The applicant (Mr S) and the first respondent (Mrs S) were married and have three minor children. During pending divorce proceedings, Mr S applied in terms of Uniform Rule 43 for interim care of the children and tendered maintenance of R12 000 per month for Mrs S. Mrs S opposed and sought substantially higher maintenance, but her opposing affidavit was filed out of time and was formally excluded. Despite having only Mr S’s affidavit before it, the High Court ordered Mr S to pay R40 000 per month maintenance to Mrs S, in addition to maintaining the children and related expenses. Mr S sought to appeal this interim maintenance order but was barred by section 16(3) of the Superior Courts Act 10 of 2013, which prohibits appeals against Rule 43 orders. He challenged the constitutionality of section 16(3), alleging infringements of the best interests of the child (section 28(2)), equality (section 9), and access to courts (section 34) of the Constitution.
Leave to appeal was granted, but the appeal was dismissed. The applicant was ordered to pay the costs of the first respondent.
This case confirms the constitutionality of section 16(3 of the Superior Courts Act and affirms the non-appealability of Rule 43 orders. It underscores the importance of expedient interim relief in divorce proceedings, prioritises the best interests of children, and clarifies that access to justice does not necessarily include a right to appeal in interim matrimonial matters. The judgment provides authoritative guidance on balancing procedural rights with the need for swift protection of vulnerable parties.