REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1) REPORTABLE : ¥e-S/N O
(2) OF INTEREST TO THE JUDGES: ¥e-S/NO
(3) REVISED : Yes. ~
DATE: 31 July 2025 SIGNATURE ..... ,...,..
In the matter between:-
(A ..... [ [C ..... ] [J ..... ] [S .... ]
AND
(A ...... ] [ ...... ]
PLAINTIFF
DEFENDANT
Case: 4216/2018
Delivered: This was handed down electronically by circulation to the parties legal
representatives by email. The date and time for hand down of the judgment is
deemed to be 31 July 2025 at 10:00 am .
JUDGMENT
Mashifane AJ
1. The plaintiff A.C.J.S issued divorce summons against the defendant A.S
claiming a degree of divorce and primary care and residence of the minor
children. The defendant filed her plea and counter claim pleading for decree of
divorce, spousal maintenance, primary care and residence of the minor
children, medical aid contribution and RS00 000.00 for a motor vehicle.
The counter claim was later amended and the defendant pleaded among others
for rehabilitative maintenance and a motor vehicle similar to the Suzuki Jimmy
2021 model and medical aid contribution.
2. The parties have since partially settled their dispute and before the trial could
commence the settlement agreement entered between the parties was
presented to the Court and now forms part of record as annexure B. In their
settlement agreement the parties agree that the primary care and residence of
the minor children be awarded to the plaintiff and the defendant be afforded
reasonable contact. The only outstanding issue upon which this Court is called
upon to decide is rehabilitative spousal maintenance of the defendant, the claim
by the defendant that the plaintiff buy her a motor vehicle of similar standard as
Suzuki Jimmy 2021 model and to contribute towards her medical aid.
3. For purpose of this judgment, I find it necessary that I give brief litigious
background of the matter moreover in the same form part of the evidence
presented before the Court.
4. On 11 July 2018 the plaintiff brought an application in terms of Rule 43 of the
Unfirm Rules claiming the primary care and residence of their three minor
children and other ancillary relief not necessary to mention for the purpose of
this judgment. The application was opposed by the defendant and in addition
she brought a counter claim for maintenance pending divorce._On 08 November
2018 the plaintiff's application was successful and in addition he was ordered
to contribute the sum of R 15240.00 as interim spousal maintenance. Is
common cause that the plaintiff volunteered to contribute this amount before
the court order was granted and by the time of the order, he was already
contributing the said amount.
contributing the said amount.
5. In her counter application for interim maintenance defendant averred that she
had been unemployed since 2011. The plaintiff gave her a bank card linked to
his account which she was permitted to use on daily basis. She went further to
say that she had no income and used to run a guesthouse from 2017 and
managed to make approximately R15 000.00 per month. Since the separation
she could not do manage the guesthouse further because the house was then
occupied by the plaintiff and their children.
The allegation that she was unemployed since 2011 was denied by the plaintiff
and he alleged that the defendant was employed as teacher at Heuwelkroon
School in Polokwane earning the sum of R8500.00, she resigned after her
farther who was an employee there was dismissed. He alleged further that she
also gave part-time classes for remuneration but stopped about June 2012. His
father subsidized them in the amount of R 10 000.00 per month to make a living.
6. In her affidavit the defendant alleged that they went on luxurious holidays in
Canada, Austria and Mexico and that this happened in 2003, 2012,2013 and
they also went twice on local holidays a year. The plaintiff did not deny these
allegations but alleged that all their international expenses were sponsored by
his father and that most of their local vacations were in Southern Cape at his
parents' own house in which they stayed free of charge.
7. On 23 June 2022 the plaintiff brought an application in terms of Rule 43 (6) to
vary the order granted on 08 November 2018. The grounds for the variation
application was that the defendant had disclosed to the Family Advocate that
she was employed as an estate agent by Property Boutique. The defendant
confirmed that she has been employed since 18 October 2018, a month before
the interim order was granted. The plaintiff's application was not successful,
and he continued to pay the defendant interim spousal maintenance pending
the divorce.
8. In her answering affidavit to the plaintiff's founding affidavit the defendant
estimated her monthly expenses at R35 000.00. Her expenses included R 2830
estimated her monthly expenses at R35 000.00. Her expenses included R 2830
paid to the domestic worker, R600.00 paid to the gardener, R4592 for rent,
R1340 for medical expenses, R3128.00 for cell phone, and R2000.00 fuel, to
mention the few.
9. In her evidence in chief before the Court and as per financial disclosure
statement dated 10 March 2025 the plaintiff estimated her monthly expenses to
be in the sum of R64 775.74. During the cross-examination it was established
that most of what she referred to as expenses were not paid by her or not paid
at all. It then came down to R30604.00.
10. She testified that she needs rehabilitative maintenance for her to settle her debt,
and to complete her post graduate certificate in teaching which is a prerequisite
for her to qualify for benefits such as provident fund and medical aid. The debt
included her litigation fees. She needs a more reliable motor vehicle so that
she can be able to drive with her children when exercising her right to contact.
She is currently on medical aid of which the monthly premiums are paid by the
plaintiff. She is currently employed as a teacher by Curro and her net salary is
R20500 .00 and when she add R15240.00 from the plaintiff her monthly net
income is R35839.00. resulting with surplus of R5235.00. per month.
11. The plaintiff that is taking care of their children and solely paying for their school
fees and personal needs. He is assisted by his father, and the assistance
includes payment of the interim maintenance towards the defendant. He
testified that his family never lived an extravagant life. They have always been
assisted by their relatives, particularly the plaintiff's father. He bought a motor
vehicle, Suzuki Jimmy 2021 model, for their son who is at
tertiary as a gift for his 18th birthday. He is currently residing with his parents in
Pretoria and pay rent for his accommodation. Most of his expenses are paid
from his business account as he is a sole proprietor.
12. The parties were married to each out of community of property with the accrual
system on 17 April 2003 and by then the plaintiff was still a student at Medunsa
and the defendant employed Glenrand MIB. Three children were born from the
and the defendant employed Glenrand MIB. Three children were born from the
marriage and only two are still minors. The eldest child is studying at the
University of Free State.
13. The two minor children are at boarding school known as Afrikaans High School
in Pretoria and the plaintiff is solely responsible for their school fees and general
maintenance.
14. Since 2018 the children have been living with the plaintiff and the defendant
has never contributed to their maintenance or provided any form of financial
support.
15. On 23 November 2018 the plaintiff was ordered in terms of Rule 43 to pay the
defendant interim spousal maintenance in the amount of R15240.00 per month
and as at the time of the order the defendant was employed as an estate agent
earning commission. She resigned for this employment in 2023.
16. The defendant was offered a fixed term employment as a teacher at Curro
commencing 01 August 2024 until 30 July 2025 renewable at the discretion of
the employer and her salary in the sum of R24 0000. 00 before deductions and
her take home is R20500.00. in addition to this income, she is receiving a
monthly maintenance contribution form the plaintiff in the sum of R15240.00.
17. The defendant graduated with a B.Com degree in marketing and did in the past
register with UNISA to further her studies but did not complete.
18. In 2006 the plaintiff graduated, and the following was offered internship at
Polokwane Provincial Hospital. He is currently self employed as a dentist and
residing in a four-bedroom house in Pretoria together with their children.
19. Rehabilitative spousal maintenance refers to a temporary type of maintenance
ordered by the divorce court upon dissolution of the marriage in favour of the
financially weaker spouse for a limited period aimed at giving the spouse an
opportunity to become self-supportive by either skill, education and training.
This type of maintenance is not provided for in a legislation and is granted
purely on the discretion of the divorce court considering the financial
dependency of the financially weaker spouse during the marriage more
particular in circumstance were the spouse had to take care of the children and
household responsibilities.
20. The duty rest on the spouse claiming rehabilitative maintenance to proof that it
20. The duty rest on the spouse claiming rehabilitative maintenance to proof that it
was due to her commitment to the marriage that she failed or was prevented
from acquiring skills, education, training or to participate in the labour market
for her to be financially self-supportive. The requirements for rehabilitate
maintenance do not differ from those of spousal maintenance, the only
difference is the purpose and duration of the maintenance. It therefore stands
that before enquiring into the general requirements of the maintenance the
Court should consider first the requirements for s rehabilitative maintenance.
21. The requirements for spousal maintenance are outlined in Section 7 (2) of
Divorce Act 70 of 1979 which provides that:
"the court may, having regard to the existing or prospective means of each of
the parties, their respective earning capacities, financial needs an obligations,
the age of each of the parties, the duration of the marriage, the standard of
living of the parties prior to the divorce, the conduct in so far as it may be
relevant to the breakdown of the marriage, an order in terms of section 7 (3)
and any other factor which in the opinion of the court should be taken into
account, make an order which the court finds just in respect of the payment of
maintenance by the one party to the other for any period until death or
remarriage of the party in whose favour the order is given, which ever may first
occur."
22. The section itself does not create a right to be maintained after divorce. It
empowers the Court with a discretion after having considers the factors listed
in the section and any other factor which in the opinion of the Court will be just
to make order for spousal maintenance. It therefore stands that the Court is
also empowered to consider factors which in its opinion would render the order
unjust.
23. The SCA in EH v SH 1 said that "the person claiming maintenance must
establish a need to be supported by the other spouse and that if no such need
is established, it would not be just for a maintenance order to be issued". It is
therefore an essential requirement that the party claiming maintenance must
therefore an essential requirement that the party claiming maintenance must
prove there is need not a want for such maintenance and its only after the has
1 EH v SH 2012 (4) SA 164 (SCA) para 13
been established that the Court will enquire into the affordability of the other
spouse. The parties at divorce enjoy no statuary right to maintenance simply by
reason of marriage that there is no right of maintenance on divorce and once
the need has been proven then the court should determine the other spouse's
affordability.
24. It is well established that during the marriage the parties have reciprocal duty
of support towards each other which terminates upon divorce or death unless
at the end of the marriage by divorce the Court makes a maintenance order
which it finds to be just having regard to the factors set out in Section (7) (2) of
the Act. Each case must be decided on its own its merits.
25. Lekale J stated as follows: "Marriage, as a social institution, is not a business
enterprise and parties thereto do not generally regard each other with
calculated prudence as shrewd business individuals would each other when
engaged in business transactions. They do not keep precise records of the
favours they extend to each other, nor do they, as a matter of course and
practice, reduce their daily undertakings to each other to writing. They are
guided, in their dealings with each other, by trust and unquestioning acceptance
that they would be together as husband and wife until "death do [them] part".
They generally remain gullible towards each other until their love for each other
loses its flame and only then do they start to gaze around and tread with care
and suspicion as against each other. "2
26. The parties got married to each other on 17 May 2003 and stayed together as
husband and wife sharing same residence until they separated in January
2018. In their 22 years of marriage they for a period of 14 years. During the
seven years of separation the defendant depended on the interim spousal
maintenance and the income she derived from different sources.
27. During their first 14 years of their marriage, it can be concluded that the parties
27. During their first 14 years of their marriage, it can be concluded that the parties
lived a normal standard life which cannot be classified as extravagant. They
used to go on holiday twice a year. They initially shared residence with relatives
2 PGJ v AEJ Case No: 4949/2013 pagel paragraphl (19 May 2026 Free State Division)
or provided with free accommodation before moving into their own house. They
appeared to have been surviving with the assistance of their immediate
relatives.
28. When it comes to the parties existing or prospective means of earning capacity
in her own evidence the defendant testified that when making application for
interim maintenance in 2018, she was unemployed with no means of income
but shortly thereafter she secured employment as an intern property agent.
Since then, she managed to gain employments and currently employed by
Curro as a teacher. This is not for the first time she secures employment with
this institution. She also has no reason to believe that her contract would not
be renewed.
29. The defendant's amended counter claim reads as follows:
7. "Having regard to the existing and prospective means of each of the parties,
their respective earning capacities, financial needs and obligations, the
standard of living of the parties prior to the divorce, the age of the parties, the
duration of the marriage and any other factor which in the opinion of the
Honourable Court should be taken into account, it would be just and equitable
should the plaintiff be ordered to:
7. 1 pay rehabilitative maintenance to the defendant in the amount of
R15 240. 00 per month, which amount shall escalate annually
inaccordance with the Consumer Price Index, from the first day of the
month following the granting of decree of divorce and thereafter on or
before the first day of each successful month for a period of 5 years from
the date of the divorce.
7. 2 Pay the monthly premiums in respect of the defendant's Medical Aid
Scheme, as well as all reasonable medical expenses not covered by the
said Medical Aid Scheme for a period of 5 years from the date of the
divorce.
7.3 Purchase a vehicle for the Defendant similar to the 2021 Suzuki
Jimmy that the plaintiff is currently driving." (My Emphasis).
30. In her own evidence the defendant claims rehabilitative maintenance for a
period of five years from the date of divorce to enable her to settle her debt and
to obtain a post graduate certificate in teaching which is required for her to be
offered permanent employment as a teacher by Curro. She testified that she
already registered for PGCE certificate in March 2025, and it will cost her
R4216.00 per month for the next ten months. Surprisingly despite the surplus
she has been having on monthly basis for almost a year she did not pay even
a cent towards her tuition fees.
31. The plaintiff denies that the defendant is entitled to the claim for rehabilitative
maintenance and argue that she had enough time to better her qualification.
She enrolled for the same qualification twice in the past and did not complete
it. During the period of separation, the defendant received proceeds of the sale
of their house in Polokwane but she did not use part of the money to further her
studies or settled her debts.
32. The defendant's pleading for the rehabilitative maintenance and her evidence
falls short of the requirements for rehabilitative maintenance. Her grounds for
this claim is basically general ground for spousal maintenance. As I have
indicated above this type of maintenance is for specific purpose and a short
fixed period and the rest of the other factors stated in the Act are to be used in
support thereof.
33. The submission on half of the defendant that her current reasonable and
necessary monthly expenditure amount to R34075.00 should not be viewed in
isolation of her the whole evidence before the Court. She recently moved into
a two-bedroom house which and her rental increased with almost 100 percent
per month. She is residing alone and opted to retain a full-time domestic worker
at the cost R2500.00. Her grocery is R6000.00 per month and R1666.00 paid
towards her holiday savings is unreasonable. It doesn't appear from her
towards her holiday savings is unreasonable. It doesn't appear from her
evidence that she ever tried to reduce her expenses and live within her means.
In her initial application for spousal maintenance the defendant listed her
expenses and calculated them to the sum of R20640.00. which has now
increased.
34. Though a motor vehicle can be part of rehabilitative maintenance order, the
evidence in support of such a claim should satisfy the requirements for a
rehabilitative maintenance. The motor vehicle should be necessary to assist the
financially weaker spouse to become self-sufficient or financially independent
from the other. In her particulars of claim the defendant demand that the plaintiff
purchases her a motor vehicle similar to the one he drives. She testified that
she needs a motor vehicle with enough space to be able to transport herself
and the children when she exercises her right of contact.
35. Her grounds do meet the requirement for rehabilitative maintenance. In my
opinion she wants to be at the same standard of living as the plaintiff. The
evidence before this Court does not show that the defendant is burning inside
with a desire to exercise her right to have contact with the children. She is
currently driving motor vehicle, which is still in good conditions, she does not
need a more reliable motor vehicle to go to work, training or further her studies.
Rehabilitative maintenance is a selfish type of maintenance as it focuses only
on the claimant and nobody else.
36. The defendant, as part of her rehabilitative maintenance claim that the plaintiff
should retain her on his medical aid plan for a period of five years. She is not
suffering from any medical condition which without medical aid she would not
be able afford and that same would affect her ability to earn a salary or be self
sufficient.
37. It was argued on behalf of the defendant that the plaintiff is not be honest and
candid with the court about his financial position. The explanation by the plaintiff
is reasonable, he is a sole proprietor and some of his personal needs are taken
care of by the business. That he was able to go on holiday with the children
twice in a short period of time is not indicative of someone who is wealthy but
rather a father who is going extra mile to make life worth living for his own
rather a father who is going extra mile to make life worth living for his own
children. The defendant herself had been on holiday in Mozambique and on
number of occasions on a weekend away by herself in the Lowveld. I'm not
convinced that the plaintiff's expenditure depicts someone who is reckless with
his earnings.
38. This court is also not satisfied that the defendant had been honest with Court
including the Court that decided on her interim maintenance. She kept quite
about her changed financial position when the order was granted. She claim
that the plaintiff maintained the family at high standard of living which includes
luxuries holidays overseas. It is evident that the plaintiff would not have afforded
a trip to overseas before 2007. Is either the defendant or someone else
sponsored the trip and I must accept that it was the plaintiff's father. She
portrays herself as someone who always needed financial assistance from
other people but not even once did she requests the similar assistance to be
able to exercise her contact rights with her minor children.
39. The circumstances of this case do not require of me to enquire into the plaintiff's
financial position saves to say, with the evidence before this Court the plaintiff
is assisted by his father to make meet his financial obligations including spousal
maintenance in favour of the defendant. The financial assistance from the
plaintiff's father did not only commence after separation.
40. The duty is on the defendant to prove that she her circumstance meet the
requirements for rehabilitative maintenance. On balance of probabilities, I am
not convinced that defendant has satisfied the requirements for rehabilitative
maintenance. On the contrary with her salary, she can take care of her own
financial obligations and daily needs without the assistance of the plaintiff.
41. The plaintiff has been pulling very hard, taking care of the children and the
Defendant to the extent that he must from now and then borrow from his father.
In application of a "clean-break "principle the reciprocal duty of support existing
between the between during the marriage end at the dissolution of the
marriage. With this principle in mind and the fact that it does not follow
axiomatically that by virtue of marriage the party has a right to maintenance
axiomatically that by virtue of marriage the party has a right to maintenance
post-divorce the defendant's claim for rehabilitative maintenance is bound to
fail.
42. Costs are in the discretion of the Court, but Courts are generally reluctant to
order costs in divorce actions. I'm also of the view that costs order in divorce
matters should be reserved for exceptional cases.
Order
a. The decree of divorce is granted.
b. The settlement agreement between the parties marked annexure "B" is
made the order of the Court.
c. The defendant's claim for rehabilitative maintenance is dismissed.
d. The defendant's claim for a motor vehicle is dismissed
e. The defendant's claim for medical aid contribution is dismissed.
f. Each party to pay for its costs.
APPEARANCES
For the Plaintiff: Ad v N Van Niekerk
Instructed by Labuschagne Attorneys
For the defendant: N De Klerk
Instructed by DDKk Attorneys ln.c.
Date of hearing: 02-03 June 2025
Judgment: 31 July 2025
,,,_..----.,,.,,
RS MASHIFANE
ACTING JUDGE OF THE
HIGH COURT , LIMPOPO
DIVISION, POLOKWANE