SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 17492/2023
In the matter between:
P[...] A[...] L[...] Applicant
And
R[...] J[...] T[...] Respondent
Coram: DA SILVA SALIE, J
Heard on: 4 March 2026
Delivered on: 4 March 2026
Summary:
Practice - Interim maintenance pendente lite - Permanent life partnership of 29 years -
Parties cohabiting and raising two children - Historical financial maintenance by
respondent including post-termination support - Alleged express undertaking to maintain
alternatively reciprocal duties of support - Rule 6(5)(d)(iii) objections without answering
affidavit – Respondent is a peregrinus - Ancillary jurisdiction established - Not
necessary at interim stage to determine whether enforceable life partnership wit h
maintenance obligation in fact existed, such issue reserved for trial court - Prima facie
right established on uncontested facts - Balance of convenience favouring preservation
of status quo - interim relief granted pending action
ORDER
1. The respondent’s jurisdictional objection is dismissed.
2. Pending the finalisation of the action under case number 17492/2023, the
respondent shall effect payment in terms of the order attached hereto and
marked as “X”:
JUDGMENT
DA SILVA SALIE J:
Introduction:
[1] This application concerns interim maintenance pendente lite arising from the
termination of a long -standing life partnership of some twenty -nine years. The applicant
seeks interim relief pending the finalisation of an action instituted u nder the same case
number in which she claims, inter alia, maintenance and patrimonial relief arising from
the parties’ life partnership and an alleged undertaking by the respondent to maintain
her.
[2] The respondent has not delivered an answering affida vit. Instead, he filed a
notice in terms of Rule 6(5)(d)(iii) raising various legal objections. Those objections
include jurisdiction, the alleged absence of a legally cognisable maintenance claim
following termination of a life partnership, and the submis sion that the application is
academic in light of a contemplated amendment to the particulars of claim.
[3] The matter accordingly requires this Court to determine, first, whether the
objections raised are sustainable and, secondly, whether the applicant has established
the requirements for interim relief.
FACTUAL BACKGROUND
[4] The material factual averments, in the absence of an answering affidavit, stand
largely uncontested for purposes of this application.
[5] The parties commenced a romantic relati onship in 1984. In 1991 they entered
into a life partnership. Two children were born of the relationship. The applicant avers
that throughout the duration of the partnership the parties conducted themselves as
spouses: they cohabited, raised their children jointly, referred to one another as
husband and wife, and the respondent described the applicant as his “lifelong partner”
in his will and as his wife in various documents.
[6] The respondent was the primary breadwinner. The applicant did not engage in
full-time employment and devoted herself largely to the care of the household and
children. The respondent supported the family financially for decades, including through
regular cash payments and direct payment of household expenses.
[7] The pa rties’ life partnership terminated in October 2020. The applicant alleges
that at the time of termination the respondent undertook, in writing, to continue
maintaining her as he had during the subsistence of the partnership. She further avers
that for appr oximately three years thereafter the respondent continued to provide
maintenance in accordance with historical patterns.
[8] The respondent subsequently reduced and then ceased certain payments. The
applicant instituted action proceedings in which she seeks, inter alia, maintenance
pursuant to the alleged undertaking and alternatively on the basis of reciprocal duties of
support arising from a permanent life partnership.
[9] Pending the outcome of that action, she now seeks interim maintenance.
[10] An interim order was granted by agreement on 2 December 2025 providing for
certain payments pending the return date. The responden t now resists the continuation
and expansion of that relief.
ISSUES FOR DETERMINATION
[11] The issues are:
(a) Whether this Court has jurisdiction to entertain the application.
(b) Whether the respondent’s reliance on Rule 6(5)(d)(iii) is procedurally
competent in circumstances where no answering affidavit has been filed.
(c) Whether the applicant has established the requisites for interim relief, namely:
(i) a prima facie right.
(ii) a well-grounded apprehension of irreparable harm.
(iii) that the balance of convenience favours the granting of relief; and
(iv) the absence of an alternative satisfactory remedy.
JURISDICTION
[12] The respondent contends that he is a peregrinus (residing in Tanzania) and that
this Court lacks jurisdiction.
[13] The application is incidental to the main action instituted under the same case
number. It is common cause that the respondent has participated in the main
proceedings including filing of a counter -claim and has consented to the terms of an
interim order previously granted.
[14] It is trite that where a court has jurisdiction in the principal action, it retains
jurisdiction in ancillary or incidental matters arising therefrom. A litigant who submits to
the jurisdiction of the court in the main proceedings can not approbate and reprobate by
seeking to avoid jurisdiction in respect of interlocutory or ancillary relief.
[15] On the papers before me, the jurisdiction objection is without merit and falls to be
dismissed.
RULE 6(5)(d)(iii)
[16] The respondent elected not to deliver an answering affidavit but instead raised
legal objections by way of a Rule 6(5)(d)(iii) notice.
[17] That Rule is intended to permit a respondent to raise a point of law. It does not
provide a mechanism to avoid engaging with factual allegations central to the dispute.
[18] The applicant’s claim is founded on a 29 -year life partnership, reciprocal support,
and an alleged undertaking to maintain. Whether such an undertaking was made and
whether the life partnership attrac ted reciprocal duties of support are factual questions.
In the absence of an answering affidavit, the applicant’s factual averments stand for
purposes of interim relief.
[19] The respondent’s objections, save for jurisdiction, are in substance directed at
the merits of the applicant’s claim and the development of the common law. Those are
matters more appropriately ventilated in the main action.
[20] The respondent further contends that the present application is rendered
“academic” by virtue of the appli cant’s indication that she intends to amend her
particulars of claim. That submission cannot be sustained. Until such time as an
amendment is formally effected in accordance with the Rules, the pleadings stand as
they presently exist and the Court is oblig ed to determine interlocutory relief on that
basis. A stated intention to amend does not suspend proceedings, nor does it deprive
this Court of jurisdiction to grant interim relief. In any event, the respondent has not
demonstrated that the contemplated amendment would extinguish the applicant’s cause
of action or occasion him prejudice. The enquiry before this Court remains whether, on
the case as currently formulated, the applicant has established a prima facie right
warranting interim protection pending trial. During the hearing of this matter, counsel for
applicant indicated that the intended amendment would be in respect of the
respondent’s pension fund proceeds.
PRIMA FACIE RIGHT
[21] The applicant relies on two bases:
(a) An express maintenance undertaking; alternatively
(b) Reciprocal duties of support arising from a permanent life partnership.
[22] Our courts have recognised that the common law may, where constitutionally
required, be developed to afford appropriate protection to perm anent life partners. The
jurisprudence of the Constitutional Court confirms that the existence of reciprocal duties
of support within permanent life partnerships is capable of legal recognition. In Bwanya
v The Master of the High Court 2022 (3) 250 (CC) the Constitutional Court recognised
that permanent life partnerships may attract reciprocal duties of support. The Court
affirmed that the common law may be developed where constitutionally required to
afford appropriate protection to partners.
[23] The applicant’s averments, uncontested for present purposes, establish:
(a) a relationship of nearly three decades.
(b) shared children.
(c) shared residence.
(d) financial interdependence.
(e) public presentation as spouses.
(f) continued maintenance post-termination.
[24] At this interim stage, the applicant is not required to prove her claim on a balance
of probabilities. It is though only at the pending trial that she must prove facts
establishing that the duty of support existed. The trial court is the correct forum to
determine whether the evidence placed before it sustains a factual finding which entitles
her to maintenance. See: E W v V H 2023 (4) SA 123 WCC . However, in the
application before me, she only need show that she has a prima facie right, though
open to some doubt. On the undisputed papers, she has done so.
IRREPARABLE HARM
[25] The applicant avers that she is financially dependent and that the cessation of
maintenance places her at risk of hardship and inability to meet ongoing obligations.
[26] The respondent has not placed evidence before the Court to dispute either his
historical pattern of support or his capacity to pay.
[27] The deprivation of established maintenance in circumstances of dependency
constitutes sufficient apprehension of harm to justify interim protection.
BALANCE OF CONVENIENCE
[28] The balance of convenience favours the preservation of the status quo pending
trial.
[29] The respondent historically maintained the applicant. An interim order was
previously granted by agreement. There is no evidence that compliance with interim
maintenance would occasion him irreparable prejudice.
[30] By contrast, refusal of interim relief may expose the applicant to immediate
financial vulnerability.
ALTERNATIVE REMEDY
[31] The main action will determine the parties’ rights finally. That process may take
time. Interim relief exists precisely to bridge that period.
[32] There is no satisfactory alternative remedy available to the applicant pending
trial.
CONCLUSION
[33] This Court is not called upon to determine finally whether a termina ted life
partnership gives rise to a legally enforceable duty of maintenance. That question
remains for trial.
[34] The Court is called upon to determine whether, on the present papers, the
applicant has established entitlement to interim relief.
[35] She has.
ORDER
[36] The respondent’s jurisdictional objection is dismissed.
[37] Pending the finalisation of the action under case number 17492/2023, the
respondent shall effect payment in terms of the order attached hereto and marked as
“X”:
__________________________
G. DA SILVA SALIE
JUDGE OF THE HIGH COURT
WESTERN CAPE DIVISION
Appearances
For Applicant: Adv. L Buikman SC
Adv. L Bezuidenhout
Instructed by: Catto Neethling Wiid Attorneys
For Respondent: Adv. P Jooste
Instructed by: K Roberts Attorneys