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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 052216/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 16 May 2025
Signature:
In the matter between:
A[...] W[...] F[...] Applicant
And
K[...] S[...] R[...] Respondent
JUDGMENT
NYATHI J
A. INTRODUCTION
[1] This is an application in terms of Uniform Rule 43 in terms of which the
applicant seeks interim relief pending the finalization of the divorce action that
is pending between him and his wife, the respondent.
[2] The relief is three -fold and as follows:
2.1 That the care that he has given and that he intend s to continue
to give both minor children be entrenched in a court order that
provid es him with enforceable and unambiguous rights of care
towards and contact with the minor children.
2.2 That he has offered to maintain the children fully and is willing
and able to do so. He seek s to entrench the financial needs of
the children in a court order and is prepared to take the
financial burden off the shoulders of the respondent in this
regard, pendente lite . That a curator ad litem be appointed to
exercise specific duties and powers to ensure that the rights of
the children are protected and to act in their best interests
pending the finalization of the divorce action.
B. BACKGROUND
[3] The parties were married to each other on 28 October 2022 , out of community
of property with the exclusion of the accrua l system and this marriage still
subsists.
[4] From this marriage one minor child was born, namely, a girl , CF on 4 February
2023. The parties are holders of full parental rights and responsibilities in
respect of CF.
[5] The respondent has a minor daughter, namely CR , born on 13 May 2020. C R
is the biological daughter of the respondent and a certain P K who has never
obtained any parental rights and responsibilities in respect of CR. The
respondent confirmed that she has been vested with full parental rights and
responsibilities in terms of CR and she is the sole guardian, caregiver and
parent of CR.
[6] What nece ssitates this application is that the applicant seeks to be awarded full
parental rights in respect of both children including CR in terms of sections 23
and 24 of the Children’s Act, so that the parties share the care of the minor
children. And that the applicant be ordered to maintain both children.
[7] The applicant seeks an order appointing an independent expert to evaluate and
assess the best interests of the minor children and report upon the findings to
the court. This application was necessitated by the respondent's unreasonable
refusal to refer the question of the best interests of the minor children for
independent determination and recommendation.
[8] The respondent is currently opposed to the above applications. The respondent
acts erratic ally and in an unpredictable manner rendering it impossible for the
applicant to plan with his family and friends to engage with the minor children.
The respondent's actions to date were such that he is led to believe that
respondent does not want applicant or any of his family members to have a
close and nurturing relationship with the children.
[9] The applicant lays out a litany of ex amples of how the respondent
systematically frustrates his endeavours at exercising contact with the
children.1
[10] The respondent in turn tabulates a litany of her own , consisting of a history of
controlling and overbearing conduct on the part of the applicant and evidence
of racial tensions seemingly driven by the applicant’s ex -wife which I find
unfortunately , emanate from a level so low as to deserv e no repet ition herein , if
proven to be true .2
C. DISCUSSION
[11] The respondent counterclaims for spousal maintenance for herself.
1 Paragraph 8 of applicant’s founding affidavit in rule 43 application.
2 Paragraphs 46, 47, 49 and 52 inter alia of respondent’s answering affidavit.
[12] The normal default position is for young children to reside with the mother;3 the
separation of children from one another should be discouraged where
possible.4 The two minor children in this case have bonded well with the
applicant and with one another. Separating them in any way makes no sense.
[13] An applicant for maintenance pendente lite is entitled to reasonable
maintenance dependent u pon the marital standard of livin g of the parties and
the a pplicant's actual and reasonable re quirements and the ca pacity of the
respondent (in this instance the applicant ) to meet such re quirements.
[14] The obligation to pay maintenance arises from the parties’ reciprocal duty of
support which spouses owe one another. The rule 43 procedure merely
provides a spouse in need of support with the mechanism to give effect to this
duty.5
[15] The applicant's opposition to the respondent's claim is bald and
unsubstantiated. He states: "I can pay the necessary and needed
maintenance, but the respondent's demands are exorbitant, unrealistic and
unreasonable”.
[16] This brings to mind the matter of Taute v Taute where it was held that
a court will be far more inclined to allow an application made on reasonable
grounds than one that contains extravagant demands and a respondent (in this
case, the applicant) who shows a willingness to maintain his spouse and/or
children will be heeded with greater sympathy than one who is shown as
avoiding his obligations.6
3 Erasmus – Superior Court Practice , Vol 2, D1-583 (Service Issue 20, 2022)
4 See Madden v Madden 1962 (4) SA 654 (T) at 658 D.
5 JK v ESK (2024) 1 ALL SA 775 (WCC) at para 49.
6 Taute v Taute 1974 (2) SA 675 (E) at 676H.
[17] The evidence presented as well as the respondent’s Financial Disclosure Form
(“FDF”) makes it clear that she is a vulnerable wife as captured in many court
decisions.7 The applicant , is undeniably, well to do with an attitude to match the
respondent’s observation that he simply refuses to make his FDF available for
the court and the respondent.
[18] In the final analysis the parties are entitled to exercise full parental rights over
both minor children and the applicant to have reasonable access to them.
[19] The following order is made:
19.1 The filing of the respondent’s supplementary affidavit is
condoned. Pendente lite the applicant is ordered to pay:
1. In respect of the property being No. 9[...] B[...] Crescent, Waterfall
Estate, Midrand, Gauteng Province ("the Waterfall property"):
a. the rates, taxes, levies, electricity, water, loans and/or bond;
b. household and homeowner's insurance;
c. Wi-Fi/internet connection;
d. DSTV/Netflix/any other streaming services reasonabl y required by
the minor children ;
e. two domestic workers ;
f. garden manager/gardener
g. costs for maintaining the swimming pool including maintenance
and chemicals;
h. general house and property maintenance;
i. security and alarm system;
j. maintenance of the back -up power system;
k. In respect of the Land Rover with registration number K[...]
(registered in the name of the applicant) currently utilised by the
respondent, which the respondent will retain in her possession for
7 See for example the Constitutional Court case of S v S 2019 (6) SA 1 (CC) ([2019] ZACC 22) at para
[3].
her sole and exclusive use, all finance payments, insurance and
maintenance (including all services, licences , tyres and so forth).
l. The applicant is ordered to pay maintenance pendente lite payable
as follows:
i. spousal maintenance in the amount of R40,000 per month;
ii. maintenance in respect of the minor children, C F ("C[...] ") and
CR (" C[...] "), in the amount of R10,000 per child per month;
iii. all creche, and school fees, extra -murals, stationary, text -
books, school uniforms, school outings and sport clothing as
and where applicable ;
iv. any additional reasonable schooling expenses for the minor
children upon receipt of an invoice for same; and
v. any additional reasonable medical expenses not covered by
the medical aid, including ophthalmic, orthodontic or specialist
care for the minor children, upon receipt of an invoice for
same.
m. The respondent is to remain in occupation of the Waterfall
property, with undisturbed use and occupation thereof to the
exclusion of the applicant .
n. In terms of the minor children, primary residence, interim care and
contact shall be as follows:
i. primary residence of the minor children is to be with the
respondent ;
ii. subject to the schooling needs of the children, the applicant is
to have contact with the minor children every Tuesday and
Thursday from 8:00am until 4:00pm and again every alternate
weekend from Friday at 5:00pm until Sunday at 5:00pm, such
contact is not to take place at the Waterfall property, subject to
the following conditions:
1. the applicant is to ensure that the minor children are
not exposed to racial prejudice or discrimination during
contact periods;
2. the applicant is to inform the respondent immediately of
any illness developed or injuries sustained by either of
the minor children; and
3. any changes to this arrangement must be agreed upon
in writing by both parties.
4. Should the applicant not be able to care for the minor
children at any time when the minor children are
scheduled to be in his care, he shall immediately inform
the respondent , and the respondent shall have the first
right of refusal to care for the minor children for the
entire period when the applicant is unable to do so.
This right shall apply vice versa to the applicant , should
the respondent be unable to care for the minor children
at any time when they are scheduled to be in her care.
iii. Full parental rights and responsibilities in respect of both
minor children are to vest in both parties.
iv. Advocate Johanni Barnard t is appointed as curator ad litem
for the two minor children . The curator’s costs are to be paid
by the applicant.
v. The applicant is to make an initial contribution of R 500 000.00
towards the respondent’s legal costs .
vi. The Applicant is ordered make financial disclosure within 10
days of the granting of this order.
vii. The costs of the rule 43 applications are reserved for
determination in the main divorce trial.
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 21/01/2025
Date of Judgment: 16 May 2025
On behalf of the Applicant : Adv. NC Maritz
Instructed by: Attorneys : Van der Merwe & Bester Inc. Pretoria.
On behalf of the Defendants: Adv. G. Hulley SC
With : Adv. N. Strathern (Ms).
Instructed by: Gittins Attorneys Inc. Johannesburg.
c/o Jason Martin Attorneys, Pretoria.
Delivery : This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand -down is deemed to be 16 May 2025.