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2026
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[2026] ZAGPJHC 320
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C.M.N v N.N (2025/177461) [2026] ZAGPJHC 320 (31 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 2025-177461
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between:
CMN
Applicant
and
NN
Respondent
JUDGMENT
DJ Smit, AJ
Introduction
[1]
This is an opposed application in terms of
Rule 43 of the Uniform Rules of Court.
[2]
I will refer to the applicant as “the
husband” and the respondent as “the wife”.
[3]
The husband claims the following from the
wife:
a.
Interim maintenance of R4,500 for the minor
child.
b.
Shared control of the rental income from
the jointly owned property.
c.
That
costs be reserved for trial.
[1]
Background
[4]
The parties were married to each other on
28 April 2022, in community of property. At that stage, the husband
was 30 years old while
the wife was 46 years old. No minor children
were born of the marriage, but the husband fathered a child with
another women, who
was born on 12 June 2025 (“the minor
child”).
[5]
The wife instituted a divorce action on 17
September 2025, as a result of what she describes as the husband’s
extra-marital
affair that led to the birth of the minor child.
Notwithstanding the pending divorce proceedings, the husband still
lives on the
marital property and also eats food purchased by the
wife.
[6]
It is common cause that the husband is
unemployed; has no income; and has a maintenance duty to the minor
child. He says that his
maintenance needs are R2,500 per month (in
respect of food and nappies for the minor child) and R2,000 in
respect of transport
for him and the minor child. His papers make it
clear that before the divorce proceedings he supported the minor
child (and the
mother of the child) from a part of the proceeds of
the rental.
[7]
The wife is also unemployed and derives her
only income from rental of the cottages. It is common cause that
around the same time
as she instituted divorce proceedings, the wife
notified the tenants to pay their rental to her personal account from
1 October
2025, and that is what happened.
[8]
The major dispute between the parties is
the disposal of income from the rental of cottages situated on the
property where they
live. The property is situated in Germiston. The
value of the property is in dispute, but it is common cause that it
is registered
in the wife’s name and that she owned it before
she married the husband. There are eight cottages on the property
that can
be rented out. When fully occupied, the rental cottages
could produce about R24,500 of income per month, but it is common
cause
that they currently only produce approximately R7,200 per
month.
[9]
At issue is whether the wife is obliged to
pay the husband maintenance to enable him to maintain his minor
child; and whether he
is entitled
pendente
lite
to a part of the rental income
produced by the cottages on the property where the marital home is
situated.
Maintenance pendente lite
[10]
The husband’s pleadings make it
reasonably clear that the maintenance he seeks is a cash amount to
support the minor child’s
primary caregiver, L. He annexes
proof of payments to her to his founding affidavit. These cash
payments stopped when the wife
instructed the tenants to pay their
rental into her private account. The husband also submits that the
relief he seeks is necessary
and urgent to secure the infant’s
maintenance and to prevent unilateral diversion of the “joint
rental income”
pending the trial.
[11]
Thus, on a conspectus of his pleadings, and
given the fact that he still lives and eats at the matrimonial home,
the conclusion
is inescapable that the primary – if not the
sole – purpose of his application is to secure maintenance for
his minor
child (whom the wife views as a child born out of wedlock).
Insofar as his own need for transport money is mentioned, it is
entirely
devoid of detail or quantification (separate from the minor
child).
[12]
On
the evidence before me, the wife has never undertaken duties of
support to the minor child. In these circumstances she has no
inherent duty to support the child born to her husband outside the
marriage. Our law no longer considers it against public policy
to
afford a spouse maintenance after divorce even though that spouse has
been cohabiting with another person as a romantic couple
before
divorce.
[2]
But our law also
does not recognise a minor child’s claim for support against a
person married to their biological parent
unless
such a person has explicitly undertaken duties of support.
[3]
[13]
I therefore find that the husband has not
made a case for maintenance
pendente
lite
in this matter, in particular
because his needs for shelter and food are already being met through
the joint estate.
The
claim for a part of the rental proceeds
[14]
Relief
sought pursuant to Rule 43 pertain only to the matters enumerated in
Rule 43(1), namely spousal or child maintenance, a contribution
to
legal costs or childcare and contact. The proceedings are not
intended nor suitable to adjudicate other matters regarding the
joint
estate, such as to whom rental income accrues. Claims for support
pendente
lite
should not be used to pre-empt remedies that could (only) be made
upon the dissolution of the marriage.
[4]
[15]
Therefore, I make no finding regarding the
lawfulness or not of the wife’s actions in instructing the
tenants to pay the rental
income to her (rather than into an account
controlled by the husband); or whether the husband is or should be
entitled to any part
of this income from the joint property given the
possibility of a forfeiture order which the wife asks for in the
divorce. These
are matters for the trial court.
[16]
Thus, on the papers before me, I cannot
make any order in favour of the husband and the application should be
dismissed.
[17]
The husband submitted that costs should be
reserved for trial. The wife submitted that I should make a costs
order against the husband.
In the circumstances of this matter, I
consider that the usual position should prevail and that costs should
be costs in the divorce.
Order
[18]
I make the following order:
a.
The application is dismissed.
b.
The costs of this application will be costs
in the divorce.
DJ SMIT
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
Date of hearing: 25 March
2026
Date of judgment: 31
March 2026
For
the Applicant:CMN in person
For
the Respondent: D Ndlovu instructed by NA Nkabinde Attorneys
[1]
This
is the exact words of
paragraph
8.1 of the husband’s replying affidavit, which was filed
outside of the strictures of Rule 43 that only allows
for two
affidavits.
[2]
EH v SH
2012 (4) SA 164
(SCA) para 11, overturning several older High Court
decisions.
[3]
Compare
e.g. NM v BM
[2024] ZAWCHC 254
(11 September 2024) paras 4-6 and the
authorities cited there.
[4]
Reyneke
v Reyneke
1990 (3) SA 927
(E) esp. at 932J-933B referred to in
LS
v JS
[2024]
ZAGPJHC 653 (2 August 2024) para 4.9.