SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NUMBER: A162/2025
Reportable: YES
Circulate to Judges: YES
Circulate to Magistrates: YES
Circulate to Regional Magistrates: YES
In the matter between:-
I[...] P[...] V[...] N[...] Appellant
and
N[...] V[...] N[...] Respondent
CORAM: Manamela J et Reid J
Order:
(i) The appeal is upheld.
(ii) The order of the Magistrate's Court for the District of Tshwane North
dated 8 January 2025 under case number 172/2022 is set aside
and replaced with the following order:
"1. The appellant shall pay maintenance in respect of the minor
children as follows:
1.1 R2,000 (Two Thousand Rand) per month in respect of I[...] P[...]
V[...] N[...] (I[...]); and
1.2 R2,500 (Two Thousand Five Hundred Rand) per month in
respect of H[...] M[...] V[...] N[...] (M[...]).
a. Payment shall be made to the respondent on or
before the first day of each month, with effect from 1
July 2026.
b. The maintenance amount shall increase with 10% per
year from date of this order.
c. All medical expenses incurred for the minor children
that are not covered by the respondent's medical aid
shall be shared equally between the parties, provided
that the respondent furnishes the appellant with proof
of such expenses within a reasonable time."
(iii) Each party shall pay their own costs of the appeal.
This Order is made an Order of Court by the Judge s whose name s are
reflected herein, duly stamped by the Registrar of the Court and is
electronically handed down by being uploaded to the electronic file of this
matter on Case Lines by the Judge’s secretary.
The date of this Order is deemed to be 4 June 2026.
JUDGMENT
Reid J (with Manamela J concurring)
Introduction
[1] This is an appeal against a maintenance order granted by the
Magistrate's Court for the District of Tshwane North ("the court a quo"
or “the magistrate ’s court” ) on 8 January 2025. The court a quo
dismissed the appellant's application for a reduction of his maintenance
obligations and granted the respondent's counter -application for an
increase, ordering the appellant to pay maintenance in the amount of
R3,000 per month for the minor child I[...] and R6,000 per month for the
minor child M[...], with all medical expenses not covered by the
respondent's medical aid to be shared equally between the parties.
[2] The appellant seeks to have that order set aside and replaced with an
order reducing his maintenance obligation to R1,500 per month per
child.
[3] The respondent raises a preliminary point that the appeal has lapsed
due to non -prosecution. On the merits, she contends that the
magistrate exercised her discretion properly and that the appeal should
be dismissed.
Factual background
[4] The parties were married on 5 December 2008 out of community of
property with inclusion of the accrual system. They are currently
divorced. Two children were born of the marriage:
4.1. H[...] M[...] V[...] N[...] (M[...]), born on 10 June 2010, now
approximately 15 years old; and
4.2. I[...] P[...] V[...] N[...] (I[...]), born on 1 July 2017, now
approximately 8 years old.
[5] An interim order in terms of Rule 58 of the Magistrates ’ Courts Rules
was granted on 6 October 2020, and a final decree of divorce was
granted on 11 December 2020, which incorporated the parties' parental
responsibilities and rights as well as maintenance arrangements.
[6] M[...] is a special needs child. She cannot communicate verbally and
has the mental capability of a one -year-old child. She wears nappies
and only started walking when she was nearly six years old. The
evidence established that she requires assistance with daily routines
such as changing nappies, bathing, and feeding. Intellectually,
emotionally, and socially, she is developmentally below her age.
[7] In terms of contact arrangements, the appellant exercises contact with
I[...] every alternative weekend, every Wednesday, and every
alternative holiday. For M[...], he exercises contact only on
Wednesdays, and telephonically or by video call in the mornings and
nights.
[8] In the court a quo, the appellant sought a reduction of his maintenance
obligation, proposing a globular amount of R3,000 per month for both
children. The respondent contended that R4,500 per child was required
and presented a schedule of the children's needs totalling
approximately R46,219 per month.
[9] After hearing viva voce evidence from both parties, the magistrate a
quo:
9.1. Dismissed the appellant's application for a decrease in the
maintenance amount;
9.2. Granted the respondent's counter-application for an increase;
9.3. Ordered the appellant to pay R3,000 per month for I[...] and
R6,000 per month for M[...], with effect from 1 February 2025;
and
9.4. Ordered that all medical expenses not covered by the
respondent's medical aid be shared equally between the parties.
[10] This appeal against the maintenance order is initiated under
the Maintenance Act 99 of 1998 and serves before us directly on
appeal from the magistrate’s court.
The point in limine: whether the appeal has lapsed
[11] The respondent contends that the appeal has lapsed in terms of Rule
50(1) of the Magistrates' Courts Rules due to the appellant's failure to
prosecute it timeously.
[12] The chronology of events is as follows:
12.1. Judgment a quo was delivered on 8 January 2025.
12.2. The notice of appeal was served on 5 February 2025, within the
prescribed 20-day period. This is not disputed.
12.3. Application for a trial date was made on 4 April 2025 on Court
Online, which is within 40 days of noting the appeal.
12.4. The record was filed on 7 April 2025, which is within 60 days of
noting the appeal.
12.5. The no tice of appeal was served on the respondent on 7 April
2025.
12.6. Heads of argument were served on 12 November 2025 and filed
on 29 October 2025.
[13] Rule 50(1) of the Uniform Rules provides that an appeal shall be
prosecuted within 60 days after the noting thereof, and unless so
prosecuted it shall be deemed to have lapsed. In Hall v Van Tonder
and Another 1980 (1) SA 908 (C) at 910, the court held:
“An appeal must be noted within the period and in the manner
prescribed by the Rules; but the Cou rt of appeal may in any
case extend such period. (See Magistrates' Courts Act 32 of
1944 s 84).
The 'Rules' mean the magistrate's court Rules made under s 25.
(See Magistrates' Courts Act s 1 ' the rules'.)
The procedure is that the appellant obtains a judgment from the
magistrate if he wants one in terms of magistrates' courts Rule
51 (1). Within 14 days of getting this judgment appellant must
note his appeal (magistrates' courts Rule 51 (3)). That is, having
received his judgment on 30 November, he had to note an
appeal within 14 working days (magistrates' courts Rule 2 (2)).
He noted it on 15 December - within the prescribed period.
He then had to 'prosecute' the appeal in this Court within
six weeks after noting, that is by the end of January 1979.
(Supreme Court Rule 50 (1). 'Prosecuting' simply means
applying for a date for the hearing; see Rule 50 (4).) He did
not do so and the appeal was therefore deemed to have lapsed
in terms of that Rule.”
(own emphasis)
[14] The appellant applied for a hearing date on 4 April 2025. According to
the transcript of proceedings before us on 12 February 2026, counsel
for the appellant submitted that the Registrar indicated that a hearing
date could not be allocated until heads of argument were filed. This is
a matter of practice, not a requirement of the Rules.
[15] In Molema and Another v Lethamakga Business Enterprises CC 2024
JDR 4201 (GP), the court stated in paragraph [13]:
"The principle set out in the above paragraph is that an
application for leave to appeal must be launched within the
period set out in the Rules of court. Where that has not been
done the right to appeal lapses. A party who wishes to revive the
lapsed right of appeal must only do so after applying for
condonation. The right of appeal may only be granted after the
court has heard and granted the condonation."
[16] The appellant in casu did apply for a hearing date within the
prescribed period. The delay in filing heads of argument occurred
after the application for a hearing date. The question is whether the
failure to file heads of argument timeously, in circumstances where
the Registrar would not allocate a date without the heads of argument,
amounts to a failure to prosecute the appeal.
[17] The appellant submits that a practice directive cannot change the
Rules of Court. I agree. If the Registrar requires heads of argument
before allocating a date, it is an administrative practice and does not
alter the fact that the appellant applied for a date within the period
prescribed by the Rules of this Court . The appellant did what was
required to prosecute the appeal in as far as the Rules are concerned.
[18] Moreover, the respondent was aware of the steps taken. Proof of
service of the notice of appeal was provided on 7 April 2025. The
respondent's attorneys were served with the heads of argument on 12
November 2025. No prejudice has been shown.
[19] In considering whether to grant condonation, the interests of justice
must be considered. As was stated in Melane v Santam Insurance Co
Ltd 1962 (4) SA 531 (A) at 532:
"In deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised
judicially upon a consideration of all the facts, and it is a matter
of fairness to both sides. Among the facts usually relevant are
the degree of lateness, the explanation therefor, the prospects of
success and the importance of the case."
[20] In casu, the children's interests are paramount. They would be
prejudiced by not having the appeal heard on the basis of what is
stated above, which outcome may lead to other lengthy processes .
The children , and the parties, have an interest in finality and in a
maintenance order that is properly grounded in the financial realities
of both parents.
[21] The appellant has explained the delay as arising from the
unavailability of former counsel, the volume of the record
(approximately 1,000 pages), and financial constraints. These
explanations, while not detailed in a formal condonation application,
have been placed before this Court and in the record and was
supported by argument.
[22] In these circumstances, and in the interests of justice, I hold the view
that the late prosecution of the appeal should be condoned and that
this Court should proceed to determine the appeal on its merits.
Appellate intervention
[23] The principles governing appeals against maintenance orders are well -
established. A court of appeal will not interfere with the discretion
exercised by the court of first instance if the latter court duly considered
all relevant factors and applied its judicial discretion correctly.
[24] The summarised grounds for appeal are set out as follows in the heads
of argument of the appellant:
“[25] The issues for determination in this appeal is inter alia
whether ‘good cause’ has been shown by the appellant to grant
a reduction in his maintenance obligations and whether the
Court a quo:
25.1. Erred in finding that the appellant is able to pay the
maintenance so ordered (i.e. affordability); and
25.2. Erred in failing to have proper consideration to the minor
children’s reasonable needs, the parties’ respective
means and their proportionate contributions.”
[25] The appellant submits that the magistrate misdirected herself in several
respects:
25.1. She placed undue weight on the appellant's attitude towards M[...]
and insufficient weight on his actual ability to afford.
25.2. She failed to take into account additional sources of income
available to the respondent, including charity golf day proceeds,
SARS refunds, Section 38A income, and financial assistance from
her brother and parents.
25.3. She accepted the respondent's inflated list of expenses without
proper scrutiny.
25.4. She failed to conduct a proper proportional analysis of the parties'
respective means.
[26] The respondent , on the other hand, submits that the magistrate
properly evaluated the evidence, that the additional income sources are
not guaranteed and are supplementary to her income , and that the
appellant failed to prove his alleged shortfall.
[27] In R v Dhlumayo and Another 1948 (2) SA 677 (A D) at 705 -6, the
Appellate Division (as it was then known) held:
"The trial Judge has advantages - which the appellate court
cannot have - in seeing and hearing the witnesses and in being
steeped in the atmosphere of the trial. Not only has he had the
opportunity of observing their demeanour, but also their
appearance and whole personality. This should never be
overlooked."
[28] In S v Pistorius 2014 (2) SACR 314 (SCA) at paragraph [30], the court
reiterated:
“[30] It is a time -honoured principle that once a trial court has
made credibility findings, an appeal court should be deferential
and slow to interfere therewith unless it is convinced on a
conspectus of the evidence that the trial court was clearly
wrong. R v Dhlumayo and Another 1948 (2) SA 677 (A) at
706; S v Kebana [2010] 1 All SA 310 (SCA) para 12. It can
hardly be disputed that the magistrate had advantages which
we, as an appeal court, do not have of having seen, observed
and heard the witnesses testify in his presence in court. As the
saying goes, he was steeped in the atmosphere of the trial.
Absent any positive finding that he was wrong, this court is not
at liberty to interfere with his findings.”
[29] These authorities establish that appellate intervention is not warranted
simply because this court might have come to a different conclusion.
There must be a clear misdirection, or the decision must be one that no
reasonable court could have reached, and the judicial discretion should
have been exercised wrongly. An appellate court may interfere where
the court a quo misdirected itself on the facts or the law, or where it
exercised its discretion improperly by having regard to irrelevant factors
or failing to have regard to relevant factors.
[30] The appellant has remarried and bought a house with his new wife.
The magistrate refers to this in her judgment. However, a parent’s duty
to support is in no way affected by remarriage after divorce. See:
Hartman v Krogscheepers [1950] 4 All SA 124 (W), 1950 (4) SA 421
(W) 423. See also: MB v NB 2010 (3) SA 220 (GSJ).
[31] In her judgment, the magistrate made the following key findings:
31.1. M[...]'s expenses far exceed those of I[...] due to her special
needs. Due to M[...]'s special needs, this is correct.
31.2. The appellant's evidence that he could not afford R6,000 for both
children was considered, but the magistrate noted that he lived
with his mother on a farm and paid her for accommodation, while
his mother had a sizeable bank balance. The appellant’s mother’s
bank balance should not have been a factor in calculating the
children’s maintenance.
31.3. The appellant does not assist or involve himself in M[...]'s
upbringing and sees her as little as possible. He stated that it is
difficult caring for her. The appellant provided many reasons and
excuses regarding M[...]'s care, including that she is a grown child
with pubic hair and he cannot change her diaper, and that neither
his current wife nor his mother could assist. Although the
respondent’s attitude to M[...] does not translate well, it is not
something that the magistrate should have taken into account in
the determination of maintenance.
31.4. During the period of the maintenance enquiry, the appellant
remarried and purchased a R1.5 million home with the assistance
of his current wife. The fact that the appellant moved on with his
life, is not something that the magistrate should have taken into
account in determining maintenance , save for the financial
implications thereof.
31.5. Both parties earned the same salary as teachers and both
received R163,335.74 from the proceeds of the sale of the ir
former matrimonial home. The respondent bought a home in a
secure complex to raise the children.
31.6. The appellant gets paid in lieu of the labour he provides on his
mother's farm. This is speculation by the magistrate a quo since
no evidence was presented to support this.
31.7. The respondent organises golf days to raise funds and does
extracurricular activities to raise more income. As M[...] grows, her
needs increase, and the respondent cannot cope.
31.8. The respondent has a credit card that is used to the maximum
monthly, and she relies on her brother who pays for school fees
for the children.
31.9. The respondent’s father contributes approximately R7,000 per
month.
[32] The magistrate came to the conclusion that the appellant should pay
R9,000 per month maintenance for both children from his salary of
R21,000 per month.
[33] As the appellant correctly submitted, the duty of support falls on the
parents, not on grandparents, unless the parents lack the means.
See: Petersen v Maintenance Officer, Simon's Town Maintenance
Court 2004 (2) SA 56 (C).
[34] The magistrate did not engage in any kind of proportional analysis as
required by law . Her judgment does not calculate the parties'
respective incomes, does not assess the children's reasonable needs
with reference to the evidence, and does not apportion the
contribution proportionately.
[35] After hearing arguments on behalf of the parties, and after taking into
account the abovementioned factors, I hold the view that the magistrate
a quo did concern herself with issues irrelevant to the question of
maintenance. The magistrate a quo made a misdirection, or was
clearly wrong in application of maintenance principles, which justifies
appellate intervention.
Legal framework for child maintenance
[36] Section 15 of the Maintenance Act 99 of 1998 (“the Maintenance Act”)
codifies the common-law duty of parents to support their children. The
duty of support is set out as follows:
“15 Duty of parents to support their children
(1) Without derogating from the law relating to the liability of
persons to support children who are unable to support
themselves, a maintenance order for the maintenance of a child
is directed at the enforcement of the common law duty of the
child's parents to support that child, as the duty in question
exists at the time of the issue of the maintenance order and is
expected to continue.
(2) The duty extends to such support as a child reasonably
requires for his or her proper living and upbringing, and includes
the provision of food, clothing, accommodation, medical care
and education.
(3) (a) Without derogating from the law relating to the
support of children, the maintenance court shall, in
determining the amount to be paid as maintenance in
respect of a child, take into consideration-
(i) that the duty of supporting a child is an
obligation which the parents have incurred
jointly;
(ii) that the parents' respective shares of such
obligation are apportioned between them
according to their respective means; and
(iii) that the duty exists, irrespective of whether a child is born
in or out of wedlock or is born of a first or subsequent marriage.
(b) Any amount so determined shall be such amount as the
maintenance court may consider fair in all the circumstances
of the case.”
(own emphasis)
[37] A parent's duty to support his or her child arises by operation of law; it
is a duty that arises ex lege and is sui generis . The amount of
maintenance does not depend on the wishes of the paying party but
must be determined in accordance with the requirements of the child
and the ability of the parent to pay.
[38] In terms of the common law, both parents must support their children
proportionately according to their means. This principle is now codified
in section 15(3) of the Maintenance Act, which requires the court to
specifically take into consideration the duty of parents to support their
children and to apportion the respective shares according to their
means.
[39] Although the principle of proportionality has been codified in our law,
there is a rather novel issue that complicates this appeal. In casu, both
parties are teachers and receive a similar salary of approximately
R21,000 per month . However, t he respondent increases her income
voluntarily and substantially by doing additional work, such as providing
extra classes and arranging charity golf days to supplement her salary.
The monthly income of the respondent (which amounts include her
salary of R21,000 ) is approximately R61,000. This results in the
appellant receiving an income which is about one third of that of the
respondent. Much was made during argument of th is issue, namely
whether the additional income of the respondent (of approximately
R40,000) should be calculated as part of her income or not. The
argument against including it as part of her income, is that she does the
additional work voluntarily, and the income is not guaranteed, whilst the
appellant is free to also do voluntarily work and increase his monthly
income.
[40] A child is entitled to reasonable maintenance for housing, clothing,
medical and dental care, education and training, and, where applicable,
recreation. What is reasonable depends on circumstances such as the
position of the family, the child's health, and, regarding education and
training, the child's aptitude.
[41] The Constitutional Court has emphasised that the best interests of the
child are paramount in all matters concerning the child. See: S v M
(Centre for Child Law As Amicus Curiae) 2008 (3) SA 232 (CC);
Petersen v Maintenance Officer, Simon’s Town Maintenance Court and
Others 2004 (2) SA 56 (C). This principle applies with particular force in
maintenance proceedings, where the child's welfare and development
are directly at stake.
[42] Section 10 of the Maintenance Act requires the court to conduct a
proper enquiry into the financial positions of both parents and the
needs of the children. The enquiry must be comprehensive and must
take into account all relevant factors, including:
---
42.1. The income and earning capacity of each parent.
42.2. The reasonable expenses of each parent.
42.3. The reasonable needs of the children.
42.4. The standard of living to which the children are accustomed.
42.5. Any special needs of the children, including medical or
educational needs.
42.6. The duty of both parents to contribute proportionately according to
their means.
[43] The party seeking a variation of a maintenance order bears the onus of
proving a material change in circumstances. However, the court retains
a discretion to ensure that the order is just and equitable in the
circumstances.
[44] A matter in which the facts were similar to th is matter in casu is set out
on appeal from the magistrate’s court, in a judgment by two judges that
originates from this Court’s Local Division (Gauteng South,
Johannesburg) in Vilakazi v Ntshangase 2016 JDR 1181 (GJ)
(Vilakazi). In Vilakazi, both parties are medical doctors at Provincial
Health Departments. The appellant's net salary from her employment
with the Department is R39 500 per annum, and the respondent's
income (including his net salary) is R 87 000. The respondent
supplemented his income by doing locums. On appeal, the High Court
found that the magistrate had erred by not taking into account the
supplemented income . The court held that , because the father's
financial means were 2.23 times greater than the mother's, his
contribution should reflect that ratio, and not an equal half. The court
stated that the father must "cut his cloth accordingly" to meet his higher
proportional obligation . The following was held in paragraphs [1 6] to
[18] in Vilakazi:
“[16] This takes me to the question of the means of the parties.
Did the Magistrate err in this regard, as submitted by the
appellant?
[17] As regards the respondent's earnings, the clear evidence
of the respondent was that he earned an additional R40 000 per
month doing locums. He did not claim that this was a once -off,
or ad hoc arrangement. Indeed, his list of expenses
demonstrates that he could not provide for his own needs unless
he was able to depend on this amount as an additional monthly
income. Further, he would not have been able to obtain finance
from the bank for his motor vehicles and bonds unless he placed
reliance on this extra income.
[18] I conclude in this regard that the Magistrate erred by failing
to take this additional income into account. She ought to have
assessed the respondent's means, in terms of his net monthly
income, at the time of the inquiry, as R87 000 per month. Should
the respondent's position change in this regard it is open to him
(as it would also be open to the appellant) to seek a variation of
the maintenance order based on his changed circumstances.”
[45] The legal position is that all income that a parent actually receives,
regardless of its source , should be taken into account in determining
their ability to contribute to their children's maintenance. The fact that
--
some income is derived from charity or overtime work does not mean
it should be disregarded.
[46] The respondent's bank statements show these additional income
deposits; they are part of her financial reality. To ignore them would
be to artificially inflate her need s and correspondingly inflate the
appellant's obligation.
[47] The legal position illustrated in casu, can be compared to that of a
businessperson who receives tenders or procurement contracts from
public entities. To argue that the tenders are not guaranteed, and can
be stopped at any stage, would be to ignore the reality of the income
received from such tenders. Should the position change of the person
receiving the additional (non guaranteed) income , and the income not
be received any longer, the legal position provides therefore that the
businessperson may approach the maintenance court on changed
circumstances to adjust or vary the amount of maintenance he or she
has to pay.
The children’s maintenance needs
[48] Section 10 of the Maintenance Act requires that the children’s needs
be calculated. This requires a reasonable analysis that is calculated
as an estimate of the maintenance needs of each of the children.
[49] I do not intend to make a detailed calculation of each of the items that
in my view should be reduced or excluded. Suffice it to say that I am
satisfied that the magistrate erred in overestimating the appellants
ability to pay and she took cognisance of factors that she should not
have taken into account in the calculation of maintenance.
[50] The maintenance needs of the children as projected by the
respondent in the court a quo seem to be inflated or unreasonable.
For example, the respondent's restaurant and take -away expenses
are substantial—R2,000 to R3,000 per month. Her personal expenses
average approximately R2,000 to R3,000 per month.
[51] The appellant also points out that M[...]'s school fees are R2,100 per
month, and I[...]' school fees are R1,850. The total is thus R3,950 per
month for school fees, but the respondent claims R5,300 per month
for school fees. The difference is unexplained.
[52] It is important to acknowledge that M[...] has significant special needs.
Her care requires additional resources, including a caretaker, nappies,
medication, and specialised attention. These needs must be met.
[53] However, the fact that a child has special needs does not absolve the
court from conducting a proper affordability assessment. The child's
needs must be balanced against the parents' ability to pay. If one
parent has limited means, the other parent may need to bear a larger
share, or the family may need to access state resources or charitable
assistance, if available.
[54] The appellant's submission that M[...]'s schooling should be
discontinued is severely misguided. Every child, regardless of
disability, is entitled to education and development to the fullest extent
possible. The fact that M[...] has significant disabilities does not mean
she should be kept at home with no stimulation , only watching Mickey
Mouse on her cell phone, as proposed by the appellant . The proposal
is clearly in disregard of her interests.
[55] The appellant's proposed budget includes a caretaker who can
provide stimulation and exercises for M[...].
[56] The appellant's calculation of the children's needs is set at
approximately R16,000 per month . The respondent calculates the
children’s needs at R45,000 per month.
[57] After scrutinising the expenses of the children, I am satisfied that an
amount of R18,000 is a reasonable amount of maintenance for both
children.
[58] In my view t his calculation is a reasonable assessment of the
children's core needs. It takes into account M[...]'s special needs
through the caretaker expense, medication, and nappies (included in
medication). It also, amongst other needs, allocates a reasonable
amount for accommodation, which is the respondent's bond
repayment.
Proportionate contribution of parents
[59] Section 15 of the Maintenance Act requires that both parents
contribute proportionately according to their means. This requires a
comparison of the parties' respective financial positions and the
maintenance need of the children.
[60] The monthly income of the respondent is approximately R60,000,
while the appellant’s monthly income is approximately R20,000.
[61] On a proportionate basis, the appellant should contribute
approximately 30% of the children's reasonable needs, and the
respondent should contribute approximately 70%.
[62] I accordingly find that the parties’ proportions to the children’s
reasonable maintenance needs be calculated on the following basis:
62.1. The appellant’s net income in the amount of R20,000 X R18,000
(reasonable expenses of the children) divided by R80,000 (being
the joint income of the parties) amounts to R4,500.
62.2. The respondent’s net income in the amount of R 60,000 X
R18,000 (reasonable expenses of the children) divided by
R80,000 (being the joint income of the parties) amounts to
R13,500.
[63] In order to cater for the special needs of M[...], the maintenance order
of R4,500 to be paid by the appellant , is to be divided that R2,000 is
for the maintenance of I[...] and R2,500 is for the maintenance of
M[...].
Conclusion on the merits
[64] I am satisfied that the magistrate misdirected herself in several
material respects, as detailed above, and that her order be replaced
with a newly calculated maintenance order in order to protect the
interests of the minor children.
[65] I conclude that a fair and appropriate maintenance order is R 4,500
per month total: R2,000 per month for I[...] and R2,500 per month for
M[...]. This amount is within the range of the appellant's proportionate
share, takes into account M[...]'s special needs, and is affordable for
the appellant.
[66] The order for medical expenses not covered by medical aid to be
shared equally should remain, as this is a standard provision and
ensures that unexpected medical costs are shared fairly. It also
appears reasonable under the circumstances of this matter.
Costs
[67] The appellant has been substantially successful in the appeal. The
general principle is that costs follow the result. The granting of cost is
at the discretion of the court, to be determined on grounds of fairness
and reasonableness in the specific circumstances. In this case I
deem it fair and reasonable to deviate from the general principle, for
the reasons set out below.
[68] In this instance, the respondent acted in what appears to be her
genuine belief in the advancement of the interest of the children. The
parties are also bound in a life -long bond, being both parents of the
children. An adverse cost order will probably be prejudicial to the
relationship between the appellant and the respondent. Having
regard to the aforesaid, I find that it would be in the interest of justice
and in line with the principles of fairness that each party should pay
their own costs.
[69] As such, I consider it appropriate to order that each party be ordered
to pay his / her own costs.
Order
[70] In the premise, I make the following order:
(i) The appeal is upheld.
(ii) The order of the Magistrate's Court for the District of Tshwane
North dated 8 January 2025 under case number 172/2022 is set
aside and replaced with the following order:
"1. The appellant shall pay R4,500 per month maintenance in
respect of the two minor children as follows:
1.1 R2,000 ( Two Thousand Rand) per month in
respect of I[...] P[...] V[...] N[...]; and
1.2 R2,500 (Two Thousand Five Hundred Rand) per
month in respect of H[...] M[...] V[...] N[...].
2. Payment shall be made to the respondent on or before
the first day of each month, with effect from 1 July 2026.
3. The maintenance amount shall increase with 10% per
year from date of this order.
4. All medical expenses incurred for the minor children that
are not covered by the respondent's medical aid shall be
shared equally between the parties, provided that the
respondent furnishes the appellant with proof of such
expenses within a reasonable time."
(iii) Each party shall pay their own costs of the appeal.
________________________________
FMM REID
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
I agree,
___________________________
KLM MANAMELA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
DATE OF HEARING: 17 FEBRUARY 2026
DATE OF JUDGMENT: 4 JUNE 2026
APPEARANCES:
FOR APPELLANT: ADV H VAN ZYL
(ATS Attorneys Inc)
FOR RESPONDENT: ADV XT VAN NIEKERK
(Rianie Strijdom Prokureur)