The Facts: An Unemployed Husband, an Extra-Marital Child, and a Contested Rental Income
This is an opposed application brought in terms of Rule 43 of the Uniform Rules of Court before DJ Smit AJ in the Gauteng Division of the High Court of South Africa, Johannesburg, heard on 25 March 2026 and decided on 31 March 2026. The applicant, the husband, appeared in person. The respondent, the wife, was represented by D Ndlovu, instructed by NA Nkabinde Attorneys.
The parties were married to each other on 28 April 2022, in community of property. At the time of the marriage, the husband was 30 years old, and the wife was 46 years old. No minor children were born of the marriage. However, the husband fathered a child with another woman, born on 12 June 2025, referred to in the judgment as the minor child. The wife subsequently instituted divorce proceedings on 17 September 2025, attributing the breakdown of the marriage to the husband’s extra-marital affair which resulted in the birth of the minor child. Notwithstanding the pending divorce proceedings, the husband continued to reside at the matrimonial home and to eat food purchased by the wife.
The husband is unemployed and has no independent income. He has a maintenance obligation towards the minor child and sought interim relief comprising maintenance of R4,500 per month for the minor child, R2,000 per month for transport for himself and the minor child, shared control of the rental income derived from the jointly-owned property, and costs reserved for trial.
The central financial dispute concerns the rental income generated by eight cottages situated on the property at which the parties reside in Germiston. The property is registered in the wife’s name and was owned by her prior to the marriage. When fully occupied, the cottages are capable of producing approximately R24,500 per month in rental income, though at the relevant time they were producing only approximately R7,200 per month. The wife is also unemployed and derives her sole income from this rental. Around the time she instituted the divorce, the wife directed the tenants to pay their rental directly into her personal account with effect from 1 October 2025. It is common cause that the tenants complied with this instruction. Prior to this redirection, the husband had been supporting the minor child and the child’s mother from a portion of the rental proceeds.
No Duty, No Maintenance: The Legal Limits of a Spouse’s Obligation to Support a Child Born Outside the Marriage
The court’s analysis of the maintenance claim turned on a careful examination of the husband’s pleadings. Read as a whole, those pleadings made clear that the maintenance he sought was directed primarily, if not solely, at supporting the minor child’s primary caregiver, L, to whom he had been making cash payments from the rental proceeds before the wife redirected the rental income into her private account. The husband’s own need for transport money was raised but was entirely devoid of detail or quantification independent of the minor child’s needs. Given that his shelter and food were already being met through the joint estate, the court found he had not established a case for maintenance pendente lite in his own right.
On the question of whether the wife bore any obligation to maintain the minor child, the court applied settled principles. It confirmed that our law does not recognise a claim for support by a minor child against a person married to that child’s biological parent unless that person has explicitly undertaken duties of support. The wife had never done so. The court further confirmed, with reference to EH v SH 2012 (4) SA 164 (SCA), that whilst our law no longer regards it as contrary to public policy to award spousal maintenance to a spouse who has been cohabiting with another person as a romantic couple prior to divorce, this principle has no bearing on a step-parent’s liability towards a child born outside the marriage. The EH case was concerned with spousal maintenance, not the support obligations of a spouse towards a child who is a stranger to the marriage. The court also drew on the approach in NM v BM [2024] ZAWCHC 254 (11 September 2024) in confirming the threshold requirement of an explicit undertaking of support. No such undertaking had been made by the wife, and accordingly the maintenance application was dismissed.
Beyond the Reach of Rule 43: Why Claims Relating to Joint Estate Income Must Wait for Trial
The husband’s second head of relief, seeking shared control of the rental income derived from the cottages, fared no better. The court held that relief available under Rule 43 is confined to the matters enumerated in Rule 43(1) of the Uniform Rules of Court, namely spousal maintenance, child maintenance, a contribution towards legal costs, and childcare and contact arrangements. A claim directed at regulating to whom rental income from a jointly-owned property accrues falls outside this compass entirely.
The court drew on Reyneke v Reyneke 1990 (3) SA 927 (E), as referred to in LS v JS [2024] ZAGPJHC 653 (2 August 2024), in affirming that Rule 43 proceedings are neither intended nor suitable to adjudicate matters concerning the joint estate. The Reyneke principle, endorsed in the LS case, is that claims for support pendente lite should not be used to pre-empt remedies that are properly available only upon dissolution of the marriage. Whether the wife acted lawfully in redirecting the rental income into her personal account, and whether the husband is entitled to any portion of that income having regard to the possibility of a forfeiture order sought by the wife in the divorce, are matters reserved for determination by the trial court.
The application was accordingly dismissed in its entirety. On costs, the court declined to mulct the husband with a punitive costs order, notwithstanding the wife’s submission to that effect, and instead ordered that the costs of the application be costs in the divorce.
Questions and Answers
What is a Rule 43 application? A Rule 43 application is an interlocutory application brought in divorce proceedings in the High Court, allowing a spouse to seek interim relief pendente lite, that is, while the divorce action is pending. The relief available is limited to spousal maintenance, child maintenance, a contribution towards legal costs, and matters relating to childcare and contact.
What does pendente lite mean? The Latin phrase pendente lite means “whilst litigation is pending.” In the context of divorce proceedings, it refers to the period between the institution of the divorce action and its final determination, during which interim orders may be sought to regulate the parties’ affairs.
Is a Rule 43 application opposed or unopposed? A Rule 43 application may be either opposed or unopposed. In C.M.N v N.N the application was opposed, meaning the wife filed an answering affidavit contesting the relief sought by the husband.
What relief may a court grant under Rule 43? The court’s jurisdiction under Rule 43 is limited to the categories expressly enumerated in Rule 43(1), namely an order for spousal maintenance, child maintenance, a contribution to legal costs, and the care of and contact with a minor child. The court has no jurisdiction under Rule 43 to adjudicate disputes falling outside these categories.
Does a spouse have a legal duty to maintain a child born outside the marriage? No. South African law does not impose an inherent duty of support on a spouse in respect of a minor child born outside the marriage to their partner. Such a duty arises only where the spouse has explicitly undertaken to support that child. In the absence of such an undertaking, no claim for maintenance can be sustained against that spouse in respect of the child.
What is required to establish an explicit undertaking of support towards a stepchild? The undertaking must be express and unambiguous. A court will not infer such an undertaking from the mere fact of the marriage or from conduct that falls short of a clear assumption of parental responsibility. The threshold is a high one, as confirmed with reference to the NM v BM [2024] ZAWCHC 254 approach.
Does it affect a maintenance claim if the applicant’s basic needs are already being met? Yes, it is a relevant consideration. In C.M.N v N.N the court noted that the husband’s needs for shelter and food were already being met through the joint estate, as he continued to reside at and eat at the matrimonial home. This was a material factor in the court’s conclusion that he had not established a case for maintenance pendente lite in his own right.
Can a Rule 43 application be used to regulate the distribution of income from a jointly-owned property? No. As confirmed in C.M.N v N.N, a claim directed at determining to whom rental income from a jointly-owned property accrues is a matter that goes to the administration of the joint estate. Such a claim falls squarely outside the scope of Rule 43 and must be left for determination by the trial court.
What is the principle established in the Reyneke case? The Reyneke case established the important principle that Rule 43 proceedings should not be used to pre-empt remedies that are only properly available upon the dissolution of the marriage. Claims for support pendente lite must not be used as a vehicle to obtain, by the back door, relief that can only be granted at trial.
What did the LS case contribute to this area of law? The LS case endorsed and applied the Reyneke principle in a more recent context, confirming that disputes regarding joint estate income are not amenable to resolution under Rule 43 and must await the trial court’s determination.
What did the court say about the legal position regarding spousal maintenance and cohabitation? Relying on the EH case, the court confirmed that South African law no longer regards it as contrary to public policy to award maintenance to a spouse who has been cohabiting with another person as a romantic couple before divorce. This represents a departure from several older High Court decisions that had taken a contrary view.
How does the EH case differ from the facts in C.M.N v N.N? The EH case dealt with the entitlement of a spouse to maintenance notwithstanding pre-divorce cohabitation with a third party. It had no application to the question of whether a wife bears a duty to support a child fathered by her husband outside the marriage. The court in C.M.N v N.N was careful to distinguish the two situations.
How did the court approach the question of costs? The court declined to grant a punitive costs order against the husband despite the wife’s submission to that effect. Instead, it applied what it described as the usual position, ordering that the costs of the Rule 43 application be costs in the divorce, meaning the question of who ultimately bears those costs will be determined by the trial court in the context of the divorce proceedings as a whole.
Can a replying affidavit be filed as of right in Rule 43 proceedings? No. Rule 43 contemplates only two affidavits, namely a founding affidavit and an answering affidavit. The court in C.M.N v N.N noted in a footnote that a replying affidavit filed by the husband had been filed outside the strictures of Rule 43, implying that it was not a document properly before the court as of right.
What broader lesson does C.M.N v N.N offer practitioners? The judgment serves as a useful reminder that Rule 43 is a limited and specific remedy, and that practitioners must carefully consider whether the relief they seek falls within its narrow compass before launching such an application. Attempts to use Rule 43 proceedings to resolve disputes that are properly the domain of the trial court are likely to fail, with potential adverse cost consequences for the applicant.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.
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