Legal Talk - Can you appeal a Rule 43 interim maintenance order ?

Rule 43 applications are brought in the high court and are used during divorce proceedings. It allows one of the divorcing spouses to approach the court and ask for an order on issues such as maintenance [both for the spouse and for the children], which parent will be allowed to offer primary residency to the minor children, what rights of contact the other parent will have to the children, and it also allows the court to make an order against the other spouse for a contribution towards the legal costs of the divorce.

The order is then granted on an interim basis and remains in place until the divorce is finalised. These interim orders are termed interlocutory applications and are not appealable. The effect of this means that even if a person is dissatisfied with the court’s ruling in a Rule 43 application, he/she cannot approach the court to appeal such a Rule 43 ruling.

A case went all the way to the Constitutional Court, where a man Mr. S challenged the constitutionality of prohibiting a person from appealing the Rule 43 order. The background in this case briefly was the following.

Mr S to ordered to pay R40 000 per month as maintenance to Mrs S in terms of a Rule 43 application. He said that the amount was “financially unsustainable” and was not supported by evidence. He then filed an application for leave to appeal . The High Court in Gauteng dismissed the application on the basis that rule 43 proceedings are not appealable.

The High Court also dismissed Mr S’s challenge to the constitutionality of such a prohibition as found in section 16(3) of the Superior Court’s Act. Mr S took the matter to the Constitutional Court. He argued that by having a rule that the interim Rule 43 orders are not appealable was an infringement of the best interests of the child, the right to equality for litigants and the right of access to courts.

The Concourt found that an appeal process in a Rule 43 application was not only expensive but that it would create further delays in finalising matters in the divorce and that those delays would infringe the best interests of the child. The Concourt said that within the Rule 43 process there was an opportunity in terms of Rule 43(6) for litigants to approach a court for variation if new circumstances arose. Therefore it provided access to courts and sufficiently enabled the right to access to court. The Constitutional Court dismissed the man’s application with costs.

Know your rights! The Law Desk of Fawzia Khan and Associates. Giving You the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.