S v S and Another

The applicant (Mr S) and first respondent (Mrs S) married on 14 November 2008 and have three minor children aged 15, 11 and 5 years. They are in the midst of divorce proceedings. In September 2016, Mrs S vacated the family home and the children remained with their father. Mr S instituted an application in the High Court for interim care and custody of the minor children in terms of rule 43 of the Uniform Rules. He tendered R12,000 per month for Mrs S's personal maintenance. Mrs S filed an opposing affidavit out of time, which was disallowed by the High Court. Notwithstanding this, and with only Mr S's affidavit before court, the court ordered Mr S to pay R40,000 per month in maintenance to Mrs S, in addition to maintaining the children and paying for the maintenance and licensing costs of a Toyota Prado motor vehicle. The maintenance order was made per incuriam as the court had no evidential basis for the amount ordered. Mr S sought to appeal the maintenance order but was precluded from doing so by section 16(3) of the Superior Courts Act 10 of 2013, which prohibits any appeal against rule 43 orders.

• Whether section 16(3) of the Superior Courts Act 10 of 2013, which prohibits appeals from rule 43 orders, infringes the constitutional rights of children under section 28(2) of the Constitution (best interests of the child)
• Whether section 16(3) infringes the right to equality before the law in terms of section 9 of the Constitution
• Whether section 16(3) infringes the right to access to courts in terms of section 34 of the Constitution
• Whether the prohibition on appeals against rule 43 orders is constitutionally permissible

1. Leave to appeal is granted. 2. The appeal is dismissed. 3. The applicant must pay the costs of the first respondent.

The binding legal principles established by this judgment are: (1) Section 16(3) of the Superior Courts Act 10 of 2013, which prohibits appeals from rule 43 orders, does not infringe the constitutional rights of children under section 28(2), the right to equality under section 9, or the right to access to courts under section 34 of the Constitution. (2) The differentiation created by prohibiting appeals from rule 43 orders bears a rational connection to a legitimate government purpose of providing speedy and inexpensive relief primarily for women and children in matrimonial matters. (3) There is no absolute constitutional right to appeal, particularly in relation to interim orders. The interim nature of rule 43 orders justifies the prohibition on appeals. (4) Both parties to a rule 43 dispute are equally precluded from appealing, so there is no inequality between litigants in the same proceedings that would violate section 9(1) of the Constitution. (5) Litigants in rule 43 proceedings are not entirely barred from approaching the court again—rule 43(6) provides an avenue for variation of orders where there is a material change in circumstances. (6) High Courts have jurisdiction to hear urgent matters affecting the best interests of children, regardless of previous rule 43 orders. (7) Courts may exercise inherent powers under section 173 of the Constitution to regulate their own process in the interests of justice where strict adherence to rules would result in manifest injustice.

The Court made several non-binding observations: (1) Rule 43 may be wanting in certain respects and there may be grounds for a review of rule 43(6) in the future to include not only "changed circumstances" but also "exceptional circumstances", though this was not a matter the Court was called upon to decide. (2) The root of Mr S's problem lay in rule 43 rather than section 16(3), though the constitutionality of rule 43 itself was not in issue before the Court. (3) The obvious solution to prevent rule 43 orders being enforceable for extended periods is to ensure that divorces are given preferential dates to minimize the duration of interim orders. High Courts that do not already do so are encouraged to adopt practice directives implementing this approach. (4) Active case management of complex divorce matters is another means to prevent delayed finalization. (5) There is no reason why rule 43 should not be expansively interpreted, as some courts have already done. The Court cited with approval recent judgments adopting a flexible approach to rule 43(2) and 43(3), including proposals for mandatory financial disclosures in opposed divorce matters and automatic rights to file replying affidavits in rule 43 proceedings. (6) The Court acknowledged the systemic failures to enforce maintenance orders that have negatively impacted the rule of law and noted that women, particularly black women, historically have been doubly oppressed by both race and gender and occupy the lowest economic rung. (7) The Court noted that rule 43 applications affect the majority of litigants faced with divorce proceedings and are in most instances the only contested hearings that divorce litigants participate in.

This case is significant in South African family law and constitutional law for several reasons: (1) it confirms the constitutionality of section 16(3) of the Superior Courts Act, which prohibits appeals from rule 43 orders, thereby upholding the expeditious and inexpensive nature of interim relief in matrimonial matters; (2) it recognizes the systemic gender imbalances in society where women are disproportionately economically vulnerable and are primary care-givers, and protects them from protracted and expensive litigation; (3) it affirms that the best interests of children are paramount and that delayed maintenance payments through appeal processes would be contrary to those interests; (4) it clarifies that not all differentiation amounts to unconstitutional discrimination—differentiation that bears a rational connection to a legitimate government purpose is permissible; (5) it confirms that there is no absolute constitutional right to appeal, particularly in relation to interim orders; (6) it encourages expansive interpretation of rule 43(6) and the use of section 173 inherent powers to remedy manifest injustices; and (7) it calls for High Courts to adopt practice directives for preferential dates for divorce matters and active case management to minimize the duration of interim orders.