1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025-055441
CM Applicant
And
JH Respondent
JUDGMENT
DE VOS AJ
[1] The parties are divorcing. They have a child , DH, who is currently 16 years old.
Pending the divorce, the applicant seeks the primary care and residence of DH;
maintenance of DH in the amount of R 10 000 per month; spousal maintenance of R
75 000 per month and a contribution of R 226 880.94 for legal costs pending the
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
Date: 23 January 2026
2
divorce action. The respondent in turn launched a counter -application in which R
5 000 per month maintenance of DH is sought.
Primary care and residence of DH
[2] The Court first considers what is in the best interests of D H. The relief sought by the
applicant is for D H to relocate from Pretoria (where D H currently lives with the
respondent) to Limpopo (to reside with the applicant).
[3] DH is of an age and maturity where their views and wishes must be given due
consideration as contemplated in section 6(5) and 10 of the Children’s Act, 38 of 2005.
In addition, there was a dispute on the papers regarding where DH wished to reside.
To resolve the dispute and to give consideration to DM’s wishes, the court met with
and weighed DH’s views.
[4] The Court also weighed the objective facts that D H has lived in Pretoria their whole
life, they go to school in Pretoria, has social and community connections in Pretoria.
DH has no connections, save for the respondent, to Limpopo. D H has no group of
friends nor are they settled in a school in Limpopo.
[5] The Court weighs the applicant’s reasons for wishing to relocate DH to Limpopo. The
applicant’s concern is that the respondent will become verbally and emotionally
abusive towards DH. The applicant states clearly that no such conduct has occurred.
It is the fear of future conduct which motivates the applicant. No primary facts are
pleaded to support this fear of the applicant. There is no factual basis on which the
Court can conclude that there is any potential harm for DH to remain with the
respondent.
[6] DH has been in Pretoria their whole life, is settled in the care of the respondent who
has solely been caring for DH for a year. No factual basis has been provided to uproot
DH. The Court has weighed DH’s wishes and they carry significant weight. The Court
cannot conclude that moving DH to Polokwane would be in DH’s best interests.
3
[7] This resolves the first two prayers requested by the applicant, as DH is not to relocate
to Limpopo, consequently , the applicant’s prayer for DH’s maintenance also is
refused.
Spousal maintenance
[8] The applicant alleges that during the marriage, they were financially dependent on the
respondent, who was the sole breadwinner. The applicant further alleges that since
moving out of the material home, the respondent has cut of all financial support,
including cancelling their access to and bank account and cards, leaving them without
any means to support themselves. The applicant has had to request money from the
respondent for chr onic medication and diesel to visit DH. The applicant has been
forced to borrow funds from their partner’s parents to meet basic living expenses.
[9] The respondent’s defences are that the applicant is now supported by their new
partner and that the maintenance sought is financially impossible.
[10] It is openly acknowledged that the applicant is in a new romantic relationship. The
applicant pleads that whilst they have found a new romantic partner, the partner is
“unable to assist me financially”. This is then repeated “I must immediately state that
[the new partner] is not maintaining me financially whatsoever, in fact they do not have
the means to assist in supporting me at all”. The applicant further alleges that their
“partner who earns a mere R 13 000 gross income per month, is unable to provid e
any financial support to me, as [the partner] can barely sustain themselves on the
meagre salary they earn”.
[11] The applicant further alleges that in July 2025 they approached a bank to get a credit
card, as they had no savings and ne eded to find a way to maintain themselves. The
applicant now has debt of R 7500. The applicant has no way of repaying this credit
card. The applicant also alleges that they moved in with their romantic partner’s
parents “for a few months, as I had nowhere else to go.”
4
[12] The principle and the case law relied on by the respondent only apply if the new
partner supports the person seeking maintenance.The pleaded facts place the
present case outside the realm of the case law relied on by the respondent. The
respondent has not factually disputed that the applicant’s new partner does not
maintain them, but rather has criticised this pleading for not being fully supported. The
court sees no reason, on these papers, to go behind the pleaded facts. In any event,
the allegation tha t the applicant is not being maintained is supported by other
allegations, such as that they had to incur debt in order to maintain themselves, have
no income and had nowhere else to go after they left the marital home.
[13] Having dealt with the main defence against paying maintenance pendente lite, the
Court considers what is reasonable and whether it is affordable.
[14] The purpose of Rule 43 applications is 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. Cour ts are required to consider the applicant ’s reasonable needs and the
respondent’s ability to meet them.
[15] The applicant claims R 75 000 per month as spousal maintenance. The claims that
make up the largest portion of this amount is housing, car payments and insurance.
[16] During the hearing, an undertaking was given that the applicant would continue to pay
the car payments, the medical aid costs and insurance of the applicant pending the
outcome of the divorce. Whilst the undertaking came during the hearing, it seems
that this was always the applicant’s intention.
[17] The Court considers that the applicant claimed R 15 000 for lodging. This is lodging
for the applicant and DH. For reasons set out above the Court is not amenable to
grant this order. Counsel for the applicant readily conceded that if DH does not live
grant this order. Counsel for the applicant readily conceded that if DH does not live
with the respondent then these costs would decrease.
5
[18] The remaining claims that the Court is willing to grant are food groceries and cleaning
material (R 5 000); toiletries (R 1 000); water (R 500); electricity (R 2 000), phone (R
2 000); domestic worker (R 3 000); gardener (R 1 500); clothing and personal care (R
2 650); fuel (R 4 000); household expenses (R 10 000). These amounts together with
the reduced accommodation is in the region of R 50 000 per month.
[19] The applicant alleges that “the amounts are extremely similar to my expenses during
the marriage, however it is lowered a bit, as I am advised that I am only allowed to
ask for the bar e necessitates, and so I will not seek any additional amounts which I
would ordinarily have had access to”.
[20] The respondent did not dispute this allegation with any substance. The applicant is
requesting to be maintained in the manner they were prior to the divorce. The fact that
it is not disputed that this was the means of living to which the applicant was
accustomed to prior to the divorce, means it was (with the exception of lodging
associated costs) financially possible for the respondent to provide these amounts.
[21] The Court therefore grants maintenance of R 50 000 per month, having taken into
consideration the undertaking of the respondent to pay the car costs, insurance and
medical aid.
Cost contribution
[22] The applicant has no financial resources to fund the legal costs of the divorce action
as they are entirely dependent on the loans from their partner’s parents which all need
to be paid back and which they cannot do. The Court been presented with a free
breakdown and the costs are reasonable.
Counter-claim
[23] In relation to the counter -claim, it is undisputed that the applicant is not gainfully
employed and has never contributed financially to DH’s upbringing. The applicant
has not been employed for 16 years and holds no qualifications. The applicant assert
6
and it cannot be denied (other than a bare denial) that they have made application for
all reasonable employment opportunities.
[24] It is financially impossible for the applicant to provide maintenance.
Costs
[25] The full set of facts have not emerged. The Court believes it appropriate to provide
that costs should be costs to be determined in the divorce proceedings.
Condonation
[26] The respondent brought an application for condonation for the late filing of their
answering affidavit. The reason for the lateness was that the applicant had, after filing
the founding affidavit in this application, requested directly from the respondent that
the proceedings be held in abeyance pending settlement discussion. The Court was
provided with this correspondence. The respondent did not file their answering
affidavit in response to this request from the applicant. Once it became clear that the
applicant did not wish to hold these proceedings in abeyance and wish to proceed,
the respondent filed their answering affidavit and sought condonation.
[27] The explanation for the delay is sound and supported by contemporaneous and
objective evidence. The Court accepts that there may be dissonance between what
was conveyed from the applicant and discussions between the attorneys.
Regardless, it is common ca use that the applicant requested the respondent to wait
in opposing these proceedings. It is unclear why the applicant would then oppose the
condonation application when the cause of the delay was the applicant’s request.
[28] The Court inquired as to what prejudice the applicant suffered. The explanation was
that the applicant now had to proceed with the matter being opposed. This is not
prejudice of the nature that is to be weighed in considering the granting of
condonation. It is not prejudicial for a party to have their day in court, it is the exercise
of a right.
[29] Conclusion
[30] The Court orders:
1. The application for primary care and residency of DH is dismissed.
2. The application for maintenance for DH is dismissed.
3. The respondent is to pay spousal maintenance pending the outcome of the
divorce to the applicant in the amount of R 50 000 per month, payable on or
before the first day of each month into an account provided by the applicant.
4. The respondent is to make a cost contribution to the applicant in the amount of
R 226 880.94, payable within two months of this order into an account
nominated by the applicant's attorneys.
I de Vos
Acting Judge of the High Court
Delivered: This judgment is handed down electron ically by uploading it to the electronic file of this matter
on Caselines . As a courtesy gesture, it will be e-mailed to the parties/their legal representatives.
Counsel for applicant:
Instructed by:
Counsel for respondent:
Instructed by:
Xavier van Niekerk
Waldick Inc
L van der Westhuizen
F van Wyk attorneys
7
8
Date of hearing: 19 and 20 January 2026
Date of judgment: 23 January 2026