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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case No: 2025-073442
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
.... DATE : 17/11/2025
SIGNATURE
In the matter between:
C[...] M[...] H[...] (born B[...]) Applicant
and
G[...] N[...] H[...] Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
NKOENYANE AJ
INTRODUCTION
[1] This is an application in terms of Rule 43 of the Uniform Rules of Court for interim
maintenance pendente lite for the parties’ three minor children and a contribution
towards the Applicant’s legal costs. The matter was argued, but before judgment
could be delivered, a significant supervening event occurred: the Respondent was
retrenched from his employment. This necessitated the filing of further affidavits and
heads of argument, which have placed the Respondent’s financial means in a new
light, centra l to which is the receipt of a substantial, once -off lump sum severance
package.
[2] The core dispute now revolves around whether the Respondent’s tender of
R1,000.00 per child per month, based on his newly unemployed status, is
reasonable, or whether the Court should, as argued by the Applicant, order a higher
level of maintenance to be funded from his readily available capital resources,
including his severance package and pension funds.
THE PARTIES’ TENDERS
[3] The Applicant’s draft order seeks, inter alia:
3.1. Cash maintenance of R5,000.00 per child per month (R15,000.00 total);
3.2. The Respondent to bear 100% of the children’s medical aid costs and 70% of
uncovered medical expenses;
3.3. The Respondent to bear 100% of the educational costs not covered by the
Applicant’s
75% bursary; and
3.4. A contribution towards legal costs of R127,818.50.
[4] Following his retrenchment, the Respondent’s revised tender is significantly
reduced:
4.1. Cash maintenance of R1,000.00 per child per month (R3,000.00 total);
4.2. Medical aid coverage for the family only until 31 December 2025, after which
it will
lapse, with uncovered medical expenses to be shared 50/50;
4.3. Educational expenses not covered by ring -fenced school fee s child to be
shared 50/50; and
4.4. No contribution towards legal costs.
THE LEGAL FRAMEWORK
[5] The principles governing interim maintenance are well -established. In Taute v
Taute1, the court held that maintenance is dependent upon the marital
standard of living, the applicant’s reasonable requirements, and the capacity
of the respondent to meet such requirements, which are "normally met from
income although in some circumstances inroads on capital may be
justified." (My emphasis).
[6] This principle is not merely an exception but a necessary tool to ensure that
children's needs are not sacrificed for the preservation of a parent's capital. In
J.E.R (Nee O) v B.E.S 2, the court affirmed that "the income and assets of the
respondent’s business entities fell to be taken into account in determining his
ability to pay maintenance." Similarly, in F.S v Z.B 3, it was held that "If the
respondent is unable to pay based on his salary, then he cannot preserve his
capital assets at the expense of his children’s maintenance needs."
[7] Most recently, in K v K (unreported, Case No. 2024 -116399, Gauteng
Division, Pretoria, 04 April 2025), the court emphasized that a parent who is
unemployed is not exonerated from their legal obligation. The court must
consider the parent’s earning potential, assets, and efforts to find
employment.
[8] Paramount above all else is the constitutional imperative. Section 28(2) of the
Constitution of the Republic of South Africa, 1996, provides that a child’s best
interests are of paramount importance in every matter concerning the child.
This paramountcy cannot be subordinated to a parent’s desire to avoid tax
implications or preserve capital for their exclusive future benefit.
1 1974 (2) SA 675 (E) at 676D-F
2 [2023] ZAWCHC 291
3 [2023] ZAWCHC 152
ANALYSIS
[9] The Respondent’s central argument is that he is now unemployed, his
severance package is a finite capital resource, and the Court should not
speculate on his future employment. He contends that his tender is lean and
sustainable, designed to make his capital last for his and the children’s
essentials during his unemployment.
[10] The Applicant’s case is that the Respondent’s "poverty" is self-engineered and
illusory. She argues that he is, in fact, in a better immedia te financial position
than when he was employed, given the large, liquid lump sums now available
to him.
[11 I find the Applicant’s argument more compelling on the facts before me. A
proper assessment of the Respondent’s "means" for the purpose of Rule 4 3
must extend beyond his current lack of monthly salary.
The Respondent’s Immediate Financial Capacity
[12] On the Respondent’s own calculations, which this Court accepts for the
purpose of this analysis, he has an immediate or near -term access the
following:
12.1. Net severance package (after tax and debt settlement): Approximately
R466,769.22.
12.2. Ring-fenced school fees: R95,470.64 This is a pre -emptive allocation for the
eldest
child’s need and thus forms part of his maintenance contribution.
12.3. Last salary (October 2025): R68,377.00.
12.4. UIF benefits: R6,730.00 per month for up to 12 months.
12.5. Accessible pension funds (two -pot system, net of tax): Approximately
R257,358.45.
[13] This amounts to a total accessible capital pool, excluding monthly UIF, of at
least R791,504.31 (R466,769.22 + R68,377.00 + R257,358.45). The r ing-
fenced school fees (R95,470.64) are a direct contribution to the eldest child’s
essential need and demonstrate his capacity to use capital for maintenance.
[14] The Respondent’s refusal to countenance any use of his pension funds,
based solely on a desire to avoid tax, is untenable in the face of his children’s
essential needs. As held in Taute and F.S v Z.B, inroads into capital are
justified where income is insu fficient. The Respondent’s current income is
zero. The children’s needs for housing, food, medical aid, and education are
ongoing and paramount. To deprive them of these essentials so that the
Respondent can preserve his pension is contrary to established legal
principles and the spirit of Section 28(2) of the Constitution.
The Respondent’s Employability and Conduct
[15] While the Court cannot order the Respondent to get a job, it can and must
consider his earning potential when assessing his capacity to pay
maintenance. The Respondent is a qualified legal professional with
approximately nine years of combined corporate and legal experience. The
Applicant has provided evidence of numerous suitable vacancies in the
market. The Respondent’s assertion that h e will be unemployed for a
prolonged period lacks substantiation and appears to be a strategic posture in
this litigation.
[16] His conduct in immediately accepting a voluntary retrenchment package
without exploring alternative positions within his compan y, and his failure to
provide any evidence of a meaningful job search in the weeks following his
termination, further supports the inference that his current unemployment is
not a genuine financial crisis but a tactical manoeuvre to reduce his
maintenance obligations.
The Reasonableness of the Tenders
[17] The Applicant, with a net income of approximately R21,277.00, faces a
significant shortfall in meeting the children’s most basic needs once she pays
the school fees for two of the children. Her budget, while subject to legitimate
criticism on certain discretionary spends, demonstrates a genuine need.
[18] The Respondent’s tender of R1,000.00 per child per month is patently
inadequate. It is incapable of meeting even a fraction of the children’s
proportionate share of groceries, utilities, and clothing, let alone contributing
meaningfully to their overall well -being. It is a token amount that, if accepted,
would force the Applicant and the children into severe financial hardship while
the Respondent sits on substantial liquid capital.
[19] A just and equitable order must bridge the gap between the Applicant’s needs
and the Respondent’s undeniable, albeit capital-based, means.
CONCLUSION AND ORDER
[20] I find that the Respondent has ample liquid resources to meet a reasonable
interim maintenance obligation pendente lite. His current lack of employment
does not absolve him of his duty of support, and his capital assets must be
utilised to fulfil this primary obligation.
[21] The Respondent’ revised tender is rejected as unreasonable and not reflective
of his true financial capacity. The Applicant’s claim, however, also requires
moderation to reflect a fair and sustainable interim position that accounts fo r
the Respondent’s changed circumstances without impoverishing the children.
[22] In respect of the legal cost contribution, the Respondent’s financial position,
while capable of funding maintenance, is now more constrained. A full
contribution at this st age would be premature. However, some contribution is
warranted to ensure equality of arms. A reduced contribution is just and
equitable.
[23] In the exercise of my discretion, and guided by the principles in Taute v Taute,
the paramountcy of the children’s best interests, and the need for a practical
order, the following is granted.
ORDER
1. The draft order regarding the care and contact of the minor children, to which
the parties are ad idem, is made an order of court.
2. Pending the finalisation of the divorce action, the Respondent shall maintain
the minor children as follows:
a. Cash Maintenance: The Respondent shall pay cash maintenance to the
Applicant in the amount of R3,500.00 (Three Thousand Five Hundred Rand)
per child per month, effective 1 December 2025, payable monthly in advance.
b. Medical Aid: The Respondent shall keep the minor children as dependants on
an open medical comprehensive medical aid scheme until at least 31
December 2026. The parties are directed to engage in good fa ith before this
date to agree on future medical cover for the children.
c. Medical Expenses: The Respondent shall be liable for 70% of all reasonable
medical, dental, orthodontic, ophthalmic, and similar expenses for the children
not covered by the medical aid scheme, payable within 7 days of presentation
of an invoice.
d. School Fees: The Respondent shall be liable for 100% of L[...]’s school fees
not covered by the Applicant’s bursary. The Respondent’s ring -fencing of
funds for this purpose is noted and endorsed.
e. Other Educational Expenses: The Respondent shall be liable for 70% of all
reasonable and agreed-upon educational expenses for the children, including
but not limited to uniforms, stationery, books, levies, and one extramural
activity per child.
3. The Respondent shall pay a contribution towards the Applicant’s legal costs in
the divorce action in the amount of R50,000.00 (Fifty Thousand Rand),
payable within 30 days of this order.
4. The Respondent is directed to provide written notification to the Applicant
within 5 days of securing any form of remunerated employment.
5. The costs of this application, including the costs of counsel, shall be costs in
the cause of the main divorce action.
__________________
NKOENYANE AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Date of Hearing: 10 October 2025
Date of Judgment: 17 November 2025
Counsel for the Applicant: Adv. R. Andrews
Attorneys for the Applicant: Minnaar Rock Inc.
Counsel for the Respondent: Adv. T. Lipshitz
Attorneys for the Respondent: Alexandra Budin Attorneys Inc.