Legal Talk

Rule 43 court orders cannot be appealed And this is not unconstitutional

Rule 43 applications are brought during or in pending divorces actions. It's a given that an opposed divorce could take some time before its finalised. A Rule 43 application is a process which allows a divorcing spouse to claim interim relief against the other spouse, and this relief remains in force until the divorce is made final.

The interim relief could include a claim for maintenance for the children and the spouse. It could also define which parent will have interim custody of the children and what the contact arrangements to the minor children are given to the non-custodial parent. Often there may even be a claim for a contribution towards the legal costs of the divorce. Because of its temporary nature, a Rule 43 court order cannot be appealed.

It has been said the reason for this prohibition is to protect the best interests of children, so that they are not prejudiced if Rule 43 orders are suspended by continuous appeals. This means that until the divorce is finalised, the Rule 43 order will remain in force and cannot be changed. A disgruntled spouse challenged the prohibition of appealing Rule 43 orders, which he eventually took to the Constitutional Court.

On 27 June 2019, the Constitutional Court ruled on the matter. The parties in the case were not named in order to protect their identity and those of their children. In 2016, the husband served divorce summons on his wife. The couple had 3 minor children. The husband then brought a Rule 43 application in which he claimed interim custody of the children. He offered to pay his wife maintenance of R12,000 per month.

The wife opposed the Rule 43 application. She said the children should reside with her instead and asked for maintenance for herself of R60,353 per month. However, the wife filed her opposing application out of time and her opposition was not considered as evidence by the court.

The Court then granted interim custody of the children to the husband and ordered the husband to pay R40,000 per month interim maintenance to the wife, until the divorce was finalised. The husband appealed this order, saying the maintenance amount was far too much. He said his wife was living with a new partner and was partly maintained by him.

The court dismissed his appeal on the basis that Rule 43 orders are not appealable. He took that the matter to the Supreme Court of Appeal, who also dismissed the appeal. The man then took the matter to the Constitutional Court.

He argued that the prohibition of appealing Rule 43 orders was unconstitutional as it violated the best interests of the child principle and argued that it infringed his rights to equality and access to courts.

The Constitutional Court said that Rule 43 applications almost invariably are brought by women who usually occupy the lowest economic rung. Generally they were in a less favourable financial position than their husbands. Black women in South Africa historically have been doubly oppressed by both their race and gender.

The Concourt said the gender imbalance in homes and society in general remained a challenge both for society at large and our courts. The Concourt held that an appeal process would cause considerable delays for a vulnerable spouse and children who are in need of money to meet their maintenance needs.

The Concourt found that to enable an appeal would undermine the very purpose which Rule 43 seeks to advance and that such a prohibition was not unconstitutional.

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