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, PRETORIA
Case Number : 038855/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
DATE 06/01/25
SIGNATURE
In the matter between:
T, M. C. Applicant
and
K, M. P. Responden t
JUDGMENT
Joyini J
INTRODUCTION
[1] The applicant and the respondent (“ parties ”) were cited in court papers by their
full names. It is now standard practice in our courts that in order to give effect to
the paramountcy principle entrenched in section 28 of the Constitution, the
interests of minor children must be protected in legal proceedings, including,
divorce proceedings. In this case , the parties have a minor child. I accordingly
deem it appropriate to refer to the parties and their child by their initials only.
[2] The applicant approached this court in terms of Rule 43 of the Uniform Rules of
Court (“Rule 43”). She seeks maintenance for herself and the parties’ minor
child, pending the finalisation of her action for divorce from the respondent.
[3] The purpose of Rule 43 applications i s to ensure that no party is substantially
prejudiced and lacks resources to maintain a reasonable standard of living
enjoyed by the parties during the marriage when pursuing their cases in the
main divorce action. Courts are required to consider the applicant's reasonable
needs and the respondent's ability to meet them.1
[4] In all matters concerning the care, protection and well -being of a child , the
standard that the child’s best interest is of paramount importance, must be
applied. Collis J said, in an unreported decision LD v PH 150/19 , "In South
Africa, in addition to section 28 (2) of the Constitution, the common law
principle that the High Court is the upper guardian of children obliges courts to
act in the best interest of the child in all matters involving the child. As upper
guardian to all dependent and minor children, courts have a duty and authority
to establish what is in the best interests of children. Notably, in Mpofu this Court
endorsed the approach in Kotze v Kotze: "The High Court sits as upper
guardian in matters involving the best interests of the child (be it in custody
matters or otherwise), and it has extremely wide powers in establishing what
such best interest are. It is not bound by procedural strictures or by the
limitation of evidence presented, or contentions advanced or not advanced, by
respective parties".2
BACKGROUND FACTS
[5] The applicant and the respondent got married to each other on 10 November
2007 . The applicant says that she is customarily married to the respondent
and the divorce is pending before this court. In the divorce proceedings , the
respondent is challenging the validity of the customary marriage.
1 M G M v M J M [2023] ZAGPJHC 405 para 9.
2 150/2019, 9/5/19
[6] Two children were born from this marriage between the parties . One of them
is still a minor who was born on 15 August 20173 and is residing with the
applicant in the marital home. His name is K, L. M. The parties separated and
have not been living together as husband and wife since August 2019.
[7] In assessing this matter, I shall first consider the points in limine raised by the
respondent.
POINTS IN LIMINE RAISED IN RESPECT OF THE IRREGULARITIES /NON -
COMPLIANCE ISSUES ALLEGED IN TERMS OF RULE 30
[8] The respondent opposes this matter arguing that there is no marriage
relationship between himself and the applicant. He raised a point in limine
arguing that the divorce action will therefore be dismissed and thus the
applicant’s Rule 43 application premised thereon must also be dismissed. He
also raised quite a number of technical issues of non -compliance arguing that
the applicant’s Rule 43 application is defective without showing evidence of
prejudice caused by such non -compliance.
[9] On behalf of the respondent, counsel submitted that this court cannot hear the
application since the marriage is in dispute. However, counsel for the
applicant referred the court to various decided cases and submitted that the
court can entertain the applicant’s Rule 43 application even where marriage is
in dispute.
[10] In Zaphiriou v Zaphiriou 1967 (1) SA 342 (W) Trollip J said at page 345 E -H:
“There is, therefore, a good authority that in common law, even though the
validity of the marriage was being disputed, nevertheless the court had
jurisdiction in preliminary application proceedings to award maintenance and
a contribution towards costs pending an action to determine that fundamental
dispute. And I have no doubt that that applies equally, if not a fortiori where,
although the validity of the marriage is admitted, its continued subsistence is
disputed, as in the present case. Rule 43 was merely designed to provide a
3 Caselines 008 -4 para 5.3.
streamlined and inexpensive procedure for procuring the same interim relief in
matrimonial actions as was previously available under the common law in
regard to maintenance and costs, and I think, therefore, that Rule 43 must be
construed accordingly; in other words, that ‘spouse’ in sub -rule (1) must be
interpreted as including not only a person admitted to be a spouse but also
one who alleges that he or she is a spouse, and that that allegation is denied.
In other words, the Rule also applies where the va lidity of the marriage or its
subsistence is disputed. The application under Rule 43 in the present case
can, therefore, be entertained by this Court .”
[11] This decision is quoted with approval in MRL v KMG case number 15078/12
dated 08/04/2013 . I am therefore persuaded by the argument of the c ounsel
for the applicant that this court , on the basis and in line with caselaw referred
to above, can hear and decide the applicant’s Rule 43 application. It is not for
this court to decide on the validity or otherwise of the marriage . I will
accordingly ignore all issues about the validity of the marriage going forward . I
am also persuaded by the argument of the counsel for the applicant that the
counsel for the respondent should not be allowed to continue detaining the
court proceedings on a number of technical issues of non -compliance arguing
that the applicant’s Rule 43 application is defective without showing evidence
of prejudice caused by such non -compliance. Prejudice is a prerequisite to
success in an application in terms of Rule 30. As entertaining these issues is
not in the interest of justice and the minor child involved in this Rule 43
application, I conclude that in the absence of prejudice caused by such non -
compliance , the issues raised stand to be dismissed.
ISSUES FOR DETERMINATION AND RELIEF SOUGHT
[12] The applicant seeks an order under Rule 43 of the Uniform Rules of Court that
compels the respondent to pay R57 765 per month as maintenance pendente
lite for herself (applicant) and the parties’ minor child plus payment for
schooling and extra -mural costs, medical expenses, and winter and summer
clothes for the minor child.
[13] Maintenance relief under Rule 43 application arises from the parties’ duty of
support. Rule 43 proceedings provide an important mechanism for giving effect
to parties' reciprocal duty of support. One of the invariable consequences of
marriage is the reciprocal duty of support.4 In Dawood and Another v Minister of
Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and
Others; Thomas and Another v Minister of Home Affairs and Others [2000]
ZACC 8 ; 2000 (3) SA 936 (CC) at par 52 O' Regan J notes: “ The institutions of
marriage and the family are important social institutions that provide for the
security, support and companionship of members of our society and bear an
important role in the rearing of children. The celebration of a marriage gives rise
to moral and legal obligations, particularly the reciprocal duty of support placed
upon spouses and their joint responsibility for supporting and raising children
born of the marriage….”
APPLICANT’S EVIDENCE AND ARGUMENT
[14] The applicant approaches this court on the basis that the respondent has
ceased fulfilling his responsibilities in the household since the applicant
started the divorce process in February 2023. The applicant in this case
describes herself as unemployed and as family, they have been relying on the
respondent financially since they got married. The applicant says the
respondent has been the sole provider of the family for all these years that the
parties have lived together as husband and wife, which is more than 12 years.
According to the applicant, the respondent has the capacity to provide for the
minor child’s financial needs. However, he allegedly decided to punish the
child because of the pending divorce. The applicant alleges this because the
respondent has stopped paying for the child’s maintenance since the
commencement of the divorce action.
[15] The applicant states that the respondent works in retail industry and he was
promoted into the position of Manager at P[…] […] P[…] in Durban in 2009. The
parties , after a lengthy discussion, agreed then that the applicant should resign
from her employment and relocate together to Durban as family. The company
4 Bwanya v The Master of the High Court 2022 (3) SA 250 (CC) at par 36.
paid for their relocation expenses, house rental , and the applicant’s allowance s
for a year. Two years later, the parties moved back to their marital house in
Pretoria East.
[16] The applicant has supplied the respondent with her financial disclosure form
(FDF) which shows her financial standing in terms of Rule 35 and the
respondent has failed to provide the applicant with his FDF. It is evident that the
respondent is not prepared to take responsibility for his obligations towards the
minor child and the applicant by not disclosing his financial position.
[17] The breakdown of the maintenance requirements of the applicant in her FDF5 is
as follows: Food, groceries & cleaning materials – R8 000 ; toiletries – R1 000;
lunches for children – R500; domestic worker – R1 000; personal care R600;
fuel – R4 000; other policies – R724.87; and pocket money – R5000 . The
applicant’s total expenditure is R20 824.87.
RESPONDENT’S EVIDENCE AND ARGUMENT
[18] The respondent argues that one of the material components of an application
for maintenance pendente lite is to set out how the amount claimed is arrived
at. He argues that the claim for the spouse and the child must be separated.
[19] He further argues that for any spousal maintenance claim to exist, applicant
must explain her employment circumstances and her means. She must show
the court that the basic ground for her claim exists namely that she has a
“need” for maintenance. Here, the applicant simply contends that she is
unemployed but gives the court no information about her qualifications, her
employment history, her attempts to find employment or her general financial
means.
[20] According to the respondent, the applicant has lied to the court and this can
be seen from her own FDF. In that form, she states that she has three
businesses, namely, M[...], C[...] D[...] , A[...] A[...] Y[...] S[...] and M[...] S[...]
5 Caselines 014 -78, para 3.
and R[...] . She has a cheque account with R69 393 in it and a savings
account with R1 706.30. The respondent is asking why the applicant is not
using it for maintenance. She has two credit cards and the respondent is
asking how did she get credit if she is unemployed.
[21] The respondent also argues that the applicant discloses her expenses in her
FDF as being R20 824.87 per month and yet she claims R57 765 plus
payment of other direct costs. In her FDF, she states that she earned R18 000
from her curtain business last year.
LEGAL PRINCIPLES
[22] In determining this application, I am bound by the following well -established
legal principles:
[22.1] Orders for maintenance that are issued pursuant to Rule 43 are intended to
be interim and temporary and cannot be determined with the degree of
precision and closer exactitude which is afforded by detailed evidence.6
[22.2] The purpose of Rule 43 is to provide a speedy and inexpensive remedy,
primarily for the benefit of women and children.7 It allows for interim
arrangements to be imposed on the parties in matrimonial disputes,
and pendente lite until the Divorce Court can make a properly informed
decision and after hearing viva voce evidence.8
[22.3] The applicant spouse (who is normally the wife) is entitled to reasonable
maintenance pendente lite dependent on the marital standard of living of the
parties, her actual and reasonable requirements and the capacity of her
husband to meet such requirements which are normally met from income
although in some circumstances inroads on capital may be justified. 9
[22.4] A claim supported by reasonable and moderate details carries more weight
than one which includes extravagant or extortionate demands – similarly more
weight will be attached to the affidavit of a respondent who evinces a
6 Taute v Taute 1974(2) 675 (EC) at 676B.
7 S v S 2019 (6) SA 1 (CC) ( [2019] ZACC 22 ) at par 43.
8 JG v CG 2012 (3) SA 103 (GSJ).
9 Taute v Taute 1974(2) 675 (EC) at 676D -E.
willingness to implement his lawful obligations than one who is
obviously, albeit on paper, seeking to evade them. 10
[22.5] One of the fundamental principles for an award of maintenance is an ability to
pay on the part of the spouse from whom maintenance is claimed.11
EVALUATION AND ANALSIS
[23] When determining this matter , I must be guided by the well -established
principles governing Rule 43 applications. I must however, also be guided by:
(a) the gendered realities in claims for maintenance while divorce proceedings
are pending; and (b) the vital constitutional principle of the best interests of the
child as required by section 28(2) of the Constitution. These factors do not
allow for an easy departure from an otherwise reasonable claim for
maintenance founded on the well -established principles governing Rule 43
applications.
[24] The applicant , in casu , seeks interim spousal and child maintenance. The
applicant does not agree with respondent’s version. The respondent opposes
the application. Despite the regrettable efforts to unnecessarily complicate
issues that this court should determine, the issues that must be decided are
relatively simple. (i) Is the parties’ child and the applicant in need of
maintenance pending the finalisation of the divorce proceedings? (ii) What are
the applicant's actual and reasonable needs and/or requirements? (iii) If these
questions are answered in the affirmative, then it should be determined whether
the respondent has the financial means to provide interim maintenance to the
applicant and their child pending the finalisation of the divorce proceedings. (iv)
If he does, to determine the reasonable amounts of maintenance that the
respondent should be ordered to pay.
[25] To adequately determine the need for maintenance and ability to pay,
respective assets and incomes of both parties must be assessed. The
applicant’s FDF was disclosed to this court and the respondent did not submit
10 Taute v Taute 1974(2) 675 (EC) at 676H.
11 Buttner v Buttner 2006 (3) SA 23 (SCA) ([2006] 1 All SA 429) at par 36. See also: Reynecke v
Reynecke 1990 (3) SA 927 (E) at 932J - 933F.
his FDF to this court. This obviously complicates the court’s assessment
process.
[26] In this application before the court, the respondent needs to ensure that the
issue of whether he can afford maintenance as claimed by the applicant is
feasible or not and whether he can afford and or cannot afford such demands.
The respondent has failed to satisfy the court on those issues in opposition to
what the applicant seeks before this court.
[27] The applicant details that the respondent, who has been the family's sole
provider for over 1 2 years, is employed as Manager at P[…]’ […] P[…] with a
monthly income . This income has historically been sufficient to support the
applicant and their family.
[28] The respondent also did not attach his salary slips and /or his current banking
accounts to pro ve to the court that he is unable to maintain the applicant and
the minor child . The respondent failed to adduce evidence to support his
opposition . Without such evidence, it is assumed that the respondent can be
able to meet the demands of the applicant but has just chosen to ignore them.
[29] In reviewing this case, the respondent has not presented sufficient evidence
to effectively counter the Rule 43 Application. The set of facts before this court
is for maintenance, and to answer and oppose the maintenance case, the
respondent is supposed to be taking this court into confidence by indicating
that he cannot afford and attach proof to support same. The respondent has
failed to deal with and address his opposition to the Rule 43 Application .
[30] In the circumstances, I am of the view that the respondent has not made out a
case to seriously suggest that the expenses claimed by the applicant are
unreasonable. In the same vein, I am also satisfied on a holistic evaluation of
the evidence presented, that the applicant has made out a case for the interim
relief that she seeks pending the finalization of the divorce between the
parties. As such, the applicant’s Rule 43 application should be granted.
CONCLUSION
[31] To decide whether the applicant and the child should receive interim
maintenance from the respondent pending the finalisation of the divorce
proceedings, I need to draw certain inferences and weigh probabilities as they
emerge from the parties’ respective affidavits, heads of arguments and oral
arguments by their counsel. The conclusions that I reach are not binding on the
court that will conduct the divorce trial which, after hearing all the evidence,
may provide clarity on the actual financial position of the parties.12
[32] In conclusion, given the temporary nature of Rule 43 proceedings, I am
convinced that the applicant has been placed in a situation that she and their
minor child are deprived of their necessary maintenance which warrants the
intervention of this court by way of Rule 43 remedy. I am convinced on the
strength of the evidence submitted to th is court, that the respondent can afford
to pay interim maintenance. I am convinced that the applicant and the children
should receive interim maintenance from the respondent based on the
evidence before the court.
[33] Each application for spousal maintenance must be decided on its own facts. It
is not disputed there is a significant disparity in their respective incomes and
that the respondent has through the years paid for most expenses. He has
always paid for his family’s living expenses and they are entitled to live a similar
high standard of living which they were used to.
[34] In CC v NC13 the court stated that an applicant is entitled to reasonable
maintenance dependent on the marital standard of living of the parties, albeit
that a balanced and realistic assessment is needed, based on the evidence
concerning the prevailing factual situation.
12 Levin v Levin and Another 1962 (3) SA 330 (W) 331D.
13 16742/21) [2021] ZAWCHC 227 (9 November 2021.
[35] In Glazer v Glazer ,14 the court stated: “ I think that a wife is entitled to a
reasonable amount according to her husband’s means, not necessarily
according to what he thought was reasonable. ”
[36] I have considered the breakdown of the maintenance requirements of the
applicant in her FDF15 which is as follows: Food, groceries & cleaning materials
– R8 000; toiletries – R1 000; lunches for children – R500; domestic worker –
R1 000; personal care R600; fuel – R4 000; other policies – R724.87; and
pocket money – R5000. The applicant’s total expenditure is therefore R20
824.87. In my view, they appear reasonable. It is clear that the respondent
would not be seriously prejudiced if he must keep his family financially
comfortable. I am therefore inclined to grant the applicant and their minor child
maintenance in the amount of R20 824.87 per month .
COSTS
[37] I have considered both parties’ argument relating to the costs of this
application. I am accordingly not inclined to grant costs in either party’s
favour. Therefore, I leave this to the trial court to decide. The costs of this
application will therefore be costs in the cause, meaning that they would be
determined as part of the overall case.
ORDER
[38] The points in lim ine raised by the respondent are accordingly dismissed.
[39] In respect of the applicant’s Rule 43 application, I make the following
order, pendente lite :
[39.1] The respondent shall maintain the applicant and the parties’ minor
child pendente lite by paying a monthly cash amount of R20 824.87. The first
payment shall be made within 10 days following the granting of this order.
Subsequent payments shall be made on or before the first day of the month
until the date this court grants a divorce decree. These payments sh all be
made directly into the applicant’s chosen bank account ;
14 1959 (3) SA 930 D_E.
15 Caselines 014 -78, para 3.
[39.2] The amount set out in paragraph 39.1 above shall be increased annually on
the 1st day of the month succeeding the anniversary date of this order and
every 12 months thereafter in accordance with the average increase as
recorded in the Consumer Price Index for the Republic of South Africa as
notified from time -to-time by the Director of Statistics or his equivalent, for the
preceding year;
[39.3] The respondent shall pay for the parties minor child’s winter and summer
clothes, school -fees at a school, inclusive of school levies, school -books,
school uniforms, all school outings and tours, extra -mural activities, sporting
activities, any equipment and clothing required for the aforesaid extra -mural
activities, extra tuition and sporting activities;
[39.4] The respondent shall put the parties’ minor child on medical aid and pay all
the minor child’s medical and related expenses not covered by the medical
aid scheme, inclusive of hospital, dental, orthodontic, prescribed
pharmaceuticals, therapeutic and related expenses ; and
[39.5] The costs of this application will be costs in the cause .
T E JOYINI
JUDGE OF THE HIGH COURT, PRETORIA
APPEARANCES:
For the applicant : Ms Nthabiseng Alette Dubazana
Instructed by : Dubazana Attorneys ’ Inc.
Email: dubazanan@dubazanaattorneys.co.za or
info@dubazanaattorneys.co.za
C/O Rammaesele Mphahlele Attorneys
Email: rammaeseleattorneys@rammaeseleattorneys.co.za
For the respondents : Ms Ceri Von Ludwig
Instructed by : Ceri Von Ludwig Attorneys
Email: ceri@familylegal .co.za
Date of Hearing: 27 November 2024
Date of Judgment: 6 January 2025
Delivery or handing down of the Judgment
This Judgment has been delivered by uploading it to the Court online digital data
base of the Gauteng Division, Pretoria and by e -mail to the Attorneys of record of the
parties. The deemed date and time for the delivery is 6 January 2025 at 10h00.