REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-205942
(1) REPORTABLE: NO
(2) OF INTEREST TO Qt JUDGES: NO
(3) REVISED: NO
I I r'\"'"1 102~ _ ~----
DATE J SI AT E
In the matter between:
DS Applicant
and
GLS Respondent
JUDGMENT
DJ Smit, AJ
Introduction
[1] This is an application and a counter-application for maintenance pendente lite.
[2] The only question is the proportion in which the applicant (the husband) and the
respondent (the wife) are obliged to contribute to the maintenance of their minor
children.
[3] The husband contends that, in light of the disparity in income between them, the
wife is obliged to contribute towards approximately 70% of the children's
maintenance needs while he is obliged to contribute 30%. The wife contends, on
the other hand, that the husband's income is more than he has disclosed and
that her income is less than the husband contends, primarily because she will no
longer perform outside consulting work in addition to her permanent employment.
[4] The ratio for which the wife contended was 56%/44% evened out to 50%/50% in
light of what she contends is the husband's significantly larger net asset value.
In practical terms, the dispute is whether the husband should pay an amount
between R23,513 (for which he contends, although he tendered R27,240 per
month) and R39, 188 (for which the wife contends).
[5] The dispute is therefore narrow but beset with factual disputes around the
quantum of the parties' income and assets. Certain of these disputes are not
capable of definitive resolution on motion, even though the parties have delivered
five sets of affidavits, outside of Rule 43's requirements. In adjudicating these
disputes, I have of necessity had to adopt the robust approach adopted in the
case law for disputes of fact in Rule 43 applications.1
[6] I want to make it clear that my findings of fact below are therefore limited in their
application to these proceedings.
[7] The application and counter-application also dealt with the husband's contact
with the minor children, but this dispute has been postponed by order of Allen AJ
dated 16 February 2026 pending the finalisation of an investigation by a forensic
psychologist and the Family Advocate.
Background
[8] The parties were married out of community of property with the accrual system
on 21 February 2012. Two minor children were born from the marriage: a girl (E)
aged 9 and a boy (B) aged 6. The couple separated in or about October 2024.
aged 9 and a boy (B) aged 6. The couple separated in or about October 2024.
1 See Butcher v Butcher 2009 (2) SA 421 (C) para 19 in respect of Rule 43, which constitutes
interim relief pendente lite; and contrast with Sewmungal and Another, NNO v Regent Cinema
1977 (1) SA 814 (N) at 819D-821G where final decisions on motion are concerned.
[9] The husband is employed in a senior position at a South African retailer while
the wife is employed in a senior position at an international technology company.
Both have, in the past, done remunerative work in addition to their salaried
employment.
[1 O] During the marriage and until recently, the parties pooled their income (or
substantial parts of their income) to pay for joint expenses. The pooled income
arrangement was operated through a single facility account in the husband's
name, from which the bond on the former matrimonial home and most joint
household expenses were paid.
[11] Both parties contributed to this account (albeit not equally). The husband
contends that he typically paid about R56,000 per month into the joint account
while the wife paid about RB0,000 to R90,000 per month. The household
expenses were discharged from the account, to which the wife had access
through a payment card.
[12] At some stage after the separation, the wife's payment card was stopped.
Further, disputes arose over how much the wife should contribute to the single
facility account. The disputes led to the single facility becoming overdrawn with
resultant threats of foreclosure on the former matrimonial home. The disputes
gave rise to unsuccessful mediation, leading to this application.
[13] The wife continues to reside in the former matrimonial home with the children.
The husband now lives in a complex approximately 60 metres from the former
matrimonial home.
The issues
[14] The following issues arise against this backdrop:
a. What are the monthly maintenance needs of the children?
b. What is the monthly income of the husband?
c. What is the monthly income of the wife?
d. Should the respective net asset values of the parties be considered in
arriving at a fair split of their maintenance obligations? If so, how?
e. Against this backdrop, what is a fair split of the maintenance obligations?
f. How does that translate into an order of this court?
[15] Given that neither party has opposed the other's affidavit(s) delivered outside the
framework of Rule 43, I have decided to take them into account given their utility
in crystallising the factual disputes between them.2
[16] It was not clear on the papers how the ratio for which each party contended
translated into the orders they sought, because the orders sought to allocate
certain expenses to the husband and others to the wife rather than to order a
single cash transfer per month. For this reason, at the hearing I requested the
parties to file supplementary submissions. These submissions were of great
assistance, and I thank the respective counsel for them.
[17] Unless otherwise specified, all figures are monthly and expressed net of tax.
What are the monthly maintenance needs of the children?
[18] The parties differed on the children's monthly maintenance needs. The wife
contended on affidavit that these needs were a total of R78,377 per month while
the husband contended they were R69,362. For purposes of the hearing,
however, the husband's counsel argued the matter based on the wife's figure.
[19] At the hearing, the wife's counsel submitted that this figure did not, in fact, include
various other expenses, but in her supplementary submissions she committed to
a figure of R83,365 which includes inflationary increases to school fees and an
increased bond instalment subsequent to the filing of the wife's main affidavit.
[20] For ease of calculation and because the parties' means are such that the
resolution of any remaining factual disputes will not make a significant difference
2 These are: (a) the husband's further affidavit dated 19 December 2025; and (b) the wife's further
affidavits dated 3 February 2026 and 20 March 2026.
to the outcome, I find that the reasonable monthly needs of the children amount
to approximately RS0,000.3
What is the husband's monthly income?
[21] It is common cause that the husband's basic monthly salary is R56,587.51. There
are disputes about (purported) further sources of income, including:
a. A monthly figure for an annual discretionary bonus.
b. Payments of R10,000 per month from a company for which he does outside
consulting work.
c. Ad hoc payments in irregular amounts from third parties.
d. Ad hoc payments to the husband from his mother.
[22] The husband's discretionary bonus amounted to approximately R40,000
(annual) for 2023 and R42,000 (annual) for 2024. The wife contended that this
should be averaged as R4,031 per month while the husband's averaged figure
was R3,500 per month. While the husband's figure seems closer to correct based
on 2024 figures, one may assume that this would increase by 2026. Accordingly,
the husband's counsel argued the matter on the basis of R4,031 per month.
[23] The husband receives a monthly amount of R10,000 into his account for outside
work. The husband contends on affidavit that only R4,000 of that constitutes
income while R6,000 is an advance earmarked for ad hoc disbursements and is
repayable at year-end if unused. The wife contends that the full R10,000 should
be considered income, on the basis that the bank statements annexed to the
husband's financial disclosure did not show a repayment of any unused amounts.
The husband's retort was that these bank statements did not cover the year-end.
[24] Given the robust approach to fact-finding in matters to be adjudicated in Rule 43
proceedings, I cannot second-guess either the husband's or the wife's
unsatisfactory and parsimonious versions on affidavit regarding their additional
income. (This will benefit the wife more than the husband, as I show below.) I
3 I indicate in bold those figures which represent my findings.
therefore find that the husband's additional regular monthly income should be
reflected as R4,000.
[25] The husband received further payments of R67 ,900 from third parties over a 12-
month period for additional consulting work. The wife contends this should be
considered as monthly income of RS,658.00. The husband contends (and this
seems to be borne out by his bank statements) that this was a pass-through
arrangement of which he only retained an amount of R10,705, yielding an
average of R892 per month. While the wife describes his explanation as far
fetched and improbable, again I cannot second-guess it given the lack of cogent
evidence before me. I therefore find that an additional R892 per month accrues
to the husband.
[26] The wife seeks to add R11,033 per month to the husband's income by taking into
account R66,200 which the husband received from his mother in ad hoc
payments over a six-month period. The husband contends that he had been
forced to rely on handouts from his mother as a direct result of the respondent's
unilateral reduction of her payments into the single facility account, thus leaving
him to cover those expenses which he cannot afford.
[27] In my view, gratuitous and irregular financial support from family members should
not be taken into account to calculate spouses' income for purposes of Rule 43
proceedings. The husband's counsel quoted authority in this regard, which I find
persuasive because family members are not, typically, obliged in law to make
these contributions and they are therefore uncertain. Further, their sustainability
depends on evidence which is not before the court in Rule 43 proceedings.4
[28] Thus, my findings on the husband's income yields a grand total of R65,510.51
per month which I will round down to R65,000 for ease of calculation.
4 CAM v DWM [2023] ZAGPJHC 1203 (23 October 2023) para 20. See also my decision in HL v
BPAL [2026] ZAGPJHC 326 (30 March 2026) para 37.
What is the wife's monthly income?
[29] The wife changed employment after the main affidavits in this application had
been exchanged, which is one reason why supplementary affidavits were filed.
[30] It is, however, common cause that the wife's new employment will yield
approximately R110,000 per month. (This is subject to currency fluctuations,
given that the wife earns in US dollars, but both parties argued on the basis that
this figure was more or less correct.)
[31] There were disputes around the wife's annual discretionary bonus and what the
husband contended was additional and undisclosed income from third parties.
[32] The wife's new employment agreement provides for an annual performance
bonus of 10% of her annual base compensation, paid quarterly. The wife's
counsel argued that this should not be taken into account at all, given the fact
that there is no history of payment (unlike the husband's discretionary bonus
which was paid in at least 2023 and 2024). In my view, this should be reflected
as a monthly amount of R10,000 given that there is no cogent evidence that the
wife's contractual (although discretionary) bonus would not be paid.
[33] If it turns out that there is some impediment to the payment of the wife's
discretionary bonus, the wife could always approach the court to vary the Rule
43 order.
[34] The wife received payments of approximately R297,000 into her bank accounts
during a six-month period last year, i.e. during her old employment. The husband
contends that this translates to approximately R50,000 per month in additional
income from outside consulting work. (These are gross amounts before tax is
taken into account.)
[35] The wife contends that these amounts should be reflected as monthly amounts
of approximately R9,000 for "freelance work" but that her new employment
contract, effective January 2026, constrains her ability to do freelance work . She
states on affidavit that she would no longer do freelance work.
[36] As with the husband's work outside of his employment, a lot is left unexplained
on affidavit. Further, the wife's new employment contract does not exclude her
ability to do freelance work; it only excludes freelance work for competitors. It is
not clear to me what the possibilities are for the wife to do freelance work for non
competitors but, at least in the abstract, it could potentially be extensive. As with
the husband's outside work, I cannot speculate in this regard and is constrained
to accept the wife's submission on affidavit that she will no longer do freelance
work. Again, if it this transpires not to be the case, the husband could always
approach this Court for a variation of the Rule 43 order.
[37] Accordingly, I find that the wife's monthly income is R120,000.
The relevance of the parties' net assets
[38] The wife acknowledged that, on any version, her monthly income would
significantly exceed that of the husband. In order to motivate for a 50%150% split
of the maintenance obligations towards the couple's minor children, she
contended that the parties' disparate net assets should be taken into account.
[39] There was a great deal of debate on the papers as to the size of the disparity,
which is unnecessary to resolve in light of my conclusion. The wife contended
that her net asset value is approximately R300,000 while the husband's net asset
value exceeds R3 million. Her contention depends to a large extent on the value
of the house in which the husband now lives which, it is common cause, his
mother purchased. The husband contends that he made a loan from his mother
which will have to be paid back if the house is sold. For this reason, the husband
contends that his net asset value was approximately R 1.2 million consisting
mostly of retirement annuities and shares.
[40] In my view, the assets of the parties are not ordinarily taken into account for
purposes of Rule 43 proceedings unless the maintenance needs in question
purposes of Rule 43 proceedings unless the maintenance needs in question
exceed the parties' income and the assets are realisable within a reasonable
timeframe. Maintenance pendente lite is normally met from income, although
inroads into capital assets may be justified in certain circumstances.5 These
circumstances include the situation where income is insufficient.6
[41] In this case, there is no need to order either of the parties to liquidate relatively
illiquid assets to meet maintenance obligations. Their joint income of R185,000
per month is more than sufficient to meet the children's needs of R80,000 per
month and their own needs.
What is a fair split of the maintenance obligations?
[42] The parties accepted, correctly in my view (and subject to the issue of net asset
value addressed above), that they are obliged to contribute to the children's
maintenance needs in proportion to their respective income.
(43] I find above that the husband's monthly income for purposes of calculation is
R65,000 and the wife's is R120,000, yielding a combined monthly income of
R185,000. This means that the husband earns approximately 35% of the
household's monthly income and the wife earns 65%. This is the appropriate ratio
to split the reasonable monthly maintenance needs of the children of R80,000,
yielding a contribution of R52,000 by the wife and R28,000 by the husband.
How does the split translate into an order of court?
[44] The parties' respective notices of motion (and draft orders) complicated the
debate considerably by seeking to translate a monetary split into respective
responsibilities for particular household expenses, including the bond on the
former matrimonial home; expenses in relation to rates and taxes, levies, utilities,
maintenance, insurance, security costs and domestic staff salaries; various
expenses in relation to the children directly such as school fees, medical aid,
other medical costs, and fees for extracurricular activities; and other educational
expenses for the children (such as uniforms, stationery and books).
[45] This led to unproductive and irrelevant debates as to whether it is "fair" that one
party alone should be responsible for specific items, particularly the bond. This
party alone should be responsible for specific items, particularly the bond. This
5 Taute v Taute 1974 (2) SA 675 (E) at 676E .
6 CMH v GNH [2025] ZAGPJHC 1169 (17 November 2025) paras 5-7 and 14, and the authorities
cited there.
is irrelevant because the only issue is what portion of the children's maintenance
needs each party should meet.
[46] Fortunately, it seems that the parties were ad idem by the time their
supplementary submissions were filed as to how the court's conclusions would
affect the order to be made. They each provided for a mechanism where:
a. The husband would pay the children's educational expenses, such as
school fees, school uniforms, stationery and books and school levies;
b. The wife would pay for expenses in relation to the former matrimonial home
such as rates and taxes, levies, utilities, maintenance, insurance, security
costs and domestic staff salaries;
c. The wife would pay for other expenses in relation to the children such as
medical aid, other medical costs, and fees for extracurricular activities; and
d. The husband would either pay an additional cash contribution to, or would
receive a cash refund from the wife, depending on the allocation of the
bond.
[47] The husband contended that the wife should pay the bond on the former
matrimonial home in which she continues to live, while the wife contended that
the husband should pay for it.
[48] This issue only depends on what the court found to be the proper split of the
children's reasonable maintenance obligations between the parties, not on what
is "fair'' in that regard. The wife contended for the husband to pay the bond based
upon the 50%/50% split she contended for. The husband contended for the wife
to pay the bond, based on 70%/30% split he contended for. Given that the court
finds that a 65%/35% split is realistic and consistent with the evidence, it follows
that the appropriate solution is that the wife should make the bond payment and
that the husband should pay a cash contribution in addition to payment of the
children's educational expenses.
[49] The amount of that cash contribution is the next issue. The husband's
supplementary submissions contends that the monthly value of payment of the
children's school fees is R22,7807 and that the approximate monthly value of the
additional school uniforms, stationery and books and school levies is R460. An
additional R4,000 top-up payment would yield a monthly cash contribution of
R27 ,240, which is what he tendered.
[50] This means that the court's finding that a payment of R28,000 per month would
discharge the husband's monthly maintenance obligations means that he should
be ordered to make a monthly top-up payment of R4,760.00.
[51] The single facility account, from which the bond is deducted monthly, has caused
friction. For this reason, and by consent of both parties, the Court will order that
neither party is permitted to transact on this account save for the monthly bond
payment and any further payment (such as bank fees or arrears) required to
prevent foreclosure on the former matrimonial home.
[52] The usual order in respect of costs in matters brought under Rule 43 is that costs
are in the divorce. I see no reason to deviate from that. In addition, this
application partly deals with the husband's contact with the minor children; an
issue which is not before me and will be disposed of by another judge.
[53] I reproduce my order below, anonymised in various respects to protect the
identity of the minor children. An order containing the redacted detail is made
available to the parties separate from this judgment.
Order
[54] I make the following order:
a. The respondent shall pay the monthly instalments in respect of the bond
(bond account number: []) held in favour of First Rand Bank Limited over
[] ("the former matrimonial home"), directly into the aforementioned bond
account from the 1st day of the month following the granting of the Rule 43
order and thereafter, on or before the 1st day of each and every successive
7 The wife's supplementary submissions also values school fees at R22,780.
month and shall also make payment in respect of every other amount
needed to prevent foreclosure on the former matrimonial home.
b. The respondent shall make payment of the following monthly expenses in
respect of the former matrimonial home:
i. rates and taxes;
ii. levies;
iii. utilities;
iv. maintenance;
V. insurance;
vi. security costs; and
vii. domestic staff salaries.
c. The respondent shall make payment of the following monthly expenses in
respect of E:
i. Discovery Classic Comprehensive medical aid premium;
ii. Medical costs not covered by medical aid;
iii. Gymnastics fees;
iv. Art fees; and
v. Play therapy fees.
d. The respondent shall make payment of the following monthly expenses in
respect of B:
i. Discovery Glassic Comprehensive medical aid premium;
ii. Medical costs not covered by medical aid; and
iii. Swimming lesson fees.
e. The applicant shall pay the respondent a cash contribution of R4,760 per
month from the 1st day of the month following the granting of the Rule 43
order and thereafter, on or before the 1st day of every successive month
directly into the respondent's nominated bank account. This amount 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.
f. The applicant shall pay 100% of the children's educational expenses,
including school fees, school uniforms, stationery, books and school levies.
g. Neither party shall be permitted to transact on the facility account from
which the bond on the former matrimonial home is paid, save for the
respondent's payment of the amounts referred to in paragraph 1 above.
h. Save as aforesaid, the application and the counter-application are
dismissed.
i. The costs of the application and the counter-application shall be costs in
the divorce.
Date of hearing: 25 March 2026
Date of judgment: 11 May 2026
DJ SMIT
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
For the Applicant:
For the Respondent:
T Lipshitz instructed by Swartz Weil
Van Der Merwe Greenberg Inc
L Segal SC instructed by Deanne Kahn
Attorneys