N.M.M v J.G.M (5052/2019) [2024] ZAGPJHC 1174 (30 October 2024)
- Citation
- [2024] ZAGPJHC 1174
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Nieuwoudt
- Case number
- 5052/2019
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Nieuwoudt
- Case number
- 5052/2019
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant is entitled to interim maintenance pendente lite because the respondent was the breadwinner during the marriage and the applicant now requires assistance to maintain herself. The court also considered that the minor children are likely to move to the applicant's residence in the near future, which will entail additional expenses. The claim for a contribution towards legal costs was rejected due to insufficient justification. The court emphasized the need for the parties to resolve their disputes urgently, possibly with the assistance of a mediator, and noted that further litigation should not be encouraged without proper cause.
Court disposition
Application for interim maintenance pendente lite granted in part; contribution to legal costs refused.
Orders
- The respondent is to pay maintenance for the applicant pendente lite in the amount of R5,300.00 per month, with the first payment due on or before 7 November 2024 and thereafter on or before the 7th of each month.
- The costs of the application will be costs in the cause.
02
Material facts
Parties
N.M.M
Applicant Counsel: Mr. N. KwinikaJ.G.M
Respondent Counsel: Mr. V. SihawuAmounts and remedies
- Monthly Maintenance Awarded: ZAR 5,300
03
Procedural history
Posture
Urgent Application / Rule 43 Application for Interim Maintenance and Costs
04
Questions and positions
Legal issues
- 01
Whether the applicant is entitled to interim maintenance pendente lite from the respondent.
- 02
Whether the applicant is entitled to a contribution towards legal costs.
- 03
Whether the Family Advocate's recommendation regarding residency of minor children should be implemented.
Party arguments
- Applicant
- The applicant sought maintenance of R30,000 per month for herself and the minor children, as well as a contribution of R18,000 towards legal costs. However, her counsel conceded that since the minor children currently reside with the respondent, maintenance for them cannot be claimed. The applicant's revised claim for her own maintenance was R5,300 per month, based on her current expenses while living with her mother, excluding rent and auxiliary costs. She argued that the respondent was the breadwinner during the marriage and that she now requires assistance to maintain herself.
- Respondent
- The respondent, through counsel, conceded that the applicant's revised maintenance claim of R5,300 per month was more realistic than the initial amount but denied any entitlement to maintenance pendente lite. The respondent did not dispute the Family Advocate's recommendation that the minor children should reside with the applicant but did not clarify how or when this would be implemented. The respondent opposed the contribution towards legal costs, arguing that no proper explanation was provided for the necessity of such a contribution.
05
Court’s reasoning
Legal principles
- 01
Rule 43 of the Uniform Rules of Court
Interim maintenance pendente lite may be granted where one spouse was the breadwinner and the other requires assistance post-separation.
- 02
Rule 43 of the Uniform Rules of Court
A contribution towards legal costs must be properly motivated and justified in the application.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant is entitled to interim maintenance pendente lite because the respondent was the breadwinner during the marriage and the applicant now requires assistance to maintain herself. The court also considered that the minor children are likely to move to the applicant's residence in the near future, which will entail additional expenses. The claim for a contribution towards legal costs was rejected due to insufficient justification. The court emphasized the need for the parties to resolve their disputes urgently, possibly with the assistance of a mediator, and noted that further litigation should not be encouraged without proper cause.
Obiter and limits
- The parties should urgently settle the matter and consider appointing a mediator to resolve outstanding disputes.
- Further litigation without proper justification is discouraged and may only prolong the resolution of the divorce.
Court disposition
Application for interim maintenance pendente lite granted in part; contribution to legal costs refused.
- The respondent is to pay maintenance for the applicant pendente lite in the amount of R5,300.00 per month, with the first payment due on or before 7 November 2024 and thereafter on or before the 7th of each month.
- The costs of the application will be costs in the cause.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 5052/2019
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
In the matter between:
M[…], N[…] M[…] Applicant and M[…], J[…] G[…] Respondent
JUDGMENT
Nieuwoudt, AJ
[1] This is a Rule 43 in which the Applicant is asking for –
1.1 Maintenance of R30 000.00 per month for her and the minor children
1.2 A contribution towards legal costs in the amount of R18 000.
[2] Mr Kwinika who was appearing on behalf of the Applicant conceded that as the minor children are residing with the Respondent, despite the recommendation of the Family Advocate to the contrary, the Applicant cannot ask for maintenance for them so this application will only deal with maintenance for herself.
[3] After working through the Applicant’s expenses as per the Financial Disclosure form the amount put forward by Mr Kwinika on behalf of the Applicant was R5300.00.
[4] These are her expenses while she is living with her mother and does not include rent and other auxiliary expenses.
[5] Mr Sihawu appearing for the Respondent conceded that this was a more realistic amount but still deny that the Applicant is entitled to any maintenance pendente lite.
[6] The Family Advocate’s recommendation was made in July 2024 which was that the two minor children should reside with the Applicant. In principle, it would seem that this recommendation is accepted by the Respondent. How this recommendation will be implemented is still not clear.
[7] The Applicant did not amend the Rule 43 application to include a prayer for the recommendation of the Family Advocate to be made a court order. Mr Kwinika indicated that he holds instructions to proceed with the application and that he did not want to postpone the matter to effect any amendments.
[8] This divorce has been pending since 2019 and after 5 years of litigation the following is in dispute:
8.1 Division of the joint estate;
8.2 Rehabilitative maintenance for the Applicant; and
8.3 Residency of the minor children.
[9] It is unclear why these parties have been unable to finalise this divorce in 5 years. The Plaintiff in her summons already prayers for the appointment of a liquidator, which is the simplest and quickest solution for the division of the joint estate.
[10] It is unclear why the Applicant needs R18 000 towards the contribution to legal costs. There is also no proper explanation in her application why this contribution is needed. In my opinion, giving money for further litigation will be like pouring petrol onto fire – just encouraging further litigation.
[11] The parties should as a matter of urgency settle this matter and if needed appoint a mediator to resolve the outstanding disputes between the parties.
[12] Coming back to the maintenance requested by the Applicant. I am inclined to grand the pendite lite maintenance for two reasons –
12.1 The Respondent was the breadwinner during the subsistence of the marriage and took care of the Applicant. It is only since the second separation that the Applicant needs to maintain herself, something she is not running away from but is asking for assistance from the Respondent.
12.2 All indications are that the two minor children will be moving to the Applicant residence in Polokwane at the beginning of 2025. There will be expenses settling in the minor children in Polokwane.
[13] Therefore, the following order is made –
1. The Respondent is to pay maintenance for the Applicant pendente lite in the amount of R5 300.00 per month the first payment to be made on or before the 7th of November 2024 and thereafter on or before the 7th of each month.
2. The cost of the application will be cost in the cause.
NIEUWOUDT, E
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
Date of Hearing: Date of Judgment: 29 October 2024 30 October 2024 Appearances: For the Applicant: Instructed by: Mr. N. Kwinika Kwinika Attorneys For the Respondent: Instructed by: Mr. V. Sihawu MVC Inc.
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