’ marital standard of living and the respondent’s means and ability to pay; it is not intended to provide an improved position over that enjoyed during the marriage.

Where income is variable, the court may determine ability to pay by adopting an average income derived from available financial records, including bank statements, rather than relying on a single salary figure.

In assessing ability to pay, the court may scrutinise and discount claimed expenses that appear implausible, excessive, or insufficiently explained, and may prioritise a parent’s duty to maintain a minor child over other discretionary expenditures.

A contribution towards legal costs under Rule 43 requires a factual basis; absent justification for the amount claimed, the court may nevertheless award a reasonable initial contribution where warranted by a disparity in means between the parties, exercised as a discretionary, interim measure pending finalisation of the main proceedings.