It is again confirmed; Rule 43 proceedings cannot be appealed

What is a Rule 43 application?

Rule 43 of the High rules, similar to rule 58 of the magistrate’s court, allows for a spouse that is currently going through a divorce to request maintenance for the period between the institution of the divorce proceedings and its finalisation, which in law is referred to as “interim relief” or “interim maintenance”.

This seeks to provide a quick and inexpensive remedy to the spouse that is financially dependent on the other during the time of finalisation of the divorce, as it is common knowledge that some divorces may take longer than 6 months leading to 3 years.

It further allows for, amongst other things; the spouse to apply for custody or interim access of their children; enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs; interim contribution towards the costs of the divorce and legal fees.

In terms of 16(3) of the Superior Courts Act 10 of 2013 a Rule 43 order cannot be appealed by the party against whom it granted, however the constitutionality of this was challenged in a recent case.

 Brief background

The parties in this case were not named in order to protect their identity and the identity of their children. The court referred to the parties as Mr and Mrs S. Divorce proceedings having been instituted in 2016 Mr S filed an application for interim custody of the three minors and maintenance of R12 000 per month from Mrs S. Mrs S opposed this application and filed a response stating that she was entitled to the interim custody of the children and maintenance of R60 353 per month. The High Court held that Mr S is to be awarded custody of the minors but is to pay Mrs R40 000 per month.

Mr S’ unsatisfied with this order filed an application for leave to appeal the order, this was dismissed at both High Court and Supreme Court of Appeal, as it was raised that rule 43 orders are not appealable.

Mr S then approached the Constitutional Court raising three issues, namely, that section 16(3) of the Act was unconstitutional as it created a blanket rule for rule 43 appeals which further infringed the best interests of the child as he was awarded custody of the minors, the right to equality for litigants and the right of access to courts.

Constitutional court’s ruling

On the constitutional challenge, the Court held that an appeal process is expensive and would create delays in finalising matters, which infringes the best interests of the child and would in the process leave them impoverished. Lastly any Rule 43 order that does not serve the best interests of the child can be addressed on a case by case basis.

The Court also found that there is a rational connection between section 16(3) and the legitimate government purpose to deal with the issue speedily and prevent incurrence of costs. So the court found that to enable an appeal would undermine the very purpose which Rule 43 seeks to advance. The prohibition has a legitimate purpose.

The Court further found that rule 43(6), which provides litigants with an opportunity to approach a court for variation of a previous rule 43 order, provides access to courts and sufficiently enables the right. Hence, a person in Mr S’s circumstances could approach the court to vary its original order where there is a change in “material circumstances”, said the court. That part of the rule mitigates against any potential injustice the court found.

The court did however state that Rule 43 may require revision to enable a variation of an order not only where there is a material change of circumstances but also in “exceptional circumstances”.

The Court therefore concluded that the real issue in this matter was the interpretation and operation of rule 43, rather than section 16(3) of the Act.

Practical implications of this ruling

Should you be a party in divorce and an interim maintenance/relief is granted against you, you may, if dissatisfied, apply for a variation of the order if there is a material change in the circumstances. You may not, however, appeal the order but the court did leave the door for any aggrieved party to in future challenge the constitutionality of the rule.

BY: Sindisiwe Goba (Candidate Legal Practitioner) – Randles Attorneys