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[2026] ZAGPJHC 551
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L.J.M v P.M (2025/110876) [2026] ZAGPJHC 551 (26 May 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
Number:
2025-110876
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES/NO
(3)
REVISED: NO
In the matter between:
LJ,
M
Applicant
and
P,
M
Respondent
JUDGMENT
Naidoo, AJ
Introduction
[1]
The
applicant and the
respondent (“the parties”) are cited in court papers by
their full names and their children have also
been referred to in the
papers by their full names. In order to protect the interests of the
parties and minor children, I accordingly
deem it appropriate to
refer to the parties and their children by their initials only.
[2]
This
is
an application in terms of Rule 43 of the Uniform Rules of Court
(“Rule 43”) brought by the applicant in terms of
which
she sought interim relief in respect of contact and care of the minor
children; to be retained on the respondent’s
medical aid;
spousal maintenance in the amount of R26 453.00 per month;
relocation costs to Johannesburg in the amount of
R30 000.00 and
a
contribution
by the respondent towards her legal costs in the amount of
R250 000.00 pending the determination of an action
for divorce.
[3]
The respondent
opposed the application. He accepts his duty to maintain the
applicant but contended that the relief sought is beyond
his means.
As such, he submitted that the court should award the applicant
relief as per his tender, which was to pay the applicant
R10 000.00
per month for maintenance for 10 months; pay her continued medical
aid for a period of 20 months, alternatively
R5000 per month to
enable the applicant to obtain her own medical aid; a once off
relocation contribution in the amount of R60 000.00
or
alternatively, R30 000.00 towards relocation costs should she
retain all the movable assets and furniture. The respondent
further
submitted that he was amenable to making a reasonable contribution to
the applicant’s legal costs, although he did
not specify the
amount he deemed reasonable.
Issues
for determination
[4]
I am required
to determine the following issues:
4.1.
Whether condonation should be granted to
the respondent in respect of the delay in filing his opposing
affidavit.
4.2.
The amount payable as spousal maintenance.
4.3.
The amount of contribution towards the
legal costs of the applicant.
[5]
The respondent
accepted that he could not stop the applicant from relocating and the
only relevant issue was the amount of relocation
costs claimed, and,
in this regard, I should determine the amount based on his tender.
The
application for condonation
[6]
The respondent
filed his opposing affidavit more than a month outside the prescribed
time limit. He did however, set out under oath
an explanation for the
late filing, that is, for reasons due to him requiring medical
attention and the explanation is a reasonable
one.
[7]
There were no
arguments presented during the hearing that the delay was excessive
or prejudicial or that condonation should be refused.
In weighing up
the prejudice of condoning the late filing of the respondent’s
opposing affidavit on the applicant versus
the prejudice on the
respondent, the balance tips in favour of the respondent, because his
affidavit assists the court in determining
the dispute for it to have
regard to the respondent’s opposing affidavit.
[8]
As a result, I
concluded that the late filing of the respondent’s opposing
affidavit be condoned.
Summary
of material submissions
[9]
The parties
married each other out of community of property with the inclusion of
the accrual system on 25 October 2003 at Randburg.
The marriage still
subsists. The applicant is 53 years old.
[10]
Since the
application was issued, one of the minor children reached the age of
majority and so, the application concerns one minor
child. The
children are still dependent and have their primary residence with
the respondent at this stage.
[11]
There was no
dispute that the parties shall retain their parental responsibilities
and rights in respect of the minor child D M
subject to the
applicant’s specified parental responsibilities and rights of
contact and that the applicant would have contact
to the minor child
subject to his wishes, as below:
11.1.
Half of every long South African school
holiday and alternating short school holidays, Easter weekend,
Christmas and New Year;
11.2.
Telephonic and/or video contact
every Monday, Wednesday, and Friday at reasonable times.
[12]
The applicant
vacated the marital home after an alleged incident of domestic
violence on 8 January 2026. She is currently living
with her mother
in Kroonstad. The applicant wishes to return to Johannesburg and
wants to enjoy contact with both the children
depending on their
wishes. She is not prepared under any circumstances to return to the
marital home and seeks accommodation costs
for a 3-bedroom
accommodation so that the children can enjoy overnight visits with
her.
[13]
It is common
cause that the applicant is unemployed, having resigned from
employment in 2022 as a senior portfolio manager in a
telecommunications company. The respondent is employed as a data
executive at a major bank.
[14]
The respondent
concedes that after the applicant resigned, the respondent bore the
sole responsibility of carrying the full financial
burden of the
household without a single contribution from the applicant.
[15]
The respondent
submits that he earns R75 000.00 net per month. His monthly
expenses amount to R91 810.00. His liabilities
amount to
approximately R636 999.33 which arose after the applicant ceased
working and he was required to sustain the household
alone. He avers
that his assets include a retirement annuity, a motor vehicle, work
equipment and modest household items. He is
maintaining the children
and meeting their day-to-day needs including their educational,
medical and therapeutic needs. The matrimonial
home is jointly owned.
[16]
The respondent
filed a financial disclosure form (FDF). In it he declared that his
net income is R75 000.00 from his salary
and R17 000.00 for
the past 6 months from an investment, being a STANLIB annuity to the
value of R1 300 000.00.
He has one motor vehicle worth
R180 000.00, he has no business interests and earns no income
from investments e.g. dividends,
interest or rental income. He has a
pension interest of R10 359 395.89. He is a trustee in a
trust but did not disclose
any income from the trust.
[17]
Insofar as the
respondent’s liabilities are concerned, his FDF reflects that
he is in debt in the amount of R636 999.33
in respect of his
credit card and personal loans. He confirms that even though the
matrimonial home is jointly owned, the balance
outstanding is
R900 000.00 and he pays the full mortgage bond of approximately
R13 000.00 per month. His total expenditure
per month is
R91 810.00.
[18]
Apart from
general submissions made during argument by the applicant’s
counsel that the respondent was not fully declaring
the income he
receives, the applicant was not able to meaningfully challenge the
respondent’s assertions that his fixed monthly
income (at least
for the previous 6 months) was his salary of R75 000.00 (net)
and approximately R17 000 in respect of
an annuity payment which
would bring his total income per month to R92 474.00 per month.
[19]
The
applicant’s counsel did however attempt to demonstrate that
there were other entitlements flowing from the respondent’s
employment based on his salary advice for December 2025, which
reflects that he received in the form of a medical aid contribution
as a fringe benefit, an amount in December 2025 being R175 310.00
and in January 2026, R194 687.00. This would mean that
his
monthly expenses could not truly amount to R91 810.00 and the
medical aid amount of R17 400 should be deducted from
this
amount. In addition, according to the applicant, the respondent’s
salary advice for December 2025 reflects that the
respondent has
taxed benefits such as Dir/EE Equity Instruments (as at December
2025: R586 071.03) and acquisition of assets
(R16 250.98).
This is contended by the applicant to mean that the respondent is a
member of an employee share scheme or a
deferred bonus paid in
shares. In addition, on 20 January 2026, the respondent received an
unpaid leave payment, and his salary
was R112 218.50. The belief
by the applicant that the respondent has other income was fortified
by the respondent’s
contention that he and the applicant have
access to funds in the form of investments, but he failed to disclose
what those are.
The respondent did not meaningfully challenge these
assertions.
[20]
The applicant
also contended that the bank statements of the respondent indicated
that the respondent is doing business outside
his formal employment
and this can be gleaned from the payments made out of the account.
There was, however, no concrete averments
made by the applicant in
support of what this business entailed, in order for this court to
place any reliance on this submission.
Analysis
[21]
As a starting
point, there is no dispute that the respondent owes the applicant a
duty of support.
[22]
Courts
are required to consider the applicant’s reasonable needs and
the respondent’s ability to meet them.
[1]
The Court will look at the financial circumstances of both the
parties and will make an order accordingly thereto.
[23]
In
Taute
v Taute,
[2]
the
court stated that there is no general principle upon which an
application under Rule 43 can or must be based. Each case must
depend
on its own particular facts.
Taute
also reiterated that the applicant spouse (who is normally the wife)
is entitled to reasonable maintenance
pendente
lite
dependent upon the marital standard of living of the parties, her
actual and reasonable requirements and the capacity of her husband
to
meet such requirements which are normally met from income although in
some circumstances inroads on capital may be justified.
[3]
[24]
The applicant
has not worked since 2022 and the respondent has from that date
maintained her, without it appears, any serious reluctance
to do so.
However, the standard of living of the parties was based on their
actual and reasonable requirements and on a large part
on what the
respondent’s salaried income provided together with his
investments.
[25]
Given that the
applicant has not worked since 2022, and there was no pressure put on
her to work and contribute jointly, it is unreasonable
to expect that
she finds employment immediately or that she relies on her mother to
support her pending the finalisation of the
divorce. There is no
dispute that her mother is a pensioner.
[26]
A significant
dispute between the parties is the cost of the applicant’s
accommodation. The tender for the applicant to return
to the marital
home is not one that the applicant may be expected to take up, given
the domestic violence allegations. I find that
it is not unreasonable
for her to want to relocate to Johannesburg where she can be closer
to her children and given that she is
unemployed, the respondent
should be responsible for reasonable accommodation costs.
[27]
The
respondent’s tender of R10 000.00 per month seen in that
context is thus, wholly inadequate given that this amount
must
include at the very least, a reasonable contribution towards her
accommodation costs (rent), utilities, food, transport and
groceries
and must be viewed in relation to the fact that the applicant is
unemployed. However, this contribution must also be
weighed up
against the fact that the respondent does not dispute that he will
pay the respondent’s medical aid, and that
of the children and
that the children’s primary residence is with the respondent
and he provides for their needs. Insofar
as the respondent’s
affordability is concerned, he does have access to capital that would
see him afford to pay the amounts
determined below.
[28]
The applicant
computes her expenditure in the amount of R26 453.67 being in
respect of her needs alone, however, she submits
that this amount
does not cover an amount of R17 500.00 in respect of the rental
for an unfurnished 3 - bedroom
townhouse. I find that an
amount of R17 500.00 claimed for accommodation alone is inflated
and unaffordable for the respondent.
An amount of R8500.00 in respect
of accommodation would be fair and reasonable.
[29]
Insofar as the
applicant’s other monthly expenditure is concerned, I have had
regard to the list of her monthly expenditure,
and I regard the
following expenditure in the amounts set out below as being
reasonable and affordable for the respondent to pay:
·
Water: R400.00
·
Food Groceries
and cleaning materials: R2500.00
·
Electricity:
R500.00
·
Telephone and
ADSL: R300.00
·
Clothing and
personal care: R650.00
·
Fuel: R400.00
·
Insurance:
R1157.00
·
Maintenance
for the car: R300.00
[30]
As a result, I
conclude that it would not be unreasonable for the respondent to pay
an amount of R14 707.00 in respect of spousal
maintenance to the
applicant. It must be borne in mind that apart from the amount of
R14 707.00 in respect of spousal maintenance,
the applicant is
being maintained on the respondent’s medical aid. The
respondent’s capacity to also find employment
in the near
future (given that she previously held a senior role) should not be
underestimated. In addition, the applicant is a
joint owner of the
immovable property, which may be sold and she has access to a
retirement fund.
[31]
The respondent
should also pay the applicant R30 000.00 towards relocation
costs and the applicant will be entitled to remove
the movable assets
and furniture listed in annexure LJMT of the applicant’s
founding affidavit with 24 - hours’
notice to the
respondent.
[32]
Insofar
as legal costs are concerned, in
Dodo
v Dodo,
[4]
it
was held: “The husband’s duty of support includes the
duty to provide the wife with costs for her litigation with
her
husband.”
[5]
This
is compatible with the provisions of section 9(1) of the Constitution
which reads: “Everyone is equal before the law
and has the
right to equal protection and benefit of the law.”
[6]
[33]
The applicant
produced a
pro
forma
account from her attorneys estimating her legal costs to be
R250 000.00. Save for one or two items which were disputed,
there
was no meaningful submission made by the respondent as to why
the amount of R250 000.00 was not reasonable or what would be
reasonable in the circumstances, when viewed against, for example,
what the respondent paid for legal fees. Given the respondent’s
lack of meaningful disclosure in relation to his legal fees, there is
nothing before this court to gainsay the applicant’s
version
that R250 000.00 is more or less what she would incur in legal
costs in the divorce especially as the divorce concerns
a forfeiture
order and the applicant should not be hamstrung in her defence. The
respondent is not liable for the whole amount
however, and a
reasonable contribution must be assessed based on the pro-forma
account submitted. On this court’s analysis,
and while there is
no precise mathematical figure, 70 percent of the costs represented
are reasonable and necessary. Therefore,
the respondent is ordered to
contribute R180 000.00 towards the applicant’s legal costs
payable as follows:
33.1
R30 000.00
on the last day of the month on which this judgment is handed
down and;
33.2
Thereafter,
R30 000.00 on the last day of each succeeding month until the
abovementioned amount has been paid in full.
[34]
The
aforementioned amount in respect of legal costs is to be paid into
the trust account of the applicant’s attorneys of record,
being
Du Toit Attorneys.
Costs
of this application
[35]
The
costs of this
application are costs in the divorce action as per the terms of the
order prayed for by the applicant.
Order
[36]
In the
circumstances, I make the following order,
pendente
lite
:
1.
The parties
shall retain their parental responsibilities and rights in respect of
the minor child D M (“the minor child”)
subject to the
applicant’s specified parental responsibilities and rights of
contact.
2.
The applicant
shall have specific
parental responsibilities and rights of contact to the minor child,
subject to the wishes of the minor child,
as below:
2.1
Half
of every long South African school holiday and alternating short
school holidays, Easter weekend, Christmas and New Year;
2.2
Telephonic
and/or video contact every Monday, Wednesday, and Friday at
reasonable times.
3.
The respondent
shall pay spousal maintenance to the applicant in the amount of
R14 707.00 per month into the banking account
of the applicant
on the first day of the month after this judgment and thereafter, on
the first day of each consecutive month.
4.
The
aforesaid amount of R14 707.00 shall increase
on the anniversary date of this judgement at the rate equal to the
Consumer Price
Index (all areas) for the preceding 12 months, as
published by Statistics South Africa or its successor.
5.
The
respondent shall retain the applicant on his
medical aid and pay all excess medical costs in respect of the
applicant not covered
by the medica aid.
6.
The respondent shall pay the applicant’s
relocation costs in the amount of R30 000.00, and the applicant
will be entitled
to remove the movable assets and furniture listed in
Annexure
LJM7
of the applicant’s founding affidavit with 24 hours notice to
the respondent.
7.
The respondent shall contribute R180 000.00
towards the applicant’s legal costs payable as follows:
7.1
R30 000.00 on the last day of the
month on which this judgment is handed
down and;
7.2
Thereafter, R30 000.00 on the last day
of each succeeding month until the abovementioned amount has been
paid in full.
8.
The amounts in respect of the contribution
to the applicant’s legal costs is to be paid into the trust
account of the applicant’s
attorneys of record, being Du Toit
Attorneys.
9.
The costs are costs in the divorce action.
NAIDOO AJ
ACTING JUDGE
THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG DIVISION,
JOHANNESBURG
Counsel
for the Applicant:
Adv Isa Strydom
Instructed Du Toit
Attorneys
Counsel for the
Respondent Adv H Le Roux
Instructed by J Mahomed
Attorneys
Date of
argument:
19 May 2026
Date of
judgment:
26 May 2025
[1]
M
G M v M J M
[2023]
ZAGPJHC 405 para 9.
[2]
1974
(2) SA 675(E).
[3]
See
Taute
v Taute
1974 (2) SA 675
(E) at 676 par E-G.
[4]
1990
(2) SA 77 (W).
[5]
Id
at 96 F.
[6]
section
9(1) of the Constitution,1996.