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2026
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[2026] ZAGPJHC 387
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N.M. v S.M. (2024/106722) [2026] ZAGPJHC 387 (9 April 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
Case Number: 2024-106722
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the matter between
NM
Applicant
and
SM
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
wife” and the respondent as “the husband”.
[3]
The wife instituted divorce proceedings in
this Court during or about June 2024. The parties were married in
community of property
on 3 June 2008. Four minor children – all
girls – were born of the marriage: SNM (17), MNKM (15), AKM (9)
and SAM (6).
[4]
Paraphrased for brevity, the wife claims
the following, pending the divorce:
a.
Setting aside a maintenance court order and
a children’s court order;
b.
Awarding the wife full parental
responsibilities and rights in respect of the minor children, with
some rights of access and contact
to be given to the husband;
c.
Ancillary relief in respect of parenting
skills therapy for the husband and wife and behavioural modification
therapy for the oldest
child;
d.
An obligation on the husband to pay for
school fees, school uniform, stationery and extra-mural activities;
e.
An obligation on the husband to pay R3,000
per year per child for clothes;
f.
An obligation on the husband to pay R10,300
per month in respect of maintenance of the minor children;
g.
An obligation on the husband to pay R3,550
per month in respect of spousal maintenance;
h.
Claims for lump sum amounts for a rental
deposit, and to purchase furniture; and
i.
A claim for a contribution in respect of
legal costs in an amount of R71,473.77.
[5]
Regrettably,
although the wife is legally represented, her papers are drawn badly
and it is, at times, difficult to establish their
meaning.
[1]
This feature of the application was also apparent from the fact that
there are or were several parallel proceedings instituted
on behalf
of the wife with no discernible strategic objective.
Background
[6]
The husband and the wife separated in
February 2024. This seems to have been a period of emotional and
other turmoil: the Family
Advocate’s report records that the
wife was in essence “
evicted
”
due to the husband obtaining a protection order against the wife.
There are also allegations that the wife had become physically
abusive before that, and it is common cause that she was hospitalised
around this time for mental health problems. Later, she obtained
a
protection order against the husband based on alleged emotional and
financial abuse.
[7]
I
record this, because it is clear from the papers that even before
their split, the parties were financially distressed. The split
has
exacerbated this position, not least because it requires two
households to be maintained. The practical outcome is that the
wife
and the oldest two children are currently housed in cramped and
relatively economically deprived circumstances which are not
in
keeping with the apparent lifestyle of the husband and the youngest
two children.
[2]
This
discrepancy – along with the household’s unsustainable
spending patterns – is untenable.
[8]
The husband currently lives in a house
which he records to be worth R1.8 million in his financial
disclosure form. Although
he records there to be approximately
R200,000 in equity in the property, he was (as of the date of the
form) in arrears amounting
to R550,466.60. The husband is employed in
a mid-level managerial position at a municipality and as at December
2025 earned a net
salary of R58,642.32 per month. (After deduction of
tax, pension, some insurance, a cell phone allowance and sundries,
but excluding
an annual bonus.)
[9]
The
husband’s bank statements and declaration of monthly
expenditure reveal extensive spending on luxuries like restaurants,
take away foods, alcohol, a domestic worker and gardener. His
(desired) expenditure – like that of the wife – far
exceeds his means. He estimates his monthly expenditure at
R103,381.02
[3]
as against a
monthly income of R58,400. While this may be partly exaggerated, his
mortgage statements and statements from store
cards, medical
professionals and the children’s schools all reveal significant
financial distress. The husband is borrowing
from Peter to pay Paul.
This is clearly unsustainable.
[10]
The wife has a B Tech degree but is
currently unemployed. She has been a housewife for most, if not all,
of the duration of the
marriage. After the split in February 2024,
the wife lived with her mother in a one-bedroom apartment for four
months. The arrangement
came to an end because of mutual
disagreements – no doubt hastened by the circumstances in which
they were living as well
as the fact that the oldest daughter “
ran
away
” in June 2024 from her
father to live with her mother. The wife then lived, with her oldest
two children, in various temporary
accommodations. (The second-oldest
daughter also “
ran away
”
from her father in October 2024.)
[11]
In March 2024, the wife launched
proceedings in the maintenance court. For reasons that she describes
as “
the emotional strain and
stress [she] received from the [husband]
”,
she withdrew the proceedings and launched Rule 43 proceedings in the
High Court in September 2024. Shortly thereafter,
she secured
employment (as it turns out, temporarily). She lost this employment
in April 2025. She withdrew the Rule 43 application
on 7 August 2025,
ostensibly because of the discrepancy between her allegations of
unemployment in the founding affidavit and the
fact that she then
became employed.
[12]
In the interim, she had secured an order
from the maintenance court by consent on 25 March 2025. The order
provided that the husband
would pay maintenance of R1,500 per month
per child and a contribution of R4,000 per year for clothes. There is
currently an open
maintenance inquiry pending before the maintenance
court, but the maintenance officer has stated on email that she feels
overwhelmed
with the case, because the parities “
deviate
a lot from proceedings with emotional matters”
.
[13]
I detail the parallel proceedings before
the children’s court below.
[14]
The wife brought this application on 11
August 2025, within days of withdrawing the previous Rule 43
application. The matter first
came before this court on 16 October
2025. The court ordered – apparently as an interim measure,
pending hearing of the application)
– that the husband would
pay an additional R1,000 per month on top of the R3,000 per month
ordered by the maintenance court.
The husband was also given time to
solicit the services of an attorney.
[15]
The
matter came before this court again on 3 December 2025. It was
removed from the roll to give the wife an opportunity to order
the
CaseLines file appropriately and to afford the husband time to make
financial disclosure. By the next time the matter came
before this
court on 16 February 2026, it was removed from the roll because there
was no updated or joint practice notes and the
set-down was
defective. By the time the matter came to court again on 23 March
2026, there was a joint practice note although it
did not comply with
the practice directives
[4]
–
another concerning feature implicating the quality of the wife’s
legal representation.
The relief sought in
relation to care and contact with the children
[16]
The children’s court ordered on 16
January 2025 that the two oldest children (SNM and MNKM) would reside
with the wife and
that the two youngest children (AKM and SAM) would
reside with the husband. The court also ordered that a social worker
employed
by the Department of Social Development should refer the
parties for parenting skills classes and that the oldest child (SNM)
was
to be referred for behavioural modification therapy. The social
worker was ordered to monitor compliance with the court order.
[17]
In these proceedings, the wife seeks the
setting aside of the children’s court order, to be replaced
with an order that the
children would reside with her and that she
would be the primary caregiver (in addition to some contact rights
for the husband).
[18]
The matter was referred to the office of
the Family Advocate, which performed an investigation including
interviews with the children.
According to a report dated 25 November
2025, the Family Advocate recommended that the
status
quo
in terms of the children’s
court order should remain.
[19]
The parties were agreed that the High Court
has the inherent power in Rule 43 proceedings to vary or set aside
prior orders by other
courts (including the children’s court
and maintenance courts) regarding care and contact with minor
children and regarding
maintenance. This power sits at the confluence
of the following provisions:
a.
section
28(2) of the Constitution which provides that a child’s best
interests are of paramount importance in every matter
concerning the
child;
[5]
b.
section 172(1)(b) of the Constitution which
provides that in a constitutional matter within its power, a court
may make any order
that is just and equitable;
c.
section 173 of the Constitution which
provides that the superior courts have the inherent power to protect
and regulate their own
process, and to develop the common law, taking
into account the interests of justice;
d.
the traditional common-law powers of the
High Court as the upper guardian of minors as read with the statutory
recognition of that
principle in section 45(4) of the Children’s
Act, 38 of 2005;
e.
the recognition in section 29(1) of the
Children’s Act of the High Court’s power to make an order
inter alia
in relation to assignment of contact and care; and
f.
the
common-law powers of a High Court in which a divorce action is
pending to make orders “
pendente
lite for an interdict or for the interim custody of, or access to, a
minor child of the marriage concerned or for the payment
of
maintenance
”
as recognised in
section 1(1)
of the
Divorce Act, 70 of 1979
.
[6]
[20]
While
High Court has the power to vary or set aside orders of a children’s
court or a maintenance court without an appeal
or review in
Rule 43
proceedings, this power must be sparingly exercised and only upon a
demonstration that the order is no longer appropriate or exhibits
a
major flaw. Forum-shopping (especially in family law matters) ought
to be strongly discouraged. The Supreme Court of Appeal has
held, in
the context of the concurrent jurisdiction of various High Courts
over a child, that High Courts should not in general
be faced with
litigation requiring them in effect to set aside an order made in
another jurisdiction. As a rule, since one is entitled
to assume that
any order has been made in the best interests of a child, should
those interests change over time, the court that
made the initial
order should be approached for a variation.
[7]
[21]
In this case, however, I do not think the
children’s court’s order should be varied or set aside.
The Family Advocate
has, independently and subsequently to the
children’s court order, investigated and concluded that the
order should stand.
Further, the wife’s founding affidavit does
not demonstrate a change in circumstances or a major flaw in the
children’s
court order. Her allegations that the husband is a
distant and uncaring father is raised more in the context of the
older children,
who reside with her, and seems to be a projection of
her disdain for the husband. There is no objective evidence before
this court
justifying the conclusion that the children are
inadequately cared for, neglected or abused by their father. The
Family Advocate’s
assessment points the other way.
[22]
Thus, I make no order regarding care and
contact with the children. The children’s court has already
made orders providing
for contact, parenting skills therapy for the
husband and wife and behavioural modification therapy for the oldest
child. The fact
that there seems to be problems with the
implementation of the order regarding the indicated types of therapy
does not necessarily
call for the High Court’s intervention. It
means that the children’s court’s procedures should be
followed to
exact compliance with the order.
Ther relief sought in
relation to child and spousal maintenance
[23]
As should be clear from the exposition
above, currently the husband pays an amount of R1,500 per month per
child and a contribution
of R4,000 per year for clothes for the
children (as ordered by the maintenance court), plus an extra amount
of R1,000 per month
as ordered by this court on 16 October 2025 as an
interim measure.
[24]
The husband’s counsel stated from the
bar, without demur from his opponent, that the husband currently
complies with the order
insofar as paying the wife R4,000 per month
for child maintenance is concerned. In a draft order filed on 11
March 2026, the husband
tendered to pay R2,000 per child per month
and R2,000 per month for spousal maintenance (for a total of R6,000
per month).
[25]
This, among other reasons, means that this
court may legitimately vary the order of the maintenance court. The
husband has tendered
a higher amount than that stipulated in the
maintenance court’s order; and the maintenance court made no
order in relation
to spousal maintenance. It also seems desirable to
me that the husband’s payment obligations should be contained
in one order.
[26]
The question is then what the appropriate
amounts are in respect of child and spousal maintenance. As recorded
above, the husband
earned as at December 2025 a net salary of
R58,642.32 per month. It may safely be assumed that he would have
received an increase
in 2026. For ease of calculation, I will assume
that he currently earns R60,000 per month – although it is
likely to be more,
and there are indications on the papers that he
also receives an annual bonus.
[27]
The
question is then how to arrive at an equitable division of this
amount. In this regard, the approach in
Acutt
[8]
commends
itself, particularly in situations where the parties’ stated
needs vastly exceed their means (as in this case). In
terms of the
Acutt
approach,
each adult is considered to consume two units of household expenses
while each child consumes one unit.
[28]
In this case, it means that the wife and
the husband together consume four units of expenses while the
children consume four units,
for a total of eight units. One unit
represents R7,500: R60,000 divided by 8 equals R7,500.
[29]
The wife had asked for an order that her
husband should pay her R3,550 per month in respect of spousal
maintenance. In light of
her equitable share of R15,000 per month,
this is eminently reasonable, and leaves some room for a reasonable
contribution to her
legal costs – a matter with which I deal
below.
[30]
The combined equitable share in respect of
SNM and MNKM, who live with the wife, is R15,000. The husband has, so
far, been responsible
for payment of school fees, school uniform and
stationery and the wife has sought an order that he would remain so
responsible
and should, in addition, pay for extra-mural activities.
[31]
Based upon the husband’s declared
monthly expenses – as appears from his financial disclosure
form – the monthly
payments in respect of all four children for
these items are: R2,500 in respect of school uniform; R11,400 in
respect of school
fees; R1,500 in respect of books and R400 in
respect of stationery. I will assume in the husband’s favour
that only half
of these payments relate to the two older children –
although it seems likely that their costs would be higher than that
for the younger children. This means that an amount of R7,900 (R1,250
plus R5,700 plus R750 plus R200) should be set aside for the
husband’s obligations to pay for school fees, school uniform
and stationery in respect of the two older children.
[32]
This leaves an amount of R7,100 per month
from the two older children’s equitable share, which should
cover their clothes,
groceries, reasonable extra-mural activities,
transport and accommodation. I will order the husband to pay to the
wife R3,550 per
month per child in the care of the wife.
[33]
This means that the husband must pay a
monthly total of R10,650 to the wife’s household. This amount
should obviate the need
for lump sum contributions to a rental
deposit and to furniture purchases, particularly since I will order
that it should be paid
within five days of this order and then again
at the end of the month. With careful planning, the wife should be
able to finance
these items from the monthly cash contribution.
[34]
Counsel
acting for the husband submitted, in passing, that the husband’s
maintenance obligations towards SNM will cease when
she turns 18 on
30 April 2026. This is incorrect as a matter of law. It has long been
established that a parent has a duty to support
his or her child,
notwithstanding the fact that the child is no longer a minor, and for
so long as the need for support exists
and the parent has the ability
to support the child.
[9]
To put
the matter beyond doubt, I provide in the order that the maintenance
duty towards each child only ceases once the child
becomes
self-supporting.
Contribution to legal
costs
[35]
The wife claims a lump sum contribution of
R71,473.77 from the husband. Her founding affidavit quantifies this
as the legal fees
so far incurred on her behalf in the divorce
action, the children’s court matter and the maintenance
matters. It does not
provide for future legal fees.
[36]
The
husband does not disclose exactly how much he has spent on legal fees
so far, but he admits that he spent R17,000 on his legal
fees around
May and June 2024. His answering affidavit states that he has so far
incurred a “
tremendous
amount of legal fees
”.
His estimate of monthly expenditure in his financial disclosure form
lists a sum of R10,000 per month in legal fees.
[10]
[37]
It
is trite that the common law provides (with
Rule 43
providing the
procedural machinery) for a contribution to legal costs as a means of
ensuring equality of arms. This is a means
of ensuring adequate
access to court for both parties in a matrimonial dispute, to give
effect to section 34 of the Constitution.
Thus, the essential purpose
is to enable the applicant to litigate on a scale commensurate with
that of the respondent.
[11]
[38]
The husband submitted that the wife’s
various legal manoeuvres show that she is incurring legal fees
unreasonably. He also
submitted (without adducing any evidence in
that regard) that he is using private legal representation because he
would not qualify
for Legal Aid, while she could be using Legal Aid
given its means test. This appears doubtful to me, given the fact
that until
a divorce they share the joint estate, which has some
means. I make no finding in that regard, however. It suffices to say
that
it seems unfair to expect the wife to rely on the uncertain
prospect of Legal Aid while the husband litigates through private
attorneys.
[39]
I do have concerns regarding the quality of the wife’s legal
representation, as shown by the state of the papers
before me as well
as the unexplained and inexplicable series of applications regarding
maintenance that have been launched and
withdrawn. That can no doubt
be fixed through greater diligence or – if necessary – a
change of legal representation.
I do not consider that, in itself, to
be a reason to withhold legal representation from the wife.
[40]
From his financial disclosure, the husband does not appear to have
liquid assets which would permit him to make a lump
sum contribution
to legal fees in the amount sought by the wife. He does, however,
envisage spending up to R10,000 per month litigating
against her and
has spent “
tremendous
” sums doing so thus far.
What is good for the goose, should be good for the gander. I will
therefore order the husband to
pay a contribution to legal fees in an
amount of R10,000 per month to the wife with effect from the end of
April 2026.
[41]
I implore the parties to end this wasteful
and destructive litigation as soon as possible through a mediated
settlement or, if needed,
by bringing the divorce action to court.
Costs
[42]
I see no reason to deviate from the
standard order regarding costs in these types of cases, namely that
costs are to be costs in
the divorce action.
Order
[43]
I make the following order:
a.
The husband shall pay the wife an amount of
R3,550 per month in respect of spousal maintenance into her Capitec
Bank Account with
account number 1956961079.
b.
All previous orders in respect of child
maintenance are varied as follows: The husband shall pay the wife an
amount of R3,550 per
month into her Capitec Bank Account for each of
SNM and MNKM in respect of child maintenance until such child becomes
self-supporting.
c.
The husband shall pay for school fees,
school uniform and stationery in respect of each of the children
(including arrear school
fees) until they leave school.
d.
The husband shall pay the wife an amount of
R10,000 per month in respect of a contribution to legal costs into
her Capitec Bank
Account, with the first payment to be made on 28
April 2026 and thereafter monthly on the 28
th
of each month.
e.
The amounts payable monthly pursuant to
this order will increase annually on 1 March of each year by such
percentage as is equivalent
to the percentage change in the Consumer
Price Index (CPI) (all items), as published by Statistics South
Africa, for the most recent
annual period available at the time the
increase is calculated. Except in relation to the contribution to
legal costs, the first
payment shall be made within five (5) days of
this order and shall thereafter be made monthly on the 28
th
of each month (regardless of whether the second payment falls with
the same month as the first payment in terms of this order).
f.
Save as aforesaid, the application is
dismissed.
g.
The costs of this application will be costs
in the divorce action.
DJ SMIT
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
Date of hearing: 24 March
2026
Date of judgment: 9 April
2026
For
the Applicant:
L
Mello instructed by Ipeleng Motshegoa Attorneys
For
the Respondent:
K
Ntjana instructed by Goodgall Attorneys
[1]
An
example is prayer 3 of the draft order filed before the hearing:
“
3.
That the full parental Responsibilities and rights in respect of the
minor children as set out in terms of Section 18(2) of
the
Children’s Act 38of 2005 the Applicant is awarded primary care
and residence to the minor children, …. pendente
lite.”
[2]
I was told from the bar that the second-oldest child is now living
with the husband, but this is inconsistent with the order
of the
children’s court and the Family Advocate’s
recommendation. As the issue was not ventilated on affidavit, and
as
either party is at liberty to approach this court again for an
amendment of the court order based upon changed circumstances,
I
disregard the evidence from the bar in this judgment.
[3]
This is based upon the monthly personal budget the husband filed as
part of his financial disclosure form: CaseLines 080-96ff.
There is
another version at CaseLines 078-1ff where he estimates his total
monthly expenses at R119,686.02.
[4]
For
example, it did not attach any comparative table setting out the
parties’ respective positions.
[5]
Cf.
Bannatyne
v Bannatyne (Commission for Gender Equality, as Amicus Curiae)
[2002] ZACC 31
;
2003 (2) SA 363
(CC) where the Constitutional Court found that this
provision justified the enforcement of maintenance court orders by
the High
Court through contempt proceedings in appropriate
circumstances.
[6]
As to which, see
JG
v CG
2012 (3) SA 103
(GSJ) paras 28-32 and the authorities referred to
there.
[7]
FS
v JJ
2011
(3) SA 126
(SCA) para 38.
[8]
Acutt v
Acutt
1990
(4) SA 873
(ZS) as endorsed by a Full Bench of this court in
Forssman
v Forssman
2008
(2) SA 114
(W) paras 31-34.
[9]
See
JG
v CG
2012 (3) SA 103
(GSJ) paras 7-8 and the authorities referred to
there.
[10]
CaseLines
080-96.
[11]
Compare
AF
v MF
2019
(6) SA 422
(WCC) para 41.