ML v KG (15078/12) [2013] ZAGPJHC 87 (8 April 2013)

ML v KG (15078/12) [2013] ZAGPJHC 87 (8 April 2013)

The applicant has set out sufficient facts which, if proved at trial, would establish the existence of a valid customary marriage under section 3 of the Recognition of Customary Marriages Act. The court finds that, for the purposes of interim relief, the applicant qualifies as a spouse under Rule 43, even though the respondent disputes the marriage. The customary concept 'O e gapa le namane' applies to the applicant's minor child KM, and the respondent is presumed to have accepted responsibility for maintenance unless expressly excluded, which did not occur. For the older child LM, the respondent's conduct and agreement during marriage negotiations establish liability for maintenance. The...

Citation
[2013] ZAGPJHC 87
Parties
Applicant: MRL; Respondent: KMG
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 April 2013
Case Number
15078/12
Procedural Posture
Urgent Application / Interim Maintenance and Costs Pending Matrimonial Action
Outcome
Interim maintenance and contribution towards costs granted in favour of the applicant pending the final determination of the matrimonial action.
Judges
Thulare
Legal Topics
Customary Marriage, Maintenance Pendente Lite, Rule 43 Applications, Liability for Stepchildren, Division of Joint Estate
Family and Children Civil Procedure Customary Marriage Maintenance Pendente Lite Rule 43 Applications Liability for Stepchildren Division of Joint Estate

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Parties

MRL

Applicant

KMG

Respondent

Procedural Posture

Urgent Application / Interim Maintenance and Costs Pending Matrimonial Action

Legal Issues

  1. 1 Whether the applicant has established a prima facie case for maintenance pendente lite and contribution towards costs pending the matrimonial action.
  2. 2 Whether the respondent is liable to maintain the applicant and her two minor children, not born of the respondent, under customary law.
  3. 3 Whether the requirements for a valid customary marriage under the Recognition of Customary Marriages Act have been met.

Ratio Decidendi

The applicant has set out sufficient facts which, if proved at trial, would establish the existence of a valid customary marriage under section 3 of the Recognition of Customary Marriages Act. The court finds that, for the purposes of interim relief, the applicant qualifies as a spouse under Rule 43, even though the respondent disputes the marriage. The customary concept 'O e gapa le namane' applies to the applicant's minor child KM, and the respondent is presumed to have accepted responsibility for maintenance unless expressly excluded, which did not occur. For the older child LM, the respondent's conduct and agreement during marriage negotiations establish liability for maintenance. The...

Court Disposition

Interim maintenance and contribution towards costs granted in favour of the applicant pending the final determination of the matrimonial action.

Orders

  • Respondent is ordered to pay the monthly mortgage bond instalments of the Morningside property at R17,400.
  • Respondent is ordered to pay the monthly levies of the Morningside property at R1,000.