B[…] E[…] v N[…] T[…] and Others

The appellant (BE) and first respondent (NT) married on 27 April 2018 out of community of property subject to the accrual system. The marriage deteriorated in late 2023 and the parties separated. NT instituted divorce proceedings in the Western Cape High Court and brought a rule 43 application for interim maintenance pendente lite for herself and her two minor children from a previous marriage, as well as contribution towards legal costs and ancillary relief. BE opposed the application and disputed any obligation to maintain the children. On 11 September 2024, the high court granted an order substantially in the terms sought, including interim maintenance for the children in the amount of R40,000 per month. BE applied for leave to appeal and for suspension of various paragraphs of the order, which was dismissed. Leave to appeal was subsequently granted on petition by two Judges of the Supreme Court of Appeal, limited to the question of whether BE was liable to contribute pendente lite to the maintenance of the children.

• Whether this Court has jurisdiction to hear an appeal against a rule 43 interim maintenance order
• Whether an interim maintenance order pendente lite constitutes a 'decision' as contemplated in s 16(1)(a) of the Superior Courts Act 10 of 2013
• Whether, in the interests of justice, the appeal should be entertained despite the express statutory bar in s 16(3) of the Act
• Whether the high court was entitled to impose a duty of support on a stepparent married out of community of property in circumstances where the children's biological parents can maintain them
• Whether interim maintenance may be ordered to sustain a standard of living derived from cohabitation during the marriage rather than to secure basic parental care

The appeal was struck from the roll with costs.

An interim maintenance order pendente lite granted under rule 43 does not constitute an appealable 'decision' as contemplated in s 16(1)(a) of the Superior Courts Act 10 of 2013. Section 16(3) of the Act expressly provides that no appeal lies from any judgment or order in proceedings in connection with an application by one spouse against the other for maintenance pendente lite. The interests of justice, which is the paramount consideration in determining appealability, does not favour entertaining appeals against rule 43 orders because: (1) there is an express statutory bar reflecting a deliberate legislative choice; (2) rule 43 orders are interim, provisional and revisable under rule 43(6) and by the trial court in the final divorce proceedings, thus lacking finality; (3) alternative remedies are available in the high court, including rule 43(6) applications and invocation of the court's inherent powers under s 173 of the Constitution; (4) allowing appeals would undermine the objectives of expedition and affordability that characterize rule 43 proceedings; (5) appeals would create risk of prejudice, particularly to vulnerable spouses and children, and facilitate piecemeal litigation. The grant of leave to appeal, even by two Judges of the Supreme Court of Appeal on petition, cannot confer jurisdiction where the statutory framework and interests of justice deny it. The court's inherent jurisdiction under s 173 of the Constitution cannot be used to assume jurisdiction not conferred by statute.

The Court observed that the purpose of rule 43 is to secure the inexpensive, expeditious and provisional regulation of financial matters pending divorce, primarily for the protection of women and children, and to mitigate the structural inequalities that characterize many matrimonial disputes by leveling the playing field during the interim phase. The Court noted that entertaining appeals against interim maintenance and costs orders would ordinarily undermine these objectives by introducing delay, expense and fragmentation into proceedings legitimately intended to be summary in nature. The Court observed that the potential for multiple interlocutory applications before appeal courts before the divorce itself is finalized carries obvious risks of prejudice, particularly to an impecunious spouse, and creates scope for abuse by a recalcitrant litigant intent on frustrating the interim relief regime. The Court commented that appealability cannot depend on a litigant's own assessment of the merits and that it is ordinarily inappropriate for the Supreme Court of Appeal to pronounce on a point of law merely to justify appellate jurisdiction. The Court suggested that where a litigant believes a rule 43 order is patently erroneous, the appropriate avenue is to invoke the high court's inherent power under s 173 of the Constitution in the high court, as this would be consistent with the objective of expeditious and inexpensive finalization of divorce matters. The Court noted that past financial injustices occasioned by a rule 43 order can often be righted when the final reckoning is done at the divorce. The Court observed that comity owed to the trial court is a further indicator that appellate intervention at the interim stage would not be in the interests of justice, as the trial court remains free to determine the issues afresh based on full evidence.

This case provides important clarification on the appealability of rule 43 interim maintenance orders in South African family law. It reinforces the statutory bar in s 16(3) of the Superior Courts Act against appeals from maintenance pendente lite orders, confirming that such orders are not 'decisions' as contemplated in s 16(1)(a) of the Act. The judgment emphasizes the constitutional interests of justice standard as the paramount consideration in determining appealability, even of interlocutory orders. It clarifies that the granting of leave to appeal does not preclude the Supreme Court of Appeal from enquiring into its own jurisdiction, and that leave wrongly granted cannot confer jurisdiction where statute and the interests of justice deny it. The case affirms the purpose and function of rule 43 proceedings as providing inexpensive, expeditious and provisional regulation of financial matters pending divorce, primarily for the protection of women and children, and recognizes the structural inequalities that characterize many matrimonial disputes. It establishes that interim rule 43 orders are provisional and revisable under rule 43(6) and can be corrected by the trial court in the final divorce proceedings, and that alternative remedies (including rule 43(6) applications and invocation of the court's inherent powers under s 173 of the Constitution) should be pursued in the high court before appellate intervention is sought. The judgment also clarifies that the court's inherent jurisdiction under s 173 cannot be used to assume jurisdiction not conferred by statute.