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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Case no: 2026-024496
In the matter between:
D[...] J[...] K[...] (born M[...]) APPLICANT
and
T[...] M[...] F[...] K[...] RESPONDENT
Neutral citation: K[...] v K[...] (Case no 2026-024496) [2026] ZAWCHC (13
May 2026)
Coram: MAYOSI AJ
Heard: 5 May 2026
Delivered: 13 May 2026
Summary: Relief sought for a declarator that a maintenance order granted ,
pendente lite, by the Strand Regional Court includes the respondent’s obligation to
pay the tertiary education fees of the parties’ children.
ORDER
1 The parties’ late filing of their respective heads of argument is condoned.
2 It is declared that the respondent’s obligation under paragraph 2.4 of the court
order granted by the Strand Regional Court under case number RCC STD
162/2022 on 15 August 2025 includes payment of the tertiary education costs
of the parties’ children.
3 The costs of this application, including the costs of counsel, shall be borne by
the respondent on scale B.
JUDGMENT
Mayosi AJ:
Introduction and brief background
[1] In this application the applicant , who is the mother of the subject children,
seeks declaratory relief in relation to an aspect of a maintenance order granted by
the Strand Regional Court , pendente lite , on 15 August 2025 ( the Order ). The
respondent is the children’s father.
[2] The parties married o n 22 January 2005 and their marriage still subsists.
There are four children born of the marriage . The eldest of them is S[...] who is
presently in her third year of studies towards an LLB degree at the University of
Cape Town (UCT).
[3] On 4 August 2022 , the respondent instituted a divorce action against the
applicant in the Strand Regional Court , which proceedings are defended by the
applicant.
[4] On 15 August 2025, a fter an opposed application in terms of Rule 58 of the
Rules of the Magistrates Court, the magistrate granted relief at the instance of the
applicant in terms of which the respondent was ordered, inter alia , to pay
maintenance for the parties’ four children and the applicant, pendente lite.
[5] Paragraph 2.4 of the Order states as follows:
‘The Respondent shall pay all the children’s educational costs, wh ich shall include but is
not limited to all school fees , additional tuition fees, [hostel] fees, and after [care] fees
and cost of all extracurricular school, extramural, cultural and sporting activities in which
the children may participate, including but not limited to the following:
2.4.1 The costs of schoolbooks and uniforms.
2.4.2 The cost of all sporting uniforms relating to extramural activities.
2.4.3 The cost of fees relating to the children’s sporting and extramural activities.
2.4.4 The cost of exchange programs including travel and accommodation expenses
related thereto.’
[6] It is the interpretation of this paragraph 2.4 that forms the subject matter of
these proceedings.
[7] The respondent interprets paragraph 2.4 to be limited to school fees only – in
other words, his assertion is that paragraph 2.4 excludes tertiary education fees .
Such an exclusion would implicate S[...] at present.
[8] On 1 September 2025 , the respondent sent a WhatsApp message to the
parties’ children, and a synonymous email to the applicant , stating, inter alia, that
the applicant was now responsible for S[...]’s university fees.
[9] On 13 October 2025, after S[...] had emailed her university fee statement to
the respondent for payment, his response to her was that she should refer same to
her mother as the person now responsible for this budget item.
[10] The respondent had always paid the university fees for S[...], who was in her
second year of studies when the Order was made. After the Order was granted, he
refused to pay S[...]’s fees due for the remainder of the 2025 year resulting in an
outstanding balance of over R7 000. UCT has a strict policy that a student with
outstanding fees will not re ceive their academic results for the preceding year and
will not be permitted to register for the following academic year. Furthermore, an
initial registration payment for the 2026 academic year was due for payment on 6
February 2026 to secure S[...]’s place for the academic year. The respondent
refused to make these payments.
[11] On 20 January 2026, the applicant launched a n urgent contempt of court
application in this Court , which was heard on 23 January 2026. This Court, per
O’Brien AJ, ordered that the issue of the interpretation of educational expenses as
set out in paragraph 2.4 of the Order be referred back to the Regional Court,
Strand, for determination an urgent basis.
[12] The applicant launched an urgent application in the Regional Court seeking,
inter alia, the relief that she seeks in these proceedings; ie, a declarator y order that
paragraph 2.4 includes tertiary educational costs. The application was opposed by
the respondent . He raised six points in limine, primarily contending that the
Magistrate’s Court as a creature of statute lacks the jurisdiction to grant declaratory
relief.
[13] On 4 February 2026 the Regional Court delivered its judgment upholding
the respondent’s points in limine and finding that it lacked the necessary
jurisdiction to make a declaratory order, and that it was functus officio in respect of
ordering compliance. This judgment then compelled the applicant to bring this
application in the face of the respondent’s continued refusal to pay S[...]’s
university fees.
[14] This application was brought on an urgent basis on 5 February 2026 , with
the deadline for the payment of S[...]’s registration fees being the next day. The
matter was postponed for hearing on 5 May 2026, with Jonker AJ ordering the
respondent to pay S[...]’s outstanding 2025 fees and the registration fees due
pending the final determination of this matter.
Applicable principles of interpretation
[15] The legal principle that an order of court falls to be construed according to
the ordinary rules and principles pertaining to the construction of documents
generally is not disputed by the parties. It is furthermore not dis puted that the
leading authority on the modern approach to the inte rpretation of documents is
Endumeni,1 the application of which requires the interpretation of a court order to
be undertaken o bjectively, having regard to the language used, the context in
which the order was granted, and the purpose for which the order was made.2
[16] The respondent nevertheless advances the ejusdem generis principle as a
basis on which paragraph 2.4 of the Order should be read to exclude tertiary
education expenses. The principle was described in Ex parte Van Oudtshoorn 3
as one which is usually applied to the construction of clauses where words of
limited meaning are followed by others of general application. 4 The respondent’s
case in this regard is premised on the wording of paragraphs 2.4.1 to 2.4.4 of the
Order, and it is argued that the items listed there share a common denominator of
being school -related educational expenses and this should have the effect of
interpreting the entire paragraph 2.4 as being about school fees and related
expenses only, exclusive of tertiary education costs . However, on the face of
paragraph 2.4 itself, this premise cannot be correct.
[17] The Order refers to “ all the children’s educational costs ”, and lists, by way
of non -exhaustive examples additional tuition fees, hostel fees, the costs of
extramural and sporting activities and the costs of exchange programme s including
travel an d accommodation. None of those items, in their ordinary meaning, are
confined to school-level education. They apply equally to school and to tertiary
level education. The asserted “common denominator” of school -only expenses i s
therefore not supported by the wording of paragraph 2.4.
1 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)
2 At paragraph 18
3 1952 (2) SA 310 (T)
4 At 313B-G
[18] The structure of paragraph 2.4, in any event, precludes the application of the
ejusdem generis principle. The phrase “shall include but is not limited to” is, on its
plain meaning, an instruction not to confine the general words to the specific items
that follow in the paragraph. Ejusdem generis operates where general words
follow a closed list of specifics so as to take their colour from the class identified.
Paragraph 2.4 has the opposite structure, namely general words first, followed by
examples expressly identified as non -exhaustive. To apply the ejusdem generis
principle in those circumstances is to read the phrase “include but is not limited to”
as if it stated “include only”, which is the inverse of what the words say.
[19] The respondent relied on Shakawa5 for his proposition that the principle of
ejusdem generis remains a recognised interpretive aid in modern law and applies
where general words follow specific words. However, this case does not assist the
respondent. The Supreme Court of Appeal upheld an appeal and set aside an order
from the court below wh ich had be en founded on an application of the ejusdem
generis principle. At paragraph 15 of the judgment the SCA held that the court
below had committed a fundamental error in its approach to interpretation and
confirmed that the proper approach was the approach set out in Endumeni and
proceeded to apply the latter’s interpretive principles.
[20] Shakawa is, accordingly, not authority for the proposition that ejusdem
generis is to be applied by a court in interpreting written instruments. It is authority
for the converse, namely , that the modern approach to interpretation is that set out
in Endumeni, which directs a unitary exercise in whic h language, context and
purpose are considered together from the outset.
5 Shakawa Hunting & Game Lodge (Pty) Ltd v Askari Adventures CC (44/2014) [2015] ZASCA 62.
[21] I turn now to conduct that exercise with reference to the facts of this case.
Analysis
The text of paragraph 2.4
[22] The inevitable point of departure is the language of paragraph 2.4 of the
Order. In my view, th at begins with and must be read against the backdrop
provided by the text in the preamble, which states that paragraph 2.4, inter alia ,
shall be applicable to all of the children born of the marriage between the parties
pending the final determination of the divorce. S[...] is self-evidently one of these
children to whom paragraph 2.4 applies. The text of the Order says so.
[23] Turning to paragraph 2.4 itself, it obliges the respondent to pay “all the
children’s educational costs, which shall include but is not limited to….”.
[24] On its ordinary grammatical meaning, the words “educational costs” were
intended to include both school and tertiary ed ucation costs for the following
reasons, namely that:
[a] The use of the word “all” indicates that the respondent’s obligation
was intended to cover the educational expenses of all the children , and not
only those who are in primary or secondary school.
[b] S[...] was then already generating educational costs of a tertiary
nature, including tuition fees and other related costs that formed part of the
inclusive text of paragraph 2.4.
[c] The phrase “educational costs” is framed broadly, and it does not
state that the respondent’s obligation ends once the children complete
matric.
[d] The paragraph goes on to state that those costs “include but are not
limited to” school fees, tuition fees and so forth . This is a list of examples
and is not an exhaustive or a closed list.
[25] The respondent’s interpretation that S[...]’s educational expenses are
excluded from the ambit of the paragraph cannot be reconciled with the express
wording of “all the children’s educational costs” . On the respondent’s
construction, paragraph 2.4 would apply to three of the four children but exclude
S[...] entirely, despite the express use of the word “all”.
[26] The respondent’s distinction between “school” and “ tertiary” education is
unsupported by the wording of the Order and is inconsistent with its structure. The
phrase “educational costs” is not qualified and should be understood in its ordinary
sense to include the education of all four children, including tertiary education,
which was clearly contemplated when the Order was made. A construction that
excludes tertiary education would result in an insensible outcome, contrary to the
interpretive approach endorsed in Endumeni.
The context
[27] Paragraph 2.4 must be interpreted in the context of the Order as a whole,
which regulates the respondent’s maintenance obligations towards the applicant
and their four children, pendente lite.
[28] The structure of the Order draws a clear distinction between:
[a] Cash maintenance payable to the applicant for general living
expenses; and
[b] Direct payment obligations by the respondent in respect of specific
categories of expenditure, including educational costs.
[29] The applicant is unemployed and has not worked for over 20 years . She is
prohibited from working by virtue of her relative’s visa. If, as contended for by the
respondent in this context , the applicant is required to fund terti ary educational
expenses from the cash maintenance component, this would necessarily result in a
shortfall in respect of the applicant’s and childr en’s basic living needs, as the cash
maintenance was calculated with reference to those needs alone. Such an
interpretation not only disregards the distinction drawn by the Order between
general maintenance a nd education costs but would also render the cash
maintenance portion inadequate by requiring money intended for the applicant’s
and the childr en’s day -to-day needs to be used for expenses that are separately
covered under paragraph 2.4.
[30] The respondent contends that tertiary education costs were not pleaded by
the applicant in her Rule 58 application before the Regional Court . He further
contends that they were not quantified and not adjudicated upon in those
proceedings and therefore cannot be read into paragraph 2.4 . This submission
cannot be sustained for the following reasons.
[31] The Order was granted in the following context:
[a] S[...] was then in her second year of studies at UCT and t he
respondent was paying f or S[...]’s education fees. The Order did not exc ise
this obligation from the respondent going forward. Given the significance of
this consequence, the magistrate would have expressly said so had she
intended for the respondent to no longer be responsible for the children’s
university fees. Given that the application of the Order is pendente lite, such
an exclusion would make no s ense apart from it being clearly prejudicial to
the children’s interests on facts and circumstances of this matter.
[b] The applicant expressly excluded educational costs f rom her
maintenance budget on the b asis that such costs were borne by the
respondent. In this regard, the applicant provided a detailed breakdown of
her and the four children’s cash main tenance needs which totalled R101 270
per month and which specifically excluded medical and educational
expenses.
[32] Educational costs were always treated as a separate expense and were never
incorporated into the cash maintenance claim ed by the applicant , hence their
separate treatment in the award made.
[33] The respondent’s contention that the absence of a quantification of tertiary
expenses renders them beyond the scope of paragraph 2.4 is similarly
unsustainable, given that p aragraph 2.4 does n ot quantify school fees, additional
tuition fees, hostel fees, aftercare fees or the costs of extracurricular activit ies
either, which fees and costs the respondent accepts and has always paid in respect
of the children. The absence of a stated rand amount is therefore a feature of the
clause as a whole and cannot operate to exclude tertiary education whil st leaving
school intact.
The purpose of the Order
[34] The purpose of the Order in relation to educational expenses was to ensure
that all of the children born of the parties’ marriage received the education that
they require. Properly construed paragraph 2.4 was intended to ensure the pendente
lite continuity of educational provision to the parties’ four children , rather than to
draw a contrived distinction between stages of education.
[35] In Firestone SA (Pty) Ltd v Genticuro AG ,6 Trollip JA held that “ the
judgment or order and the court’s reasons for giving it must be read as a whole in
order to ascertain its intention .”7 In this matter, what the magistrate meant by her
order in paragraph 2.4 is instructive . In her judgment dismissing the applicant’s
urgent application for declaratory relief, she stated that the phrase “all the
children’s educational costs” meant all the costs to be paid for the education of all
of the respondent’s children. Given that one of the respondent’s children was at the
time incurring tertiary education costs, the respondent’s obligation self-evidently
included these costs.
[36] The Order, read together with the magistrate’s subsequent reasons in her
judgment, makes it clear that paragraph 2.4 was intended to encompass the
educational costs of all four children, and not only those still in school.
[37] When interpreting the paragraph in accordance with the Endumeni
principles, the applicant’s interpretation is the only construction that gives sensible
effect to the Order as a whole.
6 1977 (4) SA 298 (A)
7 At 304D-H
Conclusion
[38] In the circumstances, the following order is made:
1. The parties’ late filing of their respective heads of argument is
condoned.
2. It is declared that the respondent’s obligation under paragraph 2.4 of
the court order granted by the Strand Regional Court under case
number RCC STD 162/2022 on 15 August 2025 includes payment of
the tertiary education costs of the parties’ children.
3. The costs of this application, including the costs of counsel, shall be
borne by the respondent on scale B.
_____________________________
N MAYOSI
Acting Judge of the High Court
Appearances
For applicant: Advocate S. Sundelson
Instructed by: Lee Attorneys
For respondent: Adv Johan Bester
Instructed by: Miller Bosman Le Roux Attorneys